PSES815-18/19EC
PSES815-18/19EC
Award Date:
8 June 2019
Case Number: PSES815-18/19EC
Province: Eastern Cape
Applicant: SAOU OBO M OOSTHUIZEN
Respondent: 1st Respondent DEPARTMENT OF EDUCATION EASTERN CAPE; 2nd Respondent MR W BADENHORST; 3rd Respondent MEC DEPARTMENT EDUCATION EC
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 8 June 2019
Arbitrator: L.CHAROUX
AWARD
Arbitrator: L.CHAROUX
Case No: PSES815-18/19EC
Date of Award: 08 June 2019
In the arbitration between
SAOU OBO M OOSTHUIZEN APPLICANT
And
DEPARTMENT OF EDUCATION EASTERN CAPE 1ST RESPONDENT
MR W BADENHORST 2ND RESPONDENT
MEC DEPARTMENT EDUCATION EC 3RD RESPONDENT
HOD DEPARTMENT EDUCATION EC 4TH RESPONDENT
SCHOOL GOVERNING BODY 5TH RESPONDENT
FOR WALMER WEST PRIMARY SCHOOL
On behalf of the Applicant: Ms E Hart of SAOU
Fax: 0413640510
On behalf of the DOE: Ms H Stucki
Fax: 086515331
On behalf of Mr W Badenhorst: Adv Saayman of NAPTOSA
On behalf of the SGB: Mr P Franks
INTRODUCTION AND REPRESENTATION
1. The matter was set down for an arbitration hearing in Port Elizabeth on 24 April 2019. The Applicant was represented by Ms E Hart of SAOU. The DOE was represented by Ms H Stucki. The Second Respondent was represented by Adv Saayman of NAPTOSA. The SGB was represented by Mr P Franks, the chairperson of the SGB.
2. The Applicant referred an alleged unfair labour practice related to promotion to the ELRC on 16 January 2019.
3. The parties handed in a pre-arbitration minute.
4. The parties submitted written heads of argument that I received on 7 May 2019.
COMMON CAUSE FACTS
5. The Applicant, Mrs M Oosthuizen is a PL1 educator who has been teaching at Walmer West Primary School as from 1 February 2003 in a Governing Body position.
6. The Applicant was permanently employed by the Department of Education as a PL1 teacher at Walmer West Primary School as from 1 October 2010.
7. The Applicant has been acting as Head of Department (“HOD”) in the Intersen phase at Walmer West Primary School as from 1 February 2016 until 31 December 2018.
8. The HOD post number 308 at Walmer West Primary School was advertised in Bulletin Vol 5/2018.
9. The Applicant was shortlisted and interviewed and was recommended as the preferred candidate for the post by the interview panel.
10. The recommendation for her appointment as HOD was supported by the full Governing Body during a ratification meeting.
11. All the necessary recommendation documents were submitted to the Department of Education for appointment purposes.
12. The HR section detected that Mrs Oosthuizen’s professional qualification does not meet the profile of the post and advised the SGB that they received the recommendation for the HOD but was of the opinion that the Applicant did not meet the criteria according to the advertisement in the Bulletin. The HR Department advised the SGB that the second candidate may be recommended.
13. The SGB as per the advice from the HR Department submitted the 2nd candidate, namely Mr W Badenhorst as their recommended candidate for the post of HOD.
14. Mr Badenhorst received an offer of appointment for the HOD post in December 2018 and assumed his duties as HOD at the Walmer West Primary School as from 1 January 2019.
15. The HOD advertisement
The HOD position at Walmer West Primary School was advertised as an Intermediate and Senior Phase post in Bulletin Volume 5 of 2018.
16. The Applicant’s qualifications are as follows:
16.1 B.MUS degree (degree in music)
16.2 Professional teaching qualification (PGCE)
16.3 The Applicant is registered with SACE.
17. The Applicant is not qualified to teach intermediate phase (grades 4 – 6)
ISSUES IN DISPUTE
18. Whether the DOE committed an unfair labour practice by failing to appoint the Applicant to the HOD position at Walmer West Primary School.
EVIDENCE
19. The Applicant’s evidence is mostly covered by the common cause facts. The Applicant testified that Walmer West Primary School does not offer music. She said she was appointed to teach Intermediate and Senior Phase first by the Governing Body and thereafter by the Department of Education.
20. Ms B Weitz from the HR Department testified that the Applicant is not qualified for the HOD position and the HR Department therefore notified the SGB of this fact. The Applicant is qualified to teach Senior phase and Further Education and Training (grades 7 -12). The Applicant may teach music, arts & culture from Grades 7 – 12.
Pages 89 & 90 Bundle B
21. Mr P Franks testified that he has been the SGB chairperson at Walmer West Primary School for 5 years. He said that the Applicant obtained the highest scoring. He said the SGB accepted the HR’s advice that the Applicant did not qualify for the HOD position and therefore recommended Mr Badenhorst, who scored the second highest at the interview process.
ARGUMENTS PRESENTED BY APPLICANT
22. The DOE appointed the Applicant as a permanent PL1 educator in the Intermediate phase at Walmer West Primary School with her current qualification.
23. The Applicant has extensive experience teaching in the intermediate phase.
24. Although the Applicant does not qualify to teach in the Intermediate phase the fact of the matter is that she has been teaching as an Intermediate teacher for 16 years.
25. The Applicant has been teaching intermediate phase subjects as from 2003. The subjects that the Applicant has been teaching are as follows:
Grade 4: Life Skills
Grade 5: All intermediate Phase Subjects
Grade 6: Social Sciences and Life Skills
Grade 7: Creative Arts, EMS, Life Orientation and Social Sciences.
26. The Applicant complies with the qualifications for a HOD position. The requirements for a HOD position in terms of the addendum to the HOD advert are as follows:
1) At least 2 years teaching experience in the relevant phase
The Applicant has 16 years’ experience in the intermediate phase.
2) A recognised three-year or four-year qualification which includes professional teacher education.
The Applicant has a recognised three-year qualification and a PGCE.
3) Registration with SACE
The Applicant is registered with SACE as a professional educator.
4) Advanced knowledge of teaching.
The Applicant has 16 years of teaching experience.
Page 21 Bundle “A”.
27. The Applicant complies with the requirement for a HOD post according to the PAM par. 3.2.1.1 which requires:
1) A recognised three or four year qualification.
The Applicant has a 4 year B.Mus degree and a PGCE qualification
2) Statutory qualification
The Applicant is registered with SACE as a professional educator.
3) Functional Field
The Applicant has advanced knowledge of teaching
Page 26 Bundle “A”
RESPONDENT’S ARGUMENT
28. The requirements for the post of HOD are all Intermediate and Senior Phase subjects.
29. The Applicant’s professional teaching qualifications do not fit the profile of the post as advertised. The advertisement states clearly under the heading “subjects” All Intermediate Phase and Senior Phase subjects. The Applicant is not qualified as an intermediate teacher.
30. As a result of the new PAM that came into place during February 2016 an applicant appointed to a post must fit the profile of the post.
31. The Applicant’s case is solely built on the fact that she has experience in the subjects and that she was doing the work for many years without the proper qualification.
ANALYSIS OF EVIDENCE AND ARGUMENTS
32. After a consideration of the evidence presented and having regard to the relevant case law I concluded that the Applicant has failed to prove that the DOE committed an unfair labour practice related to promotion against her for the following reasons:
32.1 In the case of Arries v CCMA and others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which an arbitrator, or a court may interfere with the discretion which has been exercised by a party competent to exercise that discretion.
The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons or based upon the wrong principal or in a biased manner.
I am unable to find that the DOE exercised their discretion capriciously, or for insubstantial reasons or based upon the wrong principal or in a biased manner.
32.2 Although I have sympathy with the Applicant and understand her unhappiness, an employer is entitled to exercise their discretion regarding who they wish to employ into a position. The DOE decided that they wish to employ a teacher whose professional teaching qualifications fit the profile of the post as advertised. It is common cause that the HOD position at Walmer West Primary School was advertised as an Intermediate and Senior Phase post and that the Applicant is not in possession of a professional qualification to teach Intermediate phase.
AWARD
33. The Applicant’s application is dismissed.
34. I make no order as to costs.
SIGNED AND DATED ON 08 JUNE 2019
ADVOCATE L CHAROUX
COMMISSIONER
Province: Eastern Cape
Applicant: SAOU OBO M OOSTHUIZEN
Respondent: 1st Respondent DEPARTMENT OF EDUCATION EASTERN CAPE; 2nd Respondent MR W BADENHORST; 3rd Respondent MEC DEPARTMENT EDUCATION EC
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 8 June 2019
Arbitrator: L.CHAROUX
AWARD
Arbitrator: L.CHAROUX
Case No: PSES815-18/19EC
Date of Award: 08 June 2019
In the arbitration between
SAOU OBO M OOSTHUIZEN APPLICANT
And
DEPARTMENT OF EDUCATION EASTERN CAPE 1ST RESPONDENT
MR W BADENHORST 2ND RESPONDENT
MEC DEPARTMENT EDUCATION EC 3RD RESPONDENT
HOD DEPARTMENT EDUCATION EC 4TH RESPONDENT
SCHOOL GOVERNING BODY 5TH RESPONDENT
FOR WALMER WEST PRIMARY SCHOOL
On behalf of the Applicant: Ms E Hart of SAOU
Fax: 0413640510
On behalf of the DOE: Ms H Stucki
Fax: 086515331
On behalf of Mr W Badenhorst: Adv Saayman of NAPTOSA
On behalf of the SGB: Mr P Franks
INTRODUCTION AND REPRESENTATION
1. The matter was set down for an arbitration hearing in Port Elizabeth on 24 April 2019. The Applicant was represented by Ms E Hart of SAOU. The DOE was represented by Ms H Stucki. The Second Respondent was represented by Adv Saayman of NAPTOSA. The SGB was represented by Mr P Franks, the chairperson of the SGB.
2. The Applicant referred an alleged unfair labour practice related to promotion to the ELRC on 16 January 2019.
3. The parties handed in a pre-arbitration minute.
4. The parties submitted written heads of argument that I received on 7 May 2019.
COMMON CAUSE FACTS
5. The Applicant, Mrs M Oosthuizen is a PL1 educator who has been teaching at Walmer West Primary School as from 1 February 2003 in a Governing Body position.
6. The Applicant was permanently employed by the Department of Education as a PL1 teacher at Walmer West Primary School as from 1 October 2010.
7. The Applicant has been acting as Head of Department (“HOD”) in the Intersen phase at Walmer West Primary School as from 1 February 2016 until 31 December 2018.
8. The HOD post number 308 at Walmer West Primary School was advertised in Bulletin Vol 5/2018.
9. The Applicant was shortlisted and interviewed and was recommended as the preferred candidate for the post by the interview panel.
10. The recommendation for her appointment as HOD was supported by the full Governing Body during a ratification meeting.
11. All the necessary recommendation documents were submitted to the Department of Education for appointment purposes.
12. The HR section detected that Mrs Oosthuizen’s professional qualification does not meet the profile of the post and advised the SGB that they received the recommendation for the HOD but was of the opinion that the Applicant did not meet the criteria according to the advertisement in the Bulletin. The HR Department advised the SGB that the second candidate may be recommended.
13. The SGB as per the advice from the HR Department submitted the 2nd candidate, namely Mr W Badenhorst as their recommended candidate for the post of HOD.
14. Mr Badenhorst received an offer of appointment for the HOD post in December 2018 and assumed his duties as HOD at the Walmer West Primary School as from 1 January 2019.
15. The HOD advertisement
The HOD position at Walmer West Primary School was advertised as an Intermediate and Senior Phase post in Bulletin Volume 5 of 2018.
16. The Applicant’s qualifications are as follows:
16.1 B.MUS degree (degree in music)
16.2 Professional teaching qualification (PGCE)
16.3 The Applicant is registered with SACE.
17. The Applicant is not qualified to teach intermediate phase (grades 4 – 6)
ISSUES IN DISPUTE
18. Whether the DOE committed an unfair labour practice by failing to appoint the Applicant to the HOD position at Walmer West Primary School.
EVIDENCE
19. The Applicant’s evidence is mostly covered by the common cause facts. The Applicant testified that Walmer West Primary School does not offer music. She said she was appointed to teach Intermediate and Senior Phase first by the Governing Body and thereafter by the Department of Education.
20. Ms B Weitz from the HR Department testified that the Applicant is not qualified for the HOD position and the HR Department therefore notified the SGB of this fact. The Applicant is qualified to teach Senior phase and Further Education and Training (grades 7 -12). The Applicant may teach music, arts & culture from Grades 7 – 12.
Pages 89 & 90 Bundle B
21. Mr P Franks testified that he has been the SGB chairperson at Walmer West Primary School for 5 years. He said that the Applicant obtained the highest scoring. He said the SGB accepted the HR’s advice that the Applicant did not qualify for the HOD position and therefore recommended Mr Badenhorst, who scored the second highest at the interview process.
ARGUMENTS PRESENTED BY APPLICANT
22. The DOE appointed the Applicant as a permanent PL1 educator in the Intermediate phase at Walmer West Primary School with her current qualification.
23. The Applicant has extensive experience teaching in the intermediate phase.
24. Although the Applicant does not qualify to teach in the Intermediate phase the fact of the matter is that she has been teaching as an Intermediate teacher for 16 years.
25. The Applicant has been teaching intermediate phase subjects as from 2003. The subjects that the Applicant has been teaching are as follows:
Grade 4: Life Skills
Grade 5: All intermediate Phase Subjects
Grade 6: Social Sciences and Life Skills
Grade 7: Creative Arts, EMS, Life Orientation and Social Sciences.
26. The Applicant complies with the qualifications for a HOD position. The requirements for a HOD position in terms of the addendum to the HOD advert are as follows:
1) At least 2 years teaching experience in the relevant phase
The Applicant has 16 years’ experience in the intermediate phase.
2) A recognised three-year or four-year qualification which includes professional teacher education.
The Applicant has a recognised three-year qualification and a PGCE.
3) Registration with SACE
The Applicant is registered with SACE as a professional educator.
4) Advanced knowledge of teaching.
The Applicant has 16 years of teaching experience.
Page 21 Bundle “A”.
27. The Applicant complies with the requirement for a HOD post according to the PAM par. 3.2.1.1 which requires:
1) A recognised three or four year qualification.
The Applicant has a 4 year B.Mus degree and a PGCE qualification
2) Statutory qualification
The Applicant is registered with SACE as a professional educator.
3) Functional Field
The Applicant has advanced knowledge of teaching
Page 26 Bundle “A”
RESPONDENT’S ARGUMENT
28. The requirements for the post of HOD are all Intermediate and Senior Phase subjects.
29. The Applicant’s professional teaching qualifications do not fit the profile of the post as advertised. The advertisement states clearly under the heading “subjects” All Intermediate Phase and Senior Phase subjects. The Applicant is not qualified as an intermediate teacher.
30. As a result of the new PAM that came into place during February 2016 an applicant appointed to a post must fit the profile of the post.
31. The Applicant’s case is solely built on the fact that she has experience in the subjects and that she was doing the work for many years without the proper qualification.
ANALYSIS OF EVIDENCE AND ARGUMENTS
32. After a consideration of the evidence presented and having regard to the relevant case law I concluded that the Applicant has failed to prove that the DOE committed an unfair labour practice related to promotion against her for the following reasons:
32.1 In the case of Arries v CCMA and others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which an arbitrator, or a court may interfere with the discretion which has been exercised by a party competent to exercise that discretion.
The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons or based upon the wrong principal or in a biased manner.
I am unable to find that the DOE exercised their discretion capriciously, or for insubstantial reasons or based upon the wrong principal or in a biased manner.
32.2 Although I have sympathy with the Applicant and understand her unhappiness, an employer is entitled to exercise their discretion regarding who they wish to employ into a position. The DOE decided that they wish to employ a teacher whose professional teaching qualifications fit the profile of the post as advertised. It is common cause that the HOD position at Walmer West Primary School was advertised as an Intermediate and Senior Phase post and that the Applicant is not in possession of a professional qualification to teach Intermediate phase.
AWARD
33. The Applicant’s application is dismissed.
34. I make no order as to costs.
SIGNED AND DATED ON 08 JUNE 2019
ADVOCATE L CHAROUX
COMMISSIONER