ELRC694-23/24NC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA DIGITAL ZOOM CONFERENCE

Case No: ELRC694-23/24NC

In the matter between

David Petrus Jason Applicant


and

Education Department of Northern Cape First Respondent

Henry Mervin Abrahams Second Respondent

PANELLIST: Dr. GC. van der Berg.
Award: Finalized on 22 March 2024

ARBITRATION AWARD





Details of hearing and representation

1. The arbitration hearing took place via digital video conference (ZOOM) on 11 March 2024 at 09:00. The proceedings were both digitally and manually recorded. The applicant, David Petrus Jason, was represented by John Bennett, an official of SADTU. The first respondent, the Department of Education (Northern Cape), was represented by Ferdinand Bitterbosch, its Labour Relations Officer. The second respondent, Henry Mervin Abrahams, was unrepresented. The dispute was scheduled for arbitration in terms of section 186(2)(a) of the Labour relations Act 66 of 1995 as amended (“the LRA”) as an unfair labour practice regarding appointment and promotion.

Issue to be decided.

2. The applicant referred an unfair labour practice dispute regarding promotion in respect of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The arbitration proceeding concerned the alleged unfair labour practice by the respondent as it relates to the unlawful promotion/appointment of the second respondent to the advertised position of Principal at the Carnarvon High School at a post level 4, The successful candidate, Henry Mervin Abrahams, was joined as second respondent to the dispute. The applicant was nominated by the Panel of the SGB and on the shortlist but was not appointed because the second respondent was appointed as the best candidate for the position. According to the applicant he was the best candidate and should have been appointed and there was no fairness in the process as there was a personal vendetta against him.

3. I am required to determine whether the first respondent committed an unfair labour practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA as:
a. Whether the appointment of the successful candidate by the Education Department of Northern Cape was unfair as the applicant was supposed to be appointed in the position of Principal.
b. Whether the process was procedurally defected because of irregularities by Panel members.

4. In terms of appropriate relief if I find that the first respondent committed an ULP:
c. Whether the appointment of the second respondent must be set aside or the dispute be dismissed.
d. Alternatively, the process to be redone by the Education Department of Northern Cape and SGB.

Background to the Dispute

5. The applicant was employed as an educator for twenty-nine (29 years) and is currently employed at Victoria West High School in a post level 1 position. Both the applicant and the second respondent applied for the position of Principal at Carnarvon High School as advertised during August 2022. The applicant and the second respondent were on the shortlist with other applicants and interviewed and the SGB made a recommendation, and the Head of Department (HOD) appointed the second respondent as the most suitable candidate for the position.

6. The dispute arose on 1 December 2023 and was referred to the ELRC on 13 December 2023 and set down for arbitration on 11 March 2024, when it was completed after the applicant and one witness of the respondent testified. The second respondent did not testify.

7. The representative of the applicant applied for postponement to apply for documentation regarding the scores by the Panel members and other relevant documentation. This was done after the applicant testified. The request for postponement was opposed by the representative of the first respondent as the applicant had ample time to ask in writing for relevant documentation or subpoena the documentation needed. The applicant was aware of the set down for arbitration since 12 February 2024 and could have asked in writing for relevant documentation. The request for postponement was denied and the arbitration continued.

8. The parties did present opening statements and the first respondent, and the representative of the applicant presented written closing statements, as agreed or before 18 March 2024. All parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered.

Survey of evidence and argument
Documentary evidence.

9. Only the applicant submitted a bundle of documents. This bundle of the applicant was marked as “A” pages 1-16. The respondent indicated that they are using the same documentation as provided by the applicant. All parties did not dispute the authenticity of the content of the bundle.
* As noted previously the proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties as far as it is relevant for the purpose of this arbitration; it is by no means a minutiae of what transpired during the proceedings. Section 138 of the Labour Relations Act provides in subsection (7) that within 14 days of the conclusion of the arbitration proceedings-(a) the commissioner must issue an arbitration award with brief reasons, signed by that commissioner. These follow below.

Applicant’s evidence and arguments
The applicant, David Petrus Jason, Teacher at Post Level 1, after having been sworn in, testified as follows:
10. He is employed as educator post level 1 at Victoria West High School. The School Governing Body (“SGB”) had the final decision on who must be appointed as Principal. The position of Principal P3 (Pl4) at Carnarvon High School was advertised in July 2023 and he became aware of the appointment of Mervin Abrahams on 09 December 2023 when a retired colleague informed him. He stated that the chairperson of the SGB is family of the second respondent who was appointed in the vacant position. The chairperson of the SGB had for nine (9) years not a child at the school. Mr Van Wyk proved that he wanted to get rid of the applicant and he and the successful candidate are both members of the soccer club. The relationship between the chairperson and the second respondent is too narrow to be regarded as a fair appointment. He said that justice must prevail, and the injustice being done to him must be rectified.

11. He did not see the scoresheets and points scored of the interviews. He stated that he believes that he has done better than he successful candidate. He never asked for or subpoena for further documentation about the scoresheets. As a result of the aforementioned he could not prepare properly for his case. He said that he knows the second respondent for twenty-nine (29) years and the Panel selected and the SGB was not impartial in the final recommendation and decision who to appoint. One of the panel members was not supposed to be part of the process as he was too close in a relationship with Mr Abrahams, the successful candidate. There was no objectivity, and they had a pre-occupied mindset as Mr Van Wyk is a dictator and he was again selected as the chairperson of the SGB for the tenth year. He concluded that if there was a different panel the outcome would be totally different.

12. Under cross-examination he confirmed that he is an experienced educator and he previously applied for similar positions. He agreed that he has not all the fact for his case, and he could have called witnesses to substantiate his claims. He confirmed the connection between Mr Abrahams and Mr Van Wyk as they are married to two sisters, and Mr Van Wyk is not going to testify. He however still feels that Mr Van Wyk manipulated the process with his involvement. He stated that he knows Mr Van Wyk his whole life as he influenced other people by his action when he told them “You do as I say.” He agreed that Mr Van Wyk was not part of the selection panel. He confirmed that the chairperson and successful candidate and one of the panel members was part of the African National Council (ANC) and the final decision was taken by the ANC as who to appoint.


13. He read the last paragraph on page 7 of bundle “A” which states: “It is also a well-known fact that the ANC is not pro me since I have distance myself from the organisation. The ANC tend to punish people they know does not support them through their mandates when appointments need to be made.” He stated that all panel members were part of the ANC.

14. Under re-examination he confirmed that the law concerned the conduct of people and on the day of the interviews it was individually done with the applicant and the successful candidate. The applicant signed the attendance register of all the meetings. He further stated that the chairperson of the panel appointed the successful candidate as his daughter and the son of the successful candidate had a child together. He also stated that Mr Van Wyk appointed the wife of the chairperson of the panel. The applicant stated that Mr Van Wyk was part of the recommendation process, and he manipulated the process.

Respondent’s evidence and argument
The first respondent called one witness to testify.
The first witness, Onke Kambi, Deputy Director, after having been sworn in, testified as follows:
15. His responsibilities as Human Resources Manager is to manage and coordinate all district HR services. He was aware of the post as Principal that was advertised and the HOD appointed the second respondent as the most successful candidate. He said when such a post is advertised the following must happen: (1) Selection Panel must be established; (2) Candidates must be shortlisted; (3) Shortlisted candidates must be interviewed by the Panel individually; (4) Recommendations must be forwarded to the HOD; and (5) HOD to decide on the appointment of the best candidate.

16. The witness testified that he sits as Human Resources in the verification and advertisement of the post as well as be involved in the initial sifting of the applications of the different applicants for the position. All applications are then sent to the School and the School established a Selection and Interview Panel for shortlisting of the final candidates and the individual interviewing of the candidates. They are also involved in the recommendation to the SGB. As Human Resources they do the verification, and a meeting is conducted to recommend to the District Office and the HOD who must make an appointment.

17. He stated that he did not receive any complaints about the mentioned process and neither did he receive a request for any minutes or scoresheets from anybody. No witnesses saw the scoresheets and testified to the effect and the final appointment was made by the HOD of the District. The process followed was fair and the applicant is operating with feelings and not facts. The process was not manipulated by any person as no complaints were received from anybody. Mr Van Wyk was not part of the shortlisting and interview panel and the ANC had nothing to do with the non-appointment of the applicant as Principal. If the applicant believed that the process was unfair, he could have made a complaint to his union or the Education Department immediately after the interviews. The applicant only put in a complaint after the final candidate was appointed as Principal.

18. He further stated that two names were put forward for the post, Mr Abrahams, and the applicant. The second respondent was appointed as he was the best candidate. Performance was determined by the Panel and the two final candidates were individually interviewed by the Panel.

19. Under cross-examination he confirmed his role in the whole process, and it included sifting and verification of the candidates. The SGB selected the Panel, and it consists of a Chairperson, Secretary, and panel members. He was asked whether a panel member had a close relationship with one of the final candidates and he said if that was revealed it would have been minutes. Normally if this is revealed a panel member will recuse him or herself. No panel member declared that he/she has a close relationship as it was not in the minutes. He agreed that Mr Horing was the chairperson of the Panel, and he was appointed by the SGB. The chairperson with the rest of the Panel made the recommendation and it is signed of by the SGB who the best candidate is to be appointed. The chairperson of the SGB is not making a final decision but the whole SGB as recommended by the Panel.

20. Under re-examination he confirmed that he was not made aware of the relationship between the successful candidate and the chairperson of the SGB. If it was brought to his attention the matter would have been investigated and the outcome communicated to everybody concerned.
Closing arguments
21. The first respondent and the representative of the applicant sent written closing arguments by 18 March 2024, as agreed on 11 March 2024. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award.

Analysis of evidence and argument

22. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter. In this arbitration I am firstly going to refer to the Employment of Educators Act 76 of 1998. Secondly, I am also going to refer to the Personnel Administration Measures (PAM) document. Section 36 (4) (a) & (b) of the Act empowers the Head of Department (HOD) to delegate any function conferred on the said head to any person in the employ of the Department and to also authorize such person to perform the function conferred on the HOD. The power and authority to approve recommendations from the interviewing panels were never delegated. The PAM sets out the procedure to be followed when filling educators’ posts. The first respondent holds the considered view that the only distinction that must be drawn in this regard is reference to educator institutions but since these are educator posts the necessary context must be applied when interpreting the provisions of PAM.

23. It is common cause that the post in casu is an educator post. Since the Act provides that the employer of educators is the first respondent and the Act sets out the process to be followed when recruiting same, it should be accepted that the SGB is a panel constituted to advise the first respondent. The only thing that such panel is tasked with is to recommend to the first respondent candidates for appointment in any post. It therefore only “suggests” a candidate for appointment to the first respondent. It is trite that it is the prerogative of the employer to determine suitability and such prerogative falls outside of the ambit of the applicant, its members or even the SGB itself.

24. Promotion is the process where an employee is evaluated to a position that carries greater authority and greater status than the current position than the employee is employed. Employers are expected to appoint the best, strongest candidate and unless the applicant proves that he was the best of all the candidates who applied for the position, no substantive unfairness has been proved.

25. The applicant, David Petrus Jason, is currently working as a teacher at Victoria West High School. He applied for the principal post: post 247: Vacancy list in July 2023 at Carnarvon High School. He was shortlisted and interviewed for the post. However, he was unsuccessful and consequently, he lodged a dispute against the said appointment process. The second respondent is Henry Mervin Abrahams, and he scored higher that the applicant in the appointment process hence the Department appointed the second respondent as he faired the best in the interviews and the SGB accepted his nomination as the first nominee at the ratification meeting, which was submitted to the HOD for appointment.

26. I am required to determine whether the first respondent committed an unfair labour practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA as:
e. Whether the appointment of the successful candidate by the Education Department of Northern Cape was unfair as the applicant was supposed to be appointed in the position of Principal.
f. Whether the process was procedurally defected because of irregularities by Panel members.

27. In terms of appropriate relief if I find that the first respondent committed an ULP:
g. Whether the appointment of the second respondent must be set aside or the dispute be dismissed.
h. Alternatively, the process to be redone by the Education Department of Northern Cape and SGB.

28. I have enquired from the parties whether an appointment has been made in the post that the applicant contests. An appointment has been made and Henry Mervin Abrahams has been joined as the second respondent to this arbitration process. He did not testify in the arbitration and was present on the mentioned day.

29. In Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT (handed down on 9 May 2018) the Court emphasized that whilst in unfair labour practice disputes relating to promotion the onus is on the employee to demonstrate that the failure to promote was unfair, the employer, is in the same token, obliged to defend challenges on the substantial and procedural fairness, if it wishes to avoid a negative outcome. According to the Court, there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence, it would be irrational and unreasonable to conclude that the employer acted fairly, regardless of where the onus lies.

30. The pertinent points of the testimonies of the witness of the first respondent are highlighted hereunder:
• That he is the Deputy Director in the employment of the first respondent.
• He is responsible for HRM matters in the Department which includes the recruitment of educators.
• The post in question was advertised and the initial sifting of applicants was handled by the office.
• Shortlisting and interviews were handled at the school. Both the second respondent and the applicant were shortlisted and interviewed by the panel of the SGB.
• The second respondent was recommended number 1 (one) by the SGB and was subsequently appointed by the HOD.
• The witness was not aware of any complaint regarding the process as no complaints were received from the applicant. If there was a complaint it would have been investigated and the outcome communicated to the complainant.
• Mr. Van Wyk was not part of the shortlisting and interview processes nor was he part of the SGB recommendation meeting.
• The witness explained that members of the SGB must recuse them where it is established that family relationships between applicants and members of the SGB exists. If there is NO declaration to this effect, he cannot intervene or assist.

31. It is the submission of the first respondent that it is important to note that this case was placed before the arbitrator with most of the evidence being hearsay. The weight attached to hearsay evidence should be very low especially where parties did not agree on the admission of hearsay evidence. The applicant had no documentary evidence to substantiate his case, nor did he call any witnesses to prove same. The applicant testified that Mr Van Wyk had family relationships with the second respondent. However, the applicant did not demonstrate how this “breach of procedure” unfairly prejudiced him, nor was any witness called to prove his allegation.

32. It is the further submission of the representative of the first respondent that an unchallenged version was put forward by the first respondent’s witness where he testified that the applicant cannot say that he was the best, yet he did not observe the performance of the second respondent during his interviews with the Panel. In order to prove an unfair labour practice, an applicant in an unfair promotion dispute needs to establish a casual connection between the irregularity or unfairness, he would have been appointed in the post. It was the prerogative of the Panel and the first respondent to select the candidate which best suited the needs of the Department of Education. The evidence of Mr Kambi demonstrated that the panel had sound reasons from nominating the second respondent as their first choice.

33. The applicant testified that he is employed by the first respondent as a post level 1 educator. According to him the process was compromised in that the SGB member Mr Norman Van Wyk dealt with him in that the latter made sure that he was not recommended for the post as Principal. The second respondent and Mr Van Wyk are brothers-in-law, and this was supposed to be declared. According to his testimony Mr. Van Wyk as chairperson of the SGB signed off the final recommendation for the appointment of the second respondent. The applicant however could not explain how the chairperson of the SGB manipulated the process. He neither called witnesses to substantiate his version.

34. It is the submission of the representative of the applicant and the applicant that the post-filling process of post number 202307/247 was flawed and if the process was not flawed, then it was likely intentionally corrupted by the SGB to ensure the appointment of their preferred candidate who, based on the testimony of the employer’s witness, was considered the most qualified candidate for the position.

35. As per established policy, the panel under reference was not deemed to be legal or constitutional. The committee consisted of Mr Jurie Horing as the chairperson, Ms Katrina Pienaar as the secretary, Mr Elliot Phike and Ms Eleanor Ramatsetsa. The issue at hand relates to the direct relationship between Mr Jurie Horing and the and the appointee, Mr Abrahams. Both share the role of grandfathers to the same child. Mr Jurie Horing was required to declare their relationship as indirect family members. Consequently, he should have recused himself from his responsibilities as a panel member as set out in clause 6.13 regarding the recusal of the Interview Committee as a panel member.

36. It is a further submission that during the proceedings, the employer’s witness was asked about the source of the recommendation made to the HOD. The witness responded that the panel had made the recommendation. However, this testimony is inaccurate, as the panel had only presented their findings to the SGB, who in turn had made the recommendations to the HOD. It has been brought to his attention that there exist some discrepancies regarding the testimony provided by the employer’s witness. The witness stated that the entire SGB was part of the recommendation process, despite clause 6.13 of the preface specifically prohibiting the involvement of Mr Norman Van Wyk, the appointed individual’s brother-in-law, in the selection process. Clause 6.3 stipulates that such persons should not be involved in the selection process.

37. It is the further submission by the applicant that it is imperative to highlight that this oversight could have significant implications for the selection process’s transparency and fairness. Considering this, it is of the utmost importance to ensure that the selection process adheres to the guidelines and regulations outlined in the preface, thereby maintaining the transparency and fairness of the selection process. According to the evidence it seems that the SGB intentionally provided false information to the Department of Education and the HOD. The applicant was unfairly treated by the SGB, which engaged in fraudulent and deceitful behaviour.

38. In Sun International Management (Pty) Ltd v CCMA and others (JR939/14) [2016] ZALCJHB 433 it was held that a finding that a failure to promote was unfair must be a rational one i.e., it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the employee’s qualifications and/or suitability for the position in question, against that of other candidates. The Court held that in promotion disputes it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. The employee must also show that the breach of the procedure had unfairly prejudiced the employee. The employee must not merely show that that he was the suitable candidate for consideration, but that he was the best candidate. I find that in this case in question the applicant could neither show that he was the best suitable candidate for consideration, but he also could not prove that he was the best candidate for the position as Principal.

39. In Kimberley Junior School v The Head of the Northern Cape Education Department [2009] 4 All SA 135 (SCA) the judge ruled that the Employment of Educators Act requires the governing body to make a recommendation to the provincial HOD. No appointment, promotion, or transfer to any post on the educator establishment of a public school, may be made without the recommendation of the governing body of the public school. A recommendation by a school governing body is an essential prerequisite for the appointment of an educator in a departmental position; without such a recommendation the HOD acts ultra vires and unlawful.


40. After making an analysis of the process, I find that the SGB is entrusted with the duty of nominating a suitable person for a post, but the final decision is still that of the Department (HOD) to appoint. In this case the Department appointed the second respondent as accepted by the SGB during ratification as the suitable candidate for appointment. An employee who alleged that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. He must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair. It depends upon the circumstances of a particular case and essentially involves a value judgement.

41. The arbitration of a promotion dispute entails a review of the employer’s decision. In applying the Sidomo test to promotion disputes, it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair. A recommendation by a School Governing Body during a ratification meeting is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such a recommendation the promotion is ultra vires and unlawful. In this case the ratification meeting took place and the majority of the constituted SGB voted in favour of the nomination of the second respondent as the best candidate to the HOD.

42. Substantive unfairness relates to the reason for not promoting the applicant whereas procedural unfairness relates to an unfair process applied by the employer during the course of the recruitment and selection process. There is no general right to promotion. What employees do have, is a right to be fairly considered for promotion when a vacancy arises. It is however expected that the employer should appoint the best candidate when selecting suitable candidates for promotion. The role of the arbitrator is to oversee that the employer did not act unfairly against the applicant who was not promoted. The decision to promote falls within the managerial prerogative of the employer. I find that in the absence of gross unreasonableness or bad faith and where the decision relating to promotion was not seriously flawed, the arbitrator should not readily interfere with the exercise of the discretion.

43. When deciding whether a procedure conducted in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should not make a finding of procedural unfairness. Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then for the employee to prove an unfair labour practice relating to promotion, he should generally, at least demonstrate that there was conduct that denied him a fair opportunity to compete a post. His claim that he was the best candidate and that family relationships was the reason he was not appointed in the position is not accepted as it was not confirmed by witnesses. Further no declaration was made and minute as testified by the witness of the first respondent about family relationships and neither did the applicant put in a complaint after the interviews and ratification meeting.

44. I find that the procedure followed by the Panel constituted by the SGB was appropriate and the applicant was not prejudiced in any way as he was shortlisted and interviewed and was nominated as one of the top two candidates. There was no proof of conduct that denied him a fair opportunity to compete in the post as Principal.

45. In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.

46. I find that the interview and ratification process was not flawed. The applicant requests for the process to be repeated and this cannot be done as the correct procedures were followed to appoint the successful candidate. There was no discrimination against the applicant and the decision not to appoint him was not grossly unreasonable. The applicant could not prove that he was the best candidate for the position.

47. As indicated, the applicant bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. From a procedural aspect I am satisfied that the applicant did not suffer prejudice during the recruitment and selection process for the promotion post. I find that the procedure followed by the HOD was fair and that no Unfair Labour Practice was committed by the first respondent to appoint the second respondent and not the applicant.

48. Considering the above I make the following award.

AWARD
49. The first respondent did not commit an unfair labour practice in the non-appointment of the applicant and the appointment of the second respondent for the advertised position of Principal at Carnarvon High School at a post level 4.

50. There is no order as to costs.


Signature:

Panelist: Gert van der Berg
Sector: Education Department of Northern Cape