ELRC614-23/24EC

Case Number: ELRC614-23/24EC
Arbitrator: Clint Enslin
Date of Award: 23 May 2024

In the matter between


NAPTOSA obo C Louw
(Applicant)

And

Department of Education – Eastern Cape First Respondent

SGB Merryvale Special School Second Respondent

G Saayman Third Respondent
(Respondents)

Union/Applicant’s representative:

Mr A Adams (NAPTOSA)

Telephone:
Telefax:
E-mail: antona@naptosa.org.za

Respondent’s representative: First Respondent – Ms A Slabbert / Second Respondent – Mr P Hand / Third Respondent – Ms D Harvey (SAOU)
Respondent’s address:

Telephone:

E-mail: ansi68lro@gmail.com / handsolutions19@gmail.com / debbieh@saou.co.za

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), was held at the First Respondent’s offices in Sidwell, Gqeberha on 7 May 2024.

2. The Applicant, Ms Claudette Louw, was present and represented by Mr Anton Adams, a Senior Executive Officer of NAPTOSA, a registered trade union. The First Respondent, Department of Education – Eastern Cape, was represented by Ms Annalie Slabbert, a Labour Relations Officer of the First Respondent. The Second Respondent, SGB Merryvale Special School, was represented by, Mr Paul Hand, its chairman. The Third Respondent, Ms Gerda Saayman, was present and represented by Ms Debbie Harvey, Provincial Secretary of SAOU, a registered trade union.

3. The arbitration was digitally recorded.

4. Written Heads of Argument were received on 13 May 2024.


Issue to be decided

5. The issue to be decided is whether or not the non-appointment of the Applicant to the Principal post, at Merryvale Special School, which she applied for, amounted to an unfair labour practice, and if so, to determine the appropriate relief.

Background to the matter

6. The Applicant referred an alleged unfair labour practice dispute pertaining to promotion.

7. The Applicant sought that the successful candidate’s appointment be set aside and that she be appointed in the said position; alternatively that the successful candidate’s appointment be set aside and that the post be re-advertised or alternatively that she be awarded compensation.

8. The following facts were common cause:

8.1 The Applicant is the Deputy Principal at Quest Special School, a position she has held since 2015.

8.2 She has been permanently employed, by the First Respondent, since 1 January 1990.

8.3 The Applicant’s current position is a PL3 post at notch R532 599 per annum.

8.4 The position applied for was that of Principal at Merryvale Special School, a PL4 post, at notch R636 537 per annum.

8.5 The position applied for was advertised under post number 174 in Bulletin Vol 3/2023.

8.6 The Applicant met all the minimum requirements and also met the criteria set during shortlisting.

8.7 The Applicant was interviewed, for the post, and was ranked second by the interview panel.

8.8 The interview panel used scoring as a means of to decide on the most suitable candidate, however, before final recommendation to the full SGB, the Chair and Vice Chair of the panel phoned all interviewed applicant’s references and the feedback received was relayed to the full panel.

8.9 A recommendation was made by the panel to the full SGB and during a ratification meeting held on 25 October 2023, the recommendation of the first ranked candidate was ratified.

8.10 The Third Respondent, Ms Saayman, was appointed to the position as from 1 November 2023.

9. The following facts were in dispute:

9.1 Whether the Third Respondent met the minimum requirements as per the bulletin.

9.2 Whether the Applicant was the best candidate for the position.

10. A bundle of documents was handed in, which I will refer to as “B”. The documents were accepted to be what they purport to be.


Survey of evidence

11. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
terms of Section 138(7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

Applicant’s evidence

Ms Claudette Louw

12. Ms Louw, the Applicant, testified that Quest Special School, where she was currently the Deputy Principal, was a special school for learners with Autism. She had been at Quest since 2014. Autistic learners were learners with developmental disabilities. In dealing with these learners, they looked at social development, emotional development, education, behavioural challenges, communication and sensory issues. She did not have any qualification to work with autistic learners, but she had attended many short courses (see page 55 of B). They included:

12.1 Hands on autism, which included picture exchange communication system, in 2014;
12.2 Makaton (sign language), in 2024 and ongoing;
12.3 Core speech therapy (Picture and word charts), in 2023; and
12.4 Studio 3 (Managing challenging behaviour of Autism Kids)

13. She had previously taught at Merryvale Special School as a PL1 educator for 19 years. Merryvale learners had learning disabilities. She therefore had 19 years’ experience teaching learners with learning disabilities and almost 10 years’ further experience with autistic learners. With reference to the advert, post 174 on page 4 of B, she could teach English and Afrikaans to all grades. Although Merryvale had phases and not grades, she had taught senior phase, but she was qualified in foundation phase. In terms of management experience, she had 9 years’ experience as Deputy Principal at Quest, where she dealt with the SGB, finance, etc. She had stood in for the Principal where she dealt with staff, admin and finance. The advert further required knowledge and experience in SID and ASD. SID was “Severe Intellectual Disabilities” and ASD was “Autism Spectrum Disorder”. She had approximately 29 years’ experience with SID, which included nearly 10 years’ experience with ASD.

14. She believed she was the best candidate as she had 29 years’ experience with special needs, which included 9 years with autism and management. The advert specifically referred to ASD experience and she would not have applied if this requirement was not there. Merryvale has started a section with ASD learners. Despite the advert, there were no questions in the interview pertaining to ASD. Page 10 of B indicated that there were 8 candidates and that a number of them were kicked out as they had no SID/ASD experience.

15. She agreed that Merryvale had autistic learners since 2014 and that there may have been such learners that were not yet diagnosed prior to this. She believed the Third Respondent did not meet the requirements of the post as she did not have formal or informal training in ASD. Although the advert required knowledge and experience in ASD and SID and did not require a formal qualification she felt that her knowledge and experience was better than that of the Third Respondent. She agreed that knowledge and experience differed from qualifications and that the Third Respondent therefore met the requirements of the post.

16. She agreed that the first question in the interview, being “What skills or trades make you uniquely to be Principle at Merryvale and succeed in the role?” (Sic), catered for experience and qualifications and that all candidates were asked the same questions. She agreed that according per page 8 of B, she was given a total of 27 points and was ranked second by the panel, whilst the Third Respondent was given a total of 35 points and ranked first by the panel. She disputed that 8 points was a big difference. She agreed that the Third Respondent had scored the highest. She agreed that an interview was a process which allowed each candidate to do their best on the day of the interview and that she had a fair opportunity to go for the interview and share her knowledge and experience. She did not feel that all was taken into consideration, specifically in relation to the ASD requirement.

17. All Principal posts advertised in the bulletin required management and admin experience, however, post 174 in question required additional knowledge and experience in SID and ASD. Some of the candidates even had PHDs, but they were not short listed as they did not have SID and ASD experience. As such it should have been a factor in the interview. There was no mention on the Third Respondent’s qualification and experience of ASD or SID.

Respondent’s evidence

Ms Gerda Saayman

18. Ms Saayman, the Third Respondent, testified that she was appointed as Principal of Merryvale Special School on 1 November 2023. Prior to this she had been the Deputy Principal, at the same school, for approximately 3 years. She had also acted as Principal of the school from 1 September 2023 until her permanent appointment. Her qualifications were set out on page 103 of B. She had a 4 year B Prim Ed degree in foundation phase. She also had 2 BA subjects, being Afrikaans and History and as such she could teach these subjects at High School level. In her final year she also did remedial. She then did a further post graduate diploma in remedial or compensatory education. She further did short courses in basic financial principals and management skills. She also did on-line courses on learners with disabilities, trauma in a school environment, safety and management (including HR, finance, etc.).

19. At the time of applying for the position in question in September 2023, she had 16 years’ experience in dealing with learners with special needs. During this time she had been a PL1 educator, HOD and Deputy Principal. She taught in junior, middle and occupational and neural (physically disabled), all phases except for senior. She did, however, previously teach at Sunshine School (a special school similar to Merryvale), for approximately a term, in senior phase. She had 16 years; experience at Merryvale and Sunshine in dealing with SID and ASD.

20. She agreed that as per her qualifications she did not have specific SID training. Her Application had no formal ASD training included. ASD was a requirement in the advert as they had learners on the spectrum. A formal ASD wing was introduced at Merryvale in 2024. She disagreed that because she had read up on ASD, it meant that her knowledge of it was low. Although a new wing was started, which meant that there would now be many ASD learners in a single class, Merryvale had previously had ASD learners in classes with SID learners. As a result she had to read up on class layout, lighting, training of assistants, etc. She agreed that a person trained in ASD was better than a person reading up on same.

Analysis

21. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.

22. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provisions of benefits to an employee”. (Own underlining)

23. The Applicant challenged the alleged unfairness of her non-appointment to the post of Principal, at Merryvale Special School, based on two grounds. Firstly, that the Third Respondent did not meet the minimum requirements as set out in the advert and secondly, that she was the best candidate for the position.

Did the Third Respondent meet the minimum requirements of the advert?

24. The requirement, per the advert, which the Applicant challenges is that of needing to have knowledge and experience with SID and ASD. ASD being the particular issue raised. It is not disputed by the Applicant that the Third Respondent met the other requirements of the advert. As a starting point, I will refer to the advert itself and what exactly it requires. As per above, it requires knowledge and experience in SID and ASD. As per the evidence, the Applicant has been involved with Merryvale and Sunshine Special Schools for approximately 16 to 17 years. As an educator, HOD and also approximately 3 years as Deputy Principal at Merryvale. It is not disputed that both these schools deal with SID learners. It is also not disputed that Merryvale has had learners with ASD registered since at least 2014. I therefore fail to understand this argument by the Applicant. It is to my mind clear, from the aforesaid, that the Applicant would have knowledge and experience with SID and ASD. The fact that she may have read up on certain issues to improve her knowledge does not mean that she does not have knowledge and experience in the field. There is also no specific requirement in the advert, such as qualifications, number of years of experience, etc. in these fields. I accordingly conclude that the Third Respondent indeed met the minimum requirements of the advert.

Did the Applicant prove that she was the best candidate?

25. According to the score rankings provided, the Applicant was ranked second out of five candidates, whilst the Third Respondent was ranked first. The Applicant received a total of 27 points from the panel, whilst the Third Respondent received 35 points. This is, in my view, a rather significant difference. There is nothing indicating that these scores were not accurate. The Applicant takes specific issue with the requirement of ASD knowledge and experience. She in fact confirmed that were it not for the ASD requirement, she would not have applied. She also stated that she did not believe that all was taken into consideration, specifically the ASD. I have little trouble in accepting that the Applicant would have more ASD experience. I say this because she has spent approximately 9 years at a school dealing exclusively with learners with ASD. The Third Respondent has worked with learners with ASD since at least 2014, however, it was amongst other SID learners and not ASD learners only.

26. Despite the above, the Applicant’s argument, which relies on the ASD issue, seems to lose sight of the fact that ASD is only a part of the knowledge and experience required. Put differently, if it was only about ASD it may have been different, however, Merryvale has a large number of none SID learners as well. In fact, as I have it, they are still the majority, despite the starting of a new ASD wing this year. The Principal is required to deal with SID learners, ASD learners, staff and also perform all the other managerial and logistical functions of a principal. I cannot agree with the contention that ASD should effectively have been the primary focus. It is but one of a variety of requirements for the post. In my view, all the requirements should be weighed together. The Applicant also raises the issue of other applicants who had PHDs, etc. being sifted out due to a lack of SID and/or ASD knowledge and experience. There would be nothing strange about same. If they did not meet all the requirements of the advert, they would have correctly been sifted out. Candidates must meet all the requirements and not only some, even if they are extremely strong in the requirements they do meet.

27. The Applicant further takes issue with the fact that no specific questions relating to SID and ASD were asked during the interview. She, however, conceded that all candidates were asked the same questions and that question 1 catered for experience and qualifications to be given by each Applicant. Surely, this was the opportunity for her to push what she believed to be her strengths in relation to the post in question? It is, in my view, not up to applicants to determine or dictate what questions should be asked in an interview process. She further takes issue with the fact that the chair and deputy chair of the interview committee phoned and followed up on candidate’s references before giving feedback to the full SGB. This is not an issue raised in the pre-arb minutes, by which parties are bound. I will, however, deal briefly therewith for sake of completeness. I believe it is normal for a party conducting interviews with applicants to follow up on references given. It would, in my view be careless not to do so. There is also no evidence before me to indicate that the reference follow ups played any role in the Applicant not being ranked first and/or her not being successful in her application for the post.

28. The Applicant holds a Higher Education Diploma, whilst the Third Respondent holds a B Prim-Ed Degree as well as a Post Graduate Diploma in Education: Remedial and Compensatory Education. The Applicant has been in education since 1990. She has spent approximately 19 year dealing with SID learners and approximately a further 9 years dealing with ASD learners. The Respondent has been in education since 1998. She has spent approximately 16 years dealing with SID learners of which approximately 9 years of those years also included dealing with ASD learners. From the aforementioned, it is clear that both the Applicant and the Third Respondent are well educated and possess significant experience. The Applicant leading in the experience field in terms of years and the Third Respondent leading in the qualification field. Promotions are, however, not just a simple numbers game. There are various other factors that also play a role. They, inter alia, include, factors such as performance during the interview, fit for the position, etc.

29. In light of the above, I am of the view that the Applicant has failed to prove, on a balance of probabilities, that she was the best candidate.

30. I also find no reason to conclude that the decision not to promote the Applicant was either capricious, for unsubstantial reasons, based on a wrong principle or biased.

Award

31. The Applicant, Ms Claudette Louw, was not subjected to any unfair labour practice by the First Respondent, the Department of Education – Eastern Cape.

32. The Applicant, Ms Cluadett Louw, is not entitled to any relief.


Signature:

ELRC Arbitrator: Clint Enslin