PSES382-19/20EC
Text
Award Date:
23 March 2021
Text
Case Number: PSES382-19/20EC
Commissioner: Henk Jacobs
Date of Ruling: 23 March 2021
In the matter between
NAPTOSA obo Khombisa Manona
(Applicant)
And
1st Department of Education – Eastern Cape, 2nd School Governing Body, 3rd the successful candidate, Mr
(Respondents)
Union/Applicant’s representative:
Mr Anton Adams
Telephone: 083 720 1354
Telefax:
E-mail:
Respondent’s representative: Mr S Kralo
Respondent’s address:
Telephone: 0732924229
Telefax:
E-mail: Sakhiwo.kralo@ecdoe.gov.za
Details of hearing and representation
1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held virtually on 01 March 2021.
2 The applicant, Ms Khombisa Manona, was represented by Mr. A Adams, an official from the National Professional Teachers’ Organisation of South Africa (NAPTOSA), the 1st respondent, the Education Department - Eastern Cape, was represented by Mr Kralo, a Labour Relations Officer employed by the Respondent. All other parties were absent from the proceedings, although they attended the initial sitting.
3 The hearing was held in English and was digitally and manually recorded.
4 Parties agreed that there is no factual dispute and that the dispute can be decided on a stated case basis, parties agreed to file their respective cases as follows, the Applicant by no later 05 March 2021, the Respondent by no later than 09 March 2021, and a reply by no later than 12 March 2021.
5 The Applicant filed a statement of case, however, the Respondent failed to do so. On that basis, the matter is decided on the Applicant’s stated case filed only.
6 It must be mentioned that the Applicants stated case was not in the form of an affidavit, however, Clause 57.6 of the ELRC Dispute Resolution Procedures, stated that a commissioner may permit the affidavits referred to in this clause, to be substituted by a written statement. On that basis, I accept the Applicant’s statement of case.
Issue to be decided
4. The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA, by not shortlisting the Applicant for the post of Deputy Principal, Post Lever 3, at Qaphelani High School.
Background to the matter
5. The Applicant referred an alleged unfair labour practice dispute pertaining promotion.
6. The Applicant is employed as a post level 1 educator at Qaphelani High School and is the acting Head of Department for the Science Department.
7. The post of Deputy Principal was advertised in bulletin volume 2 of 2019, post number 127. The Requirements for the post was REQV 13 and 5 years of teaching, management and administration experience.
8. The Applicant is in possession of a B.Paed, B. ED and B.ED Honours degree (REQV16) and have 27 years of teaching experience. The Applicant applied for the post, but was not shortlisted.
9. The Applicant sought compensation.
Survey of submissions
10. This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.
Applicant’s submissions
11. The reason provided by the Respondent on enquiry was that the Applicant failed to complete the post number and failed to attach her academic record for her B.Paed and her Teachers Diploma.
12. The Applicant further submits that a B.Paed is a teacher’s qualification degree, and one does not need to do a post graduate teachers diploma. She attached the statement of results for her B.Ed Honours and her B.Ed degree which she pass cum laude.
13. The Applicant further stated that she viewed her exclusion as unfair, as she met the minimum requirements. The actions of the shortlisting phase prejudiced her as the criteria used was unfair, arbitrary, and irrational as the panel failed to follow the established legislation.
14. The response from the School Governing Body (SGB), in a letter dated, 03 June 2019, confirmed that the reason for the Applicants exclusion was an incomplete post number and a lack of academic qualifications for her B.Paed degree, as well as her Secondary Teachers Diploma.
15. The panel shortlisted L Ntleki who is less qualified than the Applicant, it was clear that the panel acted unlawfully in subverting the process, they acted unfairly, capricious and with bias when they amended the requirements for the post. It seems that the panel adopted an over formalistic approach in this matter.
16. The Applicant also submits that the Personnel Administrative Measures (PAM) provides for the requirements of sifting during the selection process.
Analysis
17. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
18. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provisions of benefits to an employee”.
19. It is common cause that the Applicant challenge the alleged unfairness of her exclusion from being shortlisted by the SGB for the post of Deputy Principal at Qaphelani High School, and, that an applicant with lower qualifications than that of the Applicant was included in the shortlisted candidates.
20. Turning to the SGB’s powers to exclude shortlisted candidates from being interviewed. The Applicant correctly referred to PAM as the relevant guide in this instance which states as follows:
“SCOPE OF APPLICABILITY
1.1 This PAM is applicable to educators at schools, technical colleges, colleges of education and education control and auxiliary services that concern themselves with all those activities aimed at educating and teaching pupils/students, in respect of both formal and non-formal education.
1.2 As regards the matters that are regulated in this PAM, only those measures contained herein shall apply, and there may, in respect of the matters regulated herein, be no deviation from the prescribed measures: Provided that should there be cases not covered by the measures contained herein or should there be any doubt as to the application of the provisions in individual cases, or should there be cases that could justify a deviation from policy, particulars thereof shall be submitted to the Department of Education with a view to a decision regarding such application or possible deviation by the Minister of Education, or the possible amendment or supplementing of the measures by the Minister of Education, with the concurrence of the Minister of State Expenditure in the event of an amendment or supplementation having a financial implication, after negotiation and agreement in terms of the Labour Relations Act, 1995.
3.2 Sifting
(a) The employing department shall acknowledge receipt of all applications by:
(i) informing all applicants in writing of receipt;
(ii) clearly indicating whether the application is complete or not; and
(iii) indicating whether the applicant meets the minimum requirements for the post and that such applications have been referred to the institutions concerned.
(b) The employing department shall handle the initial sifting process to eliminate applications of those candidates who do not comply with requirements for the post(s) as stated in the advertisement.
(c) In the case of colleges, where applications are received at the institution, the college council shall acknowledge receipt of applications in terms of paragraph 2.1 above.
(d) Trade Union parties to Council will be given a full report, at a formal meeting, on:
(i) names of educators who have met the minimum requirements for the post/s in terms of the advertisement;
(ii) names of educators who have not met the minimum requirements for the post/s in terms of the advertisement; and
(iii) other relevant information that are reasonably incidental thereto.
3.3 Shortlisting and interviews
(a) Interview Committees shall be established at educational institution where there are advertised vacancies.
(b) The Interview Committee shall comprise:
(i) In the case of public schools: • one departmental representative (who may be the school principal), as an observer and resource person;
• the Principal of the school (if he/she is not the department’s representative), except in the case where she/he is the applicant;
• members of the school governing body, excluding educator members who are applicants to the advertised post/s; and
• one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
(ii) In the case of colleges: • one departmental representative, as an observer and resource person; • the head of the institution, except in the case where s/he is an applicant;
• members of the college council, excluding educator members who are applicants to the advertised post/s; and
• one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
(c) Each Interview Committee shall appoint from amongst its members a chairperson and a secretary.
(d) All applications that meet the minimum requirements and provisions of the advertisement shall be handed over to the school governing body responsible for that specific public school.
(e) The school governing body is responsible for the convening of the Interview Committee and they must ensure that all relevant persons/organisations are informed at least 5 working days prior to the date, time and venue of the shortlisting, interviews and the drawing up of the preference list. Where the Principal is an applicant, a departmental official may assist the school governing body.
(f) The Interview Committee may conduct shortlisting subject to the following guidelines:
(i) The criteria used must be fair, non-discriminatory and in keeping with the Constitution of the country.
(ii) The curricular needs of the school.
(iii) The obligations of the employer towards serving educators.
(iv) The list of shortlisted candidates for interview purposes should not exceed five per post.
(g) The interviews shall be conducted according to agreed upon guidelines. These guidelines are to be jointly agreed upon by the parties to the provincial chamber.
(h) All interviewees must receive similar treatment during the interviews.
(i) At the conclusion of the interviews the interviewing committee shall rank the candidates in order of preference, together with a brief motivation, and submit this to the school governing body for their recommendation to the relevant employing department.
(j) The governing body must submit their recommendation to the provincial education department in their order of preference.
(k) In the case of colleges, the interviewing committee shall submit its ranked preference list to the college council for their recommendation to the relevant employing department.”
21. It is evident that PAM is applicable to all educators and that it regulates the recruitment process applicable to educators. It is further common cause that the Applicant applied for the said post, she was short listed by the employing department who forward her application to the interview committee. The interview committee after going through all candidates eliminate the Applicant based on her not completing the post number and for her failure to attach her academic records for her B.Paed and Teaching Diploma.
22. The minutes of the meeting conducted by the interview committee which was attached to the Applicant’s submissions, indicate that the interview committee sets out the shortlisting criteria to be applied prior the opening of the names provided by the employing department as follows:
• “EPD 01 form should be fully completed
• Post no: ADD vol 2 of 2019/127
• Post Description: Deputy Principal
• School name: Qaphelani S.S.S.
• Post Level: 3
• District: Nelson Mandela Bay
• Certified copy if an ID document
• Certified copies of all academic qualifications and training as an educator (all statements of results must be attached or affidavit if not attached)
• Certification should not be later than six months
• No tippex or scratch on form
• No copy if a copy will be accepted.
• SACE certificate or proof application for registration
• Good management and leadership skills.
• 5 years minimum of teaching experience”
23. It is so that the Applicant’s application was not shortlisted due to the committee’s founding that post number was not fully completed and some statements of results were not attached. It is not the Applicant’s case that she completed the post number, nor that she submitted all statements of results for all her qualifications. It can therefore be accepted that she did not. The Applicant’s case is simply that he complied with the minimum requirements of the post. There is no doubt that she does, but what she did not do is to complete and provide all documents and sections in terms of the application.
24. The interview committee sets the standard for shortlisting prior the opening the envelope containing the information for all the applicant’s, they did not deviate from the minimum requirements as per the advert, they merely looked at completeness in terms of the application process from candidates. To argue that this is an over formalistic approach is far reaching, nothing less should be expected from candidates applying for a post such as this.
25. It cannot be argued that such criteria is discriminatory, capricious, unlawful and unfair, all candidates were treated equally using the same criteria for shortlisting. PAM further guides the committee that no more than 5 candidates per post should be shortlisted. To do so, the committee must set its own criteria to select candidates for short listing.
26. When one applies for a post, it is a process wherein one advertise one’s skills and knowledge to illustrate why you should be the best candidate for the post, with that comes a degree of completeness and professionalism that can be expected in such application. If the Applicant fails to comply with such basics, it illustrates a lack of completeness and maybe a degree negligence on her side, one will think that applicants will give it their all. In this instance the report shows that a number of applicants were not short listed due to similar or same conduct on their part.
27. The Applicants argument that L Ntleki was shortlisted and is less qualified than the Applicant holds no water, unless the argument was that L Ntleki did not meet the minimum requirements. That was not the Applicant case, and that argument should be dismissed. The criteria used other than the minimum requirements was about completeness in terms of the application, and which L Ntleki complied with.
28. In light of the above, I find it appropriate to make the following award.
Award
29. The Applicant, Ms K. Manona, failed to establish that the Respondent, the Education Department -Eastern Cape committed an unfair labour practice in terms of section 186)2) of the LRA.
30. The Applicant, Ms K. Manona, is not entitled to any relief.
Signature:
Commissioner: HENK JACOBS
Commissioner: Henk Jacobs
Date of Ruling: 23 March 2021
In the matter between
NAPTOSA obo Khombisa Manona
(Applicant)
And
1st Department of Education – Eastern Cape, 2nd School Governing Body, 3rd the successful candidate, Mr
(Respondents)
Union/Applicant’s representative:
Mr Anton Adams
Telephone: 083 720 1354
Telefax:
E-mail:
Respondent’s representative: Mr S Kralo
Respondent’s address:
Telephone: 0732924229
Telefax:
E-mail: Sakhiwo.kralo@ecdoe.gov.za
Details of hearing and representation
1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held virtually on 01 March 2021.
2 The applicant, Ms Khombisa Manona, was represented by Mr. A Adams, an official from the National Professional Teachers’ Organisation of South Africa (NAPTOSA), the 1st respondent, the Education Department - Eastern Cape, was represented by Mr Kralo, a Labour Relations Officer employed by the Respondent. All other parties were absent from the proceedings, although they attended the initial sitting.
3 The hearing was held in English and was digitally and manually recorded.
4 Parties agreed that there is no factual dispute and that the dispute can be decided on a stated case basis, parties agreed to file their respective cases as follows, the Applicant by no later 05 March 2021, the Respondent by no later than 09 March 2021, and a reply by no later than 12 March 2021.
5 The Applicant filed a statement of case, however, the Respondent failed to do so. On that basis, the matter is decided on the Applicant’s stated case filed only.
6 It must be mentioned that the Applicants stated case was not in the form of an affidavit, however, Clause 57.6 of the ELRC Dispute Resolution Procedures, stated that a commissioner may permit the affidavits referred to in this clause, to be substituted by a written statement. On that basis, I accept the Applicant’s statement of case.
Issue to be decided
4. The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA, by not shortlisting the Applicant for the post of Deputy Principal, Post Lever 3, at Qaphelani High School.
Background to the matter
5. The Applicant referred an alleged unfair labour practice dispute pertaining promotion.
6. The Applicant is employed as a post level 1 educator at Qaphelani High School and is the acting Head of Department for the Science Department.
7. The post of Deputy Principal was advertised in bulletin volume 2 of 2019, post number 127. The Requirements for the post was REQV 13 and 5 years of teaching, management and administration experience.
8. The Applicant is in possession of a B.Paed, B. ED and B.ED Honours degree (REQV16) and have 27 years of teaching experience. The Applicant applied for the post, but was not shortlisted.
9. The Applicant sought compensation.
Survey of submissions
10. This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.
Applicant’s submissions
11. The reason provided by the Respondent on enquiry was that the Applicant failed to complete the post number and failed to attach her academic record for her B.Paed and her Teachers Diploma.
12. The Applicant further submits that a B.Paed is a teacher’s qualification degree, and one does not need to do a post graduate teachers diploma. She attached the statement of results for her B.Ed Honours and her B.Ed degree which she pass cum laude.
13. The Applicant further stated that she viewed her exclusion as unfair, as she met the minimum requirements. The actions of the shortlisting phase prejudiced her as the criteria used was unfair, arbitrary, and irrational as the panel failed to follow the established legislation.
14. The response from the School Governing Body (SGB), in a letter dated, 03 June 2019, confirmed that the reason for the Applicants exclusion was an incomplete post number and a lack of academic qualifications for her B.Paed degree, as well as her Secondary Teachers Diploma.
15. The panel shortlisted L Ntleki who is less qualified than the Applicant, it was clear that the panel acted unlawfully in subverting the process, they acted unfairly, capricious and with bias when they amended the requirements for the post. It seems that the panel adopted an over formalistic approach in this matter.
16. The Applicant also submits that the Personnel Administrative Measures (PAM) provides for the requirements of sifting during the selection process.
Analysis
17. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
18. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provisions of benefits to an employee”.
19. It is common cause that the Applicant challenge the alleged unfairness of her exclusion from being shortlisted by the SGB for the post of Deputy Principal at Qaphelani High School, and, that an applicant with lower qualifications than that of the Applicant was included in the shortlisted candidates.
20. Turning to the SGB’s powers to exclude shortlisted candidates from being interviewed. The Applicant correctly referred to PAM as the relevant guide in this instance which states as follows:
“SCOPE OF APPLICABILITY
1.1 This PAM is applicable to educators at schools, technical colleges, colleges of education and education control and auxiliary services that concern themselves with all those activities aimed at educating and teaching pupils/students, in respect of both formal and non-formal education.
1.2 As regards the matters that are regulated in this PAM, only those measures contained herein shall apply, and there may, in respect of the matters regulated herein, be no deviation from the prescribed measures: Provided that should there be cases not covered by the measures contained herein or should there be any doubt as to the application of the provisions in individual cases, or should there be cases that could justify a deviation from policy, particulars thereof shall be submitted to the Department of Education with a view to a decision regarding such application or possible deviation by the Minister of Education, or the possible amendment or supplementing of the measures by the Minister of Education, with the concurrence of the Minister of State Expenditure in the event of an amendment or supplementation having a financial implication, after negotiation and agreement in terms of the Labour Relations Act, 1995.
3.2 Sifting
(a) The employing department shall acknowledge receipt of all applications by:
(i) informing all applicants in writing of receipt;
(ii) clearly indicating whether the application is complete or not; and
(iii) indicating whether the applicant meets the minimum requirements for the post and that such applications have been referred to the institutions concerned.
(b) The employing department shall handle the initial sifting process to eliminate applications of those candidates who do not comply with requirements for the post(s) as stated in the advertisement.
(c) In the case of colleges, where applications are received at the institution, the college council shall acknowledge receipt of applications in terms of paragraph 2.1 above.
(d) Trade Union parties to Council will be given a full report, at a formal meeting, on:
(i) names of educators who have met the minimum requirements for the post/s in terms of the advertisement;
(ii) names of educators who have not met the minimum requirements for the post/s in terms of the advertisement; and
(iii) other relevant information that are reasonably incidental thereto.
3.3 Shortlisting and interviews
(a) Interview Committees shall be established at educational institution where there are advertised vacancies.
(b) The Interview Committee shall comprise:
(i) In the case of public schools: • one departmental representative (who may be the school principal), as an observer and resource person;
• the Principal of the school (if he/she is not the department’s representative), except in the case where she/he is the applicant;
• members of the school governing body, excluding educator members who are applicants to the advertised post/s; and
• one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
(ii) In the case of colleges: • one departmental representative, as an observer and resource person; • the head of the institution, except in the case where s/he is an applicant;
• members of the college council, excluding educator members who are applicants to the advertised post/s; and
• one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
(c) Each Interview Committee shall appoint from amongst its members a chairperson and a secretary.
(d) All applications that meet the minimum requirements and provisions of the advertisement shall be handed over to the school governing body responsible for that specific public school.
(e) The school governing body is responsible for the convening of the Interview Committee and they must ensure that all relevant persons/organisations are informed at least 5 working days prior to the date, time and venue of the shortlisting, interviews and the drawing up of the preference list. Where the Principal is an applicant, a departmental official may assist the school governing body.
(f) The Interview Committee may conduct shortlisting subject to the following guidelines:
(i) The criteria used must be fair, non-discriminatory and in keeping with the Constitution of the country.
(ii) The curricular needs of the school.
(iii) The obligations of the employer towards serving educators.
(iv) The list of shortlisted candidates for interview purposes should not exceed five per post.
(g) The interviews shall be conducted according to agreed upon guidelines. These guidelines are to be jointly agreed upon by the parties to the provincial chamber.
(h) All interviewees must receive similar treatment during the interviews.
(i) At the conclusion of the interviews the interviewing committee shall rank the candidates in order of preference, together with a brief motivation, and submit this to the school governing body for their recommendation to the relevant employing department.
(j) The governing body must submit their recommendation to the provincial education department in their order of preference.
(k) In the case of colleges, the interviewing committee shall submit its ranked preference list to the college council for their recommendation to the relevant employing department.”
21. It is evident that PAM is applicable to all educators and that it regulates the recruitment process applicable to educators. It is further common cause that the Applicant applied for the said post, she was short listed by the employing department who forward her application to the interview committee. The interview committee after going through all candidates eliminate the Applicant based on her not completing the post number and for her failure to attach her academic records for her B.Paed and Teaching Diploma.
22. The minutes of the meeting conducted by the interview committee which was attached to the Applicant’s submissions, indicate that the interview committee sets out the shortlisting criteria to be applied prior the opening of the names provided by the employing department as follows:
• “EPD 01 form should be fully completed
• Post no: ADD vol 2 of 2019/127
• Post Description: Deputy Principal
• School name: Qaphelani S.S.S.
• Post Level: 3
• District: Nelson Mandela Bay
• Certified copy if an ID document
• Certified copies of all academic qualifications and training as an educator (all statements of results must be attached or affidavit if not attached)
• Certification should not be later than six months
• No tippex or scratch on form
• No copy if a copy will be accepted.
• SACE certificate or proof application for registration
• Good management and leadership skills.
• 5 years minimum of teaching experience”
23. It is so that the Applicant’s application was not shortlisted due to the committee’s founding that post number was not fully completed and some statements of results were not attached. It is not the Applicant’s case that she completed the post number, nor that she submitted all statements of results for all her qualifications. It can therefore be accepted that she did not. The Applicant’s case is simply that he complied with the minimum requirements of the post. There is no doubt that she does, but what she did not do is to complete and provide all documents and sections in terms of the application.
24. The interview committee sets the standard for shortlisting prior the opening the envelope containing the information for all the applicant’s, they did not deviate from the minimum requirements as per the advert, they merely looked at completeness in terms of the application process from candidates. To argue that this is an over formalistic approach is far reaching, nothing less should be expected from candidates applying for a post such as this.
25. It cannot be argued that such criteria is discriminatory, capricious, unlawful and unfair, all candidates were treated equally using the same criteria for shortlisting. PAM further guides the committee that no more than 5 candidates per post should be shortlisted. To do so, the committee must set its own criteria to select candidates for short listing.
26. When one applies for a post, it is a process wherein one advertise one’s skills and knowledge to illustrate why you should be the best candidate for the post, with that comes a degree of completeness and professionalism that can be expected in such application. If the Applicant fails to comply with such basics, it illustrates a lack of completeness and maybe a degree negligence on her side, one will think that applicants will give it their all. In this instance the report shows that a number of applicants were not short listed due to similar or same conduct on their part.
27. The Applicants argument that L Ntleki was shortlisted and is less qualified than the Applicant holds no water, unless the argument was that L Ntleki did not meet the minimum requirements. That was not the Applicant case, and that argument should be dismissed. The criteria used other than the minimum requirements was about completeness in terms of the application, and which L Ntleki complied with.
28. In light of the above, I find it appropriate to make the following award.
Award
29. The Applicant, Ms K. Manona, failed to establish that the Respondent, the Education Department -Eastern Cape committed an unfair labour practice in terms of section 186)2) of the LRA.
30. The Applicant, Ms K. Manona, is not entitled to any relief.
Signature:
Commissioner: HENK JACOBS
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ELRC639-19/20EC
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