PSES176-18/19EC
PSES176-18/19EC
Award Date:
30 November 2018
Case Number: PSES176-18/19EC
Province: Eastern Cape
Applicant: NAPTOSA obo B.D. Buckland
Respondent: 1st Respondent Eastern Cape Department of Education, 2nd Respondent Eastern Cape Department of Education
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Aliwal North Department of Education offices
Award Date: 30 November 2018
Arbitrator: M.A. Nozigqwaba
Case Number: PSES176-18/19EC
In the matter between
NAPTOSA obo B.D. Buckland Applicant
and
Eastern Cape Department of Education First Respondent
M. Sombalo Second Respondent
Appearances: For the applicant: Adv. G.D. Saaymann (NAPTOSA);
For the first respondent: Ms. N. Sikithi;
For the second respondent: Mr. T. Raqa (SADTU)
Arbitrator: M.A. Nozigqwaba
Heard: 27 September 2018; 08 November 2018
Delivered: 30 November 2018
Summary: Labour Relations Act 66 of 1995, as amended, section 186(2)(a)-
Alleged unfair labour practice relating to promotion
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration took place in Aliwal North (Department of Education offices) on 27 September 2018 and 08 November 2018. Mr B.D. Buckland (applicant) was represented by a NAPTOSA official, Adv. G.D. Sayman. Eastern Department of Education (1st respondent) was represented by its official, Ms N. Sikithi. The appointed incumbent in the contested position, Mr M. Sombalo (2nd respondent), was represented by a SADTU official, Mr T. Raqa.
2. At completion of the proceedings parties agreed to submit written heads of arguments by not later than 15 November 2018, and they all submitted as agreed. I have considered these heads in penning this award.
ISSUE TO BE DECIDED
3. I have to determine whether any unfair labour practice relating to promotion was committed, and if so, issue the appropriate relief.
BACKGROUND TO THE ISSUE
4. This is a promotion dispute involving post number 3/2017-157 advertised sometime in October 2017 in the 1st respondent's volume 3/2017 bulletin. The post is that of a principal (post level 4, with salary scale of between R541 470.00 per annum) of Phambili Mzontsundu Secondary School, which is under the Joe Gqabi District.
5. After the post was advertised the applicant (a head of department post level 2 since 2008 of the same school at that time, which he still is), the 2nd respondent (a post level 1 educator of the same school at that time) and other candidates applied for the post. The 2nd respondent was ultimately appointed to the position.
6. The applicant's challenge to the post is he was not shortlisted even though he possessed better attributes than the 2nd respondent. He had been a head of division (HOD) from 2008 whereas the 2nd respondent was only a post level. The applicant is alleging that the selection and appointment process was both substantive and procedurally unfair and he is seeking is 12 months maximum compensation in terms of section 194(4) of the Labour Relations Act 66 of 1995 (LRA) .
7. The 2nd respondent and his representative left the proceedings when they learnt that the relief sought by the applicant was compensation only.
8. The 1st respondent, on the other hand, submitted that there was nothing wrong in not shortlisting the applicant and with the processes and the decision to appoint the 2nd respondent.
SURVEY OF THE EVIDENCE AND ARGUMENTS
9. The applicant testified that in his application (pages 5- 7 of the bundle) he mentioned that, additional to his basic teaching qualification, he has an ACE certificate (Language and education) obtained in 2004; ACE (Life Orientation); and a Bachelor of Education (BA) degree. He has been an HOD from 2008, and this meant he has experience in management. Then there was the 2nd respondent who made it to the shortlist even though he was a post level 1 when he applied. He also had a BA degree and a Higher Diploma in Education (HDE) in addition to his basic teaching qualification. Another shortlisted candidate was Mr F.O. Gebuza, a post level 2 as the applicant, who has a BA degree, Bachelor of Education (B-ed) degree and a HDE. His profile was almost the same as the applicant’s. There was also Mr I.T. Mole who also made it to the shortlist. He was a post level 4 when he applied. In addition to his basic teaching qualification he has an ACE certificate. This candidate was more senior in management than all other candidates.
10. The applicant testified further that the recruiting panel had made an incorrect representation in the shortlisting minutes (page 2-3 of the bundle) when it said all the shortlisted candidates had experience as principals, acting principals and deputy principals. This was a misrepresentation because Mr Gebuza was a post level 2 educator while the 2nd respondent was post level 1.
11. Mr Gerald Lenox testified that he also experienced being overlooked even though he qualified for the principal position he had applied for in 2016 at Phambili Mzontsundu Secondary School. The panel had not shortlisted him first even though he had acted in the principal position he had applied for. It was only after the intervention of the District office that he was included to the shortlist.
12. Ms Zikhona Mavumengwana (SGB chairperson) testified the reason for not shortlisting the applicant was that the learners had a strike in 2012 and had complained about the applicant. This led to him leaving the school and being placed at Bishop Damond High School. An investigation was done by the District Office and this investigation exonerated him. When asked to come back to the school the applicant refused saying that his life was under threat. They were surprised when they saw his application because they thought he was not ready to come back to the school.
13. The testimony of Ms Mandisa Peter, an SBG member, confirmed Ms Mavumengwana’s version.
14. Mr Vuyo Mehlomakhulu (SGB teacher component) testified that the reason the applicant was not shortlisted is that they looked at the needs of the school which he would not have been capable to address. Amongst those needs were the stability. Also, the applicant had left the school after learners had rioted against him. He also did not return when he was asked to return after an investigation had exonerated him of any wrongdoing. It was put to him on cross examination that the panel subjected the applicant to considerations that were not applied to other candidates. Other candidates who were shortlisted were not investigated on their good or bad relations in their schools.
15. Ms Ntokazi Selinah Ramashala (circuit manager) testified that she was the resource person during the shortlisting and interview processes for the position in question. When asked why the applicant was not shortlisted her answer was that they were looking for a candidate who would stabilize the school. The applicant had left the school because of unrest. After he was exonerated by the investigation he had refused to come back to the school when he was asked to return. He also had attitude problem as in his previous interview for deputy principal position he had refused to answer the last question. When asked, in cross examination, whether the applicant did not have managerial skills her answer was that he had management skills.
16. It is argued for the applicant that he was on the same or higher level when compared with three other shortlisted candidates. The 2nd respondent was the least qualified and with less experience when compared to the applicant. The 1st respondent therefore committed an unfair labour practice when it allowed the SGB panel to overlook the applicant when in its shortlisting. The applicant is thus seeking 12 months compensation in terms of section 194(4) of the LRA. He believes that this relief will remedy the patrimonial and non-patrimonial losses he suffered.
17. The 1st respondent's argument is that the applicant was not shortlisted because he could not satisfy the school needs, which were inter alia school stability, learners’ interests and community interests. He had refused to return to the school after the strike and after the Department sanctioned investigation absolved him of any wrongdoing. He had previously been shortlisted in for a deputy principal position in the same school and when he was interviewed he refused to answer the last question.
ANALYSIS OF EVIDENCE AND ARGUMENTS
18. In order to prove substantive unfairness in a promotion dispute, the applicant needs to prove he was the best of all the shortlisted candidates and that he would have been appointed had it not been for the unfair conduct of the employer. It is only then that a substantive relief of compensation, prayed for by the applicant, can be considered. In the case at hand the applicant was not the best of all shortlisted candidates. In Woolworths (Pty) Ltd v Whitehead AJA Zondo (as he was then known) held that for the complainant to prove unfairness in promoting the other candidate he or she must prove that he or she was the better of all the other candidates. There must also have been a causal connection between whatever discrimination and the complainant not getting the post.
19. The applicant was a better candidate when compared to the 2nd respondent as the latter was a post level 1 when the shortlisting was done. There is a candidate by the name of Mr F.O. Gebuza who was also post level 2 as the applicant was, and who also has a BA degree; B-ed and HDE. This candidate can be said to be on the same par as the applicant. There is also Mr. I.T. Mole who, even though academically has only ACE qualification additional to his basic education qualification, was a post level 4 and was thus on higher management position than the applicant. The applicant can therefore not be said to have been the best candidate of all shortlisted candidates. Yes, a candidate with a profile inferior than his was ultimately appointed but he cannot be said to be the best of all the shortlisted candidates. Substantive unfairness claim has therefore not been proved. This means he will not be entitled to a substantive relief.
20. An unfair labour practice may also be procedurally unfair where the processes leading to the appointment were flawed. In the case at hand, the applicant was prejudiced when he was not shortlisted because of what I consider as arbitrary reasons. He was not shortlisted because there had been a riot by learner who wanted him to be chased out of the school because of allegations they leveled against him. The respondent instituted an investigation and the applicant was exonerated. The other reason for not shortlisting him was that he had refused to come back when asked to come back after the investigation found him innocent. Another reason cited was that he had refused to answer a certain question when he was interviewed for a deputy principal position in the same school. There is also the mention of stability that was one of the consideration. All these issues should have been put to him in his interview. The applicant met the criteria that was put for the position and was even better qualified than one of the shortlisted candidate. I find that all the reasons advanced by the SGB panel not to shortlist the applicant as unfair. The applicant should have been shortlisted and engaged thoroughly on all the concerns the panel had about him. In light of the aforesaid I find that not shortlisting the applicant amounted to procedural unfairness.
21. Coming to the relief. The applicant prayed for 12 months maximum compensation in terms of section 194(4) of the LRA. The applicant is not entitled to this relief as he did not prove that he was the best candidate out of all the shortlisted ones. The only unfair labour practice proven is procedural unfairness. The relief that I will go with in the circumstances is compensation, which should be regarded as solatium for the hurt and prejudice which the applicant has been suffered. The non-inclusion of the applicant to the shortlist because of the arbitrary criteria made the applicant to feel unwanted to a Department he had served for a long time.
22. What would be appropriate compensation in the circumstances? In Kwadukuza Municipality v SALGBC R5 000.00 was awarded for serious procedural unfairness in a promotion dispute. In Munsany v SSSBC and others the Labour Court held that R10 000.00 was fair compensation for serious procedural unfairness in a promotion dispute. In the case at hand the 1st respondent arbitrarily excluded the applicant. The procedural flaws in this case can therefore rightfully be regarded as serious as the exclusion of the applicant to the shortlist was for arbitrary reasons. I find that R15 000.00 compensation will be appropriate in the circumstances of this case. I find that this amount would satisfactorily compensate for the hurt endured by the applicant as a result of the 1st respondent's action. The amount is close in quantum to the one awarded in Munsany case, which was R10 000.00 in 2012. R15 000.00 six years down the line from 2012 is very close in monetary value terms.
23. I therefore make the following award.
AWARD
24. The 1st respondent committed an unfair labour practice as provided in section 186(2) of the LRA in that it acted in a procedurally unfair manner in promotion processes for the post under challenge in this dispute.
25. The 1st respondent is ordered to pay the applicant an amount of R15 000.00 as compensation for procedural unfairness by not later than 31 January 2019.
26. Interests on the amount in paragraph 25. above will accrue at the rate of 15.5 % per annum from 30 September 2018.
Signature:
Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRC
Province: Eastern Cape
Applicant: NAPTOSA obo B.D. Buckland
Respondent: 1st Respondent Eastern Cape Department of Education, 2nd Respondent Eastern Cape Department of Education
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Aliwal North Department of Education offices
Award Date: 30 November 2018
Arbitrator: M.A. Nozigqwaba
Case Number: PSES176-18/19EC
In the matter between
NAPTOSA obo B.D. Buckland Applicant
and
Eastern Cape Department of Education First Respondent
M. Sombalo Second Respondent
Appearances: For the applicant: Adv. G.D. Saaymann (NAPTOSA);
For the first respondent: Ms. N. Sikithi;
For the second respondent: Mr. T. Raqa (SADTU)
Arbitrator: M.A. Nozigqwaba
Heard: 27 September 2018; 08 November 2018
Delivered: 30 November 2018
Summary: Labour Relations Act 66 of 1995, as amended, section 186(2)(a)-
Alleged unfair labour practice relating to promotion
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration took place in Aliwal North (Department of Education offices) on 27 September 2018 and 08 November 2018. Mr B.D. Buckland (applicant) was represented by a NAPTOSA official, Adv. G.D. Sayman. Eastern Department of Education (1st respondent) was represented by its official, Ms N. Sikithi. The appointed incumbent in the contested position, Mr M. Sombalo (2nd respondent), was represented by a SADTU official, Mr T. Raqa.
2. At completion of the proceedings parties agreed to submit written heads of arguments by not later than 15 November 2018, and they all submitted as agreed. I have considered these heads in penning this award.
ISSUE TO BE DECIDED
3. I have to determine whether any unfair labour practice relating to promotion was committed, and if so, issue the appropriate relief.
BACKGROUND TO THE ISSUE
4. This is a promotion dispute involving post number 3/2017-157 advertised sometime in October 2017 in the 1st respondent's volume 3/2017 bulletin. The post is that of a principal (post level 4, with salary scale of between R541 470.00 per annum) of Phambili Mzontsundu Secondary School, which is under the Joe Gqabi District.
5. After the post was advertised the applicant (a head of department post level 2 since 2008 of the same school at that time, which he still is), the 2nd respondent (a post level 1 educator of the same school at that time) and other candidates applied for the post. The 2nd respondent was ultimately appointed to the position.
6. The applicant's challenge to the post is he was not shortlisted even though he possessed better attributes than the 2nd respondent. He had been a head of division (HOD) from 2008 whereas the 2nd respondent was only a post level. The applicant is alleging that the selection and appointment process was both substantive and procedurally unfair and he is seeking is 12 months maximum compensation in terms of section 194(4) of the Labour Relations Act 66 of 1995 (LRA) .
7. The 2nd respondent and his representative left the proceedings when they learnt that the relief sought by the applicant was compensation only.
8. The 1st respondent, on the other hand, submitted that there was nothing wrong in not shortlisting the applicant and with the processes and the decision to appoint the 2nd respondent.
SURVEY OF THE EVIDENCE AND ARGUMENTS
9. The applicant testified that in his application (pages 5- 7 of the bundle) he mentioned that, additional to his basic teaching qualification, he has an ACE certificate (Language and education) obtained in 2004; ACE (Life Orientation); and a Bachelor of Education (BA) degree. He has been an HOD from 2008, and this meant he has experience in management. Then there was the 2nd respondent who made it to the shortlist even though he was a post level 1 when he applied. He also had a BA degree and a Higher Diploma in Education (HDE) in addition to his basic teaching qualification. Another shortlisted candidate was Mr F.O. Gebuza, a post level 2 as the applicant, who has a BA degree, Bachelor of Education (B-ed) degree and a HDE. His profile was almost the same as the applicant’s. There was also Mr I.T. Mole who also made it to the shortlist. He was a post level 4 when he applied. In addition to his basic teaching qualification he has an ACE certificate. This candidate was more senior in management than all other candidates.
10. The applicant testified further that the recruiting panel had made an incorrect representation in the shortlisting minutes (page 2-3 of the bundle) when it said all the shortlisted candidates had experience as principals, acting principals and deputy principals. This was a misrepresentation because Mr Gebuza was a post level 2 educator while the 2nd respondent was post level 1.
11. Mr Gerald Lenox testified that he also experienced being overlooked even though he qualified for the principal position he had applied for in 2016 at Phambili Mzontsundu Secondary School. The panel had not shortlisted him first even though he had acted in the principal position he had applied for. It was only after the intervention of the District office that he was included to the shortlist.
12. Ms Zikhona Mavumengwana (SGB chairperson) testified the reason for not shortlisting the applicant was that the learners had a strike in 2012 and had complained about the applicant. This led to him leaving the school and being placed at Bishop Damond High School. An investigation was done by the District Office and this investigation exonerated him. When asked to come back to the school the applicant refused saying that his life was under threat. They were surprised when they saw his application because they thought he was not ready to come back to the school.
13. The testimony of Ms Mandisa Peter, an SBG member, confirmed Ms Mavumengwana’s version.
14. Mr Vuyo Mehlomakhulu (SGB teacher component) testified that the reason the applicant was not shortlisted is that they looked at the needs of the school which he would not have been capable to address. Amongst those needs were the stability. Also, the applicant had left the school after learners had rioted against him. He also did not return when he was asked to return after an investigation had exonerated him of any wrongdoing. It was put to him on cross examination that the panel subjected the applicant to considerations that were not applied to other candidates. Other candidates who were shortlisted were not investigated on their good or bad relations in their schools.
15. Ms Ntokazi Selinah Ramashala (circuit manager) testified that she was the resource person during the shortlisting and interview processes for the position in question. When asked why the applicant was not shortlisted her answer was that they were looking for a candidate who would stabilize the school. The applicant had left the school because of unrest. After he was exonerated by the investigation he had refused to come back to the school when he was asked to return. He also had attitude problem as in his previous interview for deputy principal position he had refused to answer the last question. When asked, in cross examination, whether the applicant did not have managerial skills her answer was that he had management skills.
16. It is argued for the applicant that he was on the same or higher level when compared with three other shortlisted candidates. The 2nd respondent was the least qualified and with less experience when compared to the applicant. The 1st respondent therefore committed an unfair labour practice when it allowed the SGB panel to overlook the applicant when in its shortlisting. The applicant is thus seeking 12 months compensation in terms of section 194(4) of the LRA. He believes that this relief will remedy the patrimonial and non-patrimonial losses he suffered.
17. The 1st respondent's argument is that the applicant was not shortlisted because he could not satisfy the school needs, which were inter alia school stability, learners’ interests and community interests. He had refused to return to the school after the strike and after the Department sanctioned investigation absolved him of any wrongdoing. He had previously been shortlisted in for a deputy principal position in the same school and when he was interviewed he refused to answer the last question.
ANALYSIS OF EVIDENCE AND ARGUMENTS
18. In order to prove substantive unfairness in a promotion dispute, the applicant needs to prove he was the best of all the shortlisted candidates and that he would have been appointed had it not been for the unfair conduct of the employer. It is only then that a substantive relief of compensation, prayed for by the applicant, can be considered. In the case at hand the applicant was not the best of all shortlisted candidates. In Woolworths (Pty) Ltd v Whitehead AJA Zondo (as he was then known) held that for the complainant to prove unfairness in promoting the other candidate he or she must prove that he or she was the better of all the other candidates. There must also have been a causal connection between whatever discrimination and the complainant not getting the post.
19. The applicant was a better candidate when compared to the 2nd respondent as the latter was a post level 1 when the shortlisting was done. There is a candidate by the name of Mr F.O. Gebuza who was also post level 2 as the applicant was, and who also has a BA degree; B-ed and HDE. This candidate can be said to be on the same par as the applicant. There is also Mr. I.T. Mole who, even though academically has only ACE qualification additional to his basic education qualification, was a post level 4 and was thus on higher management position than the applicant. The applicant can therefore not be said to have been the best candidate of all shortlisted candidates. Yes, a candidate with a profile inferior than his was ultimately appointed but he cannot be said to be the best of all the shortlisted candidates. Substantive unfairness claim has therefore not been proved. This means he will not be entitled to a substantive relief.
20. An unfair labour practice may also be procedurally unfair where the processes leading to the appointment were flawed. In the case at hand, the applicant was prejudiced when he was not shortlisted because of what I consider as arbitrary reasons. He was not shortlisted because there had been a riot by learner who wanted him to be chased out of the school because of allegations they leveled against him. The respondent instituted an investigation and the applicant was exonerated. The other reason for not shortlisting him was that he had refused to come back when asked to come back after the investigation found him innocent. Another reason cited was that he had refused to answer a certain question when he was interviewed for a deputy principal position in the same school. There is also the mention of stability that was one of the consideration. All these issues should have been put to him in his interview. The applicant met the criteria that was put for the position and was even better qualified than one of the shortlisted candidate. I find that all the reasons advanced by the SGB panel not to shortlist the applicant as unfair. The applicant should have been shortlisted and engaged thoroughly on all the concerns the panel had about him. In light of the aforesaid I find that not shortlisting the applicant amounted to procedural unfairness.
21. Coming to the relief. The applicant prayed for 12 months maximum compensation in terms of section 194(4) of the LRA. The applicant is not entitled to this relief as he did not prove that he was the best candidate out of all the shortlisted ones. The only unfair labour practice proven is procedural unfairness. The relief that I will go with in the circumstances is compensation, which should be regarded as solatium for the hurt and prejudice which the applicant has been suffered. The non-inclusion of the applicant to the shortlist because of the arbitrary criteria made the applicant to feel unwanted to a Department he had served for a long time.
22. What would be appropriate compensation in the circumstances? In Kwadukuza Municipality v SALGBC R5 000.00 was awarded for serious procedural unfairness in a promotion dispute. In Munsany v SSSBC and others the Labour Court held that R10 000.00 was fair compensation for serious procedural unfairness in a promotion dispute. In the case at hand the 1st respondent arbitrarily excluded the applicant. The procedural flaws in this case can therefore rightfully be regarded as serious as the exclusion of the applicant to the shortlist was for arbitrary reasons. I find that R15 000.00 compensation will be appropriate in the circumstances of this case. I find that this amount would satisfactorily compensate for the hurt endured by the applicant as a result of the 1st respondent's action. The amount is close in quantum to the one awarded in Munsany case, which was R10 000.00 in 2012. R15 000.00 six years down the line from 2012 is very close in monetary value terms.
23. I therefore make the following award.
AWARD
24. The 1st respondent committed an unfair labour practice as provided in section 186(2) of the LRA in that it acted in a procedurally unfair manner in promotion processes for the post under challenge in this dispute.
25. The 1st respondent is ordered to pay the applicant an amount of R15 000.00 as compensation for procedural unfairness by not later than 31 January 2019.
26. Interests on the amount in paragraph 25. above will accrue at the rate of 15.5 % per annum from 30 September 2018.
Signature:
Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRC