PSES 615-17/18 NC
PSES 615-17/18 NC
Award Date:
17 December 2019
Case Number: PSES 615-17/18 NC
Province: Northern Cape
Applicant: Elmarie Ann Mostert
Respondent: 1st Respondent Department of Education – Northern Cape, 2nd Respondent Ms M Newman (Successful Incumbent) ; 3rd Respondent SGB Xunkhwesa Combined School
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: 1st Respondent’s offices in Kimberley.
Award Date: 17 December 2019
Arbitrator: Minette van der Merwe
Arbitrator: Minette van der Merwe
Case Reference No.: PSES 615-17/18 NC
Date of award: 17 December 2019
In the arbitration between:
Elmarie Ann Mostert APPLICANT
and
Department of Education – Northern Cape 1ST RESPONDENT
Ms M Newman (Successful Incumbent) 2ND RESPONDENT
SGB Xunkhwesa Combined School 3RD RESPONDENT
HOD Department of Education – Northern Cape 4TH RESPONDENT
MEC Department of Education – Northern Cape 5TH RESPONDENT
Applicant’s representative: Adv N Williams (instructed by Dykman Attorneys)
Telephone: 079 550 7554 / 082 783 1328
E-mail: elmarie275@gmail.com / nathan@wllm.co.za /nathanwilliams@telkomsa.net
1st, 2nd, 3rd, 4th & 5th Respondents’ representative: Mr T Obusitse (Assistant Director: Labour Relations)
Telephone: 083 248 0801
E-mail: pantsiob@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. The dispute, referred to the ELRC (Education Labour Relation Council) in terms of section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“LRA”), was arbitrated on 18 June 2019, 29 & 30 October 2019 and was finalized on 10 December 2019 at the 1st Respondent’s offices in Kimberley.
2. Parties were present and represented as per the cover page of this award.
3. Interpretation was done by Mr Brian Banga. The proceedings were recorded mechanically, and copious notes were taken.
BACKGROUND TO THE DISPUTE
4. The matter was scheduled for arbitration in terms of section 186(2)(a) of the LRA as a dispute related to promotion.
5. On 04 April 2018 the matter was unsuccessfully conciliated, and pre-arb minutes were concluded by parties. Reference will be made to same during the award, where applicable.
6. The Applicant had withdrawn the dispute against the Respondents on 09 May 2018. A complaint was lodged by the Applicant regarding the Commissioner’s conduct during those proceedings, naming Commissioner Lekuka More. The Commissioner during the proceedings where she withdrew her dispute was actually Commissioner Khuduga Tlale. As a result of her complaint, the case was reinstated, and ultimately arbitrated by myself.
7. On 26 and 27 August 2019 the matter was scheduled to continue, but was postponed, due to no fault of the parties.
ISSUE(S) TO BE DECIDED
8. I had to determine whether the 1st and 3rd Respondent exercised its discretion fairly in electing not to shortlist the Applicant for the vacant position of Deputy Principal, and whether it committed an unfair labour practice relating to promotion. I had to, further, determine whether the Respondent had breached ELRC Collective Agreement 3 of 2016, on procedural and substantive grounds.
9. The onus vested in the Applicant to prove that the 1st and 3rd Respondent exercised its discretion, and that such discretion exercised was unfair towards the Applicant.
10. Parties had agreed that the following was common cause :
i. The vacant position was that of Deputy Principal at Xhunkwesa Combined School on post level (“PL”) 3
ii. The Applicant applied for the position
iii. She was not shortlisted
iv. The 2nd Respondent, Ms M Newman was appointed in the position
v. The SGB was not part of the shortlisting panel and/or process
vi. The Applicant met the minimum requirements to apply for the position
vii. The Applicant currently held the position of a PL1 Educator at Xhunkwesa Combined School with a gross monthly salary of R 25 802.85
11. The Applicant sought as remedy an order in her favour, and a finding that an unfair labour practice was committed against her. She further sought to be promoted into the position she had applied for with retrospective effect, alternatively, twelve months’ compensation and legal costs.
SURVEY OF EVICENCE AND ARGUMENTS
12. Documentary evidence was submitted by both parties. Bundle “A” was submitted by the Applicant and bundles “B1” – “B9” was submitted on behalf of the Respondents.
13. The Applicant called three witnesses to testify, and the Respondents called one witnesses to testify. The testimonies, all under oath, are fully captured on the record of proceedings. I therefore do no deem it necessary to repeat it in this award. Only a brief summary is reflected herein.
Evidence from the Applicant:
The first witness and Applicant, Elmarie Ann Mostert, testified under oath as follows:
14. On procedural grounds, she essentially challenged the composition of the shortlisting panel, which panel comprised of Mr Smiles (“Smiles”) from the Human Resources Department, as the Scribe, Mr Jammer (“Jammer”), being a Circuit Manager, appointed as the Chairperson of the panel, Mr G Roodt and Mr K Motsaori, none being a member of the SGB (school governing body). Smiles allowed the shortlisting process to unfold in an unfair manner, with non-compliance to The Employment of Educators Act, 76 of 1998 (“the EEA”), Personnel Administrative Measures (“PAM”) published in Government Gazette nr 39684 on 12 February 2016, ELRC Collective Agreement 3 of 2016 and the Vacancy Circular: Educator Promotional Posts of 2017.
15. At the time she had applied for the vacancy, she had twenty-six years’ actual teaching experience. She believed she was the best candidate for the position (the vacancy of Deputy Principal of Xhunkwesa will hereinafter be referred to as the “position”) over the five shortlisted candidates. On substantive grounds, she essentially challenged the “Shortlisting Mark Allocation” used to score all applications in order to compile as shortlist in that her years of actual teaching experience was not considered, and that an unfair and disproportionate value was attached to having experience in acting in a higher position , and further, that the scoring given to extra-curricular and community activities was unfair and prejudicial, and that same was adopted in an attempt to eliminate her as the best candidate, to allow for the 2nd Respondent to be appointed. She was not given an opportunity to gain experience in acting in a higher position (“acting”) by the Principal, Mr Snyders (“Snyders”). The individuals who were shortlisted, Mr Snaar, Mr Kruger, Mr Londt, Ms Job and Ms Newman all scored higher than her in experience because they had obtained experience in acting in a higher position, although the proof thereof lacked in the case of Snaar and Londt. The minimum requirement was actual teaching experience, and not acting experience, and she was disadvantaged by the shortlisting criteria. She was of the view that equity was further not considered as the shortlist comprised of three males and two females, of which two were white abled-bodies males. The 2nd Respondent had nineteen years actual teaching experience and some acting experience. A glowing recommendation was written by Snyders , whereas her request for a letter of recommendation from Snyders was not heeded to. Snyders further made no secret of the fact that he preferred the 2nd Respondent to be appointed, and Jammer met with Snyders for an hour after the shortlisting was done. Her being constantly overseen for promotion has had a financial and emotional effect on her and her family.
16. Under cross-examination she testified that it was curious how the shortlisting panel all gave the exact same scores, but then stated that the scores would be identical as a candidate either met the shortlisting criteria, or not. She confirmed that she had no acting experience, but maintained that the advertisement and minimum requirement was actual teaching experience, and not acting experience. She should have scored a 5 for extra-curricular and community activities due to being a Chairperson and an Executive Member, but conceded there was not proof of her being a Chairperson in her application.
The second witness, Collin Smiles, testified under oath as follows:
17. He had a duty to guide the Respondents to adhere to all relevant policies and legislation in instances of recruitment and appointments. The established SGB was not part of the shortlisting process as it had relinquished its powers to the 1st Respondent, which was acceptable practice under unique circumstances, despite the stipulations of Collective Agreement 3 of 2016 and related policies on promotions. The Principal was not part of the shortlisting panel due to previous disputes, and he did not want an allegation of bias to be made. He agreed that the Principal should have been part of the process, as well as a representative from the union, but they were not. He maintained that the union was invited to be on the panel, but declined the invitation, and conceded there was not proof of such an invitation. He agreed that the minutes of the meeting which led to the SGB relinquishing its powers was signed by Snyders, and not by all members of the SGB . He conceded that no rule existed that allowed for the SGB to relinquish its powers to the 1st Respondent with regards to a shortlisting panel and the subsequent processes. He conceded that the SGB could have recused itself in terms of the Vacancy Circular , but it did not exercise this right. He confirmed that none of the individuals that formed the shortlisting panel was SGB members. As the Scribe of the shortlisting panel he was not acting in his capacity as custodian of all policies, but merely as the Scribe, and he could not interfere with the functions of the panel. He observed no unfairness in the process. He conceded that minutes of the shortlisting panel’s meeting did not exist, despite him acting as a Scribe, and he conceded that it would be unreasonable to accept bundle B9 as authentic. He then testified that pages 54 & 55 of “A” was the minutes of the meeting where the shortlisting criteria was decided on. He conceded that there was non-compliance to the policies and legislative sources related to promotion in the Applicant’s instance, but stated that the circumstances were unique. He conceded that there was no proof that the SGB relinquished its powers to the 1st Respondent, but state that the 1st Respondent had heeded to the request from the SGB . The ultimate shortlisting panel acted independently.
18. Equity was considered in deciding on the shortlist. The shortlisting criteria was fair, as the bulk of the applications had to be sifted to get the best five candidates, and scoring based on acting experience was reasonable. The scoring for extra-curricular activities and community involvement was fair, and the Applicant was awarded the correct score. The rules and policies for shortlisting applied where a SGB was involved, but not in the case of an independent panel, but he conceded that such was not contained in a rule or policy. He disagreed that the absence of the SGB in the process caused an unfair labour practice to have been committed against the Applicant. He conceded that acting experience as a criterion was not appropriate, but it was what was decided on. He did not respond when asked how Londt and Snaar could have received a higher score than the Applicant for experience, if no proof was submitted by them to prove their acting experience. He could not answer why the 2nd Respondent scored a 5 for extra-curricular and community activities. He refused to respond when it was put to him that the SGB did not support the appointment of the 2nd Respondent. There were four other candidates that scored higher than the Applicant that was not shortlisted, as such it cannot be said that she was the best candidate. It would have been discriminatory to exclude Kruger and Londt from the shortlist, purely based on their race, where they qualified to be shortlisted on merit, and even if they were discriminated against, the Applicant would not have made the top 5 to qualify to be shortlisted. All applicants were scored fairly, accurately and in accordance with the shortlisting criteria decided upon. The Applicant was not treated unfairly.
The third witness, Nicklaas Snyders, testified under oath as follows:
19. He was the Principal, and did not form part of the shortlisting panel, although it was required, however the SGB had referred the process to the 1st Respondent to be finalized. He elected not to form part of the panel. The 1st Respondent had the responsibility to inform the SGB or him that the request by the SGB for an independent panel was unlawful. The reference letter he drafted for the 2nd Respondent was a normal occurrence, and he wrote it out of his own accord. The Applicant had never requested a reference letter from him. He did not have knowledge of the existence of a rule that makes provision for the SGB to relinquish its powers to the 1st Respondent, but stated that no rule existed that prohibited it. He could not say that the SGB supported the appointment of the 2nd Respondent as it was not part of the process. The Chairperson of the SGB drafted the letter to the 1st Respondent to request an independent panel, based on a decision taken by the SGB, and the document was signed by him (the witness). He then testified that they (him and Chairperson) drafted the document. He did not respond when asked why, at least the Chairperson of the panel, was not a SGB member.
20. Under cross-examination he testified that the reason the SGB relinquished its powers was because it was a lengthily process and many of the SGB members did not have the time to commit to the process. The SGB was satisfied with the appointment of the 2nd Respondent. He drafted two testimonials, for the 2nd Respondent and for Kruger, and he did not draft the 2nd Respondent’s letter for the sole purpose of influencing a decision to appoint her. The Applicant’s tendency to refer disputes over everything that happens at the School has had a negative impact on the school and the morale of the other Teachers, and takes away from the School’s ability to focus on its core function.
Evidence from the Respondent:
The only witness, Bartolomeu Jammer, testified under oath as follows:
21. He was a Circuit Manager and Chairperson of the shortlisting panel in question, an appointment he received on instruction of the District Manager. He could not comment on whether such an instruction was unlawful. It was not the first time that he had acted as a Chairperson of an independent panel as part of a promotion process. The SGB was not involved in the shortlisting process. During a meeting with the panel, the shortlisting criteria was decided upon and objectively applied to all applicants. The criteria were set before the identity of the applicants were known to the panel. The Applicant did not shore amongst the five highest applicants in order to be shortlisted. As the position was managerial in nature, higher scores were given to applicants that could demonstrate managerial (acting) experience. The Applicant could not demonstrate acting experience, and her score of one was justified. Equity and gender were considered in identifying the shortlist, and it was a happy coincidence that the top five applicants satisfied the equity and gender consideration. The SGB had requested assistance from the 1st Respondent in establishing an independent panel, and there was nothing untoward in adopting that process. The 2nd Respondent was the best candidate.
22. Under cross-examination he testified that he was well versed with the policies and rules that informs appointments. He conceded that a recommendation by a SGB was an essential prerequisite for the promotion of an Educator, and that there was no discretion allowed for in the ELRC Collective Agreement . He further conceded that, in the current case, there was no recommendation by the SGB. He was unaware that the Supreme Court of Appeals has already ruled on the essentiality of the SGB’s recommendation , which informed clause 35 of the ELRC Collective Agreement on promotions. He maintained that, if the SGB requested assistance, it must be provided by the 1st Respondent. He stated that he could only comment on the procedural aspect of the process, and added that, even if there were procedural non-compliance to the ELRC Collective Agreement, nobody was harmed or prejudiced. The panel requested him to be the Chairperson, and he was not formally appointed into that position by the 1st Respondent. He maintained that the process followed in this case, was regularly adopted. He could not respond when it was put to him that the reasons advanced for the SGB’s unavailability that formed the basis of it relinquishing its powers to the 1st Respondent, was not supported by the evidence and the timeframe determined for the finalization of the appointment of the successful candidate. He stated that any rule can be deviated from under unique circumstances. He did not answer when asked which rule specifically allows for the SGB to relinquish its powers. He testified that the union was invited to be part of the shortlisting panel, but conceded that there was no proof in support of the submission.
23. He submitted that a vast number of actual teaching experience would not make an applicant the preferred candidate, and such an individual might not possess good leadership skills and/or managerial experience, as such the number of actual teaching experience was not a determining factor in this case. He conceded that the wrong score was awarded to Snaar and Londt as no proof was provided that they had gained acting experience. He agreed that the wrong scoring had a direct impact on the ultimate result as to which five candidates scored the highest. He denied the version that he had a predetermined objective to ensure the 2nd Respondent would be appointed as the successful incumbent, because she was the Principal’s choice. He maintained that the correct score was allocated to the Applicant for extra-curricular activities and community involvement. He stood by all scores, and maintained the shortlisting criteria was fair. The Applicant had met the minimum requirements to apply for the position, as all other applicants, but when the shortlisting criteria was applied, she did not make the top five.
ANALYSIS OF EVIDENCE AND ARGUMENTS
24. Both parties submitted written closing arguments on the agreed due date of 13 December 2019, which was duly considered but which will not be repeated herein.
25. The onus to prove that an unfair labour practice was committed, vested in the Applicant.
26. The LRA defines and unfair labour practice, in section 186(2)(a), as “an unfair act or omission that arises between and employer and employee involving unfair conduct by the employer relating to the promotion……of an employee”.
27. The Applicant was a credible and reliable witness. She created a good impression, did not act emotionally and did not contradict herself.
28. Smiles was an unreliable witness, who contradicted himself on a number of material aspects, was evasive and had refused to answer some questions.
29. Snyders was an unreliable witness with no credibility, as he had perjured himself under oath. His explanation for providing two different answers under oath to the same question, was not plausible and was untruthful. During his testimony he had further contradicted himself on a number of material aspects and was easily agitated.
30. Jammer was an unreliable witness. He contradicted himself on a number of material aspects, was easily agitated, had blatantly refused to answer questions and was evasive.
Substantive consideration:
31. It was common cause that the Applicant had no acting experience. She had blamed this on Snyders’ blatant refusal to give her an opportunity to gain acting experience. However, she was silent on why she did not gain acting experience at the schools she had been appointed as an Educator prior to joining Xunkhwesa Combined School.
32. It was further common cause that the Applicant had the highest number of actual teaching experience between the five shortlisted candidates and herself.
33. It is not unfair to develop shortlisting criteria in order to be able to compile a shortlist of the five best candidates . The minimum criteria set for a position, is the minimum criteria to be considered for the post . Thereafter, additional criteria may be implemented that is fair, objective, unprejudicial and rationally justified in order to identify the top five candidates. In Noonan v Safety and Security Sectoral Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete with the post. As long as the decision take by the Employer can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to promote. (my emphasis)
34. It was common cause that Londt and Snaar were scored incorrectly insofar as the “experience” requirement. The scores given were common cause . Hereunder the scores if it had been awarded correctly, and further if the Applicant had scored 5 for experience:
D SNAAR
Criteria Weighting Panel Member - Jammer Panel Member -Roodt Panel Member -Motsoari Score x weighting Score
Language Proficiency 3 4 4 4 12x3 36
Qualifications 3 4 4 4 12x3 36
Experience 2 1 1 1 3x2 6
Community involvement 2 0 0 0 0x2 0
TOTAL 78
CALCULATED SCORE FOR SHORTLISTING 78 / 3 = 26
NC LONDT
Criteria Weighting Panel Member - Jammer Panel Member -Roodt Panel Member -Motsoari Score x weighting Score
Language Proficiency 3 5 5 5 15x3 45
Qualifications 3 1 1 1 3x3 9
Experience 2 1 1 1 3x2 6
Community involvement 2 3 3 3 9x2 18
TOTAL 78
CALCULATED SCORE FOR SHORTLISTING 78 / 3 = 26
EA MOSTERT
Criteria Weighting Panel Member - Jammer Panel Member -Roodt Panel Member -Motsoari Score x weighting Score
Language Proficiency 3 4 4 4 12x3 36
Qualifications 3 1 1 1 3x3 9
Experience 2 5 5 5 15x2 30
Community involvement 2 3 3 3 9x2 18
TOTAL 93
CALCULATED SCORE FOR SHORTLISTING 93 / 3 = 31
35. In the above illustration, the Applicant’s score of three (3) for Community Involvement remains unchanged, as the score given for that criteria was fair, and I had no reason to consider another score. She appropriately scored the highest she qualified for and could prove.
36. It is clear that, if Snaar and Londt have been given the correct score for “experience” they would not have made the shortlist, as there were other candidates that had scored higher than the 26 (twenty-six) above .
37. Even if the Applicant was given the maximum score for experience, she would have had the same score as the 2nd Respondent, and would not have had the highest score, as argued by her. That being said, a score of five for experience would not have been appropriate. It is fair to seek managerial/acting experience as an additional requirement in order to determine a shortlist of the five best candidates, as long as that criteria is fair. In this instance, the criteria for experience was as follows :
“3. Experience:
3.1 Appointed Principal / Appointed Deputy Acting as Principal = 5
3.2 Appointed Deputy Principal = 4
3.3 Acting Deputy Principal = 3
3.4 Appointed / Acting Departmental Head = 2
3.5 PL 1 without acting experience = 1”
38. The criteria above is not reasonable. As much as it would be appropriate to award a higher score for an applicant that had proven managerial/acting experience, as the vacancy of Deputy Principal had a managerial component, the score cannot be disproportionate between acting experience and actual teaching experience. The minimum requirements for the position included, under ‘Competency and Skills’ a requirement for good management skills and leadership, which would warrant a shortlisting criterion seeking proven acting/managerial experience.
39. It is clear from the analysis above that the Applicant should have been shortlisted.
40. That being said, I am not inclined to interfere with the appointment of the 2nd Respondent in the position, as the evidence does not suggest that the Applicant was a better suited candidate than the 2nd Respondent.
41. In order to succeed with a claim of unfair labour practice related to promotion, the Employee must prove that the Employer have exercised its discretion capriciously, for unsubstantiated reasons, or that the decision was taken on a wrong principle or in a biased manner (Msobo and Independent Municipal & Allied Trade Union (2008) 29 ILJ 459 (CCMA) as well as Aries v CCMA & Others (2006) 27 ILJ 2324 (LC)). The evidence is lacking to support a claim that the 2nd Respondent’s appointment was for unsubstantiated reasons. The 2nd Respondent was not dishonest and did not mislead the panel. Although the Applicant was denied a fair opportunity to compete for the post as she should have been shortlisted, that prevention did not affect the fact that the Applicant could not prove that she was, in fact, the best candidate or a better candidate that the 2nd Respondent. Further, the 2nd Respondent satisfied the gender and equity consideration to be preferred. The Applicant was unable to show that she would have been appointed in the position had the irregularity and/or unfairness by the Respondents not occurred. She could only prove that, on a conspectus of all the evidence, she had qualified to be shortlisted.
42. Regard is further had to clause 35 of ELRC Collective Agreement 3 of 2016 which states that a recommendation by a SGB 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. A recommendation by the SGB was absent in the promotion of the 2nd Respondent into the position of Deputy Principal of Xunkhwesa Combined School.
43. The conduct of the 1st, 3rd and 4th Respondent was substantively unfair.
Procedural consideration:
44. In terms of PAM any appointment may only be made on the recommendation of the SGB, unless the relevant SGB has not been established yet, which corresponds with the stipulation in clause 35 of the Collective Agreement. It was common cause that the SGB had been established at the time of the recruitment process in question.
45. The Interview Committee, for shortlisting and interviews, must comprise of : one departmental representative (who may be the Principal) as an observer and resource person; The Principal of the school (if he/she is not the departmental representative); Members of the SGB; one union representative per union that is a party to the provincial chamber.
46. It was common cause that Snyders as the Principal was not part of the process. It is clear that Snyders did not have a choice to be part of the process, but was obliged. The version of Smiles and Snyders that the latter wanted to avoid an apprehension of bias cannot be accepted, as Snyders could have observed the process as the department representative.
47. It was common cause that the SGB was not part of the process. The minutes of an SGB meeting held on 14 June 2017 in which, it was alleged, the SGB had decided to relinquish its powers and responsibilities insofar as the promotion of an Educator to the Deputy Principal vacancy was concerned, was only signed by the Principal, and not by a single SGB member. The space provided for in the minutes for the Chairperson’s signature, contained an unknown signature and the abbreviation “pp” commonly known as "per procurationem”, which means the letter is signed by someone on behalf of someone else. It then casts serious doubt over the version of the Respondent that the request to the 1st Respondent to establish and independent panel, was at the behests of the SGB. On the evidence before me, it was at the behest of the Principal, Snyders. It is further of paramount importance to note that nowhere, all legislative sources that governs a promotion in the education realm, is such a relinquishing of powers and responsibilities of the SGB to the 1st Respondent permitted.
48. An SGB is established for a specific reason, and has specific duties and responsibilities. It cannot be held that an SGB, at a whim, can relinquish its powers to the 1st Respondent, and further for such weak and unconvincing reasons as its members’ ‘unavailability due to other commitments”. To accept such a relinquishing of powers and duties of the SGB as valid, reasonable and justified would, essentially, declare the purpose of an SGB, established in terms of section 16 of SASA , as moot. The power of a governing body is not delegated power but original power, in terms of SASA, to act as the duly appointed agent of a public school.
49. It was common cause that a union was not represented in the panel. It was alleged that the union was invited, but no proof could be provided, and as such the version cannot be accepted. It then follows that the union was not invited to be on the panel.
50. According to clause 9.2.3 of the Vacancy Circular the Chairperson of the interview committee must be a member of the SGB. It was common cause that Jammer was not a member of the SGB.
51. The Courts have held that strict compliance with PAM and the Collective Agreement on promotion is not necessary, and substantial compliance is sufficient. Notwithstanding, the actual procedure followed in a contested promotion should be examined and unless the actual procedure followed resulted in unfairness, the arbitrator should not find that the procedure was unfair.
52. In this case, the procedural irregularity was gross in nature, and a flagrant disregard for the legislative sources that govern promotion in the education realm was demonstrated. The gross violation thereof by the 3rd and and the 1st Respondent has had a direct impact on the Applicant’s right to fairly compete for the position, and it is clear that the conduct was motivated by unacceptable reasons.
53. The conduct of the 1st, 3rd and 4th Respondents was procedurally unfair.
Relief:
54. In determining the appropriate relief, I am guided by the Applicant’s wishes in this regard . I am inclined not to interfere with the 1st Respondent’s decision to appoint the 2nd Respondent as successful incumbent . As such, an order of compensation for the unfair conduct is more appropriate.
55. The Applicant has demonstrated the prejudice she had suffered, and as such established an entitlement to relief.
56. I find that an order of 10 (ten) months’ compensation based on the current PL1 remuneration in this instance to be fair, just and equitable.
AWARD
57. The Applicant, Elmarie Ann Mostert, was able to prove that an unfair labour practice related to promotion was committed against her by the 1st, 3rd and 4th Respondents. The finding is binding on all the listed Respondents.
58. As a result, the 1st Respondent is ordered to pay the Applicant an amount of R 258 028.50 (two hundred and fifty-eight thousand, and twenty-eight rand, fifty cents) for the unfair labour practice committed, calculated as follows:
R 25 802.85 x 10 = R 258 028.50
59. The amount specified in paragraph 58 above, must be paid to the Applicant by no later than 15 February 2020.
60. No order is made as to cost.
Minette van der Merwe
ELRC Panellist
Province: Northern Cape
Applicant: Elmarie Ann Mostert
Respondent: 1st Respondent Department of Education – Northern Cape, 2nd Respondent Ms M Newman (Successful Incumbent) ; 3rd Respondent SGB Xunkhwesa Combined School
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: 1st Respondent’s offices in Kimberley.
Award Date: 17 December 2019
Arbitrator: Minette van der Merwe
Arbitrator: Minette van der Merwe
Case Reference No.: PSES 615-17/18 NC
Date of award: 17 December 2019
In the arbitration between:
Elmarie Ann Mostert APPLICANT
and
Department of Education – Northern Cape 1ST RESPONDENT
Ms M Newman (Successful Incumbent) 2ND RESPONDENT
SGB Xunkhwesa Combined School 3RD RESPONDENT
HOD Department of Education – Northern Cape 4TH RESPONDENT
MEC Department of Education – Northern Cape 5TH RESPONDENT
Applicant’s representative: Adv N Williams (instructed by Dykman Attorneys)
Telephone: 079 550 7554 / 082 783 1328
E-mail: elmarie275@gmail.com / nathan@wllm.co.za /nathanwilliams@telkomsa.net
1st, 2nd, 3rd, 4th & 5th Respondents’ representative: Mr T Obusitse (Assistant Director: Labour Relations)
Telephone: 083 248 0801
E-mail: pantsiob@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. The dispute, referred to the ELRC (Education Labour Relation Council) in terms of section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“LRA”), was arbitrated on 18 June 2019, 29 & 30 October 2019 and was finalized on 10 December 2019 at the 1st Respondent’s offices in Kimberley.
2. Parties were present and represented as per the cover page of this award.
3. Interpretation was done by Mr Brian Banga. The proceedings were recorded mechanically, and copious notes were taken.
BACKGROUND TO THE DISPUTE
4. The matter was scheduled for arbitration in terms of section 186(2)(a) of the LRA as a dispute related to promotion.
5. On 04 April 2018 the matter was unsuccessfully conciliated, and pre-arb minutes were concluded by parties. Reference will be made to same during the award, where applicable.
6. The Applicant had withdrawn the dispute against the Respondents on 09 May 2018. A complaint was lodged by the Applicant regarding the Commissioner’s conduct during those proceedings, naming Commissioner Lekuka More. The Commissioner during the proceedings where she withdrew her dispute was actually Commissioner Khuduga Tlale. As a result of her complaint, the case was reinstated, and ultimately arbitrated by myself.
7. On 26 and 27 August 2019 the matter was scheduled to continue, but was postponed, due to no fault of the parties.
ISSUE(S) TO BE DECIDED
8. I had to determine whether the 1st and 3rd Respondent exercised its discretion fairly in electing not to shortlist the Applicant for the vacant position of Deputy Principal, and whether it committed an unfair labour practice relating to promotion. I had to, further, determine whether the Respondent had breached ELRC Collective Agreement 3 of 2016, on procedural and substantive grounds.
9. The onus vested in the Applicant to prove that the 1st and 3rd Respondent exercised its discretion, and that such discretion exercised was unfair towards the Applicant.
10. Parties had agreed that the following was common cause :
i. The vacant position was that of Deputy Principal at Xhunkwesa Combined School on post level (“PL”) 3
ii. The Applicant applied for the position
iii. She was not shortlisted
iv. The 2nd Respondent, Ms M Newman was appointed in the position
v. The SGB was not part of the shortlisting panel and/or process
vi. The Applicant met the minimum requirements to apply for the position
vii. The Applicant currently held the position of a PL1 Educator at Xhunkwesa Combined School with a gross monthly salary of R 25 802.85
11. The Applicant sought as remedy an order in her favour, and a finding that an unfair labour practice was committed against her. She further sought to be promoted into the position she had applied for with retrospective effect, alternatively, twelve months’ compensation and legal costs.
SURVEY OF EVICENCE AND ARGUMENTS
12. Documentary evidence was submitted by both parties. Bundle “A” was submitted by the Applicant and bundles “B1” – “B9” was submitted on behalf of the Respondents.
13. The Applicant called three witnesses to testify, and the Respondents called one witnesses to testify. The testimonies, all under oath, are fully captured on the record of proceedings. I therefore do no deem it necessary to repeat it in this award. Only a brief summary is reflected herein.
Evidence from the Applicant:
The first witness and Applicant, Elmarie Ann Mostert, testified under oath as follows:
14. On procedural grounds, she essentially challenged the composition of the shortlisting panel, which panel comprised of Mr Smiles (“Smiles”) from the Human Resources Department, as the Scribe, Mr Jammer (“Jammer”), being a Circuit Manager, appointed as the Chairperson of the panel, Mr G Roodt and Mr K Motsaori, none being a member of the SGB (school governing body). Smiles allowed the shortlisting process to unfold in an unfair manner, with non-compliance to The Employment of Educators Act, 76 of 1998 (“the EEA”), Personnel Administrative Measures (“PAM”) published in Government Gazette nr 39684 on 12 February 2016, ELRC Collective Agreement 3 of 2016 and the Vacancy Circular: Educator Promotional Posts of 2017.
15. At the time she had applied for the vacancy, she had twenty-six years’ actual teaching experience. She believed she was the best candidate for the position (the vacancy of Deputy Principal of Xhunkwesa will hereinafter be referred to as the “position”) over the five shortlisted candidates. On substantive grounds, she essentially challenged the “Shortlisting Mark Allocation” used to score all applications in order to compile as shortlist in that her years of actual teaching experience was not considered, and that an unfair and disproportionate value was attached to having experience in acting in a higher position , and further, that the scoring given to extra-curricular and community activities was unfair and prejudicial, and that same was adopted in an attempt to eliminate her as the best candidate, to allow for the 2nd Respondent to be appointed. She was not given an opportunity to gain experience in acting in a higher position (“acting”) by the Principal, Mr Snyders (“Snyders”). The individuals who were shortlisted, Mr Snaar, Mr Kruger, Mr Londt, Ms Job and Ms Newman all scored higher than her in experience because they had obtained experience in acting in a higher position, although the proof thereof lacked in the case of Snaar and Londt. The minimum requirement was actual teaching experience, and not acting experience, and she was disadvantaged by the shortlisting criteria. She was of the view that equity was further not considered as the shortlist comprised of three males and two females, of which two were white abled-bodies males. The 2nd Respondent had nineteen years actual teaching experience and some acting experience. A glowing recommendation was written by Snyders , whereas her request for a letter of recommendation from Snyders was not heeded to. Snyders further made no secret of the fact that he preferred the 2nd Respondent to be appointed, and Jammer met with Snyders for an hour after the shortlisting was done. Her being constantly overseen for promotion has had a financial and emotional effect on her and her family.
16. Under cross-examination she testified that it was curious how the shortlisting panel all gave the exact same scores, but then stated that the scores would be identical as a candidate either met the shortlisting criteria, or not. She confirmed that she had no acting experience, but maintained that the advertisement and minimum requirement was actual teaching experience, and not acting experience. She should have scored a 5 for extra-curricular and community activities due to being a Chairperson and an Executive Member, but conceded there was not proof of her being a Chairperson in her application.
The second witness, Collin Smiles, testified under oath as follows:
17. He had a duty to guide the Respondents to adhere to all relevant policies and legislation in instances of recruitment and appointments. The established SGB was not part of the shortlisting process as it had relinquished its powers to the 1st Respondent, which was acceptable practice under unique circumstances, despite the stipulations of Collective Agreement 3 of 2016 and related policies on promotions. The Principal was not part of the shortlisting panel due to previous disputes, and he did not want an allegation of bias to be made. He agreed that the Principal should have been part of the process, as well as a representative from the union, but they were not. He maintained that the union was invited to be on the panel, but declined the invitation, and conceded there was not proof of such an invitation. He agreed that the minutes of the meeting which led to the SGB relinquishing its powers was signed by Snyders, and not by all members of the SGB . He conceded that no rule existed that allowed for the SGB to relinquish its powers to the 1st Respondent with regards to a shortlisting panel and the subsequent processes. He conceded that the SGB could have recused itself in terms of the Vacancy Circular , but it did not exercise this right. He confirmed that none of the individuals that formed the shortlisting panel was SGB members. As the Scribe of the shortlisting panel he was not acting in his capacity as custodian of all policies, but merely as the Scribe, and he could not interfere with the functions of the panel. He observed no unfairness in the process. He conceded that minutes of the shortlisting panel’s meeting did not exist, despite him acting as a Scribe, and he conceded that it would be unreasonable to accept bundle B9 as authentic. He then testified that pages 54 & 55 of “A” was the minutes of the meeting where the shortlisting criteria was decided on. He conceded that there was non-compliance to the policies and legislative sources related to promotion in the Applicant’s instance, but stated that the circumstances were unique. He conceded that there was no proof that the SGB relinquished its powers to the 1st Respondent, but state that the 1st Respondent had heeded to the request from the SGB . The ultimate shortlisting panel acted independently.
18. Equity was considered in deciding on the shortlist. The shortlisting criteria was fair, as the bulk of the applications had to be sifted to get the best five candidates, and scoring based on acting experience was reasonable. The scoring for extra-curricular activities and community involvement was fair, and the Applicant was awarded the correct score. The rules and policies for shortlisting applied where a SGB was involved, but not in the case of an independent panel, but he conceded that such was not contained in a rule or policy. He disagreed that the absence of the SGB in the process caused an unfair labour practice to have been committed against the Applicant. He conceded that acting experience as a criterion was not appropriate, but it was what was decided on. He did not respond when asked how Londt and Snaar could have received a higher score than the Applicant for experience, if no proof was submitted by them to prove their acting experience. He could not answer why the 2nd Respondent scored a 5 for extra-curricular and community activities. He refused to respond when it was put to him that the SGB did not support the appointment of the 2nd Respondent. There were four other candidates that scored higher than the Applicant that was not shortlisted, as such it cannot be said that she was the best candidate. It would have been discriminatory to exclude Kruger and Londt from the shortlist, purely based on their race, where they qualified to be shortlisted on merit, and even if they were discriminated against, the Applicant would not have made the top 5 to qualify to be shortlisted. All applicants were scored fairly, accurately and in accordance with the shortlisting criteria decided upon. The Applicant was not treated unfairly.
The third witness, Nicklaas Snyders, testified under oath as follows:
19. He was the Principal, and did not form part of the shortlisting panel, although it was required, however the SGB had referred the process to the 1st Respondent to be finalized. He elected not to form part of the panel. The 1st Respondent had the responsibility to inform the SGB or him that the request by the SGB for an independent panel was unlawful. The reference letter he drafted for the 2nd Respondent was a normal occurrence, and he wrote it out of his own accord. The Applicant had never requested a reference letter from him. He did not have knowledge of the existence of a rule that makes provision for the SGB to relinquish its powers to the 1st Respondent, but stated that no rule existed that prohibited it. He could not say that the SGB supported the appointment of the 2nd Respondent as it was not part of the process. The Chairperson of the SGB drafted the letter to the 1st Respondent to request an independent panel, based on a decision taken by the SGB, and the document was signed by him (the witness). He then testified that they (him and Chairperson) drafted the document. He did not respond when asked why, at least the Chairperson of the panel, was not a SGB member.
20. Under cross-examination he testified that the reason the SGB relinquished its powers was because it was a lengthily process and many of the SGB members did not have the time to commit to the process. The SGB was satisfied with the appointment of the 2nd Respondent. He drafted two testimonials, for the 2nd Respondent and for Kruger, and he did not draft the 2nd Respondent’s letter for the sole purpose of influencing a decision to appoint her. The Applicant’s tendency to refer disputes over everything that happens at the School has had a negative impact on the school and the morale of the other Teachers, and takes away from the School’s ability to focus on its core function.
Evidence from the Respondent:
The only witness, Bartolomeu Jammer, testified under oath as follows:
21. He was a Circuit Manager and Chairperson of the shortlisting panel in question, an appointment he received on instruction of the District Manager. He could not comment on whether such an instruction was unlawful. It was not the first time that he had acted as a Chairperson of an independent panel as part of a promotion process. The SGB was not involved in the shortlisting process. During a meeting with the panel, the shortlisting criteria was decided upon and objectively applied to all applicants. The criteria were set before the identity of the applicants were known to the panel. The Applicant did not shore amongst the five highest applicants in order to be shortlisted. As the position was managerial in nature, higher scores were given to applicants that could demonstrate managerial (acting) experience. The Applicant could not demonstrate acting experience, and her score of one was justified. Equity and gender were considered in identifying the shortlist, and it was a happy coincidence that the top five applicants satisfied the equity and gender consideration. The SGB had requested assistance from the 1st Respondent in establishing an independent panel, and there was nothing untoward in adopting that process. The 2nd Respondent was the best candidate.
22. Under cross-examination he testified that he was well versed with the policies and rules that informs appointments. He conceded that a recommendation by a SGB was an essential prerequisite for the promotion of an Educator, and that there was no discretion allowed for in the ELRC Collective Agreement . He further conceded that, in the current case, there was no recommendation by the SGB. He was unaware that the Supreme Court of Appeals has already ruled on the essentiality of the SGB’s recommendation , which informed clause 35 of the ELRC Collective Agreement on promotions. He maintained that, if the SGB requested assistance, it must be provided by the 1st Respondent. He stated that he could only comment on the procedural aspect of the process, and added that, even if there were procedural non-compliance to the ELRC Collective Agreement, nobody was harmed or prejudiced. The panel requested him to be the Chairperson, and he was not formally appointed into that position by the 1st Respondent. He maintained that the process followed in this case, was regularly adopted. He could not respond when it was put to him that the reasons advanced for the SGB’s unavailability that formed the basis of it relinquishing its powers to the 1st Respondent, was not supported by the evidence and the timeframe determined for the finalization of the appointment of the successful candidate. He stated that any rule can be deviated from under unique circumstances. He did not answer when asked which rule specifically allows for the SGB to relinquish its powers. He testified that the union was invited to be part of the shortlisting panel, but conceded that there was no proof in support of the submission.
23. He submitted that a vast number of actual teaching experience would not make an applicant the preferred candidate, and such an individual might not possess good leadership skills and/or managerial experience, as such the number of actual teaching experience was not a determining factor in this case. He conceded that the wrong score was awarded to Snaar and Londt as no proof was provided that they had gained acting experience. He agreed that the wrong scoring had a direct impact on the ultimate result as to which five candidates scored the highest. He denied the version that he had a predetermined objective to ensure the 2nd Respondent would be appointed as the successful incumbent, because she was the Principal’s choice. He maintained that the correct score was allocated to the Applicant for extra-curricular activities and community involvement. He stood by all scores, and maintained the shortlisting criteria was fair. The Applicant had met the minimum requirements to apply for the position, as all other applicants, but when the shortlisting criteria was applied, she did not make the top five.
ANALYSIS OF EVIDENCE AND ARGUMENTS
24. Both parties submitted written closing arguments on the agreed due date of 13 December 2019, which was duly considered but which will not be repeated herein.
25. The onus to prove that an unfair labour practice was committed, vested in the Applicant.
26. The LRA defines and unfair labour practice, in section 186(2)(a), as “an unfair act or omission that arises between and employer and employee involving unfair conduct by the employer relating to the promotion……of an employee”.
27. The Applicant was a credible and reliable witness. She created a good impression, did not act emotionally and did not contradict herself.
28. Smiles was an unreliable witness, who contradicted himself on a number of material aspects, was evasive and had refused to answer some questions.
29. Snyders was an unreliable witness with no credibility, as he had perjured himself under oath. His explanation for providing two different answers under oath to the same question, was not plausible and was untruthful. During his testimony he had further contradicted himself on a number of material aspects and was easily agitated.
30. Jammer was an unreliable witness. He contradicted himself on a number of material aspects, was easily agitated, had blatantly refused to answer questions and was evasive.
Substantive consideration:
31. It was common cause that the Applicant had no acting experience. She had blamed this on Snyders’ blatant refusal to give her an opportunity to gain acting experience. However, she was silent on why she did not gain acting experience at the schools she had been appointed as an Educator prior to joining Xunkhwesa Combined School.
32. It was further common cause that the Applicant had the highest number of actual teaching experience between the five shortlisted candidates and herself.
33. It is not unfair to develop shortlisting criteria in order to be able to compile a shortlist of the five best candidates . The minimum criteria set for a position, is the minimum criteria to be considered for the post . Thereafter, additional criteria may be implemented that is fair, objective, unprejudicial and rationally justified in order to identify the top five candidates. In Noonan v Safety and Security Sectoral Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete with the post. As long as the decision take by the Employer can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to promote. (my emphasis)
34. It was common cause that Londt and Snaar were scored incorrectly insofar as the “experience” requirement. The scores given were common cause . Hereunder the scores if it had been awarded correctly, and further if the Applicant had scored 5 for experience:
D SNAAR
Criteria Weighting Panel Member - Jammer Panel Member -Roodt Panel Member -Motsoari Score x weighting Score
Language Proficiency 3 4 4 4 12x3 36
Qualifications 3 4 4 4 12x3 36
Experience 2 1 1 1 3x2 6
Community involvement 2 0 0 0 0x2 0
TOTAL 78
CALCULATED SCORE FOR SHORTLISTING 78 / 3 = 26
NC LONDT
Criteria Weighting Panel Member - Jammer Panel Member -Roodt Panel Member -Motsoari Score x weighting Score
Language Proficiency 3 5 5 5 15x3 45
Qualifications 3 1 1 1 3x3 9
Experience 2 1 1 1 3x2 6
Community involvement 2 3 3 3 9x2 18
TOTAL 78
CALCULATED SCORE FOR SHORTLISTING 78 / 3 = 26
EA MOSTERT
Criteria Weighting Panel Member - Jammer Panel Member -Roodt Panel Member -Motsoari Score x weighting Score
Language Proficiency 3 4 4 4 12x3 36
Qualifications 3 1 1 1 3x3 9
Experience 2 5 5 5 15x2 30
Community involvement 2 3 3 3 9x2 18
TOTAL 93
CALCULATED SCORE FOR SHORTLISTING 93 / 3 = 31
35. In the above illustration, the Applicant’s score of three (3) for Community Involvement remains unchanged, as the score given for that criteria was fair, and I had no reason to consider another score. She appropriately scored the highest she qualified for and could prove.
36. It is clear that, if Snaar and Londt have been given the correct score for “experience” they would not have made the shortlist, as there were other candidates that had scored higher than the 26 (twenty-six) above .
37. Even if the Applicant was given the maximum score for experience, she would have had the same score as the 2nd Respondent, and would not have had the highest score, as argued by her. That being said, a score of five for experience would not have been appropriate. It is fair to seek managerial/acting experience as an additional requirement in order to determine a shortlist of the five best candidates, as long as that criteria is fair. In this instance, the criteria for experience was as follows :
“3. Experience:
3.1 Appointed Principal / Appointed Deputy Acting as Principal = 5
3.2 Appointed Deputy Principal = 4
3.3 Acting Deputy Principal = 3
3.4 Appointed / Acting Departmental Head = 2
3.5 PL 1 without acting experience = 1”
38. The criteria above is not reasonable. As much as it would be appropriate to award a higher score for an applicant that had proven managerial/acting experience, as the vacancy of Deputy Principal had a managerial component, the score cannot be disproportionate between acting experience and actual teaching experience. The minimum requirements for the position included, under ‘Competency and Skills’ a requirement for good management skills and leadership, which would warrant a shortlisting criterion seeking proven acting/managerial experience.
39. It is clear from the analysis above that the Applicant should have been shortlisted.
40. That being said, I am not inclined to interfere with the appointment of the 2nd Respondent in the position, as the evidence does not suggest that the Applicant was a better suited candidate than the 2nd Respondent.
41. In order to succeed with a claim of unfair labour practice related to promotion, the Employee must prove that the Employer have exercised its discretion capriciously, for unsubstantiated reasons, or that the decision was taken on a wrong principle or in a biased manner (Msobo and Independent Municipal & Allied Trade Union (2008) 29 ILJ 459 (CCMA) as well as Aries v CCMA & Others (2006) 27 ILJ 2324 (LC)). The evidence is lacking to support a claim that the 2nd Respondent’s appointment was for unsubstantiated reasons. The 2nd Respondent was not dishonest and did not mislead the panel. Although the Applicant was denied a fair opportunity to compete for the post as she should have been shortlisted, that prevention did not affect the fact that the Applicant could not prove that she was, in fact, the best candidate or a better candidate that the 2nd Respondent. Further, the 2nd Respondent satisfied the gender and equity consideration to be preferred. The Applicant was unable to show that she would have been appointed in the position had the irregularity and/or unfairness by the Respondents not occurred. She could only prove that, on a conspectus of all the evidence, she had qualified to be shortlisted.
42. Regard is further had to clause 35 of ELRC Collective Agreement 3 of 2016 which states that a recommendation by a SGB 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. A recommendation by the SGB was absent in the promotion of the 2nd Respondent into the position of Deputy Principal of Xunkhwesa Combined School.
43. The conduct of the 1st, 3rd and 4th Respondent was substantively unfair.
Procedural consideration:
44. In terms of PAM any appointment may only be made on the recommendation of the SGB, unless the relevant SGB has not been established yet, which corresponds with the stipulation in clause 35 of the Collective Agreement. It was common cause that the SGB had been established at the time of the recruitment process in question.
45. The Interview Committee, for shortlisting and interviews, must comprise of : one departmental representative (who may be the Principal) as an observer and resource person; The Principal of the school (if he/she is not the departmental representative); Members of the SGB; one union representative per union that is a party to the provincial chamber.
46. It was common cause that Snyders as the Principal was not part of the process. It is clear that Snyders did not have a choice to be part of the process, but was obliged. The version of Smiles and Snyders that the latter wanted to avoid an apprehension of bias cannot be accepted, as Snyders could have observed the process as the department representative.
47. It was common cause that the SGB was not part of the process. The minutes of an SGB meeting held on 14 June 2017 in which, it was alleged, the SGB had decided to relinquish its powers and responsibilities insofar as the promotion of an Educator to the Deputy Principal vacancy was concerned, was only signed by the Principal, and not by a single SGB member. The space provided for in the minutes for the Chairperson’s signature, contained an unknown signature and the abbreviation “pp” commonly known as "per procurationem”, which means the letter is signed by someone on behalf of someone else. It then casts serious doubt over the version of the Respondent that the request to the 1st Respondent to establish and independent panel, was at the behests of the SGB. On the evidence before me, it was at the behest of the Principal, Snyders. It is further of paramount importance to note that nowhere, all legislative sources that governs a promotion in the education realm, is such a relinquishing of powers and responsibilities of the SGB to the 1st Respondent permitted.
48. An SGB is established for a specific reason, and has specific duties and responsibilities. It cannot be held that an SGB, at a whim, can relinquish its powers to the 1st Respondent, and further for such weak and unconvincing reasons as its members’ ‘unavailability due to other commitments”. To accept such a relinquishing of powers and duties of the SGB as valid, reasonable and justified would, essentially, declare the purpose of an SGB, established in terms of section 16 of SASA , as moot. The power of a governing body is not delegated power but original power, in terms of SASA, to act as the duly appointed agent of a public school.
49. It was common cause that a union was not represented in the panel. It was alleged that the union was invited, but no proof could be provided, and as such the version cannot be accepted. It then follows that the union was not invited to be on the panel.
50. According to clause 9.2.3 of the Vacancy Circular the Chairperson of the interview committee must be a member of the SGB. It was common cause that Jammer was not a member of the SGB.
51. The Courts have held that strict compliance with PAM and the Collective Agreement on promotion is not necessary, and substantial compliance is sufficient. Notwithstanding, the actual procedure followed in a contested promotion should be examined and unless the actual procedure followed resulted in unfairness, the arbitrator should not find that the procedure was unfair.
52. In this case, the procedural irregularity was gross in nature, and a flagrant disregard for the legislative sources that govern promotion in the education realm was demonstrated. The gross violation thereof by the 3rd and and the 1st Respondent has had a direct impact on the Applicant’s right to fairly compete for the position, and it is clear that the conduct was motivated by unacceptable reasons.
53. The conduct of the 1st, 3rd and 4th Respondents was procedurally unfair.
Relief:
54. In determining the appropriate relief, I am guided by the Applicant’s wishes in this regard . I am inclined not to interfere with the 1st Respondent’s decision to appoint the 2nd Respondent as successful incumbent . As such, an order of compensation for the unfair conduct is more appropriate.
55. The Applicant has demonstrated the prejudice she had suffered, and as such established an entitlement to relief.
56. I find that an order of 10 (ten) months’ compensation based on the current PL1 remuneration in this instance to be fair, just and equitable.
AWARD
57. The Applicant, Elmarie Ann Mostert, was able to prove that an unfair labour practice related to promotion was committed against her by the 1st, 3rd and 4th Respondents. The finding is binding on all the listed Respondents.
58. As a result, the 1st Respondent is ordered to pay the Applicant an amount of R 258 028.50 (two hundred and fifty-eight thousand, and twenty-eight rand, fifty cents) for the unfair labour practice committed, calculated as follows:
R 25 802.85 x 10 = R 258 028.50
59. The amount specified in paragraph 58 above, must be paid to the Applicant by no later than 15 February 2020.
60. No order is made as to cost.
Minette van der Merwe
ELRC Panellist