ELRC814–22/23MP

IN THE ELRC ARBITRATION
BETWEEN:

J TLADI “the Applicant”

and

DEPARTMENT OF EDUCATION – MP AND ANOTHER “the Respondents”


AWARD


Case Number: ELRC814 – 22/23MP

Last date of arbitration: 15 May 2024

Written arguments received on: 11 June 2024

Date of award: 21 June 2024 (extension granted)

COEN HAVENGA
Senior ELRC Arbitrator

Education Labour Relations Council
ELRC Building
Details of hearing and representation

1. The arbitration hearing was concluded on 15 May 2024 at the offices of the Mpumalanga Department of Education in KwaMhlanga.

2. The Applicant is Mr Tladi, J, represented by Mr Omar, S, an attorney. The 1st Respondent is the Mpumalanga Department of Education, represented by Mr Khoza, S. The 2nd Respondent is Ms Mahamba, S, (“Mahamba”) represented by Mr Zitha, BC, an official of SADTU.

Issue to be decided

3. The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties agreed that the arbitrator is to determine whether the failure of the 1st Respondent to appoint the Applicant to the position of Deputy Principal at Mdumiseni Primary School constitutes an unfair labour practice related to the promotion of the Applicant as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), and if so, what relief is to be awarded.

4. The Applicant also claims his acting allowance for the period 1 January 2022 to 31 December 2022, when he acted in the position of principal at the School.

Background to the dispute

5. The Applicant referred an unfair labour dispute relating to promotion to the Council. The Applicant applied for a Deputy Principal post (“the post”) at Mdumiseni Primary School (“the School”), advertised in the Vacancy List of November 2021 but was not appointed. The 2nd Respondent was appointed instead. The Applicant alleges that he was the better candidate and that he had a legitimate expectation to be appointed. The relief sought by the Applicant is appointment in the promotional post he unsuccessfully applied for, and the payment of his acting allowance for the period 1 January 2022 to 31 December 2022.

6. The 1st Respondent argues that although the Applicant was the 1st recommended candidate, there was no irregularity in his non-appointment. The District Director acted within his authority when he appointed the 2nd Respondent who was also the 2nd recommended candidate. The District Director has the authority and managerial prerogative in terms of Section 6(3)(f) of The Employment of Educators Act, 76 of 1998 (“the EEA”) to appoint any suitable candidate of the list of candidates recommended by the SGB.

7. The Respondent did not dispute that the Applicant is entitled to an acting allowance, but only for the period during which he actively acted, i.e. 1 January 2022 to 31 July 2022.

8. The parties concluded and signed a pre-arbitration agreement which forms part of the record. The following issues were recorded as being common cause issues:
8.1 The Applicant was employed at the School on 1 March 2005. His current position is HOD.
8.2 The Applicant was appointed as acting principal of the School on 1 January 2022. The Respondent did not dispute that the Applicant was entitled to an acting allowance for the period 1 January 2022 to 31 July 2022.

Summary of evidence

What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The digital recording of the proceedings will reflect the complete testimony of the witnesses.
Applicant’s case

9. The Applicant submitted the documents contained in Bundle A.

10. Jeremiah Tladi, the Applicant, testified under oath that he is currently an HOD at the School. His qualifications are reflected in A36B to A42.

11. A34/35 reflect his appointment letter to act as principal of the School for the period 1 January 2022 to 31 December 2022. The appointment letter stated that his acting appointment as principal was approved for the period 1 January 2022 to 31 December of 2022 or until the post was effectively filled, whichever date came first. Mahamba’s appointment as deputy principal did not interrupt the acting period as the acting appointment was for the position of principal. Therefore the Applicant is entitled to the acting allowance for the full period of the appointment. The Applicant was on an annual salary scale of R498 216, (as per the salary advice submitted by and referred to by the Applicant’s attorney in closing arguments) and the annual salary scale for acting as principal was R597 150.

12. The Applicant only acted until 31 July 2022. He was told that his acting period ended because of the appointment of the 2nd Respondent as deputy principal. However, A35.36 did not make reference to his acting period being interrupted by the filling of the deputy principal post.

13. The Applicant applied for the position of deputy principal when it was advertised. His qualifications and experience in management qualified him to apply for the position. He was interviewed and recommended by the SGB as the 1st recommended candidate. Mahamba was the 2nd recommended candidate. The HOD has the prerogative to appoint any of the 3 recommended candidates.

14. The HOD’s deviation from the recommended list was not justified. The HOD was supposed to inform the SGB in writing before an appointment letter was issued. The file must be sent to the SGB to discuss. The Applicant was on the SGB once and knows the procedure. The SGB was told on the day of the announcement that the 2nd recommended candidate was appointed by the HOD.

15. There ensued an argument between the SGB and the circuit manager, Ms RT Ngwenya (“Ngwenya”), because the SGB questioned the appointment of Mahamba, who was not their 1st recommended candidate. It became heated and the Applicant was excused from the meeting. The vacancy list should have indicated if a female was preferred for equity reasons. The Applicant was not informed of the meeting between the SGB and Mahamba. The Applicant was not given a reason why he was not appointed, but he thought it might have been because of gender equity.

16. The Applicant found the documents reflected in A43 to A63, i.e. the minutes of the interview process, on his table in his office. He has no idea where it came from or put it there. He believed it was a genuine document.

17. During cross-examination the Applicant testified that A62 and A63 were not signed by the circuit manager or the deputy director by the time that he was given that document. Ngwenya’s name did not appear on the documents. He is sure she was in the interviews. Her name did not appear on A43 as an interview panel member. He did not apply for the confidential information in his Bundle he just found it on his table.

18. The Applicant was referred to clause 6.6 of the vacancy list on A68 which stated that:
6.6 The governing body must ensure that the principles of equity are taken into account with a view to specifically address the following areas of under-representation as identified by the Departmental Employment Equity plan:
6.6.1 The provincial Gender ratio reveals woman make up 51% of the population and Men 49%. The Gender profile for teachers in the province reveals that woman make up two thirds of the teaching workforce in the province, while men represent only one third. Despite this the analysis of gender equity over post levels indicates under-representation of women in Deputy Principal – and Principal posts.
6.6.2 The tables in 6.62 as reflected on A74 are extracts from the Department’s equity plan.

19. The Applicant responded that he was not aware of the above clauses in the vacancy list of the position for which he applied.

20. The Applicant acted for a period of 7 months before he was removed form the acting position. He was verbally informed. He did not perform any acting duties during the period 1 august 2022 to 31 December 2022.

1st Respondent’s case

21. The 1st and 2nd Respondents submitted the documents contained in Bundles B.

22. Douglas Maja (“Maja”) testified under oath that he is the district director for the Nkangala district. He represents the HOD in the appointment process. He signed B8. The SGB recommended 3 candidates as required by law. Maja, on behalf of the HOD, could appoint any one of the 3. The file created during this appointment went missing after the appointment was made. Maja considered the aspect of gender equity. He wrote to the SGB that their 1st recommended candidate would not be appointed. That letter would be in the missing file, as well as the response of the SGB.

23. The principal at the School is a male. The first deputy principal is a male as well, therefore the Department felt that the second deputy principal should be a female, should she qualify. The 2nd Respondent did qualify as she was the 2nd recommended candidate on the list of three.

24. During cross-examination Maja testified that the law states that the HOD may appoint anyone of the 3 candidates recommended by the SGB. He looked at the composition of the School’s management team (“SMT”). The principal and the first deputy principal were males. He therefore looked at a qualified female for the other deputy principal position. He followed the correct process. There were valid reasons for deviating from the SGB’s recommendation.

2nd Respondent’s case

25. Sophy Mahamba, the 2nd Respondent, testified under oath that she was appointed on 19 July 2022, to start on 1 August 2022. The circuit manager was present as an observer during the interview process. It is a requirement that there must be a departmental observer.

26. During cross-examination she testified that she was appointed as acting principal in the place of the Applicant on 4 August 2022, after her appointment as deputy principal.

Analysis of evidence and argument
27. The Applicant and Respondents submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the arguments, legal principles, case law and other arbitration awards referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing. I have also considered all the relevant provisions of the South African Schools Act, no. 84 of 1996 (SASA), the Employment of Educators Act, no. 76 of 1998 (EEA), the Education Laws Amendment Act, 24 of 2005, the Personnel Administrative Measures (PAM), 1999, Collective Agreement 2 of 2005, Collective Agreement 3 of 2016, Circular 34 0f 2007 as well as the case law relevant to the nature of this dispute.

Claim for acting allowance

28. It is not in dispute that the Applicant was appointed to act as principal of the School for the period 1 January 2022 to 31 December 2022. It is also not in dispute that the Applicant only actively acted until 31 July 2022. The Respondent did not dispute that the Applicant is entitled to an acting allowance, but only for the period during which he actively acted, i.e. 1 January 2022 to 31 July 2022.

29. I cannot accept the Applicant’s argument that he is entitled to the full period stated in the acting appointment letter because the principal post was not filled. The principle of an acting allowance is to compensate the acting official for performing the duties of the position in which he was acting. It would be irresponsible and probably reckless to allow a claim for an acting allowance for a period during which the Applicant no longer performed the acting duties, considering that public funds in an already stretched education budget is involved.

30. I therefore find that the Applicant is entitled to an acting allowance for the period 1 January 2022 to 31 July 2022 only.
Promotion dispute


31. The parties agreed that I am to determine whether the failure of the 1st Respondent to appoint the Applicant to the position of Deputy Principal at Mdumiseni Primary School constitutes an unfair labour practice related to the promotion of the Applicant as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), and if so, what relief is to be awarded. It is not in dispute that the appointment would have constituted a promotion for the Applicant.

32. The relevant statutory provision to this matter is section 186(2)(a) of the LRA, which reads as follows:
“’Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving -
(a) 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 provision of benefits to an employee;”.

33. The Applicant alleges an unfair labour practice and must show that it falls within the provisions of the definition contained in section 186(2)(a) above. The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case ……………on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. The employer must actually have done something or refused to do something. Whether the employer has committed an unfair labour practice is an objective, factual enquiry.

34. Mere unhappiness or a perception of unfairness does not establish unfair conduct - see Du Toit et al Labour Relations Law (5th ed) 488, as well as South African Municipal Workers Union obo Damon v Cape Metropolitan Council (1998) 20 ILJ 714 (CCMA). What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness toward both employee and employer (see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (SCA)1 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC)2 paragraph 38).

35. The arbitration of the promotion dispute in casu entails a review of the employer’s actions. The Constitutional Court’s examination of the concept of fairness where 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, is relevant - see Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) JOL 20811 (CC). As a general rule employers may appoint or promote employees whom the employer deems the most appropriate. The decision to promote is the employer’s decision. The arbitrator’s decision is whether the employer came to that decision in a fair manner. The focus in unfair promotion disputes falls much more on the procedure followed by the employer – see Arries v CCMA & others (2006) 27 ILJ 2324 (LC); City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC).

36. The Applicant argues that he met the requirements of the post, and that he was the 1st recommended candidate on the preference list of the SGB that was sent to the Director. He therefore should have been appointed in the post. I firstly have to decide whether there was unfair action by the 1st Respondent that resulted in the Applicant not being appointed in the post of Deputy Principal of the School, and if so, whether the action falls within the definition of an unfair labour practice as defined in section 186(2) of the LRA.

37. The Applicant believes that he was the best candidate for the post based on the fact that he was the 1st recommended candidate on the preference list of the SGB. The Applicant relied inter alia on a document that mysteriously appeared on his table. The authenticity and validity of that Applicant. The Applicant did not call any witnesses or present any evidence to prove the authenticity and validity of the document, therefore minimal weight could be attached to the contents thereof.

38. The Applicant also alleged that there was no consultation with the SGB before the district director deviated from the preference list of the SGB. The Respondent presented the testimony of Maja, the district director who testified that he indeed did consult the SGB, and that the proof of such would be in the appointment file that went missing inexplicably. The Applicant however did not call any of the SGB members to testify in order to refute the testimony of Maja.

39. As a legal concept substantive unfairness cannot exist in abstraction. Therefore in order to prove substantive unfairness that would entitle the Applicant to substantive relief the Applicant also needs to establish a causal connection between the irregularity or unfairness and the failure to promote. To do that he needs to show that, but for the irregularity or unfairness, he would have been appointed to the post – see National Commissioner of the SA Police Service v Safety & Security Bargaining Council & others (2005) 26 ILJ 903 (LC); Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) para 24 per Zondo AJP; University of Cape Town v Auf der Heyde (2001) 22 ILJ 2647 (LAC) para 35; Minister of Safety and Security & others v Jansen NO (2004) 25 ILJ 708 (LC) para 27. This in any event needs to be proved in order to prove substantive unfairness and before any form of substantive relief such as appointment can be awarded – see KwaDukuza Municipality v SALGBC [2008] 11 BLLR 1057 (LC). This necessarily means that he must show that not only was he better qualified and suited for the post than a successful candidate who was appointed, but also that he was the best candidate for the position.

40. I find that the Applicant did not show this. The post requirements in the vacancy list clearly referred to gender equity, and the under-representation of female educators in the positions of, inter alia, deputy principal. It is undisputed that the School’s management team consisted of only male teachers in the principal and first deputy principal positions. The appointment of the Applicant would have meant no female representation in the senior management team.

41. Section 6(3)(f) of the EEA states that “Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list.”

42. Section 6(3)(b)(ii) of the EEA states that the HOD may decline the recommendation of the SGB if, amongst others, the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment, promotion, or transfer. I cannot fault the district director’s consideration of the gender equity issue in his decision to appoint the 2nd recommended candidate who was a qualifying female candidate. The district director had the authority to decline the Applicant’s recommendation.

43. The Applicant must prove that the decision not to appoint him was unfair – see Ndlovu v CCMA (2000) 21 ILJ 1653 (LC). In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) at paragraph [29]–[32] the Labour Court held that: “There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this an area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination are present.”.

44. I find the decision by the HOD or district director as his mandated nominee to appoint the 2nd recommended candidate on the SGB list, i.e. the 2nd Respondent, to be justified in law. It is indeed so that the 1st Respondent retains the managerial prerogative to appoint or not. In the matter of Herbert and the Department of Home Affairs CCMA (1998) it was held that Goliath v Medscheme (Pty) Ltd (1996) 5 BLLR 603 (IC) provides the correct answer when dealing with decisions to promote where discrimination on prohibited grounds is not alleged, as in this case. It was stated there that “in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion”. Le Roux, in his article entitled “Developments in individual labour law” in Current Labour Law 1996 page 46, reinforces this view.

45. I am of the opinion that the 1st Respondent had reasonable and fair grounds for not appointing the Applicant, and it could not be classified as defective reasoning on the part of the 1st Respondent.

46. Dissatisfaction or a general perception of unfairness is not sufficient. In casu where there is no obvious or glaring deviation from the prescribed process was proven, I find no substance in the argument that the Applicant was treated unfairly. The 1st Respondent did not act irrationally, capriciously or arbitrarily.

47. The onus is on the Applicant to prove an unfair labour practice relating to promotion, and I am of the opinion that the Applicant did not discharge that onus. I am satisfied that the 1st Respondent did not commit a practice that would constitute unfair action that would fall within the definition of an unfair labour practice as provided for in section 186(2)(a) of the LRA. Accordingly the Applicant’s claim must be dismissed.

48. The Applicant is not entitled to relief in respect of the unfair labour practice relating to promotion dispute.
Award

49. I hereby order the 1st Respondent, the Mpumalanga Department of Education, to pay to the Applicant the acting allowance for the period 1 January 2022 to 31 July 2022.

50. The amount that must be paid to the Applicant is calculated in terms of the difference between the salary scale of the Applicant, i.e. R498 216 per annum and the salary scale of the principal position in which he acted, i.e. R597 150 per annum, as follows:
• R597 150 – R498 216 = R98 934 ÷ 12 = R8244,50 per month x 7 months [from 1 January 2022 to 31 July 2022) = R57 711,50.
• Total amount payable to the Applicant is R57 711,50 (fifty-seven thousand seven hundred and eleven rand and fifty cent), minus such deductions as the Respondent is in terms of the law or agreement with the Applicant entitled or obliged to make.
51. I have considered the issue of costs and make no order in that regard.

SIGNED AT KEMPTON PARK ON THIS 21st DAY OF JUNE 2024


Coen Havenga