PSES 104-16/17EC
PSES 104-16/17EC
Award Date:
16 February 2017
Case Number: PSES 104-16/17EC
Province: Eastern Cape
Applicant: SADTU obo ZINGISA MAHAMBA
Respondent: DEPARTMENT OF EDUCATION: EASTERN CAPE & 3 OTHERS
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Education Leadership Institute in East London
Award Date: 16 February 2017
Arbitrator: Jonathan Gruss
Panellist: Jonathan Gruss
Case No.: PSES 104-16/17EC
Date of Award: 16 February 2017
In the ARBITRATION between:
SADTU obo ZINGISA MAHAMBA
(Applicant)
and
DEPARTMENT OF EDUCATION: EASTERN CAPE & 3 OTHERS
(Respondent)
Applicant’s representative: Ms Mboniswa
Applicant’s address: 4 Ash Road
Wilsonia
EAST LONDON
Telephone: 083923176
Telefax: 040 639 3229
Respondent’s representative: Mr Hena
Respondent’s address: Private Bag X0032
BHISHO
5606
Telephone: 040 6084540
Telefax: 040 608 4458, 040 608 4313
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the Education Leadership Institute in East London on 30 January 2017. The proceedings were electronically recorded. The Applicant, Zingisa Mahamba was represented by Ms Mboniswa, an official from the South African Democratic Teachers Union (SADTU). The Respondent, Department of Education: Eastern Cape was represented by Mr Hena. The MEC for Education: Eastern Cape and the Superintendent General for the Department of Education: Eastern Cape are parties to this matter and they were also represented by Mr Hena. The incumbent to the disputed post, Kwanele Ngcetane was represented by Ms Mhambi also from SADTU. The School Governing Body (SGB) for Qaqamba Senior Secondary School did not attend the arbitration although they were duly notified and informed of the proceedings. The parties agreed to submit written closing arguments by no later than 7 February 2017. Only the Applicant submitted written closing arguments.
ISSUE TO BE DECIDED
2. I am required to determine whether or not, the Respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2) of the LRA in not shortlisting and appointing the Applicant, Zingisa Mahamba to the post of HOD, Post level 2 at Qaqamba Senior Secondary School.
BACKGROUND
3. In terms of narrowing of the issues at the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:
3.1 The Applicant commenced employment as an educator with the Respondent during January 2001.
3.2 He is currently a level 1 educator teaching business studies to grade 11 and 12 at Qaqamba Senior Secondary School. He was transferred to Qaqamba Senior Secondary School in 2005.
3.3 He earns R265 800.00 per annum.
3.4 The post of HOD, (Accounting, Business Studies and Economics) was advertised in bulletin volume 1 of 2015, post number 228 during February 2015. As to qualification, he is in possession of a B-Com in Education (REVQ14) 4 year degree.
3.5 The Applicant applied for the position but was not shortlisted. The reason according to the Respondent why the Applicant was not shortlisted was because the certification date of documentation attached to the application form was older than three months.
3.6 The incumbent and successful party, Kwanele Ngcetane, commenced employment with the Respondent on 20 April 2001. Prior to him taking up the position of HOD : Accounting, Business Studies and Economics at Qaqamba Senior Secondary School he was a teacher at Mzomhle High School, NU1, Mdantsane, teaching all commercial subjects. He was appointed to the HOD position at Qaqamba Senior Secondary School during February 2016. He is in possession of a National Diploma in Commercial Education (REVQ 13), B-Tech in Commercial Education (REVQ 14) and a B-Tech in Management.
4. As to relief, the Applicant seeks for the position to be re-advertised and the process restarted and thereby setting aside the appointment of the incumbent. The Respondent and the incumbent seek that the status quo ante be maintained and the Applicant’s referral is dismissed.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
APPLICANT’S EVIDENCE AND ARGUMENT
6 The Applicant and Zukiswa Yali testified. The Applicant testified to the following effect.
6.1 He applied for the advertised position, the closing date was on 27 January 2015. He met the requirements for the post.
6.2 He had previously been acting in the post since the former HOD left for retirement in April 2011. The educators in the commerce department agreed between themselves that he should take over the responsibilities and act in the post. This was not an official acting appointment in that no executive authority was granted for him to act. This was an internal arrangement in that someone had to supervise the department. Since he had taken over the responsibilities of the HOD they received good results and during that period he gained experience.
6.3 When he applied for the position all his documents were certified. He cannot recall the date when the documents were certified as a true copy of the original document.
6.4 It is the responsibility of the SGB and the Principal, of the school, with union observers to conduct interviews. He was informed by the acting Principal Mr Fesi that the school had received a letter from the Respondent disbanding the SGB. When the interviews were conducted he was not informed that the interviews were taking place.
6.5 In January 2016 a new principal, Mr Lungodlo was appointed and he enquired from the staff whether they have a post for HOD for commerce. He enquired as to the school’s position and he informed the principal that he was acting in the post. At that stage, the SGB had already been elected.
6.6 After referring a grievance he had a meeting with Ms Swart and Mr Hanekom and they informed him that there was nothing wrong with the process that resulted in the appointment of the incumbent. They did not inform him that he had not been shortlisted.
6.7 He was never called to correct the certification date of his qualifications that he submitted with his application for appointment to the advertised post.
6.8 The bulletin advertising the position did not say that document certification must not be older than three months. As far as he can recall the date of the certification was within the 3-month period.
6.9 Under cross-examination he confirmed writing a letter that was addressed to the circuit manager wherein he mentioned that the EDO brought Ms Ndongeni to the school as a post level II educator majoring in commercial subjects. The school rejected the deployment of this educator. The EDO explained to the staff that the post of HOD for commerce will be attended to by the school and the SGB after the appointment of a permanent Principal. It was mentioned to them that the SGB had been disbanded due to them failing to perform their key duties. The first duty of the Principal after his appointment would be to organise parents and conduct by-elections making sure that the whole SGB component is in place. In terms of the letter they as staff expected the Principal to inform the staff of any latest development. He agreed that as at November 2015 the SGB was not functioning properly.
7 Ms Zukiswa Yali testified to the following affect.
7.1 She knows the Applicant in that he is her colleague. As from the date in which the previous HOD Mr Mamani left the school during March 2011, the Applicant was acting in that position. The Applicant was performing all the duties of the HOD, by calling meetings and controlling the work. The Applicant also gave them messages from the district office.
7.2 When the position of HOD was advertised it was first a closed bulletin and then thereafter the bulletin was opened and the Applicant applied for the post. During that time there was no principal and in January 2016 a new principal was appointed.
7.3 Mr Locotho called them and enquired if the HOD post was vacant. They confirmed that the post was vacant but that the Applicant was acting in the post.
7.4 Mr Hanekom told them after the Principal was appointed that there would be interviews for the position of HOD. He told them that the Principal would conduct the interviews.
7.5 Under cross-examination she indicated when it was suggested to her that the SGB was dysfunctional, that she was unaware thereof. There were however members of the SGB at the school. She was unable to confirm that during that period the SGB held meetings although two of the parents were signing cheques.
RESPONDENT’S EVIDENCE AND ARGUMENT
8. Dirk Hanekom, and Mluleki Mrwebi testified for the Respondent. Mr Hanekom testified to the following effect.
8.1 He is currently a circuit manager (EDO) and he oversees the effective governance management at schools. He has only been employed in the Eastern Cape since 2001 and prior thereto from 1988 he was employed as an educator in Kwa-Zulu Natal.
8.2 The post of HOD for the learning areas Accounting, Business Studies and Economics was advertised in an open bulletin volume 1 of 2015 on 3 January 2015. The closing date for applications was on 27 January 2015.
8.3 During the months prior to them advertising the post, the district director, Mr Mguni decided that due to the dysfunctional SGB at Qaqamba to instruct that an interview panel comprising of circuit managers be appointed. The short-listing panel consisted of him, Mrs Mfazwe and Mr Mrwebi and it was agreed that he would chair the meeting. The unions also to form part of the panel as observers.
8.4 After the shortlisted candidates were interviewed, the panel recommended that Mr Ngcetani be appointed to the post in that he was the strongest candidate considering the content of all commercial related subjects. He had already acted as an HOD and therefore he was exposed and understood management at schools. He appeared to be focused and goal directed. He was also passionate about obtaining quality results and he showed pride in his work.
8.5 The short-listing criteria agreed were that candidates must complete the original application forms and the application form must not be photocopied. A candidate must have a REQV 13, 3 year qualification and grade 12. The position advertised was post level 2 educator and candidates must have at least five years teaching experience. It was also required that the form EDP01 must be original and be completed. A copy of a candidate’s green SA ID documentation or card as well as copies of all academic qualifications and the SACE certificate must be certified as a true copy of the original. The medium of instruction is English and therefore a candidate must be able to teach in English to grade 9 to 12 learners. The candidate must also have been exposed to management and administration. Any sports accompanied with music would be an advantage. A successful candidate would be required to teach economics to Grade 9 learners and accounting and business studies to Grade 12 learners. The application form must be signed and dated at the end of the form.
8.6 The Applicant was not shortlisted because the certificate date of the certificate confirming that the copy was a true copy of the original was more than three months old. This was standard practice as done in the banks that certified copies must not be older than three months.
8.7 The unions were invited but they did not turn up. Mrs Stanford informed the unions via means of facsimile of the proceedings.
8.8 Under cross-examination in explaining what was meant by a dysfunctional SGB, he explained that there was no principal and a parent component beside the chairperson. All the parents were not participating in the SGB. For a SGB to have powers there must be a parent component and because the parents were not participating in the SGB, the SGB for all intents and purposes did not exist. He as the circuit manager had control over the school’s cheque-book.
8.9 It was not possible to get the SGB to perform interview functions and if they had removed the SGB this would mean that they could not hold a by-election for the SGB. The Respondent did not inform the Applicant that the certificate dates on his certificates were outdated.
9. Mr Mrwebi testified to the following effect.
9.1 He has been employed by the Respondent for approximately 22 years and is currently a circuit manager (EDO). As a circuit manager his job is to support and monitor schools.
9.2 The short listing panel did not shortlist the applicant in that the certification date was incorrect it must not be older than three months.
ANALYSIS OF EVIDENCE AND ARGUMENT
10. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable.
11. In SAPS v Safety and Security Bargaining Council & others (LC Case no: P426/08; judgment date 27/10/2010). A candidate for promotion (Noonan) referred a dispute to arbitration. The successful candidate had failed to disclose that he had a valid verbal warning and in fact indicated that he had not been convicted of any disciplinary offences during the period of his current rank or post level. Mr Noonan alleged that this failure to disclose his prior disciplinary record resulted in the selection panel not being able to apply its mind to his integrity and suitability; as a consequence thereto, the selection panel's failure to apply its mind to this aspect rendered its recommendation of the third party invalid. Mr Noonan argued that SAPS had committed an unfair labour practice relating to promotion in not promoting him, which prejudiced his career progression within the SAPS.
12. The Arbitrator in the Noonan matter found that SAPS had committed an unfair labour practice and ordered SAPS to promote Mr Noonan. The award was taken on review to the Labour Court where Cheadle AJ set down the following principles, which were interpreted to give a very wide discretion to employers in the selection / recruitment process. These are summarised below:
• There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
• Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
• If the employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
• As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
• As a general rule the appropriate remedy is to refer the decision back in order to allow the complainant a fair opportunity to compete. The exception being where there has been discrimination or victimization and there are compelling constitutional interests at stake or if the Applicant proves that but for the unfair conduct, he or she would have been appointed.
13. Noonan took the Labour Court’s decision on appeal to the Labour Appeal Court (Noonan v Safety & Security Sectoral Bargaining Council & others (2012) 33 ILJ 2597 (LAC)). The LAC criticised Cheadle AJ’s approach that the unfairness of the non-disclosure and its consequences were not material unless it affected the opportunity for promotion, which it held was not the case. The LAC said the following:
'This approach overlooks several aspects. The first is that there was no disclosure by the third party at all. The second is that the National Commissioner condoned the failure after the appointment was made. The third is that it downplays the value of process and lends support to possible dishonest practices. Fourthly it devalues the role of the first selection panel. And importantly it prejudiced the appellant as he would possibly have been ranked first on the list of recommendations.'
14. The LAC, tackling the Labour Court's idea that mistakes do not constitute unfairness if the decision can be rationally justified, said the following:
'...the non-disclosure enables the non-disclosing candidate to rise through the process to a stage where the National Commissioner is able to condone the lapse. This is manifestly unfair. Every Applicant is obliged to apply his or her mind carefully to the application form and to complete it honestly and diligently so as to compete fairly with other candidates.'
15. Quoting Professor PAK Le Roux writing in Cheadle Landman Le Roux and Thompson Current Labour Law 1991/1992 at 17: ‘The court should be careful not to intervene too readily in disputes regarding promotion, especially to senior management positions, and should regard this as an area where managerial prerogative should be respected unless bad faith or improper motives such as discrimination are present.’
16. The Applicant’s case is twofold, Firstly, he should have been shortlisted in that there is no written rule or directive stating that certifications of certified copies must not be older than three months. The Respondent thereby failed to afford him the opportunity to compete for the post in that had they informed him of the alleged date error he could have rectified this. Secondly, it is argued that the entire process was irregular in that the SGB was supposed to hold interviews and make a recommendation as to the preferred candidate. Furthermore, as far as it relates to the allegations that the SGB were dysfunctional this was denied in that the dysfunctional SGB held a meeting. The Respondent, more specifically the district director, failed to request the superintendent general to withdraw the powers of the SGB and therefore the district director flouted Section 22 of the South African Schools Act, in that he and not the superintendent general removed the powers of the SGB. The process was also flawed in that the Respondent failed to involve the parents and teachers as observers.
17. Section 22 of the South African Schools Act provides that the Head of Department may, on reasonable grounds, withdraw a function of the governing body. The Head of Department may not take action as referred to above unless he/she has informed the governing body of his or her intention so to act and the reason therefore. The Head of Department shall grant the governing body a reasonable opportunity to make representation to him or her relating to such intentions and give due consideration to any such representation received. In cases of urgency, the Head of Department may take action as referred to above without prior communication with such governing body, (if the Head of Department thereafter furnishes the governing body with the reason for his or her actions, gives the governing body a reasonable opportunity to make representation, relative to such action and duly consider such representation received). Any person aggrieved by the decision of the Head of Department may appeal against a decision to the member of the Executive Council.
18. In terms of Section 25 of the South’s African Schools Act if the Head of Department determines on reasonable grounds that the governing body has ceased to perform functions allocated to it in terms of the Act or has failed to perform one or more such functions, he or she must appoint sufficient persons to perform all such functions or one or more such functions as the case may be for a period not exceeding three months. The Head of Department may extend the period referred to by a further period not exceeding three months each, but the total period may not exceed one year. If a governing body has ceased to perform its functions, the persons contemplated must build capacity within the period of their appointment to ensure that the governing body performs its functions.
19. It is suggested by the Applicant that the actions of the district director in directing that an independent interview panel be convened that consisted of circuit manager’s is irregular. The irregularity thereof as suggested relates to the fact that it was a district director that took the decision and not the Head of Department. However Mr Hanekom testified that he got the instruction from the district director to chair an interview panel and he is unaware whether the Head of Department gave permission for an independent panel. The fact that an appointment was made by the Head of Department in promoting and appointing the incumbent implies that what occurred, occurred either on instruction of the Head of Department or with his approval.
20. Based on the evidence tendered by the Respondent that when the interviews were held there was no Principal appointed to Qaqamba Senior Secondary School. That Ms Yali, the Applicant’s witness, when cross-examined confirmed that she was unaware whether SGB held meetings during the period when the post was advertised. That Mr Hanekom testified when cross-examined that the parent component of the SGB were not participating in the SGB and he as a circuit manager had control over the school’s cheque-book. I accept that at the time in question the SGB was not functioning as a SGB in that the parents were not participating. Therefore there was no SGB in place to perform the functions of the SGB. The Respondent was obliged to appoint an independent panel to interview candidates for the advertised position. As previously alluded to, should the SGB fail to perform one or more such functions, the Head of Department must appoint sufficient persons to perform all such functions or one or more such functions, as the case may be for a period not exceeding three months. This the Head of Department did when appointing an independent panel. The Respondent’s case was that the SGB was not holding meetings. The Applicant pointed to a document in the Respondent’s bundle headed “SGB Minutes: Formation of interview panel”. The Applicant claims that the document proves that the SGB were meeting and therefore functional. This is incorrect and the insertion of SGB on the document is clearly a typo error. The individuals who attended the meeting were circuit managers and officials from the district office.
21. I am aware as provided for in the guidelines for promotion arbitrations that a recommendation by the SGB is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such recommendation promotion is ultra vires and unlawful. However at the time when interviews were conducted there was no SGB functioning and therefore there was no SGB able to make a recommendation. The SGB is currently a party to the dispute and they had chosen not to participate in the proceedings or lead evidence to show that they were not dysfunctional or they were functioning or they were unhappy with the incumbent.
22. The question is whether the Applicant was denied a fair opportunity to compete for the advertised position. The Applicant claims that had he been afforded the opportunity to be interviewed he could have informed the interview panel that for a period of time he took over the responsibilities of the HOD and because the position was vacant in that the previous incumbent had retired. The Respondent is obliged to adhere to the advertisement advertising the position. The advertisement for instance is very specific that should you not complete and use an original application form your application will be rejected. The advertisement does not prescribe that a certification older than three months will not be accepted.. Therefore, should the short listing panel seek to have additional short listing criteria that do not form part of the advertisement they should afford candidates an opportunity to meet the additional criteria. Therefore, the Applicant should have been afforded an opportunity to correct the certification date. Therefore, the Respondent acted unfairly against the Applicant in not short-listing him. Therefore he was denied an opportunity to compete fairly for the position.
23. The Applicant seeks an order setting aside the appointment of the incumbent and directing that the process be redone. The guidelines on promotion arbitration provide that unless an applicant can demonstrate that he has a realistic chance of being appointed, should the process be repeated in a fair manner, it is pointless setting aside the process and directing that it must be repeated. The guidelines also provide that Section 28 (2) of the Constitution of the Republic of South Africa that provides that the best interests of a child are of paramount importance in every matter concerning the child must be considered. Our courts have also held that Section 28 (2) of the Constitution is applicable in promotion disputes in the education sector. In terms of the judgements of National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & Others 1996 (4) SA 577 (A) 589 C-D and National Medication Health & Allied Workers Union v UCT (2003) 24 ILJ (CC) in the determination of an unfair labour practice, fairness requires fairness towards both employee and employer. The public interest and the needs of society must also be taken into account in determining fairness.
24. Section 194(4) of the LRA provides that compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months remuneration. The guidelines for promotion arbitration provide where an applicant has not proved that he was the best of all the candidates and where an arbitrator decides to award compensation, the consideration is solely aimed at compensating the employee for non-patrimonial loss. (Patrimonial (or pecuniary) loss refers to financial loss suffered directly or indirectly through e.g. damage to property, loss of profit or theft of money. Non-patrimonial loss, is not actual financial loss, but refers to the loss caused by damage to a person’s personal interest e.g. through impairment of his dignity or feelings such as in a case of defamation). Accordingly where the loss in an unfair labour practice is of a non-patrimonial nature, compensation as a form of solatium (meaning solace money to salve injured feeling and sentimental loss) for the loss of a right, may be awarded. Or put differently, to compensate for the injuria of being treated unfairly. Our courts have always been very conservative when awarding solatium for non-patrimonial loss.
25. I deem it to be just and equitable under the circumstances that two months compensation would be appropriate to compensate the Applicant for the loss of his right to complete fairly in the promotion process.
AWARD
26. I find that the Respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA in not short listing the Applicant, Zingisa Mahamba.
27. The Respondent is ordered to pay the Applicant compensation in the amount of R44 300.00 (That is the equivalent of 2 months remuneration)
28. The amount referred to in paragraph 27 above must be paid to the Applicant by no later than 31 March 2017.
Name: Jonathan Gruss
ELRC Arbitrator
Province: Eastern Cape
Applicant: SADTU obo ZINGISA MAHAMBA
Respondent: DEPARTMENT OF EDUCATION: EASTERN CAPE & 3 OTHERS
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Education Leadership Institute in East London
Award Date: 16 February 2017
Arbitrator: Jonathan Gruss
Panellist: Jonathan Gruss
Case No.: PSES 104-16/17EC
Date of Award: 16 February 2017
In the ARBITRATION between:
SADTU obo ZINGISA MAHAMBA
(Applicant)
and
DEPARTMENT OF EDUCATION: EASTERN CAPE & 3 OTHERS
(Respondent)
Applicant’s representative: Ms Mboniswa
Applicant’s address: 4 Ash Road
Wilsonia
EAST LONDON
Telephone: 083923176
Telefax: 040 639 3229
Respondent’s representative: Mr Hena
Respondent’s address: Private Bag X0032
BHISHO
5606
Telephone: 040 6084540
Telefax: 040 608 4458, 040 608 4313
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the Education Leadership Institute in East London on 30 January 2017. The proceedings were electronically recorded. The Applicant, Zingisa Mahamba was represented by Ms Mboniswa, an official from the South African Democratic Teachers Union (SADTU). The Respondent, Department of Education: Eastern Cape was represented by Mr Hena. The MEC for Education: Eastern Cape and the Superintendent General for the Department of Education: Eastern Cape are parties to this matter and they were also represented by Mr Hena. The incumbent to the disputed post, Kwanele Ngcetane was represented by Ms Mhambi also from SADTU. The School Governing Body (SGB) for Qaqamba Senior Secondary School did not attend the arbitration although they were duly notified and informed of the proceedings. The parties agreed to submit written closing arguments by no later than 7 February 2017. Only the Applicant submitted written closing arguments.
ISSUE TO BE DECIDED
2. I am required to determine whether or not, the Respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2) of the LRA in not shortlisting and appointing the Applicant, Zingisa Mahamba to the post of HOD, Post level 2 at Qaqamba Senior Secondary School.
BACKGROUND
3. In terms of narrowing of the issues at the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:
3.1 The Applicant commenced employment as an educator with the Respondent during January 2001.
3.2 He is currently a level 1 educator teaching business studies to grade 11 and 12 at Qaqamba Senior Secondary School. He was transferred to Qaqamba Senior Secondary School in 2005.
3.3 He earns R265 800.00 per annum.
3.4 The post of HOD, (Accounting, Business Studies and Economics) was advertised in bulletin volume 1 of 2015, post number 228 during February 2015. As to qualification, he is in possession of a B-Com in Education (REVQ14) 4 year degree.
3.5 The Applicant applied for the position but was not shortlisted. The reason according to the Respondent why the Applicant was not shortlisted was because the certification date of documentation attached to the application form was older than three months.
3.6 The incumbent and successful party, Kwanele Ngcetane, commenced employment with the Respondent on 20 April 2001. Prior to him taking up the position of HOD : Accounting, Business Studies and Economics at Qaqamba Senior Secondary School he was a teacher at Mzomhle High School, NU1, Mdantsane, teaching all commercial subjects. He was appointed to the HOD position at Qaqamba Senior Secondary School during February 2016. He is in possession of a National Diploma in Commercial Education (REVQ 13), B-Tech in Commercial Education (REVQ 14) and a B-Tech in Management.
4. As to relief, the Applicant seeks for the position to be re-advertised and the process restarted and thereby setting aside the appointment of the incumbent. The Respondent and the incumbent seek that the status quo ante be maintained and the Applicant’s referral is dismissed.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
APPLICANT’S EVIDENCE AND ARGUMENT
6 The Applicant and Zukiswa Yali testified. The Applicant testified to the following effect.
6.1 He applied for the advertised position, the closing date was on 27 January 2015. He met the requirements for the post.
6.2 He had previously been acting in the post since the former HOD left for retirement in April 2011. The educators in the commerce department agreed between themselves that he should take over the responsibilities and act in the post. This was not an official acting appointment in that no executive authority was granted for him to act. This was an internal arrangement in that someone had to supervise the department. Since he had taken over the responsibilities of the HOD they received good results and during that period he gained experience.
6.3 When he applied for the position all his documents were certified. He cannot recall the date when the documents were certified as a true copy of the original document.
6.4 It is the responsibility of the SGB and the Principal, of the school, with union observers to conduct interviews. He was informed by the acting Principal Mr Fesi that the school had received a letter from the Respondent disbanding the SGB. When the interviews were conducted he was not informed that the interviews were taking place.
6.5 In January 2016 a new principal, Mr Lungodlo was appointed and he enquired from the staff whether they have a post for HOD for commerce. He enquired as to the school’s position and he informed the principal that he was acting in the post. At that stage, the SGB had already been elected.
6.6 After referring a grievance he had a meeting with Ms Swart and Mr Hanekom and they informed him that there was nothing wrong with the process that resulted in the appointment of the incumbent. They did not inform him that he had not been shortlisted.
6.7 He was never called to correct the certification date of his qualifications that he submitted with his application for appointment to the advertised post.
6.8 The bulletin advertising the position did not say that document certification must not be older than three months. As far as he can recall the date of the certification was within the 3-month period.
6.9 Under cross-examination he confirmed writing a letter that was addressed to the circuit manager wherein he mentioned that the EDO brought Ms Ndongeni to the school as a post level II educator majoring in commercial subjects. The school rejected the deployment of this educator. The EDO explained to the staff that the post of HOD for commerce will be attended to by the school and the SGB after the appointment of a permanent Principal. It was mentioned to them that the SGB had been disbanded due to them failing to perform their key duties. The first duty of the Principal after his appointment would be to organise parents and conduct by-elections making sure that the whole SGB component is in place. In terms of the letter they as staff expected the Principal to inform the staff of any latest development. He agreed that as at November 2015 the SGB was not functioning properly.
7 Ms Zukiswa Yali testified to the following affect.
7.1 She knows the Applicant in that he is her colleague. As from the date in which the previous HOD Mr Mamani left the school during March 2011, the Applicant was acting in that position. The Applicant was performing all the duties of the HOD, by calling meetings and controlling the work. The Applicant also gave them messages from the district office.
7.2 When the position of HOD was advertised it was first a closed bulletin and then thereafter the bulletin was opened and the Applicant applied for the post. During that time there was no principal and in January 2016 a new principal was appointed.
7.3 Mr Locotho called them and enquired if the HOD post was vacant. They confirmed that the post was vacant but that the Applicant was acting in the post.
7.4 Mr Hanekom told them after the Principal was appointed that there would be interviews for the position of HOD. He told them that the Principal would conduct the interviews.
7.5 Under cross-examination she indicated when it was suggested to her that the SGB was dysfunctional, that she was unaware thereof. There were however members of the SGB at the school. She was unable to confirm that during that period the SGB held meetings although two of the parents were signing cheques.
RESPONDENT’S EVIDENCE AND ARGUMENT
8. Dirk Hanekom, and Mluleki Mrwebi testified for the Respondent. Mr Hanekom testified to the following effect.
8.1 He is currently a circuit manager (EDO) and he oversees the effective governance management at schools. He has only been employed in the Eastern Cape since 2001 and prior thereto from 1988 he was employed as an educator in Kwa-Zulu Natal.
8.2 The post of HOD for the learning areas Accounting, Business Studies and Economics was advertised in an open bulletin volume 1 of 2015 on 3 January 2015. The closing date for applications was on 27 January 2015.
8.3 During the months prior to them advertising the post, the district director, Mr Mguni decided that due to the dysfunctional SGB at Qaqamba to instruct that an interview panel comprising of circuit managers be appointed. The short-listing panel consisted of him, Mrs Mfazwe and Mr Mrwebi and it was agreed that he would chair the meeting. The unions also to form part of the panel as observers.
8.4 After the shortlisted candidates were interviewed, the panel recommended that Mr Ngcetani be appointed to the post in that he was the strongest candidate considering the content of all commercial related subjects. He had already acted as an HOD and therefore he was exposed and understood management at schools. He appeared to be focused and goal directed. He was also passionate about obtaining quality results and he showed pride in his work.
8.5 The short-listing criteria agreed were that candidates must complete the original application forms and the application form must not be photocopied. A candidate must have a REQV 13, 3 year qualification and grade 12. The position advertised was post level 2 educator and candidates must have at least five years teaching experience. It was also required that the form EDP01 must be original and be completed. A copy of a candidate’s green SA ID documentation or card as well as copies of all academic qualifications and the SACE certificate must be certified as a true copy of the original. The medium of instruction is English and therefore a candidate must be able to teach in English to grade 9 to 12 learners. The candidate must also have been exposed to management and administration. Any sports accompanied with music would be an advantage. A successful candidate would be required to teach economics to Grade 9 learners and accounting and business studies to Grade 12 learners. The application form must be signed and dated at the end of the form.
8.6 The Applicant was not shortlisted because the certificate date of the certificate confirming that the copy was a true copy of the original was more than three months old. This was standard practice as done in the banks that certified copies must not be older than three months.
8.7 The unions were invited but they did not turn up. Mrs Stanford informed the unions via means of facsimile of the proceedings.
8.8 Under cross-examination in explaining what was meant by a dysfunctional SGB, he explained that there was no principal and a parent component beside the chairperson. All the parents were not participating in the SGB. For a SGB to have powers there must be a parent component and because the parents were not participating in the SGB, the SGB for all intents and purposes did not exist. He as the circuit manager had control over the school’s cheque-book.
8.9 It was not possible to get the SGB to perform interview functions and if they had removed the SGB this would mean that they could not hold a by-election for the SGB. The Respondent did not inform the Applicant that the certificate dates on his certificates were outdated.
9. Mr Mrwebi testified to the following effect.
9.1 He has been employed by the Respondent for approximately 22 years and is currently a circuit manager (EDO). As a circuit manager his job is to support and monitor schools.
9.2 The short listing panel did not shortlist the applicant in that the certification date was incorrect it must not be older than three months.
ANALYSIS OF EVIDENCE AND ARGUMENT
10. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable.
11. In SAPS v Safety and Security Bargaining Council & others (LC Case no: P426/08; judgment date 27/10/2010). A candidate for promotion (Noonan) referred a dispute to arbitration. The successful candidate had failed to disclose that he had a valid verbal warning and in fact indicated that he had not been convicted of any disciplinary offences during the period of his current rank or post level. Mr Noonan alleged that this failure to disclose his prior disciplinary record resulted in the selection panel not being able to apply its mind to his integrity and suitability; as a consequence thereto, the selection panel's failure to apply its mind to this aspect rendered its recommendation of the third party invalid. Mr Noonan argued that SAPS had committed an unfair labour practice relating to promotion in not promoting him, which prejudiced his career progression within the SAPS.
12. The Arbitrator in the Noonan matter found that SAPS had committed an unfair labour practice and ordered SAPS to promote Mr Noonan. The award was taken on review to the Labour Court where Cheadle AJ set down the following principles, which were interpreted to give a very wide discretion to employers in the selection / recruitment process. These are summarised below:
• There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
• Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
• If the employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
• As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
• As a general rule the appropriate remedy is to refer the decision back in order to allow the complainant a fair opportunity to compete. The exception being where there has been discrimination or victimization and there are compelling constitutional interests at stake or if the Applicant proves that but for the unfair conduct, he or she would have been appointed.
13. Noonan took the Labour Court’s decision on appeal to the Labour Appeal Court (Noonan v Safety & Security Sectoral Bargaining Council & others (2012) 33 ILJ 2597 (LAC)). The LAC criticised Cheadle AJ’s approach that the unfairness of the non-disclosure and its consequences were not material unless it affected the opportunity for promotion, which it held was not the case. The LAC said the following:
'This approach overlooks several aspects. The first is that there was no disclosure by the third party at all. The second is that the National Commissioner condoned the failure after the appointment was made. The third is that it downplays the value of process and lends support to possible dishonest practices. Fourthly it devalues the role of the first selection panel. And importantly it prejudiced the appellant as he would possibly have been ranked first on the list of recommendations.'
14. The LAC, tackling the Labour Court's idea that mistakes do not constitute unfairness if the decision can be rationally justified, said the following:
'...the non-disclosure enables the non-disclosing candidate to rise through the process to a stage where the National Commissioner is able to condone the lapse. This is manifestly unfair. Every Applicant is obliged to apply his or her mind carefully to the application form and to complete it honestly and diligently so as to compete fairly with other candidates.'
15. Quoting Professor PAK Le Roux writing in Cheadle Landman Le Roux and Thompson Current Labour Law 1991/1992 at 17: ‘The court should be careful not to intervene too readily in disputes regarding promotion, especially to senior management positions, and should regard this as an area where managerial prerogative should be respected unless bad faith or improper motives such as discrimination are present.’
16. The Applicant’s case is twofold, Firstly, he should have been shortlisted in that there is no written rule or directive stating that certifications of certified copies must not be older than three months. The Respondent thereby failed to afford him the opportunity to compete for the post in that had they informed him of the alleged date error he could have rectified this. Secondly, it is argued that the entire process was irregular in that the SGB was supposed to hold interviews and make a recommendation as to the preferred candidate. Furthermore, as far as it relates to the allegations that the SGB were dysfunctional this was denied in that the dysfunctional SGB held a meeting. The Respondent, more specifically the district director, failed to request the superintendent general to withdraw the powers of the SGB and therefore the district director flouted Section 22 of the South African Schools Act, in that he and not the superintendent general removed the powers of the SGB. The process was also flawed in that the Respondent failed to involve the parents and teachers as observers.
17. Section 22 of the South African Schools Act provides that the Head of Department may, on reasonable grounds, withdraw a function of the governing body. The Head of Department may not take action as referred to above unless he/she has informed the governing body of his or her intention so to act and the reason therefore. The Head of Department shall grant the governing body a reasonable opportunity to make representation to him or her relating to such intentions and give due consideration to any such representation received. In cases of urgency, the Head of Department may take action as referred to above without prior communication with such governing body, (if the Head of Department thereafter furnishes the governing body with the reason for his or her actions, gives the governing body a reasonable opportunity to make representation, relative to such action and duly consider such representation received). Any person aggrieved by the decision of the Head of Department may appeal against a decision to the member of the Executive Council.
18. In terms of Section 25 of the South’s African Schools Act if the Head of Department determines on reasonable grounds that the governing body has ceased to perform functions allocated to it in terms of the Act or has failed to perform one or more such functions, he or she must appoint sufficient persons to perform all such functions or one or more such functions as the case may be for a period not exceeding three months. The Head of Department may extend the period referred to by a further period not exceeding three months each, but the total period may not exceed one year. If a governing body has ceased to perform its functions, the persons contemplated must build capacity within the period of their appointment to ensure that the governing body performs its functions.
19. It is suggested by the Applicant that the actions of the district director in directing that an independent interview panel be convened that consisted of circuit manager’s is irregular. The irregularity thereof as suggested relates to the fact that it was a district director that took the decision and not the Head of Department. However Mr Hanekom testified that he got the instruction from the district director to chair an interview panel and he is unaware whether the Head of Department gave permission for an independent panel. The fact that an appointment was made by the Head of Department in promoting and appointing the incumbent implies that what occurred, occurred either on instruction of the Head of Department or with his approval.
20. Based on the evidence tendered by the Respondent that when the interviews were held there was no Principal appointed to Qaqamba Senior Secondary School. That Ms Yali, the Applicant’s witness, when cross-examined confirmed that she was unaware whether SGB held meetings during the period when the post was advertised. That Mr Hanekom testified when cross-examined that the parent component of the SGB were not participating in the SGB and he as a circuit manager had control over the school’s cheque-book. I accept that at the time in question the SGB was not functioning as a SGB in that the parents were not participating. Therefore there was no SGB in place to perform the functions of the SGB. The Respondent was obliged to appoint an independent panel to interview candidates for the advertised position. As previously alluded to, should the SGB fail to perform one or more such functions, the Head of Department must appoint sufficient persons to perform all such functions or one or more such functions, as the case may be for a period not exceeding three months. This the Head of Department did when appointing an independent panel. The Respondent’s case was that the SGB was not holding meetings. The Applicant pointed to a document in the Respondent’s bundle headed “SGB Minutes: Formation of interview panel”. The Applicant claims that the document proves that the SGB were meeting and therefore functional. This is incorrect and the insertion of SGB on the document is clearly a typo error. The individuals who attended the meeting were circuit managers and officials from the district office.
21. I am aware as provided for in the guidelines for promotion arbitrations that a recommendation by the SGB is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such recommendation promotion is ultra vires and unlawful. However at the time when interviews were conducted there was no SGB functioning and therefore there was no SGB able to make a recommendation. The SGB is currently a party to the dispute and they had chosen not to participate in the proceedings or lead evidence to show that they were not dysfunctional or they were functioning or they were unhappy with the incumbent.
22. The question is whether the Applicant was denied a fair opportunity to compete for the advertised position. The Applicant claims that had he been afforded the opportunity to be interviewed he could have informed the interview panel that for a period of time he took over the responsibilities of the HOD and because the position was vacant in that the previous incumbent had retired. The Respondent is obliged to adhere to the advertisement advertising the position. The advertisement for instance is very specific that should you not complete and use an original application form your application will be rejected. The advertisement does not prescribe that a certification older than three months will not be accepted.. Therefore, should the short listing panel seek to have additional short listing criteria that do not form part of the advertisement they should afford candidates an opportunity to meet the additional criteria. Therefore, the Applicant should have been afforded an opportunity to correct the certification date. Therefore, the Respondent acted unfairly against the Applicant in not short-listing him. Therefore he was denied an opportunity to compete fairly for the position.
23. The Applicant seeks an order setting aside the appointment of the incumbent and directing that the process be redone. The guidelines on promotion arbitration provide that unless an applicant can demonstrate that he has a realistic chance of being appointed, should the process be repeated in a fair manner, it is pointless setting aside the process and directing that it must be repeated. The guidelines also provide that Section 28 (2) of the Constitution of the Republic of South Africa that provides that the best interests of a child are of paramount importance in every matter concerning the child must be considered. Our courts have also held that Section 28 (2) of the Constitution is applicable in promotion disputes in the education sector. In terms of the judgements of National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & Others 1996 (4) SA 577 (A) 589 C-D and National Medication Health & Allied Workers Union v UCT (2003) 24 ILJ (CC) in the determination of an unfair labour practice, fairness requires fairness towards both employee and employer. The public interest and the needs of society must also be taken into account in determining fairness.
24. Section 194(4) of the LRA provides that compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months remuneration. The guidelines for promotion arbitration provide where an applicant has not proved that he was the best of all the candidates and where an arbitrator decides to award compensation, the consideration is solely aimed at compensating the employee for non-patrimonial loss. (Patrimonial (or pecuniary) loss refers to financial loss suffered directly or indirectly through e.g. damage to property, loss of profit or theft of money. Non-patrimonial loss, is not actual financial loss, but refers to the loss caused by damage to a person’s personal interest e.g. through impairment of his dignity or feelings such as in a case of defamation). Accordingly where the loss in an unfair labour practice is of a non-patrimonial nature, compensation as a form of solatium (meaning solace money to salve injured feeling and sentimental loss) for the loss of a right, may be awarded. Or put differently, to compensate for the injuria of being treated unfairly. Our courts have always been very conservative when awarding solatium for non-patrimonial loss.
25. I deem it to be just and equitable under the circumstances that two months compensation would be appropriate to compensate the Applicant for the loss of his right to complete fairly in the promotion process.
AWARD
26. I find that the Respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA in not short listing the Applicant, Zingisa Mahamba.
27. The Respondent is ordered to pay the Applicant compensation in the amount of R44 300.00 (That is the equivalent of 2 months remuneration)
28. The amount referred to in paragraph 27 above must be paid to the Applicant by no later than 31 March 2017.
Name: Jonathan Gruss
ELRC Arbitrator