PSES 489-09/10 WC
PSES 489-09/10 WC
Award Date:
5 October 2010
Case Number: PSES 489-09/10 WC
Province: Western Cape
Applicant: MARIAM GASNOLAR
Respondent: DEPARTMENT OF EDUCATION WESTERN CAPE
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: DEPARTMENT OF EDUCATION WESTERN CAPE
Award Date: 5 October 2010
Arbitrator: R de Wet
Commissioner: R de Wet_________________________________
Case No.: PSES489-09/10WC Date of Award: 5 October 2010_________________________
In the ARBITRATION between:
MARIAM GASNOLAR
(Union / Applicant)
and
DEPARTMENT OF EDUCATION WESTERN CAPE
( Respondent)
Union/Applicant’s representative: Mr Greg Duncan______________________________________
Union/Applicant’s address: 14 Nevada Road ______________________________________
CAPE TOWN_________________________________________
7490________________________________________________
Telephone: 021 422 2860_________________________________________
Telefax: 021 424 8770_________________________________________
Respondent’s representative/s: Ms Lauren Randall ____________________________________
Respondent’s address: P/Bag x9114_________________________________________
CAPE TOWN_________________________________________
8000________________________________________________
Telephone: 021 467 2858________________________________________
Telefax: 021 425 8612_________________________________________
DETAILS OF HEARING AND REPRESENTATION:
[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 186(2)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on the 23rd of September 2010 at 09:00. The hearing was held at the Offices of the Department of Education, 17th Floor Golden Acre, Sanlam Building, Aderley Street, Cape Town, Western Cape.
[2]. Ms Mariam Gasnolar, the Applicant (hereinafter referred to as “Gasnolar”), was present and was represented by Mr Greg Duncan, legal representative, whilst Ms Lauren Randall, from the Labour Relations Division, represented the Respondent, the Department of Education in Western Cape.
ISSUE TO BE DECIDED:
[3]. Whether the Respondent committed an unfair labour practice as envisaged in Section 186(2)(a) of The Act, in that Ms Gasnolar was not promoted to the post of: Deputy Principal, Post Level 3 associated with Mary Harding ELSEN School (Learners with Special Needs).
[4]. In the event that I find in the affirmative, I must decide upon an appropriate remedy.
BACKGROUND:
[5]. The Applicant applied for the vacant position of Deputy Principal, Post Level 3, at the Mary Harding ELSEN School that was advertised in the vacancy list 2/2008, post number 3955. At the time of the advertisement, Gasnolar was appointed at the same school, at post level 2, Head of Department.
[6]. Before the short listing could commenced, the School Governing Body (hereinafter referred to as The “SGB”), made a request to the Respondent, to take over the process, which was duly done. From that moment onwards, the SGB was not involved in the process of short listing or interviewing candidates.
[7]. The Respondent then appointed a panel of circuit managers to interview the candidates. The panel consisted of Mr Van der Rhede (chairperson), Dr H Punt (IMG), Dr Y Lalkhen (SLES), Ms C Allen (IMG), Ms T Klaas (LSEN) and Mr I Matthews (Labour Relations).
[8]. The Applicant was short listed by the Panel, and during this initial process she scored the highest of all the candidates to be interviewed. All together three candidates were interviewed, namely, Ms Gasnolar, Mr D Achary and Mr LJ Kohler. The Panel was of the view that the two other candidates fared better than the Applicant during the interview, and recommended Mr Achary as the first candidate and Mr Kohler as the second preferred candidate. The Applicant was not recommended for appointment by the Panel.
[9]. Upon learning that she was not nominated, the Applicant lodged a grievance with the Respondent, arguing that one of the Panel Members, Dr Lalkhen was baised towards her. The Respondent placed a moratorium on the filling of the post and the post is currently still vacant.
[10]. The Applicant is of the view that the Respondent committed an unfair labour practice, in their failure to promote her to the level of Deputy Principal Post Level 3 at Mary Harding School. For this reason she is seeking to be appointed to the position.
SURVEY OF EVIDENCE AND ARGUMENT:
[11]. I do not intend to deal with every aspect of the evidence and or argument of each party but will only record the part of the evidence that I deem necessary for purposes of this determination.
Applicant’s version:
[12]. The Applicant relied only on her own evidence, in proving his case, and also called one (1) additional witnesses, Ms YI Gerbach.
[13]. Gasnolar (The Applicant) testified that:-
[14]. She is currently employed on a Post Level 2, Head of Department at Mary Harding School. She has obtained her matric and 6 year’s post matric qualification, which include, a BA Degree in Psychology and Social Science, a Higher Diploma (B-Ed) specializing in learners with special educational needs, a B-Ed in Counseling and Psychological Assessment.
[15]. She has approximately 22 years experience and in 1996 she applied for the vacant Principal position. Due to certain developments at school that caused a negative attitude towards her, she was not appointed. She lodged a grievance and Mr Hartney offered an apology to her.
[16]. At the end of 2006, the Principal position once more became vacant and she applied accordingly. Once more she was not found to be suitable for the position and she reported her dissatisfaction with Redwaan Edwards, the Labour RelationsOfficer. She is of the opinion that by virtue of the fact that she pointed some sexual irregularities out that was happening in the hostel, and which lead to the hostel closing down, that she was then labeled a “trouble maker”, which caused her to fall within disfavor with the Respondent (this version was never put to the witnesses).
[17]. The grievance that she lodged, was investigated and resulted in the post being re-advertized. After the matter had been referred by the SGB to the Respondent, she was shortlisted. She then made several attempts to enquire who would serve on the Panel, but despite all her effort, she was not met half way by the Respondent to be informed as to the identity of the Panel members until the date of the interview.
[18]. Dr Larkhen and Mr Evassen were the investigating officers in 2005 when she was questioned and they expressed their anger with her for not following the procedure (this version was never put to the witness).
[19]. In 2008 she also applied for the position, and after being interviewed by the SGB, she was informed that Ms Mmoose, the chair lady lodged a dispute, which stayed the process. The very same Ms Mmoose made derogatory statement about her to Ms Gerbach. Ms Mmoose was not aware that she was listening in and that she overheard the discussion.
[20]. During March 2009 a grievance hearing was held and it was decided that the process must be re-done. Subsequent to the hearing, Dr Larkhen told her that things were so negative, and then enquired why she would not just pack up and leave. He continued by stating that he was of the opinion that things were so negative and that she will never get the position.
[21]. In August 2009, the new SGB took over and Ms Mmoose then resigned. The new SGB decided that they did not want to be part of the process of appointing a Deputy Principal, and referred the matter to the Respondent. On the day of the interview, she learned that Dr Larkhen would be on the Panel and she informed Mr Mathews that she was not comfortable with him. She also requested her lawyer to be present during the interview. Both her requests were turned down.
[22]. By the time that she was actually interviewed, the atmosphere was already created whereas Mr Mathews had to go in to put her two requests to the Panel, and upon her entry she observed as the Panel members were looking at one another and at her (this version was never put to the Respondent).
[23]. On the 8th of November 2009, she learned that Mr Archery was the most preferred candidate and that Mr Kholer the second, which her taken the third and last position. She requested reasons for her non-appointment and a grievance hearing was scheduled for December 2009. She was nevertheless not given any reasons for her non-appointment, but instead was met with a rude attitude towards her.
[24]. The post clearly required a person with experience, a person who knows the school and since she is a female of colour with some 22 years experience, who is familiar with the community, who have already put structures in place, she could not comprehend that Mr Archery could fare better than was she has. Since she has interviewed him on an earlier occasion, she is aware that she is much better qualified than him and has much more experience than him. Mr Archery is from Durban, where he was teaching boys one, who is much stronger than the children at Mary Harding. She contended that she fared well in her interview and could answer all the questions.
[25]. The Panel that conducted the interview, was not fair, since they allowed Dr Larkhen on the Panel, who clearly expressed his view that she should leave. She answered a question, whether she has the right to choose who is on the panel, that she only made a request. She answered that she does not know what the problem was that Ms Mmoose had with her.
[26]. In response to a question that everyone always seem to have a problem with her whenever she attends an interview, that replied that she is very vocal and this might not go down well with some people. She conceded that she has already lodged 4 (four) disputes in relation to non- appointment in the past, but indicated that she took offence at the notion that she would lodge a dispute whenever she is not appointed.
[27]. She expressed the view that she had to be interviewed since she meets the minimum requirements, but stated that both Kohler, whom she worked with and Archery whom she interviewed, is not as qualified and experienced as she is (this version was never put to the witnesses).
[28]. Yolanda Ieleen Gerbach (Teacher at Mary Harding School) testified that:-
[29]. For easy reference I have decided not to report on the full extent of this witness since she was not involved in the dispute that is currently before me. She served on the SGB during 2007 to 2008. During this period Ms Mmoosse was the chair lady. The Applicant was interviewed for a Deputy Principal position and she fared very well. She was however not appointed since Ms Mmoose was discontent and lodged a dispute at the end of the process.
[30]. On another occasion she was phoned by Ms Mmoose whilst the Applicant was with her. Ms Mmoose stated that the Applicant was so “bedonnerd” with Adrian, and that she has no respect for the Applicant since she took the bread out of Adriaan’s mouth, and she is arrogant.
[31]. The Applicant was standing next to her and she repeated what Ms Mmoose had just said to her, then she became suspicious and ended the conversation.
[32]. Under cross-examination she replied that she was not part of the process that lead to the arbitration hearing and that she could not state anything that was baised towards the Applicant during this process.
Respondent’s version:
[33]. Yusuf Lalkhen (Panel Member) testified that:-
[34]. He was one of the committee members on the Panel who interviewed the Applicant for the post of Deputy Principal at Mary Harding School. That was his only involvement with the Applicant. In the interview he scored her 26 (Exhibit “A”, part C, the 2nd last page). Two of the panel members scored her lower than what he did. He contended that he never had a reason to investigate anything done or said by the Applicant, nor has she complaint about his conduct at any time.
[35]. Under Cross-Examination he conceded that there was a request for him to recuse himself during the interview. The request was however not in writing but there was a verbal request. He stated that she made the request because she was of the view that he was biased. On an earlier occasion he acted as an observer in an interview which the Applicant attended. He could recall a meeting subsequent to a grievance lodged by the Applicant whereas the outcome was that the process be re-done. He however denied every sitting in the foyer with the Applicant or saying to the Applicant that things are so negative and that she finds herself in a negative environment that it would be better for her to pack up and leave.
[36]. He conceded that the interview is based on subjective views, but denied that he actually penalized the Applicant because he was baised towards her. He explained that exactly the same questions were asked to all of the candidates and despite the Applicant being the highest qualified person, and having the required experience that she was not the recommended candidate, which is not uncommon to happen.
[37]. Leopold van der Rede (The Chairperson) testified that:-
[38]. He has been working for the Respondent since 2008, as a Circuit Manager. He was the chairperson of the interviewing Panel for the position in contention. This position was handled by the District Office and not the SGB as they requested their assistance. The reasons for the request were that they felt inexperienced as they were at that time recently elected, and to ensure that the interviews were objective.
[39]. The panel deliberated on all the candidates and found, subsequent to the interviews that the Applicant did not respond well in terms of questions posed. In some instances her responses were vague and not to the point. She also did not address particular questions asked to her by the Panel. She was not prejudiced at all during the interview or thereafter. Mr Archary was nominated based on his performance and his comprehensive experience within special schools. The Panel also took Employment Equity into account during the process and was of the view that Mr Archary would be the most suitable candidate for the position.
[40]. The Applicant was not treated differently than any of the other candidates. Out of his experience and being involved in several interviews, he can safely state that at no stage did the Panel discriminate against the Applicant. The discussions during the process were based on the professional opinion of all the panelists.
[41]. He recalled the request, that was made on the day of the interview, to have Dr Lalkhen’s recusal. He has nevertheless taken the decision that Dr Lalkhen be part of the panel because he could find no reason why he should recuse himself, since no reasons were given for the said request.
[42]. In cross-examination the question was put to him whether he discussed the request with Dr Lalkhen and he replied in the negative, explaining that he was asked to put a panel together and in doing so he required the expertise of Dr Lalkhen and since no proper ground could be found to ask for his recusal he decided against the request. The request was nevertheless made in full view of all the Panel members. The request was also a belated one since the short listing had already taken place and some of the interviews as well.
[43]. He answered to a question put to him, that he enquired from all the Panel members in advance whether any one of them would have a vested interest in the process or any of the candidates, and they all answered in the negative. He disagreed with the notion put to him that he was biased and that was evident from the fact that he did not even enquired into the reasons for the request. He explained that should one look at the scores of all the Panel Members, that the scores are balanced there is nothing to suggest that anyone was bias. Further it was the first time in his life that he had seen the Applicant, and there would be no reason for him to be biased towards her.
[44]. He also explained that a process cannot be stopped because of the perception of one of the candidates which in any event was based on one earlier encounter with Dr Lalkhen in an interview process. He was satisfied that the integrity of the panel was not compromised.
[45]. He further explained that he was part of the grievance meeting and that he explained to her on that occasion the reasons for her non-appointment. He strongly disagreed that he had not divulged the reasons for her non-appointment with her stating that he engaged her and that she had her legal representative with her.
[46]. Ishgaak Matthews (Labour Relations Officer) testified that:-
[47]. He was the secretary in the interview for the filling of the post in contention and is currently based at the District Office. He could recall that the Applicant indicated her dissatisfaction with the composition of the Panel and she indicated her preference to have one of the members of the Panel recused. The Applicant indicated that she had a problem with Dr Lalkhen. He indicated that the decision was not his to make and that it she had a problem she must take it up with the Director. He also indicated to her that he would note her concerns but he could not give any undertaking.
[48]. From his own observations, being part of the process, he indicated that none of the members were
Biased. In addition the Trade Unions were also invited as observers and no indication could be picked up from the happenings in the interview. The same set of questions was asked to all the candidates.
[49]. He was aware that the Applicant was having a problem with Dr Lalkhen specifically but since she was the last to be interviewed, nothing could be done in relation to her belated request. He indicated that due to Dr Lalkhen’s expertise that his contribution was too valuable to the Respondent to exclude him from the interview process. He stated that the presence of Dr Lalkhen did not influence the integrity of the panel at all. He stated that he was not aware of any hidden agendas and from his observations he did not observe anything untoward on the part of Dr Lalkhen.
[50]. He expressed the view that there is nothing strange about an Applicant receiving the highest score in the short listing and then not being the preferred candidate during the interview.
ANALYSIS OF EVIDENCE AND ARGUMENT:
[51]. I have to determine, on a balance of probabilities, whether the Respondent committed an unfair labour practice by not appointing Ms Gasnolar to the position of Deputy Principal. Post level 3, at Mary Harding School. At the very onset of my analysis of the facts, I must state that a substantial part of the evidence lead by the Applicant was never put to the witnesses of the Respondent. The majority of these facts can also be seen as background facts, and was not specifically put under “issues in dispute that must be decided by the arbitrator”, as per the pre-arbitration minutes.
[52]. Jurisdiction to arbitrate promotion disputes are derived from Section 186(2)(a) of The Act, which defines an unfair labour practice with regard to promotion as follows:
“ ‘Unfair Labour Practice’ means any unfair act or omission that arises between and Employer
and an Employee involving …unfair conduct by the employer relating to the promotion… of an
employee”
[53]. The onus of proof rests with the Applicant, having to prove on a balance or probabilities, that the Respondent acted in a manner unfair toward her, in failing to promote her to the position of Deputy Principal. Not only must she prove the existence of the unfair labour practice, if it is disputed, but also that it is unfair.
[54]. The crux of the Applicant’s case was that by virtue of the fact that she was the highest qualified and best experienced person for the position, that the Respondent discriminated against her due to a long history that played itself out between herself and the Respondent. As a result she was labeled as a trouble maker, and advised by Dr Lalkhen to rather pack up and go for she will never be appointed to the position. She also argued that since she received the highest score in the short listing and then the lowest of the three candidates in the interview that it is evident that there was something untoward against her.
[55]. In the process of appointment of Educators, the recommendation by a SGB is an essential prerequisite, and without such recommendation the appointment is ultra vires and unlawful (See Kimberley Junior School v The Head of the Northern Cape Education Department [2009] 4 SA 135 (SCA)).
[56]. It is common cause that the SGB did not perform the task of short listing nor of interviewing the candidates. The reason being that the SGB was of the opinion that they were fairly inexperienced, and the position was that of a senior member of management. Having referred the matter to the MCED would, in the view of the SGB, create greater transparency since the appointment of the candidate in this position was an issue in dispute and the dispute, on that occasion, appears to centre around the previous SGB.
[57]. The Head of the Provincial Department of Education makes the appointment, according to Section
6(1) of the EEA, based on the recommendation. Despite the order of preference, the Head of Department (hereinafter referred to as the “HOD”) may appoint any suitable candidate on the list. The HOD must however place significant weight on the order of preference because it is the interview panel who has interviewed the candidates and not the HOD (Head, Western Cape Education Department and others v Governing Body, Point High School and others 2008 (5) SA 18 (SCA).
[58]. The Supreme Court of Appeal in the Point High School matter (supra), recently explained under what
circumstances the decision of the HOD in making appointments may be interfered with and under
what circumstances the HOD may appoint any suitable candidate on the nomination list, despite the order of preference on the list:
“…the governing body's list in terms of the discretion vested in him by ss 6(3)(f). The law is now clear that, in exercising this discretion, the HOD is required to act reasonably and, by taking into account all of the relevant factors andconsidering the competing interests involved, to arrive at a decision which strikes a 'reasonable equilibrium'. The court has no power to review this decision purely because there may be another, perhaps better, 'equilibrium' which could have resulted by attributing more weight to some factor or factors and less to others. If that struck by the decision-maker is reasonable, then it must stand.….if he [the HOD] considers that the governing body has performed its functions properly, the HOD must obviously attribute substantial weight to the recommendations submitted to him. He is called upon to decide upon the appointment of a person from a list of people about whom he may have no personal knowledge. The governing body of such a school, constituted (in terms of the South African Schools Act) mainly by elected representatives of parents and staff, would naturally be expected to have a reliable comparative picture of the various candidates and their suitability for appointment at the school. Its choice and recommendation would obviously be better-motivated, and more reliable, than any that the HOD could make in the circumstances. While it is quite correct that he has a specified discretion to disregard the governing body's motivated recommendation and even its order of preference, he must clearly exercise this discretion in a manner which conforms to the statutory requirements of fair administration in the Constitution and in PAJA and also, in general, with the Department's policy…” (emphasis added)
[59]. In deciding whether conduct relating to a promotion was unfair, the function extended to arbitrators is a very limited one, and basically involves a review of the decision made by a functionary or the body vested with a wide statutory discretion. There are three basic requirements for a fair appointment or promotion. One, the procedure must have been fair, two, there must have been no unfair discrimination, and three, the decision must not have been grossly unreasonable (see Arries v CCMA and Others (2006) 27 ILJ 2324 (LC); and Minister of Home Affairs v GPSBC (JR 1128/07) ZALC 35 (26 March 2008) par 12.).
[60]. The Applicant did not dispute the fairness of the procedure followed in making the appointment. In order to prove that the decision was grossly unreasonable, it needs to be demonstrated that the Employer has acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud, failed to apply its mind or had exercised his discretion for insubstantial reasons, or based it on any wrong principle (Arries v CCMA and Others (2006) 27 ILJ 2324 (LC); Benjamin v University of Cape Town [2003] 12 BLLR 1209 (LC) at 1223-1224).
[61]. There is no general right to promotion, Employees do however have a right to be fairly considered for
promotion when a vacancy arises, in other words Employees have the right to fair labour practices.
Employers have a prerogative or wide discretion as to whom it is they want to promote. Arbitrators
should be hesitant to intervene too readily in disputes of this nature and should respect the prerogative
exercised by the Employer, unless bad faith or improper motive such as discrimination are present
(PAWC [Department of Health & Social Services] v Bikwani & others (2002) 23 ILJ 761 (LC)
771):-
“Inevitably, in evaluating various potential candidates for a certain position, the management of an organization must exercise a discretion and form an impression of those candidates. Unavoidably this process is not a mechanical or a mathematical one where a given result automatically and objectively flows from the available pieces of information. It is quite possible that the assessment made of the candidates and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management's discretion”.
[62]. That having been said, there are at least 2 (two) important issues for consideration in determining
whether the Respondent had indeed acted unfairly towards the Applicant. The first is whether the
Applicant met the minimum requirements of the position. Having regard to the evidence before me, there can be no doubt that the Applicant was indeed in compliance with the minimum requirements. The second is, the reasonableness of the decision. The emphasis in this regard is however not on the correctness of the decision, but on the reasonableness thereof, provided the decision to appoint one candidate instead of another is rational, and no question of unfairness can arise out of the said decision. The Courts expressly stated in this regard:
“It is quite possible that the assessment made of the candidates [by the employer during the promotion process] and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management's discretion”. (See Goliath v Medscheme (Pty) Ltd (1996) 17 ILJ 760 (IC) at 768).
“The Promotion Committee was tasked with assessing all the applications and had to exercise a discretion in selecting the best candidate. A court of review has no jurisdiction to enquire into the correctness of the conclusion arrived at by a body or functionary lawfully vested with a discretion...It will only be entitled to interfere with the decision taken by such a body or functionary if it is shown that it failed to properly apply its mind to the relevant issues and such failure may be shown by proof, inter alia, that the decision was arrived at arbitrarily or capriciously or mala fide, or as a result of unwarranted adherence to a fixed principle, or in order to further an ulterior or improper purpose, or that it misconceived the nature of the discretion conferred, or that the decision was so grossly unreasonable as to warrant the inference that it failed to properly apply its mind to the matter… or if there is such a material misdirection of fact that it is clear that it failed to exercise its discretion. (See Jwajwa v Minister of Safety & Security & others, Case No 817 / 01 [2005] JOL 15727).
[63]. The Supreme Court of Appeal recently confirmed the principle that an arbitrator should not determine whether an Education Department could have arrived at a better decision in selecting a suitable Educator for appointment to a teaching position, but whether its decision was a reasonable decision (Head, Western Cape Education Department and others v Governing Body, Point High School and others 2008 (5) SA 18 (SCA).
[64]. It is also common cause that the Respondent never made a final decision to appoint, but placed a
moratorium on the filling of the post until the dispute has been determined. The crux of the Respondent’s case is that Mr Archary was preferred as opposed to the Applicant as he fared better in the interview and he met all the requirements for the position. Ms Gasnolar, so it was argued, did not answer all the questions directly, but was evasive in her answers and did not impress the panel overall in her performance during the interview as did Mr Archary.
[65]. The Applicant tried to convince me that Dr Lalkhen had an axe to grind with her and that she was accordingly unfairly treated by the refusal to have Dr Lalkhen recused from the interview. I wish to, respectfully differ with her. It is clear from the evidence that Ms Gasnolar was vocal in the employment context and that in doing so she might have earned herself a reputation less than what she would most probably have preferred. The question as to whether the Respondent committed an unfair labour practice does however not end there. I have to scrutinize the decision and be convinced that the Applicant was either discriminated against or that the decision was unreasonable.
[66]. It is common cause that the very same Dr Lalkhen was part of the short listing process, where the Applicant was scored the highest. The Applicant tried to convince me that the mere fact that she was scored the highest in the short listing and the lowest in the interview is an indication of malice towards her. I could not find anything that could support this notion. In my view it would rather show the objectivity of the Respondent and not the other way around. If indeed the Respondent was discriminating against the Applicant why give her the highest score in the short listing phase, and then having the difficulty of having to explain why the Applicant did not fare well in the interview. That would smack against any sense of reason. To the contrary, in my view this very fact supports the view that the Respondent did not act in an unfair manner towards the Applicant.
[67]. In addition, the interview was a structured one with the same set of questions being asked to all candidates. Dr Lalkhen scored the Applicant the lowest during the interview. Further to that the scores are not imbalanced, some members scored the Applicant higher than others but overall there is nothing that stands out for me about the scores or that could tickle my suspicion that something was wrong.
[68]. The Applicant made much of the fact that she was better qualified than Mr Archary and that he did not meet the requirements of the position as he did not have experience in special schools, however such information was never placed before me for my consideration. Even if the Respondent was not co-operative in providing such information, the Applicant was represented by a legal representative who is well versed in these proceedings who could have followed due process in obtaining such information. I could therefore not agree or disagree with the Applicant on this point, but since the onus is on the Applicant to prove the existence of an unfair labour practice, I could not state either that I was convinced by the argument.
[69]. In yet another argument it was argued that Employment Equity was not taken into account and it was argued by the Applicant that she as a woman of colour should have been preferred. The Respondent disputed the notion, stating that this factor was taken into consideration. The Applicant did also not take this point any further in providing any information in this regard.
[70]. Having considered the information before me, I have noted the inconsistencies in the responses from the Respondent insofar as whether the Applicant’s dissatisfaction was raised by informing Mr Mathews of her request for Dr Lalkhen to recuse himself. Mr Mathews could not remember whether such request was made on the day of the interview, however he conceded that the Respondent was aware of the problem the Applicant had with Dr Lalkhen. Dr Lalkhen at first denied that he was aware of such request however he subsequently changed his version. Mr Van der Rede conceded that such request was made but argued that he did not discuss the request with the Panel. In this regard I have to accept that the request was indeed made and that Dr Lalkhen was aware of same. I am however not convinced that the mere fact that Dr Lalkhen did not recuse himself is evident of biased and that I should conclude on this basis alone that the Respondent committed an unfair labour practice against the Applicant. As explained earlier in my award, the consideration in a matter such as this should include the full circumspect of facts, of which this is but one.
[71]. It was also asked of me to determine whether the Applicant was given reasons for non-appointment in the grievance meeting, and although I am of the view that this fact would resort under procedural fairness, which was not placed in dispute, I will nevertheless briefly deal with the issue, since evidence was adduced in this regard. Mr van der Rede testified that he discussed the reasons with the Applicant. The Applicant on the other hand denied such knowledge. Mr van der Rede impressed me as a witness and I could find no reason for not accepting his evidence in this regard.
[72]. I have no hesitation in accepting the explanation by the Respondent for not promoting the Applicant as reasonable. In the alternative I could find no evidence that the recommendation was irrational, arbitrary or unreasonable. It therefore follows that the Applicant failed to prove the existence of an unfair labour practice.
AWARD:
[73]. In the light of the above, I find that the Respondent did not subject the Applicant to an unfair labour practice by not promoting her to the position of Deputy Principal Post Level 3.
[74]. The Respondent, Department of Education: Western Cape, is not ordered to pay in compensation
or to promoted the Applicant.
[75]. No order as to costs is made
ELRC Commissioner : R de Wet Date : 5 October 2010
Province: Western Cape
Applicant: MARIAM GASNOLAR
Respondent: DEPARTMENT OF EDUCATION WESTERN CAPE
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: DEPARTMENT OF EDUCATION WESTERN CAPE
Award Date: 5 October 2010
Arbitrator: R de Wet
Commissioner: R de Wet_________________________________
Case No.: PSES489-09/10WC Date of Award: 5 October 2010_________________________
In the ARBITRATION between:
MARIAM GASNOLAR
(Union / Applicant)
and
DEPARTMENT OF EDUCATION WESTERN CAPE
( Respondent)
Union/Applicant’s representative: Mr Greg Duncan______________________________________
Union/Applicant’s address: 14 Nevada Road ______________________________________
CAPE TOWN_________________________________________
7490________________________________________________
Telephone: 021 422 2860_________________________________________
Telefax: 021 424 8770_________________________________________
Respondent’s representative/s: Ms Lauren Randall ____________________________________
Respondent’s address: P/Bag x9114_________________________________________
CAPE TOWN_________________________________________
8000________________________________________________
Telephone: 021 467 2858________________________________________
Telefax: 021 425 8612_________________________________________
DETAILS OF HEARING AND REPRESENTATION:
[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 186(2)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on the 23rd of September 2010 at 09:00. The hearing was held at the Offices of the Department of Education, 17th Floor Golden Acre, Sanlam Building, Aderley Street, Cape Town, Western Cape.
[2]. Ms Mariam Gasnolar, the Applicant (hereinafter referred to as “Gasnolar”), was present and was represented by Mr Greg Duncan, legal representative, whilst Ms Lauren Randall, from the Labour Relations Division, represented the Respondent, the Department of Education in Western Cape.
ISSUE TO BE DECIDED:
[3]. Whether the Respondent committed an unfair labour practice as envisaged in Section 186(2)(a) of The Act, in that Ms Gasnolar was not promoted to the post of: Deputy Principal, Post Level 3 associated with Mary Harding ELSEN School (Learners with Special Needs).
[4]. In the event that I find in the affirmative, I must decide upon an appropriate remedy.
BACKGROUND:
[5]. The Applicant applied for the vacant position of Deputy Principal, Post Level 3, at the Mary Harding ELSEN School that was advertised in the vacancy list 2/2008, post number 3955. At the time of the advertisement, Gasnolar was appointed at the same school, at post level 2, Head of Department.
[6]. Before the short listing could commenced, the School Governing Body (hereinafter referred to as The “SGB”), made a request to the Respondent, to take over the process, which was duly done. From that moment onwards, the SGB was not involved in the process of short listing or interviewing candidates.
[7]. The Respondent then appointed a panel of circuit managers to interview the candidates. The panel consisted of Mr Van der Rhede (chairperson), Dr H Punt (IMG), Dr Y Lalkhen (SLES), Ms C Allen (IMG), Ms T Klaas (LSEN) and Mr I Matthews (Labour Relations).
[8]. The Applicant was short listed by the Panel, and during this initial process she scored the highest of all the candidates to be interviewed. All together three candidates were interviewed, namely, Ms Gasnolar, Mr D Achary and Mr LJ Kohler. The Panel was of the view that the two other candidates fared better than the Applicant during the interview, and recommended Mr Achary as the first candidate and Mr Kohler as the second preferred candidate. The Applicant was not recommended for appointment by the Panel.
[9]. Upon learning that she was not nominated, the Applicant lodged a grievance with the Respondent, arguing that one of the Panel Members, Dr Lalkhen was baised towards her. The Respondent placed a moratorium on the filling of the post and the post is currently still vacant.
[10]. The Applicant is of the view that the Respondent committed an unfair labour practice, in their failure to promote her to the level of Deputy Principal Post Level 3 at Mary Harding School. For this reason she is seeking to be appointed to the position.
SURVEY OF EVIDENCE AND ARGUMENT:
[11]. I do not intend to deal with every aspect of the evidence and or argument of each party but will only record the part of the evidence that I deem necessary for purposes of this determination.
Applicant’s version:
[12]. The Applicant relied only on her own evidence, in proving his case, and also called one (1) additional witnesses, Ms YI Gerbach.
[13]. Gasnolar (The Applicant) testified that:-
[14]. She is currently employed on a Post Level 2, Head of Department at Mary Harding School. She has obtained her matric and 6 year’s post matric qualification, which include, a BA Degree in Psychology and Social Science, a Higher Diploma (B-Ed) specializing in learners with special educational needs, a B-Ed in Counseling and Psychological Assessment.
[15]. She has approximately 22 years experience and in 1996 she applied for the vacant Principal position. Due to certain developments at school that caused a negative attitude towards her, she was not appointed. She lodged a grievance and Mr Hartney offered an apology to her.
[16]. At the end of 2006, the Principal position once more became vacant and she applied accordingly. Once more she was not found to be suitable for the position and she reported her dissatisfaction with Redwaan Edwards, the Labour RelationsOfficer. She is of the opinion that by virtue of the fact that she pointed some sexual irregularities out that was happening in the hostel, and which lead to the hostel closing down, that she was then labeled a “trouble maker”, which caused her to fall within disfavor with the Respondent (this version was never put to the witnesses).
[17]. The grievance that she lodged, was investigated and resulted in the post being re-advertized. After the matter had been referred by the SGB to the Respondent, she was shortlisted. She then made several attempts to enquire who would serve on the Panel, but despite all her effort, she was not met half way by the Respondent to be informed as to the identity of the Panel members until the date of the interview.
[18]. Dr Larkhen and Mr Evassen were the investigating officers in 2005 when she was questioned and they expressed their anger with her for not following the procedure (this version was never put to the witness).
[19]. In 2008 she also applied for the position, and after being interviewed by the SGB, she was informed that Ms Mmoose, the chair lady lodged a dispute, which stayed the process. The very same Ms Mmoose made derogatory statement about her to Ms Gerbach. Ms Mmoose was not aware that she was listening in and that she overheard the discussion.
[20]. During March 2009 a grievance hearing was held and it was decided that the process must be re-done. Subsequent to the hearing, Dr Larkhen told her that things were so negative, and then enquired why she would not just pack up and leave. He continued by stating that he was of the opinion that things were so negative and that she will never get the position.
[21]. In August 2009, the new SGB took over and Ms Mmoose then resigned. The new SGB decided that they did not want to be part of the process of appointing a Deputy Principal, and referred the matter to the Respondent. On the day of the interview, she learned that Dr Larkhen would be on the Panel and she informed Mr Mathews that she was not comfortable with him. She also requested her lawyer to be present during the interview. Both her requests were turned down.
[22]. By the time that she was actually interviewed, the atmosphere was already created whereas Mr Mathews had to go in to put her two requests to the Panel, and upon her entry she observed as the Panel members were looking at one another and at her (this version was never put to the Respondent).
[23]. On the 8th of November 2009, she learned that Mr Archery was the most preferred candidate and that Mr Kholer the second, which her taken the third and last position. She requested reasons for her non-appointment and a grievance hearing was scheduled for December 2009. She was nevertheless not given any reasons for her non-appointment, but instead was met with a rude attitude towards her.
[24]. The post clearly required a person with experience, a person who knows the school and since she is a female of colour with some 22 years experience, who is familiar with the community, who have already put structures in place, she could not comprehend that Mr Archery could fare better than was she has. Since she has interviewed him on an earlier occasion, she is aware that she is much better qualified than him and has much more experience than him. Mr Archery is from Durban, where he was teaching boys one, who is much stronger than the children at Mary Harding. She contended that she fared well in her interview and could answer all the questions.
[25]. The Panel that conducted the interview, was not fair, since they allowed Dr Larkhen on the Panel, who clearly expressed his view that she should leave. She answered a question, whether she has the right to choose who is on the panel, that she only made a request. She answered that she does not know what the problem was that Ms Mmoose had with her.
[26]. In response to a question that everyone always seem to have a problem with her whenever she attends an interview, that replied that she is very vocal and this might not go down well with some people. She conceded that she has already lodged 4 (four) disputes in relation to non- appointment in the past, but indicated that she took offence at the notion that she would lodge a dispute whenever she is not appointed.
[27]. She expressed the view that she had to be interviewed since she meets the minimum requirements, but stated that both Kohler, whom she worked with and Archery whom she interviewed, is not as qualified and experienced as she is (this version was never put to the witnesses).
[28]. Yolanda Ieleen Gerbach (Teacher at Mary Harding School) testified that:-
[29]. For easy reference I have decided not to report on the full extent of this witness since she was not involved in the dispute that is currently before me. She served on the SGB during 2007 to 2008. During this period Ms Mmoosse was the chair lady. The Applicant was interviewed for a Deputy Principal position and she fared very well. She was however not appointed since Ms Mmoose was discontent and lodged a dispute at the end of the process.
[30]. On another occasion she was phoned by Ms Mmoose whilst the Applicant was with her. Ms Mmoose stated that the Applicant was so “bedonnerd” with Adrian, and that she has no respect for the Applicant since she took the bread out of Adriaan’s mouth, and she is arrogant.
[31]. The Applicant was standing next to her and she repeated what Ms Mmoose had just said to her, then she became suspicious and ended the conversation.
[32]. Under cross-examination she replied that she was not part of the process that lead to the arbitration hearing and that she could not state anything that was baised towards the Applicant during this process.
Respondent’s version:
[33]. Yusuf Lalkhen (Panel Member) testified that:-
[34]. He was one of the committee members on the Panel who interviewed the Applicant for the post of Deputy Principal at Mary Harding School. That was his only involvement with the Applicant. In the interview he scored her 26 (Exhibit “A”, part C, the 2nd last page). Two of the panel members scored her lower than what he did. He contended that he never had a reason to investigate anything done or said by the Applicant, nor has she complaint about his conduct at any time.
[35]. Under Cross-Examination he conceded that there was a request for him to recuse himself during the interview. The request was however not in writing but there was a verbal request. He stated that she made the request because she was of the view that he was biased. On an earlier occasion he acted as an observer in an interview which the Applicant attended. He could recall a meeting subsequent to a grievance lodged by the Applicant whereas the outcome was that the process be re-done. He however denied every sitting in the foyer with the Applicant or saying to the Applicant that things are so negative and that she finds herself in a negative environment that it would be better for her to pack up and leave.
[36]. He conceded that the interview is based on subjective views, but denied that he actually penalized the Applicant because he was baised towards her. He explained that exactly the same questions were asked to all of the candidates and despite the Applicant being the highest qualified person, and having the required experience that she was not the recommended candidate, which is not uncommon to happen.
[37]. Leopold van der Rede (The Chairperson) testified that:-
[38]. He has been working for the Respondent since 2008, as a Circuit Manager. He was the chairperson of the interviewing Panel for the position in contention. This position was handled by the District Office and not the SGB as they requested their assistance. The reasons for the request were that they felt inexperienced as they were at that time recently elected, and to ensure that the interviews were objective.
[39]. The panel deliberated on all the candidates and found, subsequent to the interviews that the Applicant did not respond well in terms of questions posed. In some instances her responses were vague and not to the point. She also did not address particular questions asked to her by the Panel. She was not prejudiced at all during the interview or thereafter. Mr Archary was nominated based on his performance and his comprehensive experience within special schools. The Panel also took Employment Equity into account during the process and was of the view that Mr Archary would be the most suitable candidate for the position.
[40]. The Applicant was not treated differently than any of the other candidates. Out of his experience and being involved in several interviews, he can safely state that at no stage did the Panel discriminate against the Applicant. The discussions during the process were based on the professional opinion of all the panelists.
[41]. He recalled the request, that was made on the day of the interview, to have Dr Lalkhen’s recusal. He has nevertheless taken the decision that Dr Lalkhen be part of the panel because he could find no reason why he should recuse himself, since no reasons were given for the said request.
[42]. In cross-examination the question was put to him whether he discussed the request with Dr Lalkhen and he replied in the negative, explaining that he was asked to put a panel together and in doing so he required the expertise of Dr Lalkhen and since no proper ground could be found to ask for his recusal he decided against the request. The request was nevertheless made in full view of all the Panel members. The request was also a belated one since the short listing had already taken place and some of the interviews as well.
[43]. He answered to a question put to him, that he enquired from all the Panel members in advance whether any one of them would have a vested interest in the process or any of the candidates, and they all answered in the negative. He disagreed with the notion put to him that he was biased and that was evident from the fact that he did not even enquired into the reasons for the request. He explained that should one look at the scores of all the Panel Members, that the scores are balanced there is nothing to suggest that anyone was bias. Further it was the first time in his life that he had seen the Applicant, and there would be no reason for him to be biased towards her.
[44]. He also explained that a process cannot be stopped because of the perception of one of the candidates which in any event was based on one earlier encounter with Dr Lalkhen in an interview process. He was satisfied that the integrity of the panel was not compromised.
[45]. He further explained that he was part of the grievance meeting and that he explained to her on that occasion the reasons for her non-appointment. He strongly disagreed that he had not divulged the reasons for her non-appointment with her stating that he engaged her and that she had her legal representative with her.
[46]. Ishgaak Matthews (Labour Relations Officer) testified that:-
[47]. He was the secretary in the interview for the filling of the post in contention and is currently based at the District Office. He could recall that the Applicant indicated her dissatisfaction with the composition of the Panel and she indicated her preference to have one of the members of the Panel recused. The Applicant indicated that she had a problem with Dr Lalkhen. He indicated that the decision was not his to make and that it she had a problem she must take it up with the Director. He also indicated to her that he would note her concerns but he could not give any undertaking.
[48]. From his own observations, being part of the process, he indicated that none of the members were
Biased. In addition the Trade Unions were also invited as observers and no indication could be picked up from the happenings in the interview. The same set of questions was asked to all the candidates.
[49]. He was aware that the Applicant was having a problem with Dr Lalkhen specifically but since she was the last to be interviewed, nothing could be done in relation to her belated request. He indicated that due to Dr Lalkhen’s expertise that his contribution was too valuable to the Respondent to exclude him from the interview process. He stated that the presence of Dr Lalkhen did not influence the integrity of the panel at all. He stated that he was not aware of any hidden agendas and from his observations he did not observe anything untoward on the part of Dr Lalkhen.
[50]. He expressed the view that there is nothing strange about an Applicant receiving the highest score in the short listing and then not being the preferred candidate during the interview.
ANALYSIS OF EVIDENCE AND ARGUMENT:
[51]. I have to determine, on a balance of probabilities, whether the Respondent committed an unfair labour practice by not appointing Ms Gasnolar to the position of Deputy Principal. Post level 3, at Mary Harding School. At the very onset of my analysis of the facts, I must state that a substantial part of the evidence lead by the Applicant was never put to the witnesses of the Respondent. The majority of these facts can also be seen as background facts, and was not specifically put under “issues in dispute that must be decided by the arbitrator”, as per the pre-arbitration minutes.
[52]. Jurisdiction to arbitrate promotion disputes are derived from Section 186(2)(a) of The Act, which defines an unfair labour practice with regard to promotion as follows:
“ ‘Unfair Labour Practice’ means any unfair act or omission that arises between and Employer
and an Employee involving …unfair conduct by the employer relating to the promotion… of an
employee”
[53]. The onus of proof rests with the Applicant, having to prove on a balance or probabilities, that the Respondent acted in a manner unfair toward her, in failing to promote her to the position of Deputy Principal. Not only must she prove the existence of the unfair labour practice, if it is disputed, but also that it is unfair.
[54]. The crux of the Applicant’s case was that by virtue of the fact that she was the highest qualified and best experienced person for the position, that the Respondent discriminated against her due to a long history that played itself out between herself and the Respondent. As a result she was labeled as a trouble maker, and advised by Dr Lalkhen to rather pack up and go for she will never be appointed to the position. She also argued that since she received the highest score in the short listing and then the lowest of the three candidates in the interview that it is evident that there was something untoward against her.
[55]. In the process of appointment of Educators, the recommendation by a SGB is an essential prerequisite, and without such recommendation the appointment is ultra vires and unlawful (See Kimberley Junior School v The Head of the Northern Cape Education Department [2009] 4 SA 135 (SCA)).
[56]. It is common cause that the SGB did not perform the task of short listing nor of interviewing the candidates. The reason being that the SGB was of the opinion that they were fairly inexperienced, and the position was that of a senior member of management. Having referred the matter to the MCED would, in the view of the SGB, create greater transparency since the appointment of the candidate in this position was an issue in dispute and the dispute, on that occasion, appears to centre around the previous SGB.
[57]. The Head of the Provincial Department of Education makes the appointment, according to Section
6(1) of the EEA, based on the recommendation. Despite the order of preference, the Head of Department (hereinafter referred to as the “HOD”) may appoint any suitable candidate on the list. The HOD must however place significant weight on the order of preference because it is the interview panel who has interviewed the candidates and not the HOD (Head, Western Cape Education Department and others v Governing Body, Point High School and others 2008 (5) SA 18 (SCA).
[58]. The Supreme Court of Appeal in the Point High School matter (supra), recently explained under what
circumstances the decision of the HOD in making appointments may be interfered with and under
what circumstances the HOD may appoint any suitable candidate on the nomination list, despite the order of preference on the list:
“…the governing body's list in terms of the discretion vested in him by ss 6(3)(f). The law is now clear that, in exercising this discretion, the HOD is required to act reasonably and, by taking into account all of the relevant factors andconsidering the competing interests involved, to arrive at a decision which strikes a 'reasonable equilibrium'. The court has no power to review this decision purely because there may be another, perhaps better, 'equilibrium' which could have resulted by attributing more weight to some factor or factors and less to others. If that struck by the decision-maker is reasonable, then it must stand.….if he [the HOD] considers that the governing body has performed its functions properly, the HOD must obviously attribute substantial weight to the recommendations submitted to him. He is called upon to decide upon the appointment of a person from a list of people about whom he may have no personal knowledge. The governing body of such a school, constituted (in terms of the South African Schools Act) mainly by elected representatives of parents and staff, would naturally be expected to have a reliable comparative picture of the various candidates and their suitability for appointment at the school. Its choice and recommendation would obviously be better-motivated, and more reliable, than any that the HOD could make in the circumstances. While it is quite correct that he has a specified discretion to disregard the governing body's motivated recommendation and even its order of preference, he must clearly exercise this discretion in a manner which conforms to the statutory requirements of fair administration in the Constitution and in PAJA and also, in general, with the Department's policy…” (emphasis added)
[59]. In deciding whether conduct relating to a promotion was unfair, the function extended to arbitrators is a very limited one, and basically involves a review of the decision made by a functionary or the body vested with a wide statutory discretion. There are three basic requirements for a fair appointment or promotion. One, the procedure must have been fair, two, there must have been no unfair discrimination, and three, the decision must not have been grossly unreasonable (see Arries v CCMA and Others (2006) 27 ILJ 2324 (LC); and Minister of Home Affairs v GPSBC (JR 1128/07) ZALC 35 (26 March 2008) par 12.).
[60]. The Applicant did not dispute the fairness of the procedure followed in making the appointment. In order to prove that the decision was grossly unreasonable, it needs to be demonstrated that the Employer has acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud, failed to apply its mind or had exercised his discretion for insubstantial reasons, or based it on any wrong principle (Arries v CCMA and Others (2006) 27 ILJ 2324 (LC); Benjamin v University of Cape Town [2003] 12 BLLR 1209 (LC) at 1223-1224).
[61]. There is no general right to promotion, Employees do however have a right to be fairly considered for
promotion when a vacancy arises, in other words Employees have the right to fair labour practices.
Employers have a prerogative or wide discretion as to whom it is they want to promote. Arbitrators
should be hesitant to intervene too readily in disputes of this nature and should respect the prerogative
exercised by the Employer, unless bad faith or improper motive such as discrimination are present
(PAWC [Department of Health & Social Services] v Bikwani & others (2002) 23 ILJ 761 (LC)
771):-
“Inevitably, in evaluating various potential candidates for a certain position, the management of an organization must exercise a discretion and form an impression of those candidates. Unavoidably this process is not a mechanical or a mathematical one where a given result automatically and objectively flows from the available pieces of information. It is quite possible that the assessment made of the candidates and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management's discretion”.
[62]. That having been said, there are at least 2 (two) important issues for consideration in determining
whether the Respondent had indeed acted unfairly towards the Applicant. The first is whether the
Applicant met the minimum requirements of the position. Having regard to the evidence before me, there can be no doubt that the Applicant was indeed in compliance with the minimum requirements. The second is, the reasonableness of the decision. The emphasis in this regard is however not on the correctness of the decision, but on the reasonableness thereof, provided the decision to appoint one candidate instead of another is rational, and no question of unfairness can arise out of the said decision. The Courts expressly stated in this regard:
“It is quite possible that the assessment made of the candidates [by the employer during the promotion process] and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management's discretion”. (See Goliath v Medscheme (Pty) Ltd (1996) 17 ILJ 760 (IC) at 768).
“The Promotion Committee was tasked with assessing all the applications and had to exercise a discretion in selecting the best candidate. A court of review has no jurisdiction to enquire into the correctness of the conclusion arrived at by a body or functionary lawfully vested with a discretion...It will only be entitled to interfere with the decision taken by such a body or functionary if it is shown that it failed to properly apply its mind to the relevant issues and such failure may be shown by proof, inter alia, that the decision was arrived at arbitrarily or capriciously or mala fide, or as a result of unwarranted adherence to a fixed principle, or in order to further an ulterior or improper purpose, or that it misconceived the nature of the discretion conferred, or that the decision was so grossly unreasonable as to warrant the inference that it failed to properly apply its mind to the matter… or if there is such a material misdirection of fact that it is clear that it failed to exercise its discretion. (See Jwajwa v Minister of Safety & Security & others, Case No 817 / 01 [2005] JOL 15727).
[63]. The Supreme Court of Appeal recently confirmed the principle that an arbitrator should not determine whether an Education Department could have arrived at a better decision in selecting a suitable Educator for appointment to a teaching position, but whether its decision was a reasonable decision (Head, Western Cape Education Department and others v Governing Body, Point High School and others 2008 (5) SA 18 (SCA).
[64]. It is also common cause that the Respondent never made a final decision to appoint, but placed a
moratorium on the filling of the post until the dispute has been determined. The crux of the Respondent’s case is that Mr Archary was preferred as opposed to the Applicant as he fared better in the interview and he met all the requirements for the position. Ms Gasnolar, so it was argued, did not answer all the questions directly, but was evasive in her answers and did not impress the panel overall in her performance during the interview as did Mr Archary.
[65]. The Applicant tried to convince me that Dr Lalkhen had an axe to grind with her and that she was accordingly unfairly treated by the refusal to have Dr Lalkhen recused from the interview. I wish to, respectfully differ with her. It is clear from the evidence that Ms Gasnolar was vocal in the employment context and that in doing so she might have earned herself a reputation less than what she would most probably have preferred. The question as to whether the Respondent committed an unfair labour practice does however not end there. I have to scrutinize the decision and be convinced that the Applicant was either discriminated against or that the decision was unreasonable.
[66]. It is common cause that the very same Dr Lalkhen was part of the short listing process, where the Applicant was scored the highest. The Applicant tried to convince me that the mere fact that she was scored the highest in the short listing and the lowest in the interview is an indication of malice towards her. I could not find anything that could support this notion. In my view it would rather show the objectivity of the Respondent and not the other way around. If indeed the Respondent was discriminating against the Applicant why give her the highest score in the short listing phase, and then having the difficulty of having to explain why the Applicant did not fare well in the interview. That would smack against any sense of reason. To the contrary, in my view this very fact supports the view that the Respondent did not act in an unfair manner towards the Applicant.
[67]. In addition, the interview was a structured one with the same set of questions being asked to all candidates. Dr Lalkhen scored the Applicant the lowest during the interview. Further to that the scores are not imbalanced, some members scored the Applicant higher than others but overall there is nothing that stands out for me about the scores or that could tickle my suspicion that something was wrong.
[68]. The Applicant made much of the fact that she was better qualified than Mr Archary and that he did not meet the requirements of the position as he did not have experience in special schools, however such information was never placed before me for my consideration. Even if the Respondent was not co-operative in providing such information, the Applicant was represented by a legal representative who is well versed in these proceedings who could have followed due process in obtaining such information. I could therefore not agree or disagree with the Applicant on this point, but since the onus is on the Applicant to prove the existence of an unfair labour practice, I could not state either that I was convinced by the argument.
[69]. In yet another argument it was argued that Employment Equity was not taken into account and it was argued by the Applicant that she as a woman of colour should have been preferred. The Respondent disputed the notion, stating that this factor was taken into consideration. The Applicant did also not take this point any further in providing any information in this regard.
[70]. Having considered the information before me, I have noted the inconsistencies in the responses from the Respondent insofar as whether the Applicant’s dissatisfaction was raised by informing Mr Mathews of her request for Dr Lalkhen to recuse himself. Mr Mathews could not remember whether such request was made on the day of the interview, however he conceded that the Respondent was aware of the problem the Applicant had with Dr Lalkhen. Dr Lalkhen at first denied that he was aware of such request however he subsequently changed his version. Mr Van der Rede conceded that such request was made but argued that he did not discuss the request with the Panel. In this regard I have to accept that the request was indeed made and that Dr Lalkhen was aware of same. I am however not convinced that the mere fact that Dr Lalkhen did not recuse himself is evident of biased and that I should conclude on this basis alone that the Respondent committed an unfair labour practice against the Applicant. As explained earlier in my award, the consideration in a matter such as this should include the full circumspect of facts, of which this is but one.
[71]. It was also asked of me to determine whether the Applicant was given reasons for non-appointment in the grievance meeting, and although I am of the view that this fact would resort under procedural fairness, which was not placed in dispute, I will nevertheless briefly deal with the issue, since evidence was adduced in this regard. Mr van der Rede testified that he discussed the reasons with the Applicant. The Applicant on the other hand denied such knowledge. Mr van der Rede impressed me as a witness and I could find no reason for not accepting his evidence in this regard.
[72]. I have no hesitation in accepting the explanation by the Respondent for not promoting the Applicant as reasonable. In the alternative I could find no evidence that the recommendation was irrational, arbitrary or unreasonable. It therefore follows that the Applicant failed to prove the existence of an unfair labour practice.
AWARD:
[73]. In the light of the above, I find that the Respondent did not subject the Applicant to an unfair labour practice by not promoting her to the position of Deputy Principal Post Level 3.
[74]. The Respondent, Department of Education: Western Cape, is not ordered to pay in compensation
or to promoted the Applicant.
[75]. No order as to costs is made
ELRC Commissioner : R de Wet Date : 5 October 2010