PSES340-18/19EC
PSES340-18/19EC
Award Date:
22 April 2019
Case Number: PSES340-18/19EC
Province: Eastern Cape
Applicant: NAPTOSA obo W Langa
Respondent: 1st Respondent Provincial Department of Education: Eastern Cape, 2nd Respondent Member of The Executive Council,
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: the Cradock District Office of the Provincial Department of Education; Eastern Cape.
Award Date: 22 April 2019
Arbitrator: JOHN CHEEERE ROBERTSON
Case No PSES340-18/19EC
In the matter between
NAPTOSA obo W Langa Applicant
And
Provincial Department of Education: Eastern Cape 1st Respondent
Member of The Executive Council
Provincial Department of Education: Eastern Cape 2nd Respondent
The Head of Department
Provincial Department of Education: Eastern Cape 3rd Respondent
The School Governing Body of Michausdal Primary School
(As represented by its chairperson) 4th Respondent
ARBITRATOR: JOHN CHEEERE ROBERTSON
HEARD: 22 November 2018, 1 February 2019 & 4 April 2019
CLOSING ARGUMENTS: 12 April 2019
DELIVERED: 22 April 2019
AWARD
DETAILS OF HEARING AND REPRESENTATION
1 This matter was set down for arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act (LRA) on 22 November 2018, 1 February 2019 & 4 April 2019 at the Cradock District Office of the Provincial Department of Education; Eastern Cape. Adv. D Saayman of NAPTOSA represented Ms W Langa (applicant). Mr B Kwepile, of the Provincial Department of Education Eastern Cape, represented the 1st to 3rd respondents and Mr R Smith, chairperson of the Michausdal Primary School Governing Body (SGB) represented the 4th respondent. The hearing was digitally recorded. The parties agreed to submit written closing arguments by 12 April 2019.
PRELIMINARY MATTERS
2 This matter was initially set down for hearing on 23 October 2018, when it became apparent that potential interested parties had not been joined. After hearing the parties I issued a joinder ruling dated 23 October 2018, joining the 2nd to 4th parties. On I February 2019, the applicant applied for a ruling that a Mrs Bouwer is not allowed to sit in on the hearing. It transpired that Mrs Bouwer had been a member of the SGB in 2018 but as her child had left the school as from January 2019, was no longer a member of the SGB. After hearing the parties, I dismissed the application for the reasons set in my ruling.
ISSUE TO BE DECIDED
3 The issue to be determined concerns whether the respondent acted unfairly towards the applicant in not appointing her to the post of head of department, Michausdal Primary School, Cradock, Post number 361 advertised in Volume 6/2018 and dependent thereon appropriate relief.
BACKGROUND
4 The respondent employs the applicant as a post level 1 educator at Michausdal Primary School. The applicant referred a dispute to the Education Labour Relations Council (ELRC) concerning an alleged unfair labour practice relating to promotion arising out her unsuccessful application for the post of head of department (hod), post number 361 advertised in the Education Post Bulletin Volume 6/2018, Michausdal Primary School, Cradock. The applicant takes issue with:
o The interview committee’s (IC) recommendation to the SGB
o The ratification and recommendation by the SGB of Ms F Butler to the Head of Department of the Provincial Department of Education Eastern Cape (HOD) for appointment to the post in question, and
seeks compensation only, as relief
5 It was the applicant’s case that the Interview Committee (IC) agreed that the criteria for ranking of candidates would be the scores they obtained, that she was scored the highest, a D Nel 2nd highest and the candidate who was subsequently appointed, Ms F Butler, 3rd highest. However, at the ratification meeting the SGB had mysteriously recommended the appointment, for unknown reasons, of Ms F Butler who had obtained the third highest score. The applicant argued that the SGB had been biased in their recommendation. It was the applicant’s case further that the SGB was biased as its members had been influenced by Mr Fleurs, (the deputy principal of Michausdal Primary School and member of the SGB) who had been a member of and the secretary to the IC in question and had attended the SGB ratification meeting.
6 The respondents’ case was to the effect that the IC had not agreed simply on scores to rank candidates, but scores and discussion / consensus. The IC recommended Ms Butler as their preferred candidate based on the reasons set out in the documents handed up and as there was consensus on this there was no need to go to the scores. The SGB had endorsed the preference ranking of the IC and had adopted this as their recommendation as set out at A67, namely Ms F Butler, Ms W Langa and D Nel as the first, second, and third ranked candidates respectively. Mr Fleurs had not influenced the IC.
7 The parties handed up a bundle of documents Exhibit A1-A87. I shall refer to these where necessary as A1, A9 etc.
SURVEY OF EVIDENCE
The applicant’s submissions
8 The applicant testified on her own behalf and led the testimony of:
o Ms M Meyers The NAPTOSA observer present at the interviews in question
9 The applicant testified to the following effect. She disagreed that she had failed in many ways in carrying out her acting appointment. She had carried out what was expected of her according to the book and no complaints had been laid against her. Ms F Butler had a drinking problem and had caused an embarrassment in public while drinking. She also came to work smelling of alcohol from the night before and the principal was aware of this. Ms F Butler had not been considered for appointment to the acting position because of her drinking problem.
10 She had had problems with some of her colleagues, as they at the time did not want her to do their IQMS, however this had been resolved. She had delegated tasks with permission of the DCES and denied she had not performed properly while in her acting appointment. On one occasion, she had become extremely angry with one of her colleagues. This had taken place in the principal’s office and had arisen because of comments he had made about the ability of her child and she had taken exception to this. While acting as hod, she had at the request of the DCS represented the school on a provincial level at a workshop on teaching and learning of home languages in 2017. Ms F Butler did not have good communication skills and she had had to take over one of her meetings.
11 She believed she was the best person for the post and that she had performed the best at the interviews. In her view, a perusal of the various score sheets showed that the panelists viewed her in a positive light more so than they did Ms F Butler. Her relationship with Mr Fleurs was strictly as colleagues. In her view, Mr Fleurs still held it against her that she had reported his cousin (with whom she was in a relationship at the time and with whom she had a child) to the police for abusing her, resulting in him being gaoled. In addition, Mr Fleurs had no first hand knowledge of her acting as he had been seconded to the department of education for sport at the time. Mr Fleurs and Ms F Butler went to school together. They were friends and she would sometimes bring food for him to the school. At times, they would drink together. At the time of the interviews, (13 April 2018) they still had a close relationship and were friends.
12 She had learned that Ms F Butler had been appointed to the post on her return to school after the holidays. She had then decided to refer a dispute to find out what had happened. She had also told the principal that had she just called her in and thanked her for acting as hod things would not have gone this far. She had felt traumatized, angry, and neglected and had had to see a psychologist.
13 Put to her that the chairperson of the IC, Mr Pieterse, in his welcome told them they would be scored but they would not necessarily take the candidate with the highest score, she responded that she did not remember and could only recall that he said each panelist would score them
14 The applicant:
o Believed that Mr Fleurs had influenced the chairperson against her but had no proof of this, only their past relationship
o Could not understand why based on the scores allocated her by the IC compared to Ms F Butler, the SGB had ratified / recommended Ms F Butler for appointment
15 Ms M Meyers testified to the effect that the criteria to select the candidates were agreed before the interviews. She could not recall what the questions were, she had a document to this effect. The document however turned out to be for another school and was dated 16 April 2018 whereas the interviews in question were held on 13 April 2018 and was not handed up.
16 She recalled the IC said they would rely on performance and scores to select candidates, also that they said they would discuss the ranking with Ms Bouwer . She later stated in answer to a direct question in this regard that it was correct that scores were the criteria the IC would use to recommend candidates. She could not recall if they said consensus would be used. Later in response to a direct question as to whether the IC said it would use consensus she responded that this was not the case. Again put to her that the respondent had said it would go for consensus, she responded that she was sure they said they would go on performance i.e. scores.
17 The applicant was scored the highest. The IC did not announce whom they would recommend in her presence. Asked how she knew that the applicant was recommended arising out of the interviews she responded that the IC had given “us” the scores and she had then congratulated the SGB as the best candidate on the scoring, the applicant, was listed first. Asked again if the IC had read out the scores of all 4 candidates she was not 100% sure but said that this must have been the case as she had congratulated them. Neither the chairperson nor the resource person asked them to reach consensus on who they chose. She left with the understanding that the applicant was number one, D Nel was second, and F Butler was third.
18 Asked if she had signed any documents in this regard, she initially said no, but on looking at the bundle (A68 ) said she had and that Mr Fleurs had brought this to her house the next day (14 April 2018). She asked him whether he had changed anything from what they had discussed yesterday. He had not answered directly but just laughed. Mr Fleurs said he was in a hurry. She had trusted him and signed. She did not read the document. It was not blank and it was written in-not completely-she did not see anything on the page. Had she known what was written in the document she would not have signed.
19 The applicant argued to the effect that the members of the SGB were newly appointed and relied on Mr Fleurs and accordingly did not apply their minds. Had it not been for Mr Fleurs biased input against the applicant at the SGB ratification meeting, the SGB would have recommended her as she was the best candidate in terms of her performance at the interviews.
The respondents’ submissions
20 The SGB did not call any witnesses and relied on the witnesses called by the Provincial Department of Education Eastern Cape (1st Respondent). The respondents led the testimony of:
Mr J Pieterse SGB member and chairperson of the Interview Committee (IC)
Ms FCM Meyer Principal of Michausdal Primary School and Resource Person during the interviews for the post in question.
Mr NJ Fleurs Deputy Principal, Michausdal Primary School, SGB member and secretary of the IC for the post in question
21 Mr J Pieterse testified to the following effect. They as the IC had agreed on questions to be put to the candidates and that the award of points would not be the final determinant as they would still have to discuss, debate and look at their preferential candidates and reach consensus.
22 Once the interviews had been concluded he had reiterated that the highest score did not mean the candidate was automatically number one, scores were not the only thing to determine on as a lot of things to take into account and they would still have to discuss everyone on the list and agree on their preferred candidate. The trade unions were in agreement with the process, had no objections and they signed the documents. Ms M Meyer stated her appreciation.
23 The IC then presented the names of their preferred candidates to the full SGB. After discussion and debate Ms F Butler became the number one candidate, D Nel number 2 and the applicant number three. The SGB chairperson signed together with management and the documents were then presented to the department.
24 The applicant was number one in terms of scores with D Nel second and Ms F Butler third. On it being put to him, he agreed that D Nel was number 4 as per the final ranking at A67 and that this was as per the IC preference list.
25 The reasons for ranking Ms F Butler number one, a collective decision was that:
o She always reached her time frames
o She was good at communication
o She had a good temperament
26 The reasons for not recommending the applicant, although she scored the highest points was that:
o They looked at weaknesses and strengths
o It came to their attention that she had been acting in the post and did not cooperate with her juniors in management and there were always tensions
o They said the applicant had a temper
o She nearly had a fight with someone in the principal’s office
and we submitted this to the SGB. They, the IC, submitted their preference list to the SGB and it was accepted and approved by the full SGB.
27 The persons who signed at A65, namely the 5 IC members and two trade union observers were present when the IC agreed on their order of preference and they signed as satisfied on this at A68 . No influence was exerted by anyone and the decision was made on the basis of clear open-minded consensus.
28 During cross-examination Mr Pieterse:
o Stated that he was not aware that Ms F Butler had a drinking problem
o On it being put to him that Mr Fleurs had influenced the IC to only consider Ms F Butler for the position, denied any influence by Mr Fleurs and stated that they approached the matter with an open mind.
o Stated that he was unaware of any relationship between Mr Fleurs and Ms F Butler
o Stated that A61 was the SGB ratification minutes and were a true reflection of the meeting
o Stated that they had not considered D Nel as they agreed to focus on people already at the school
o Stated that the principal, not Mr Fleurs, told them that the applicant, as the current acting hod, had failed in many ways (A61). Although she was the resource person, she was the only one who could give them references on the two candidates. The principal had the applicant’s file with her and had told them that the applicant represented the school at provincial level. He then stated that they relied on management (the senior management team (SMT)) and we depend on management to give information to the SGB at ratification meeting and expect them to be honest
o He agreed that although the principal attended the ratification meeting she did so as Resource Person and agreed that she did not give any information on the applicant at the ratification meeting and that this information (A61) was given to them by Mr Fleurs (Deputy Principal, SGB member and IC secretary) at the SGB ratification meeting.
o Stated that the points listed at A61 were not discussed at the interviews, this was the ratification minutes and the SGB had made the final decision at the ratification meeting
o In response to the question as to whom the IC recommended to the SGB, he responded [W]e did not recommend a specific candidate. We said these are our points -but we must first give attention to the candidates who is on the school.
29 In reexamination Mr Pieterse testified as follows:
o It was put to him that he had said that as the IC they recommended Ms F Butler as their preferred candidate and then asked how they had ranked the candidates in order of preference (without going to points) he stated that it had been Ms F Butler, D Nel and the applicant.
o On being asked whether the issues discussed as listed in the ratification minute were raised and discussed in the IC, after initially saying that they were, he reconsidered and stated they were not discussed in the IC. The principal was present at the ratification meeting as a Resource Person and had not given any information on the applicant. Mr Fleurs had given input on the applicant.
30 Ms FCM Meyer testified to the following effect. The chairperson of the IC told candidates before their interview that at the end a candidate would not be selected on scoring but that a discussion would take place afterwards. At the time, the trade unions were present and no objections were raised.
31 The applicant scored the highest at the interviews, she could not recall who was second and third
32 After the last candidate left, the chairperson thanked the panel for conducting good interviews, then the ratification started, and then there were discussions. The points were totaled for each candidate, there was discussion as to who the IC would have as hod at the school and thereafter consensus / joint decision on who the candidate number one would be. The trade union observers and IC chairperson signed (she did not have the form in front of her) and that was the end of it. All the documentation was put together including the form she had to sign and when the package was ready, she took it to the department who checked that all the documents were present . No one had exerted any influence in ranking the preferred candidate at the interviews. The trade union observers had raised no objections during the interviews. Ms Meyer (NAPTOSA union observer) had thanked the IC, and had not mentioned anything about the IC using the scores to select their preferred candidate.
33 She confirmed that the IC recommended Ms F Butler and on being asked further, confirmed that A66 (part of the SGB motivation) was also the recommendation of the IC. She could not say whether Ms F Butler had an alcohol problem.
34 The trade union observers were present at the ratification meeting . They all had a light snack after the IC meeting and then proceeded with the SGB ratification meeting. The trade union observers did not raise any objections and had signed A68 in her presence. She denied in cross-examination that Ms Meyer had signed A68 at 19h00 on 14 April 2018 and stated that no document left the staff room after the procedure . She had taken the documents and put them in a safe at the school until the next day , when she took them to the department. The department had informed her that the trade union observers should attend the ratification meeting and even if they were not supposed to, it would have made no difference, as they had no vote.
35 Mr Fleurs had taken the minutes of the interview process manually and later typed these up on the school laptop, which had been taken out of her office and used in the staff room. She had handed in all the documents to the department including the minute of the interview session. All the documents were listed in the checklist form and ticked off as per A63. She herself saw the minute in question together with the other documents. She had difficulty in answering whether there was an electronic copy of the minute in question on her personal computer saying she did not have a personal computer, whereas as she had mentioned Mr Fleurs had typed up the minutes on the school laptop that she used.
36 Although Mr Fleurs had worked at the department for a period overlapping the time that the applicant had acted in the position of HOD, Ms FCM Meyer denied that he had no knowledge of how the applicant had conducted herself. In her view, the relationship between Mr Fleurs and the applicant was a professional one and that between him and Ms F Butler was the same as with any other member of staff.
37 Mr NJ Fleurs testified to the following effect. He confirmed that the interviews had been held on 13 April 2018 and the SGB ratification meeting on 15 April 2018. He had been the secretary of the IC and a panelist at the interviews.
38 The chairperson of the IC had told every candidate that they would not only look at marks but that the panel would afterwards have a discussion to decide on their preference list, i.e. any decision taken would not be based solely on scores.
39 At the end of the interviews, the trade union members praised them for the manner in which interviews took place.
40 The applicant scored the highest at the interviews. After discussions, the IC recommended Ms F Butler as its number one candidate.
41 The reasons for this were, with regard to the applicant:
o While asked to act in the position, she had not managed to do her duties
o The communication between her and the foundation educators was very weak
o Complaints were made to the principal’s office by educators in the foundation phase that there was no communication between her and educators
o The manner in which she had handed out tasks to the others
o She had a temper and intimidating manner
o While acting, she had written two to three letters in which she resigned as acting hod, and;
o That when asked to do a task, she would refuse. The principal had called on her to be involved in sports and she said she would not do that.
42 He confirmed that the reasons at A61 not to recommend the applicant were in line with what he had testified (above). Asked whether the submission of the preference list of the IC was approved by the SGB, he confirmed that it was.
43 They had recommended Ms F Butler because:
o She was hardworking
o She knew how to communicate with educators and fellow teachers
o She was hands on with co-workers, curricular activities, fundraising and extra mural
o Her admin was very good
o Asked as to Ms F Butler being hands on, he elaborated that she was helpful with everything at the school that she could lay her hands on. She was willing to help and go the extra mile and creative
44 The above was in line with the reasons at A62. In cross-examination, he stated that these were the items (A62) they discussed with regard to Ms F Butler at the SGB Meeting
45 The reasons at A66 were those advanced by the SGB that led the department to appoint Ms F Butler.
46 The trade union observers declared the process good and fair and signed at A68 which contained the recommendation of the chairperson of the SGB that Ms F Butler is appointed. No one had influenced the IC
47 In cross-examination, he denied Mr Pieterse’s testimony to the effect that he, Mr Fleurs, as member of the SMT had assisted them with technical information. Put to him that Mr Pieterse testified that he, Mr Fleurs, told them the information about the applicant (at A61) at the SGB ratification meeting, he stated that the SGB discussed the IC preference list and that he did not inform either the IC or the SGB of the information about the applicant (A61). He was of the view that the members of the SGB were aware of the information about the applicant (at A61) from their association with the school, having been there for more than three to four years and he having been there for twenty-five years. They had decided as a collective that they could not recommend the applicant for the post because of all the complaints. (Mr Peters and Mr Butler , two parents on the SGB, had told them of information regarding the applicant) The complaints dated from 2017.
48 He denied he had put the information at A61 to the SGB to influence them.
49 Put to him that Ms Meyer had testified that he had arrived at her house one evening and asked her to sign A68, he denied this. He stated that she signed it on 17 April 2018 at the school. He also denied Ms Meyer’s testimony about her asking him if anything had been changed or that he had changed anything
50 He denied that he had a relationship of any sort with the applicant, Ms F Butler, or Ms F Butler’s husband that would make him try to influence the SGB to appoint Ms F Butler over the applicant.
51 Although he had access to the department, he had no access to the file in question.
52 The respondent argued to the effect that the applicant, on whom the onus lay, had not proved any unfair labour practice relating to promotion against her. The IC had elected to use scores and discussion on other valuable factors and ultimately consensus. Mr Fleurs had not influenced the SGB in deciding on Ms F Butler. The SGB had arrived at a collective decision and that there were good reasons for appointing Ms F Butler above the applicant, mainly those listed at A61-A62. The members of the IC and union observers had signed to the effect that they were satisfied with the process and that it was free and fair.
ANALYSIS OF EVIDENCE AND ARGUEMENT
53 I have considered all the evidence and argument, but because the Labour Relations Act 66 of 1995 requires brief reasons (Section 138(7)), I have only referred to the evidence and argument necessary to substantiate my findings and my award.
54 Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia:
(2) “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;
…
55 The Labour Relations Act No 66 of 1995 requires employers to treat employees fairly when they apply for promotions . An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all of the elements of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
56 Fairness requires that the position and interests of both the employee and employer are taken into account in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the Act .
57 An arbitrator may make an appropriate determination for the fair resolution of the dispute (in respect of an unfair labour practice referred in terms of the LRA), on terms, which the arbitrator deems reasonable, which may include ordering reinstatement, re-employment, or compensation, based on fairness , procedurally and substantively . In the event an arbitrator makes a determination contrary to that of the employer, this is not a review of the employer’s decision but a determination based on the facts presented by the parties, by virtue of the provisions of the LRA . In terms of section 209, the LRA binds the State. The State as employer in its various Departments / Agencies, with the exclusion of those listed in section 2, is bound by the LRA .
58 In Mbatha V SSSBC & others (LC) JR372/13, (30 September 2015) the Labour Court remarked as follows on the applicable test for unfair labour practice disputes.
[28] It has long been accepted that the decision to promote or not to promote falls within the managerial prerogative of an employer and that the courts will interfere only where such discretion was exercised capriciously, or for insubstantial reasons or based upon a wrong principle or in a biased manner .
[29] In more recent cases the courts have clarified the test to be that of fairness.
[30] In Apollo Tyres SA (Pty) Ltd v CCMA & Others , the Labour Appeal Court was dealing with an unfair labour practice relating to a benefit and quoted from Du Toit et al with approval on the meaning of unfairness as follows:
[53] ... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
[32] In City of Cape Town v SA Municipal Workers Union obo Sylvester & Others the court expressly rejected the notion that the employer has the prerogative to decide whom to appoint and that it should not be questioned when it exercises that discretion. The court stated that the proper yardstick was “fairness to both parties” .
59 The following examples from case law are instructive:
o In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others ; it was held that the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.
o Central to appointments or promotion of employees is the principle that courts and commissioner alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions . In my view, good cause would entail a consideration of the factors set out in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others as above .”
o Where an employer can rationally justify the promotion in question, arbitrators should be slow to interfere
o Where the appointment of an employee is thwarted by the way in which the process is conducted and in particular where it is shown that the unfair labour practice most probably had the effect of denying the employee appointment in the post , this is unfair and it may be well be appropriate for an arbitrator to interfere.
o Where there are huge discrepancies in the scores between candidates, the employer must explain these large variations in marks awarded to the candidates, in detail and not just dismiss them as subjective variances .
o Where the employer’s reasons for not appointing a candidate, who scored significantly higher than the successful candidate were irrational, the Labour Court upheld the decision of the arbitrator to promote the applicant to the rank of the post applied for .
o Failure to provide reasons may give rise to an inference that the decision was arbitrary and hence unfair towards the applicant .
o In Nainar v Department of Public Works, GPSSBC & Another the Labour Court stated as follows: In the Public Service there are set requirements to be met if a selection committee wishes to recommend a candidate, other than the highest scoring candidate for a position. The managerial prerogative in justifying the deviation from the highest scoring candidates on the grounds of operational requirements or employment equity is procedurally and substantially limited. The managerial prerogative to select another candidate should be respected unless bad faith or improper motive, such as discrimination, is present . Any non-rational ground of deviation must render the decision unfair to the unsuccessful higher scoring candidates .
o A selection panel may not unilaterally change the advertised requirements / criteria for a post to allow candidates who otherwise would not have been selected to participate in the selection process.
o The fact that the position has been filled is no bar to an arbitrator not ordering a person to be promoted. This is a risk that an employer will face if it makes appointments that cannot be defended later at arbitrations. It would force the selection panels to apply their minds properly when making such recommendations and for the national commissioner or provincial commissioner to ensure that it is done properly
60 In summary the test or yardstick in unfair labour practice disputes, including disputes relating to promotion is fairness and:
o Where there is a rational basis for a decision, an arbitrator should afford an employer a margin of appreciation and should not easily interfere with the employer’s decision .
o Where the employer’s conduct has denied an employee a fair opportunity and thereby prejudiced him or her in presenting their candidature, the appropriate remedy may be compensation alternatively to remit the matter back to the employer with or without instructions
o Where the employer’s decision to appoint the incumbent over the applicant was unfair , and but for the unfair or irregular appointment of the incumbent / conduct of the employer, the applicant would have been appointed, it may well be appropriate for an arbitrator to intervene on terms, which s/he deems reasonable based on fairness taking into account the interests of the respective parties, and which may include promotion, subject in particular to:
• The applicant demonstrating that s/he was the most suitable candidate and would but for the conduct of the employer, have been appointed
• Whether the employer’s conduct in appointing the incumbent over the applicant is rationally justified (e.g. employment equity, service delivery, inherent requirements of the job)
61 I do not intend to traverse all the testimony led but to focus only on the evidence necessary in order to make a determination herein. In brief the applicant claims that she was unfairly treated in the selection process, in that although she was the highest scoring candidate she was not appointed on the basis of the undue influence exerted by Mr Fleurs on the members of the SGB resulting in the appointment of the candidate who scored the third highest marks. The respondents deny this and clam that the incumbent, Ms F Butler was ranked by the IC as their number one preferred candidate and this was accepted by the SGB for the reasons advanced at A61/62 and A66. As to relief, the applicant sought payment of compensation equivalent to 12 months remuneration. The respondents sought that the status quo ante remain and the applicant’s case be dismissed
62 In the circumstances the issues for determination concern:
o The recommendation of the IC as to their preferred candidates
o Whether there was undue influence
o Whether the decision of the SGB not to recommend the applicant was consequent on undue influence
o Dependent on the above whether the applicant was treated unfairly in so far as she was not recommended for appointment
o Appropriate relief
63 According to the prescripts , the following is relevant with regard to this dispute:
o The IC must consult with all parties at the shortlisting meeting and then set and adopt short listing criteria .
o In considering applications the IC must ensure that the principles of equity, redress and representivity are complied with and they must adhere to the requirements of Section 6(b)(i)-(v) of the Employment of Educators Act76 of 1998 . This includes the IC and SGB adhering to procedures that will ensure that the recommendation is not obtained through undue influence on the members of the SGB .
o After compiling the shortlist the IC must draft, finalise and adopt questions to be asked of the shortlisted candidates. These questions should be in accordance with the criteria / requirements for the post .
o The IC is then required to conduct interviews with each shortlisted candidate. The chairperson of the IC should allow members of the IC to put questions according to a prearranged plan , in particular the candidates should be treated in a similar manner both in terms of the questions asked and manner in which the interviews are conducted .
o The candidates should be told how and when they would be informed of the final decision .
o On completion of the interviews, the IC should reach a decision as soon as possible and must rank all candidates interviewed in order of their preference and motivate the ranking of each candidate to the SGB for recommendation to the relevant employing department / provincial department of education Eastern Cape . The scores allocated the candidates and the ranking based on the scores are not the only consideration to take into account in selecting a candidate. When making an appointment or recommendation, both the qualifications and experience as recorded in the candidate’s curriculum vitae together with their performance during the interviews must be taken into account. It is irrational to make an appointment purely based on performance during interviews or to reason that the experience and qualifications as contained in the curriculum vitae become irrelevant after short listing. See ELRC Clause 43, Collective Agreement 3/2016. Each member should compare their individual scores and ratings for each applicant against their personal impressions of the particular candidate’s qualifications, experience / skills, etc, contained in the candidates’ curriculum vitae. After IC members have finalized their individual ratings, the IC can compile a list setting out the IC preference as to 1st, 2nd and 3rd etc. In the event, the IC is unable to reach a unanimous decision it may have to take a vote. In either event best practice requires that the IC should prepare a minute of the meeting, setting out their preference list for consideration by the SGB, together with a brief motivation
o Self evidently the SGB should convene for the purpose of considering the IC preference list and making its recommendation. The SGB may or may not differ from the preference list of the IC. In the event it differs the SGB must give reasons to the IC when changes are to be made to the preference list submitted by the IC .
o The SGB, not the IC, must then submit its recommendation of the candidates, in order of preference, to the HOD of the provincial department of education Eastern Cape .
64 In the event the IC’s preferred candidate and that of the SGB were the same, i.e. to recommend Ms F Butler for appointment, (as per the respondents case):
o Why did Mr Pieterse, during cross-examination testify as to whom the IC recommended to the SGB, that; we did not recommend a specific candidate. We said these are our points , but we must give attention to the candidates who is on the school.
o Why was it necessary, as evident from A61 (SGB Ratification Minute of 15 April 2018) signed by Mr Fleurs (SGB secretary) and Mr Smith (SGB chairperson) that “a decision had to be made between Ms W Langa and Ms F Butler” ?
o There would have been no need for discussion at a SGB meeting to decide on whom to recommend as per the minute of the SGB meeting of 15 April 2018 at A61-A62. In this regard it is self evident from the SGB minute at A61-A62 that discussion took place at the SGB meeting when the various aspects listed in the minute were raised and discussed.
65 It is self evident that the IC made no categorical preference list other than to score candidates according to the questions posed and then to leave it for discussion by the SGB as to whom should be appointed. It follows that it cannot be said that the SGB merely endorsed the preference of the IC as its own.
66 It appears from A61 (the minute of the SGB ratification meeting of 15 April 2018) that a choice had to be made between the applicant, Ms W Langa, and Ms F Butler. This is in line with Mr Pieterse’s testimony and the comment above. It further appears that Ms F Butler was chosen above Ms W Langa as set out at A61 on the basis that:
o As current Acting Head of the department the applicant had failed in many ways
o The applicant did not have the temperament to delegate tasks in a good manner and that too many teachers in foundation phase had laid complaints against her in the office
o The applicant was not co-operative
o Although the applicant performed well as an administrator, too often she delegated her tasks to post level 1 teachers and expected miracles
67 At A62, the continuation of the ratification minute, the SGB decided that Ms F Butler must be promoted to the post as:
o Although she was nervous this was her first interview in her teaching career
o She was hands on
o She was always willing to help, to go the extra mile and think creatively
o She has good communication skills and could delegate tasks with authority but with respect for colleagues
68 According to Mr Fleurs the members of the SGB and it follows, the members of the IC who were all SGB members, were aware of the information relating to the applicant from their interaction with the management team during their term of office in the SGB and further that Mr B Peters and Mr E Butler had brought this to their attention. If this was so then it is surprising that this knowledge did not translate itself into the scoring patterns and marks awarded the applicant and Ms F Butler respectively.
69 During the interviews, the candidates were required to respond to ten questions . A comparison between the applicant, Ms W Langa and Ms F Butler in respect of the interview questions and their respective performance reveals the following :
o The applicant was scored a higher mark twenty-two times, the same mark twenty-two times and a lower mark six times
o Ms Butler was scored a higher mark six times, the same mark twenty-two times and a lower mark twenty-two times
o Only one out of the 5 IC members, Mr B Peters scored Ms F Butler overall at a higher average mark (37 out of 50) than that he awarded the applicant (36 out of 50)
o The applicant and Ms F Butler were scored at an average of 38.4 and 33.8 out of 50 marks respectively . This translates to 76.8% and 67.6% the difference on the average marks being 4.6 out of 50 or 9.2% . This is a significant difference .
70 Set out below is a composite of the scores and ranking per scores and the final ranking as set out at A67 .
NAME AVERAGE OUT OF 250 % RANKING ACCORDING TO MARKS OBTAINED FINAL RANKING
W. Langa 38.4 (36.8) 192 76.8 1 3
D Nel 36.6 (A67) 183 73.2 2 2
F Butler 33.8 (34.4) 169 67.6 3 1
71 As stated above, if the IC was aware of the information relating to the applicant (set out in A61-A62) it is surprising that this is not reflected in the scoring patterns and scores awarded the respective candidates during the interviews. One of the respondent’s own witnesses, (the chairperson of the IC) testified to the effect that Mr Fleurs communicated this information to them at the SGB ratification meeting. This is supported by the content of the SGB ratification minute at A61-A62 dated 15 April 2018 . The probabilities support the view that the IC members were unaware and did not consider this information in allocating marks to the applicant in respect of the various questions posed.
72 In any event, had the IC (or SGB) wished to consider this information, the IC should have raised this during the applicant’s interview thereby affording her an opportunity to comment.
73 It was the respondent’s case that Mr Fleurs did not influence the SGB to recommend Ms F Butler above the applicant as the SGB had simply endorsed the IC preferred candidate i.e. Ms F Butler. However, as the evidence shows, this is not what happened, see above. The IC simply submitted their list of candidates ranked according to the scores, with the proviso that the SGB consider candidates who were already employed at the school as testified by the chairperson of the IC (the respondents’ witness) Mr Pieterse, We did not recommend a specific candidate. We said these are our points , but we must give attention to the candidates who is on the school. The IC did not take the negative information into account in their allocation of marks and their rating of the various candidates, see the above discussion and in particular the testimony of Mr Pieterse, to the effect that, Mr Fleurs informed them of all the above factors, apart from that the applicant had failed as acting head of department in too many ways ) at the ratification meeting held by the SGB.
74 The only basis on which the SGB recommended Ms F Butler and not the applicant, as is apparent from their own witnesses and documents, is the information relating to the applicant and Ms Butler as set out at A61-A62 and A66 including the additional factors testified to by Mr Pieterse and Mr Fleurs. The information at A61 and amplified by Mr Pieterse and Mr Fleurs in their respective testimonies, although vague in its ambit is deprecatory of the applicant’s ability to function in the post she had applied for and critical of her prior acting in the post in question. The applicant was not given an opportunity to comment on the information during interviews (where she was scored the highest) and to put her version thereon to the members of the IC. This information self evidently impacted negatively on the applicant, without her having an opportunity to answer, and I have found that this was conveyed, by the principal Ms Meyer and Mr Fleurs, outside of the interviews to the SGB. In other words the SGB decided on the basis of information made available to it, outside of the interviews, to recommend Ms F Butler, who scored third highest at an average score of 33.8 out of 50 (67.6%) as against the applicant who scored the highest at an average score of 38.4 out of 50 (76.8%) which score or percentage is significantly higher than that obtained by Ms F Butler.
75 Given that the applicant scored the highest, that Ms F Butler scored the third highest, the disparity in the scores, that the applicant was not afforded an opportunity to comment on this negative information, the nature of the information, that it was untested and that it was brought by members of the school management team to the attention of the SGB outside of the interviews and resulted in Ms F Butler being recommended over the applicant, this in my view constitutes undue influence on the members of the SGB to secure a candidate other than the applicant, and constitutes unfairness towards the applicant and I find accordingly.
76 In the circumstances I find that the SGB of Michausdal Primary School, in the process of its recommendation of a candidate for the post of head of department, Michausdal Primary School, Cradock, Post number 361 advertised in Volume 6/2018, conducted itself unfairly with regard to the applicant, Ms Wendy Langa, and prejudiced her in presenting her candidature and this constitutes an unfair labour practice relating to promotion as envisaged in Section 186(2)(a) of the Labour Relations Act No. 66 of 1995 by the respondent, the Provincial Department of Education; Eastern Cape, against the applicant, Ms Wendy Langa.
77 The applicant has shown that she was unfairly treated; see above. It was common cause that the applicant scored the highest in the interviews. No evidence however was led in respect of the qualifications, experience and expertise / skills of all the shortlisted candidates . The applicant did not seek that she be appointed to the post in question in the place of Ms F Butler, but only that she be paid compensation. Given the nature of her claim and that she has shown she was unfairly prejudiced in presenting her candidature, I find that just and equitable compensation for the injuria she has suffered is the equivalent of quarter of one month’s salary namely R 5 756.62 (Calculated as follows: R 276 318.00 ÷ 12 x .25 = R 5 756.62)
AWARD
78 First Respondent, the Provincial Department of Education: Eastern Cape committed an unfair labour practice relating to promotion as contemplated in section 186(2)(a) of the LRA against the applicant Ms Wendy Langa
79 The First respondent is ordered to pay the applicant the sum of R 5 756.62 as compensation for the above unfair labour practice by no later than 14 days from the date of this award.
Signature:
Panelist: John Cheere Robertson
ELRC
Sector: Public: Basic Education
Province: Eastern Cape
Applicant: NAPTOSA obo W Langa
Respondent: 1st Respondent Provincial Department of Education: Eastern Cape, 2nd Respondent Member of The Executive Council,
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: the Cradock District Office of the Provincial Department of Education; Eastern Cape.
Award Date: 22 April 2019
Arbitrator: JOHN CHEEERE ROBERTSON
Case No PSES340-18/19EC
In the matter between
NAPTOSA obo W Langa Applicant
And
Provincial Department of Education: Eastern Cape 1st Respondent
Member of The Executive Council
Provincial Department of Education: Eastern Cape 2nd Respondent
The Head of Department
Provincial Department of Education: Eastern Cape 3rd Respondent
The School Governing Body of Michausdal Primary School
(As represented by its chairperson) 4th Respondent
ARBITRATOR: JOHN CHEEERE ROBERTSON
HEARD: 22 November 2018, 1 February 2019 & 4 April 2019
CLOSING ARGUMENTS: 12 April 2019
DELIVERED: 22 April 2019
AWARD
DETAILS OF HEARING AND REPRESENTATION
1 This matter was set down for arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act (LRA) on 22 November 2018, 1 February 2019 & 4 April 2019 at the Cradock District Office of the Provincial Department of Education; Eastern Cape. Adv. D Saayman of NAPTOSA represented Ms W Langa (applicant). Mr B Kwepile, of the Provincial Department of Education Eastern Cape, represented the 1st to 3rd respondents and Mr R Smith, chairperson of the Michausdal Primary School Governing Body (SGB) represented the 4th respondent. The hearing was digitally recorded. The parties agreed to submit written closing arguments by 12 April 2019.
PRELIMINARY MATTERS
2 This matter was initially set down for hearing on 23 October 2018, when it became apparent that potential interested parties had not been joined. After hearing the parties I issued a joinder ruling dated 23 October 2018, joining the 2nd to 4th parties. On I February 2019, the applicant applied for a ruling that a Mrs Bouwer is not allowed to sit in on the hearing. It transpired that Mrs Bouwer had been a member of the SGB in 2018 but as her child had left the school as from January 2019, was no longer a member of the SGB. After hearing the parties, I dismissed the application for the reasons set in my ruling.
ISSUE TO BE DECIDED
3 The issue to be determined concerns whether the respondent acted unfairly towards the applicant in not appointing her to the post of head of department, Michausdal Primary School, Cradock, Post number 361 advertised in Volume 6/2018 and dependent thereon appropriate relief.
BACKGROUND
4 The respondent employs the applicant as a post level 1 educator at Michausdal Primary School. The applicant referred a dispute to the Education Labour Relations Council (ELRC) concerning an alleged unfair labour practice relating to promotion arising out her unsuccessful application for the post of head of department (hod), post number 361 advertised in the Education Post Bulletin Volume 6/2018, Michausdal Primary School, Cradock. The applicant takes issue with:
o The interview committee’s (IC) recommendation to the SGB
o The ratification and recommendation by the SGB of Ms F Butler to the Head of Department of the Provincial Department of Education Eastern Cape (HOD) for appointment to the post in question, and
seeks compensation only, as relief
5 It was the applicant’s case that the Interview Committee (IC) agreed that the criteria for ranking of candidates would be the scores they obtained, that she was scored the highest, a D Nel 2nd highest and the candidate who was subsequently appointed, Ms F Butler, 3rd highest. However, at the ratification meeting the SGB had mysteriously recommended the appointment, for unknown reasons, of Ms F Butler who had obtained the third highest score. The applicant argued that the SGB had been biased in their recommendation. It was the applicant’s case further that the SGB was biased as its members had been influenced by Mr Fleurs, (the deputy principal of Michausdal Primary School and member of the SGB) who had been a member of and the secretary to the IC in question and had attended the SGB ratification meeting.
6 The respondents’ case was to the effect that the IC had not agreed simply on scores to rank candidates, but scores and discussion / consensus. The IC recommended Ms Butler as their preferred candidate based on the reasons set out in the documents handed up and as there was consensus on this there was no need to go to the scores. The SGB had endorsed the preference ranking of the IC and had adopted this as their recommendation as set out at A67, namely Ms F Butler, Ms W Langa and D Nel as the first, second, and third ranked candidates respectively. Mr Fleurs had not influenced the IC.
7 The parties handed up a bundle of documents Exhibit A1-A87. I shall refer to these where necessary as A1, A9 etc.
SURVEY OF EVIDENCE
The applicant’s submissions
8 The applicant testified on her own behalf and led the testimony of:
o Ms M Meyers The NAPTOSA observer present at the interviews in question
9 The applicant testified to the following effect. She disagreed that she had failed in many ways in carrying out her acting appointment. She had carried out what was expected of her according to the book and no complaints had been laid against her. Ms F Butler had a drinking problem and had caused an embarrassment in public while drinking. She also came to work smelling of alcohol from the night before and the principal was aware of this. Ms F Butler had not been considered for appointment to the acting position because of her drinking problem.
10 She had had problems with some of her colleagues, as they at the time did not want her to do their IQMS, however this had been resolved. She had delegated tasks with permission of the DCES and denied she had not performed properly while in her acting appointment. On one occasion, she had become extremely angry with one of her colleagues. This had taken place in the principal’s office and had arisen because of comments he had made about the ability of her child and she had taken exception to this. While acting as hod, she had at the request of the DCS represented the school on a provincial level at a workshop on teaching and learning of home languages in 2017. Ms F Butler did not have good communication skills and she had had to take over one of her meetings.
11 She believed she was the best person for the post and that she had performed the best at the interviews. In her view, a perusal of the various score sheets showed that the panelists viewed her in a positive light more so than they did Ms F Butler. Her relationship with Mr Fleurs was strictly as colleagues. In her view, Mr Fleurs still held it against her that she had reported his cousin (with whom she was in a relationship at the time and with whom she had a child) to the police for abusing her, resulting in him being gaoled. In addition, Mr Fleurs had no first hand knowledge of her acting as he had been seconded to the department of education for sport at the time. Mr Fleurs and Ms F Butler went to school together. They were friends and she would sometimes bring food for him to the school. At times, they would drink together. At the time of the interviews, (13 April 2018) they still had a close relationship and were friends.
12 She had learned that Ms F Butler had been appointed to the post on her return to school after the holidays. She had then decided to refer a dispute to find out what had happened. She had also told the principal that had she just called her in and thanked her for acting as hod things would not have gone this far. She had felt traumatized, angry, and neglected and had had to see a psychologist.
13 Put to her that the chairperson of the IC, Mr Pieterse, in his welcome told them they would be scored but they would not necessarily take the candidate with the highest score, she responded that she did not remember and could only recall that he said each panelist would score them
14 The applicant:
o Believed that Mr Fleurs had influenced the chairperson against her but had no proof of this, only their past relationship
o Could not understand why based on the scores allocated her by the IC compared to Ms F Butler, the SGB had ratified / recommended Ms F Butler for appointment
15 Ms M Meyers testified to the effect that the criteria to select the candidates were agreed before the interviews. She could not recall what the questions were, she had a document to this effect. The document however turned out to be for another school and was dated 16 April 2018 whereas the interviews in question were held on 13 April 2018 and was not handed up.
16 She recalled the IC said they would rely on performance and scores to select candidates, also that they said they would discuss the ranking with Ms Bouwer . She later stated in answer to a direct question in this regard that it was correct that scores were the criteria the IC would use to recommend candidates. She could not recall if they said consensus would be used. Later in response to a direct question as to whether the IC said it would use consensus she responded that this was not the case. Again put to her that the respondent had said it would go for consensus, she responded that she was sure they said they would go on performance i.e. scores.
17 The applicant was scored the highest. The IC did not announce whom they would recommend in her presence. Asked how she knew that the applicant was recommended arising out of the interviews she responded that the IC had given “us” the scores and she had then congratulated the SGB as the best candidate on the scoring, the applicant, was listed first. Asked again if the IC had read out the scores of all 4 candidates she was not 100% sure but said that this must have been the case as she had congratulated them. Neither the chairperson nor the resource person asked them to reach consensus on who they chose. She left with the understanding that the applicant was number one, D Nel was second, and F Butler was third.
18 Asked if she had signed any documents in this regard, she initially said no, but on looking at the bundle (A68 ) said she had and that Mr Fleurs had brought this to her house the next day (14 April 2018). She asked him whether he had changed anything from what they had discussed yesterday. He had not answered directly but just laughed. Mr Fleurs said he was in a hurry. She had trusted him and signed. She did not read the document. It was not blank and it was written in-not completely-she did not see anything on the page. Had she known what was written in the document she would not have signed.
19 The applicant argued to the effect that the members of the SGB were newly appointed and relied on Mr Fleurs and accordingly did not apply their minds. Had it not been for Mr Fleurs biased input against the applicant at the SGB ratification meeting, the SGB would have recommended her as she was the best candidate in terms of her performance at the interviews.
The respondents’ submissions
20 The SGB did not call any witnesses and relied on the witnesses called by the Provincial Department of Education Eastern Cape (1st Respondent). The respondents led the testimony of:
Mr J Pieterse SGB member and chairperson of the Interview Committee (IC)
Ms FCM Meyer Principal of Michausdal Primary School and Resource Person during the interviews for the post in question.
Mr NJ Fleurs Deputy Principal, Michausdal Primary School, SGB member and secretary of the IC for the post in question
21 Mr J Pieterse testified to the following effect. They as the IC had agreed on questions to be put to the candidates and that the award of points would not be the final determinant as they would still have to discuss, debate and look at their preferential candidates and reach consensus.
22 Once the interviews had been concluded he had reiterated that the highest score did not mean the candidate was automatically number one, scores were not the only thing to determine on as a lot of things to take into account and they would still have to discuss everyone on the list and agree on their preferred candidate. The trade unions were in agreement with the process, had no objections and they signed the documents. Ms M Meyer stated her appreciation.
23 The IC then presented the names of their preferred candidates to the full SGB. After discussion and debate Ms F Butler became the number one candidate, D Nel number 2 and the applicant number three. The SGB chairperson signed together with management and the documents were then presented to the department.
24 The applicant was number one in terms of scores with D Nel second and Ms F Butler third. On it being put to him, he agreed that D Nel was number 4 as per the final ranking at A67 and that this was as per the IC preference list.
25 The reasons for ranking Ms F Butler number one, a collective decision was that:
o She always reached her time frames
o She was good at communication
o She had a good temperament
26 The reasons for not recommending the applicant, although she scored the highest points was that:
o They looked at weaknesses and strengths
o It came to their attention that she had been acting in the post and did not cooperate with her juniors in management and there were always tensions
o They said the applicant had a temper
o She nearly had a fight with someone in the principal’s office
and we submitted this to the SGB. They, the IC, submitted their preference list to the SGB and it was accepted and approved by the full SGB.
27 The persons who signed at A65, namely the 5 IC members and two trade union observers were present when the IC agreed on their order of preference and they signed as satisfied on this at A68 . No influence was exerted by anyone and the decision was made on the basis of clear open-minded consensus.
28 During cross-examination Mr Pieterse:
o Stated that he was not aware that Ms F Butler had a drinking problem
o On it being put to him that Mr Fleurs had influenced the IC to only consider Ms F Butler for the position, denied any influence by Mr Fleurs and stated that they approached the matter with an open mind.
o Stated that he was unaware of any relationship between Mr Fleurs and Ms F Butler
o Stated that A61 was the SGB ratification minutes and were a true reflection of the meeting
o Stated that they had not considered D Nel as they agreed to focus on people already at the school
o Stated that the principal, not Mr Fleurs, told them that the applicant, as the current acting hod, had failed in many ways (A61). Although she was the resource person, she was the only one who could give them references on the two candidates. The principal had the applicant’s file with her and had told them that the applicant represented the school at provincial level. He then stated that they relied on management (the senior management team (SMT)) and we depend on management to give information to the SGB at ratification meeting and expect them to be honest
o He agreed that although the principal attended the ratification meeting she did so as Resource Person and agreed that she did not give any information on the applicant at the ratification meeting and that this information (A61) was given to them by Mr Fleurs (Deputy Principal, SGB member and IC secretary) at the SGB ratification meeting.
o Stated that the points listed at A61 were not discussed at the interviews, this was the ratification minutes and the SGB had made the final decision at the ratification meeting
o In response to the question as to whom the IC recommended to the SGB, he responded [W]e did not recommend a specific candidate. We said these are our points -but we must first give attention to the candidates who is on the school.
29 In reexamination Mr Pieterse testified as follows:
o It was put to him that he had said that as the IC they recommended Ms F Butler as their preferred candidate and then asked how they had ranked the candidates in order of preference (without going to points) he stated that it had been Ms F Butler, D Nel and the applicant.
o On being asked whether the issues discussed as listed in the ratification minute were raised and discussed in the IC, after initially saying that they were, he reconsidered and stated they were not discussed in the IC. The principal was present at the ratification meeting as a Resource Person and had not given any information on the applicant. Mr Fleurs had given input on the applicant.
30 Ms FCM Meyer testified to the following effect. The chairperson of the IC told candidates before their interview that at the end a candidate would not be selected on scoring but that a discussion would take place afterwards. At the time, the trade unions were present and no objections were raised.
31 The applicant scored the highest at the interviews, she could not recall who was second and third
32 After the last candidate left, the chairperson thanked the panel for conducting good interviews, then the ratification started, and then there were discussions. The points were totaled for each candidate, there was discussion as to who the IC would have as hod at the school and thereafter consensus / joint decision on who the candidate number one would be. The trade union observers and IC chairperson signed (she did not have the form in front of her) and that was the end of it. All the documentation was put together including the form she had to sign and when the package was ready, she took it to the department who checked that all the documents were present . No one had exerted any influence in ranking the preferred candidate at the interviews. The trade union observers had raised no objections during the interviews. Ms Meyer (NAPTOSA union observer) had thanked the IC, and had not mentioned anything about the IC using the scores to select their preferred candidate.
33 She confirmed that the IC recommended Ms F Butler and on being asked further, confirmed that A66 (part of the SGB motivation) was also the recommendation of the IC. She could not say whether Ms F Butler had an alcohol problem.
34 The trade union observers were present at the ratification meeting . They all had a light snack after the IC meeting and then proceeded with the SGB ratification meeting. The trade union observers did not raise any objections and had signed A68 in her presence. She denied in cross-examination that Ms Meyer had signed A68 at 19h00 on 14 April 2018 and stated that no document left the staff room after the procedure . She had taken the documents and put them in a safe at the school until the next day , when she took them to the department. The department had informed her that the trade union observers should attend the ratification meeting and even if they were not supposed to, it would have made no difference, as they had no vote.
35 Mr Fleurs had taken the minutes of the interview process manually and later typed these up on the school laptop, which had been taken out of her office and used in the staff room. She had handed in all the documents to the department including the minute of the interview session. All the documents were listed in the checklist form and ticked off as per A63. She herself saw the minute in question together with the other documents. She had difficulty in answering whether there was an electronic copy of the minute in question on her personal computer saying she did not have a personal computer, whereas as she had mentioned Mr Fleurs had typed up the minutes on the school laptop that she used.
36 Although Mr Fleurs had worked at the department for a period overlapping the time that the applicant had acted in the position of HOD, Ms FCM Meyer denied that he had no knowledge of how the applicant had conducted herself. In her view, the relationship between Mr Fleurs and the applicant was a professional one and that between him and Ms F Butler was the same as with any other member of staff.
37 Mr NJ Fleurs testified to the following effect. He confirmed that the interviews had been held on 13 April 2018 and the SGB ratification meeting on 15 April 2018. He had been the secretary of the IC and a panelist at the interviews.
38 The chairperson of the IC had told every candidate that they would not only look at marks but that the panel would afterwards have a discussion to decide on their preference list, i.e. any decision taken would not be based solely on scores.
39 At the end of the interviews, the trade union members praised them for the manner in which interviews took place.
40 The applicant scored the highest at the interviews. After discussions, the IC recommended Ms F Butler as its number one candidate.
41 The reasons for this were, with regard to the applicant:
o While asked to act in the position, she had not managed to do her duties
o The communication between her and the foundation educators was very weak
o Complaints were made to the principal’s office by educators in the foundation phase that there was no communication between her and educators
o The manner in which she had handed out tasks to the others
o She had a temper and intimidating manner
o While acting, she had written two to three letters in which she resigned as acting hod, and;
o That when asked to do a task, she would refuse. The principal had called on her to be involved in sports and she said she would not do that.
42 He confirmed that the reasons at A61 not to recommend the applicant were in line with what he had testified (above). Asked whether the submission of the preference list of the IC was approved by the SGB, he confirmed that it was.
43 They had recommended Ms F Butler because:
o She was hardworking
o She knew how to communicate with educators and fellow teachers
o She was hands on with co-workers, curricular activities, fundraising and extra mural
o Her admin was very good
o Asked as to Ms F Butler being hands on, he elaborated that she was helpful with everything at the school that she could lay her hands on. She was willing to help and go the extra mile and creative
44 The above was in line with the reasons at A62. In cross-examination, he stated that these were the items (A62) they discussed with regard to Ms F Butler at the SGB Meeting
45 The reasons at A66 were those advanced by the SGB that led the department to appoint Ms F Butler.
46 The trade union observers declared the process good and fair and signed at A68 which contained the recommendation of the chairperson of the SGB that Ms F Butler is appointed. No one had influenced the IC
47 In cross-examination, he denied Mr Pieterse’s testimony to the effect that he, Mr Fleurs, as member of the SMT had assisted them with technical information. Put to him that Mr Pieterse testified that he, Mr Fleurs, told them the information about the applicant (at A61) at the SGB ratification meeting, he stated that the SGB discussed the IC preference list and that he did not inform either the IC or the SGB of the information about the applicant (A61). He was of the view that the members of the SGB were aware of the information about the applicant (at A61) from their association with the school, having been there for more than three to four years and he having been there for twenty-five years. They had decided as a collective that they could not recommend the applicant for the post because of all the complaints. (Mr Peters and Mr Butler , two parents on the SGB, had told them of information regarding the applicant) The complaints dated from 2017.
48 He denied he had put the information at A61 to the SGB to influence them.
49 Put to him that Ms Meyer had testified that he had arrived at her house one evening and asked her to sign A68, he denied this. He stated that she signed it on 17 April 2018 at the school. He also denied Ms Meyer’s testimony about her asking him if anything had been changed or that he had changed anything
50 He denied that he had a relationship of any sort with the applicant, Ms F Butler, or Ms F Butler’s husband that would make him try to influence the SGB to appoint Ms F Butler over the applicant.
51 Although he had access to the department, he had no access to the file in question.
52 The respondent argued to the effect that the applicant, on whom the onus lay, had not proved any unfair labour practice relating to promotion against her. The IC had elected to use scores and discussion on other valuable factors and ultimately consensus. Mr Fleurs had not influenced the SGB in deciding on Ms F Butler. The SGB had arrived at a collective decision and that there were good reasons for appointing Ms F Butler above the applicant, mainly those listed at A61-A62. The members of the IC and union observers had signed to the effect that they were satisfied with the process and that it was free and fair.
ANALYSIS OF EVIDENCE AND ARGUEMENT
53 I have considered all the evidence and argument, but because the Labour Relations Act 66 of 1995 requires brief reasons (Section 138(7)), I have only referred to the evidence and argument necessary to substantiate my findings and my award.
54 Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia:
(2) “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;
…
55 The Labour Relations Act No 66 of 1995 requires employers to treat employees fairly when they apply for promotions . An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all of the elements of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
56 Fairness requires that the position and interests of both the employee and employer are taken into account in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the Act .
57 An arbitrator may make an appropriate determination for the fair resolution of the dispute (in respect of an unfair labour practice referred in terms of the LRA), on terms, which the arbitrator deems reasonable, which may include ordering reinstatement, re-employment, or compensation, based on fairness , procedurally and substantively . In the event an arbitrator makes a determination contrary to that of the employer, this is not a review of the employer’s decision but a determination based on the facts presented by the parties, by virtue of the provisions of the LRA . In terms of section 209, the LRA binds the State. The State as employer in its various Departments / Agencies, with the exclusion of those listed in section 2, is bound by the LRA .
58 In Mbatha V SSSBC & others (LC) JR372/13, (30 September 2015) the Labour Court remarked as follows on the applicable test for unfair labour practice disputes.
[28] It has long been accepted that the decision to promote or not to promote falls within the managerial prerogative of an employer and that the courts will interfere only where such discretion was exercised capriciously, or for insubstantial reasons or based upon a wrong principle or in a biased manner .
[29] In more recent cases the courts have clarified the test to be that of fairness.
[30] In Apollo Tyres SA (Pty) Ltd v CCMA & Others , the Labour Appeal Court was dealing with an unfair labour practice relating to a benefit and quoted from Du Toit et al with approval on the meaning of unfairness as follows:
[53] ... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
[32] In City of Cape Town v SA Municipal Workers Union obo Sylvester & Others the court expressly rejected the notion that the employer has the prerogative to decide whom to appoint and that it should not be questioned when it exercises that discretion. The court stated that the proper yardstick was “fairness to both parties” .
59 The following examples from case law are instructive:
o In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others ; it was held that the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.
o Central to appointments or promotion of employees is the principle that courts and commissioner alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions . In my view, good cause would entail a consideration of the factors set out in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others as above .”
o Where an employer can rationally justify the promotion in question, arbitrators should be slow to interfere
o Where the appointment of an employee is thwarted by the way in which the process is conducted and in particular where it is shown that the unfair labour practice most probably had the effect of denying the employee appointment in the post , this is unfair and it may be well be appropriate for an arbitrator to interfere.
o Where there are huge discrepancies in the scores between candidates, the employer must explain these large variations in marks awarded to the candidates, in detail and not just dismiss them as subjective variances .
o Where the employer’s reasons for not appointing a candidate, who scored significantly higher than the successful candidate were irrational, the Labour Court upheld the decision of the arbitrator to promote the applicant to the rank of the post applied for .
o Failure to provide reasons may give rise to an inference that the decision was arbitrary and hence unfair towards the applicant .
o In Nainar v Department of Public Works, GPSSBC & Another the Labour Court stated as follows: In the Public Service there are set requirements to be met if a selection committee wishes to recommend a candidate, other than the highest scoring candidate for a position. The managerial prerogative in justifying the deviation from the highest scoring candidates on the grounds of operational requirements or employment equity is procedurally and substantially limited. The managerial prerogative to select another candidate should be respected unless bad faith or improper motive, such as discrimination, is present . Any non-rational ground of deviation must render the decision unfair to the unsuccessful higher scoring candidates .
o A selection panel may not unilaterally change the advertised requirements / criteria for a post to allow candidates who otherwise would not have been selected to participate in the selection process.
o The fact that the position has been filled is no bar to an arbitrator not ordering a person to be promoted. This is a risk that an employer will face if it makes appointments that cannot be defended later at arbitrations. It would force the selection panels to apply their minds properly when making such recommendations and for the national commissioner or provincial commissioner to ensure that it is done properly
60 In summary the test or yardstick in unfair labour practice disputes, including disputes relating to promotion is fairness and:
o Where there is a rational basis for a decision, an arbitrator should afford an employer a margin of appreciation and should not easily interfere with the employer’s decision .
o Where the employer’s conduct has denied an employee a fair opportunity and thereby prejudiced him or her in presenting their candidature, the appropriate remedy may be compensation alternatively to remit the matter back to the employer with or without instructions
o Where the employer’s decision to appoint the incumbent over the applicant was unfair , and but for the unfair or irregular appointment of the incumbent / conduct of the employer, the applicant would have been appointed, it may well be appropriate for an arbitrator to intervene on terms, which s/he deems reasonable based on fairness taking into account the interests of the respective parties, and which may include promotion, subject in particular to:
• The applicant demonstrating that s/he was the most suitable candidate and would but for the conduct of the employer, have been appointed
• Whether the employer’s conduct in appointing the incumbent over the applicant is rationally justified (e.g. employment equity, service delivery, inherent requirements of the job)
61 I do not intend to traverse all the testimony led but to focus only on the evidence necessary in order to make a determination herein. In brief the applicant claims that she was unfairly treated in the selection process, in that although she was the highest scoring candidate she was not appointed on the basis of the undue influence exerted by Mr Fleurs on the members of the SGB resulting in the appointment of the candidate who scored the third highest marks. The respondents deny this and clam that the incumbent, Ms F Butler was ranked by the IC as their number one preferred candidate and this was accepted by the SGB for the reasons advanced at A61/62 and A66. As to relief, the applicant sought payment of compensation equivalent to 12 months remuneration. The respondents sought that the status quo ante remain and the applicant’s case be dismissed
62 In the circumstances the issues for determination concern:
o The recommendation of the IC as to their preferred candidates
o Whether there was undue influence
o Whether the decision of the SGB not to recommend the applicant was consequent on undue influence
o Dependent on the above whether the applicant was treated unfairly in so far as she was not recommended for appointment
o Appropriate relief
63 According to the prescripts , the following is relevant with regard to this dispute:
o The IC must consult with all parties at the shortlisting meeting and then set and adopt short listing criteria .
o In considering applications the IC must ensure that the principles of equity, redress and representivity are complied with and they must adhere to the requirements of Section 6(b)(i)-(v) of the Employment of Educators Act76 of 1998 . This includes the IC and SGB adhering to procedures that will ensure that the recommendation is not obtained through undue influence on the members of the SGB .
o After compiling the shortlist the IC must draft, finalise and adopt questions to be asked of the shortlisted candidates. These questions should be in accordance with the criteria / requirements for the post .
o The IC is then required to conduct interviews with each shortlisted candidate. The chairperson of the IC should allow members of the IC to put questions according to a prearranged plan , in particular the candidates should be treated in a similar manner both in terms of the questions asked and manner in which the interviews are conducted .
o The candidates should be told how and when they would be informed of the final decision .
o On completion of the interviews, the IC should reach a decision as soon as possible and must rank all candidates interviewed in order of their preference and motivate the ranking of each candidate to the SGB for recommendation to the relevant employing department / provincial department of education Eastern Cape . The scores allocated the candidates and the ranking based on the scores are not the only consideration to take into account in selecting a candidate. When making an appointment or recommendation, both the qualifications and experience as recorded in the candidate’s curriculum vitae together with their performance during the interviews must be taken into account. It is irrational to make an appointment purely based on performance during interviews or to reason that the experience and qualifications as contained in the curriculum vitae become irrelevant after short listing. See ELRC Clause 43, Collective Agreement 3/2016. Each member should compare their individual scores and ratings for each applicant against their personal impressions of the particular candidate’s qualifications, experience / skills, etc, contained in the candidates’ curriculum vitae. After IC members have finalized their individual ratings, the IC can compile a list setting out the IC preference as to 1st, 2nd and 3rd etc. In the event, the IC is unable to reach a unanimous decision it may have to take a vote. In either event best practice requires that the IC should prepare a minute of the meeting, setting out their preference list for consideration by the SGB, together with a brief motivation
o Self evidently the SGB should convene for the purpose of considering the IC preference list and making its recommendation. The SGB may or may not differ from the preference list of the IC. In the event it differs the SGB must give reasons to the IC when changes are to be made to the preference list submitted by the IC .
o The SGB, not the IC, must then submit its recommendation of the candidates, in order of preference, to the HOD of the provincial department of education Eastern Cape .
64 In the event the IC’s preferred candidate and that of the SGB were the same, i.e. to recommend Ms F Butler for appointment, (as per the respondents case):
o Why did Mr Pieterse, during cross-examination testify as to whom the IC recommended to the SGB, that; we did not recommend a specific candidate. We said these are our points , but we must give attention to the candidates who is on the school.
o Why was it necessary, as evident from A61 (SGB Ratification Minute of 15 April 2018) signed by Mr Fleurs (SGB secretary) and Mr Smith (SGB chairperson) that “a decision had to be made between Ms W Langa and Ms F Butler” ?
o There would have been no need for discussion at a SGB meeting to decide on whom to recommend as per the minute of the SGB meeting of 15 April 2018 at A61-A62. In this regard it is self evident from the SGB minute at A61-A62 that discussion took place at the SGB meeting when the various aspects listed in the minute were raised and discussed.
65 It is self evident that the IC made no categorical preference list other than to score candidates according to the questions posed and then to leave it for discussion by the SGB as to whom should be appointed. It follows that it cannot be said that the SGB merely endorsed the preference of the IC as its own.
66 It appears from A61 (the minute of the SGB ratification meeting of 15 April 2018) that a choice had to be made between the applicant, Ms W Langa, and Ms F Butler. This is in line with Mr Pieterse’s testimony and the comment above. It further appears that Ms F Butler was chosen above Ms W Langa as set out at A61 on the basis that:
o As current Acting Head of the department the applicant had failed in many ways
o The applicant did not have the temperament to delegate tasks in a good manner and that too many teachers in foundation phase had laid complaints against her in the office
o The applicant was not co-operative
o Although the applicant performed well as an administrator, too often she delegated her tasks to post level 1 teachers and expected miracles
67 At A62, the continuation of the ratification minute, the SGB decided that Ms F Butler must be promoted to the post as:
o Although she was nervous this was her first interview in her teaching career
o She was hands on
o She was always willing to help, to go the extra mile and think creatively
o She has good communication skills and could delegate tasks with authority but with respect for colleagues
68 According to Mr Fleurs the members of the SGB and it follows, the members of the IC who were all SGB members, were aware of the information relating to the applicant from their interaction with the management team during their term of office in the SGB and further that Mr B Peters and Mr E Butler had brought this to their attention. If this was so then it is surprising that this knowledge did not translate itself into the scoring patterns and marks awarded the applicant and Ms F Butler respectively.
69 During the interviews, the candidates were required to respond to ten questions . A comparison between the applicant, Ms W Langa and Ms F Butler in respect of the interview questions and their respective performance reveals the following :
o The applicant was scored a higher mark twenty-two times, the same mark twenty-two times and a lower mark six times
o Ms Butler was scored a higher mark six times, the same mark twenty-two times and a lower mark twenty-two times
o Only one out of the 5 IC members, Mr B Peters scored Ms F Butler overall at a higher average mark (37 out of 50) than that he awarded the applicant (36 out of 50)
o The applicant and Ms F Butler were scored at an average of 38.4 and 33.8 out of 50 marks respectively . This translates to 76.8% and 67.6% the difference on the average marks being 4.6 out of 50 or 9.2% . This is a significant difference .
70 Set out below is a composite of the scores and ranking per scores and the final ranking as set out at A67 .
NAME AVERAGE OUT OF 250 % RANKING ACCORDING TO MARKS OBTAINED FINAL RANKING
W. Langa 38.4 (36.8) 192 76.8 1 3
D Nel 36.6 (A67) 183 73.2 2 2
F Butler 33.8 (34.4) 169 67.6 3 1
71 As stated above, if the IC was aware of the information relating to the applicant (set out in A61-A62) it is surprising that this is not reflected in the scoring patterns and scores awarded the respective candidates during the interviews. One of the respondent’s own witnesses, (the chairperson of the IC) testified to the effect that Mr Fleurs communicated this information to them at the SGB ratification meeting. This is supported by the content of the SGB ratification minute at A61-A62 dated 15 April 2018 . The probabilities support the view that the IC members were unaware and did not consider this information in allocating marks to the applicant in respect of the various questions posed.
72 In any event, had the IC (or SGB) wished to consider this information, the IC should have raised this during the applicant’s interview thereby affording her an opportunity to comment.
73 It was the respondent’s case that Mr Fleurs did not influence the SGB to recommend Ms F Butler above the applicant as the SGB had simply endorsed the IC preferred candidate i.e. Ms F Butler. However, as the evidence shows, this is not what happened, see above. The IC simply submitted their list of candidates ranked according to the scores, with the proviso that the SGB consider candidates who were already employed at the school as testified by the chairperson of the IC (the respondents’ witness) Mr Pieterse, We did not recommend a specific candidate. We said these are our points , but we must give attention to the candidates who is on the school. The IC did not take the negative information into account in their allocation of marks and their rating of the various candidates, see the above discussion and in particular the testimony of Mr Pieterse, to the effect that, Mr Fleurs informed them of all the above factors, apart from that the applicant had failed as acting head of department in too many ways ) at the ratification meeting held by the SGB.
74 The only basis on which the SGB recommended Ms F Butler and not the applicant, as is apparent from their own witnesses and documents, is the information relating to the applicant and Ms Butler as set out at A61-A62 and A66 including the additional factors testified to by Mr Pieterse and Mr Fleurs. The information at A61 and amplified by Mr Pieterse and Mr Fleurs in their respective testimonies, although vague in its ambit is deprecatory of the applicant’s ability to function in the post she had applied for and critical of her prior acting in the post in question. The applicant was not given an opportunity to comment on the information during interviews (where she was scored the highest) and to put her version thereon to the members of the IC. This information self evidently impacted negatively on the applicant, without her having an opportunity to answer, and I have found that this was conveyed, by the principal Ms Meyer and Mr Fleurs, outside of the interviews to the SGB. In other words the SGB decided on the basis of information made available to it, outside of the interviews, to recommend Ms F Butler, who scored third highest at an average score of 33.8 out of 50 (67.6%) as against the applicant who scored the highest at an average score of 38.4 out of 50 (76.8%) which score or percentage is significantly higher than that obtained by Ms F Butler.
75 Given that the applicant scored the highest, that Ms F Butler scored the third highest, the disparity in the scores, that the applicant was not afforded an opportunity to comment on this negative information, the nature of the information, that it was untested and that it was brought by members of the school management team to the attention of the SGB outside of the interviews and resulted in Ms F Butler being recommended over the applicant, this in my view constitutes undue influence on the members of the SGB to secure a candidate other than the applicant, and constitutes unfairness towards the applicant and I find accordingly.
76 In the circumstances I find that the SGB of Michausdal Primary School, in the process of its recommendation of a candidate for the post of head of department, Michausdal Primary School, Cradock, Post number 361 advertised in Volume 6/2018, conducted itself unfairly with regard to the applicant, Ms Wendy Langa, and prejudiced her in presenting her candidature and this constitutes an unfair labour practice relating to promotion as envisaged in Section 186(2)(a) of the Labour Relations Act No. 66 of 1995 by the respondent, the Provincial Department of Education; Eastern Cape, against the applicant, Ms Wendy Langa.
77 The applicant has shown that she was unfairly treated; see above. It was common cause that the applicant scored the highest in the interviews. No evidence however was led in respect of the qualifications, experience and expertise / skills of all the shortlisted candidates . The applicant did not seek that she be appointed to the post in question in the place of Ms F Butler, but only that she be paid compensation. Given the nature of her claim and that she has shown she was unfairly prejudiced in presenting her candidature, I find that just and equitable compensation for the injuria she has suffered is the equivalent of quarter of one month’s salary namely R 5 756.62 (Calculated as follows: R 276 318.00 ÷ 12 x .25 = R 5 756.62)
AWARD
78 First Respondent, the Provincial Department of Education: Eastern Cape committed an unfair labour practice relating to promotion as contemplated in section 186(2)(a) of the LRA against the applicant Ms Wendy Langa
79 The First respondent is ordered to pay the applicant the sum of R 5 756.62 as compensation for the above unfair labour practice by no later than 14 days from the date of this award.
Signature:
Panelist: John Cheere Robertson
ELRC
Sector: Public: Basic Education