PSES 941 & 942-18/19 KZN
Text
Award Date:
23 March 2021
Commissioner: Lisa Williams de Beer
Case No.: PSES 941 & 942-18/19 KZN
Date of Award: 23 March 2021
In the ARBITRATION between:
SADTU OBO BALCHARAN & ANOTHER
(union / Applicant)
and
KWAZULU NATAL DEPARTMENT OF EDUCATION / D GOVENDER/ R REDDY
(Respondent)
Union/Applicant’s representative: Mr Govindasamy
Union/Applicant’s address:
______________________
______________________
Telephone: 0826613517
Email: admin@pg-law.co.za
Respondent’s representative: Mr Pillay/ Mr Jugath (2nd Resp) / Ms Reddy (3rd Resp) Respondent’s address: 166 Jabu Ndlovu Street
Pietermaritzburg
Telephone: _____________________________
Email: indran.pillay@kzndoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration was first heard at Dokkies KZN at 3121 ZK Matthews Road, Glenwood on 15 May, 17 and 18 July 2019. The applicants were represented by Ms Govender from SADTU, the DOE was represented by Mr Bejanath, the second respondent Mr D Govender by Mr Juguth from NAPTOSA and Ms Reddy the third respondent represented herself.
2. The matter did not proceed on the merits on those dates as there were issues with consolidation, joinder and documentation.
3. The matter was set down again on 9 December 2019 but was postponed in order for the third respondent to secure representation and for the disclosure of certain documents. Mr Chamane from SADTU had also taken the matter over from Ms Govender for the applicants and required time to prepare.
4. When it was set down again on 19 February 2020, Ms Reddy advised that she was not going to be represented by the union and would simply remain as an observer. She had not received notice, however, and requested that her email address be updated (reddyrani06@gmail.com).
5. Mr Govender noted that deshang@icloud.com was his email and he too had not received the set down notice. Mr Bejanath continued to represent the respondent and Mr Chamane represented the applicants. On that occasion, a decision was made by the applicants and their union to withdraw the matter but the notice of withdrawal was not signed at the hearing. The applicants thereafter declined to withdraw the matter and it was reinstated to the roll.
6. The matter was re-enrolled on 3 February 2021 and heard by Zoom given the restrictions imposed on in-person processes by the Covid-19 pandemic. On that occasion, Mr Pillay advised that he had taken over the matter from Mr Bejanath and Mr Govindasamy advised that he had taken over from SADTU for the applicants. Mr Jugath from NAPTOSA was present but submitted that the second respondent had not been properly served and his member was not available. The third respondent, who represented herself, was also not served with notice nor available to attend. As a consequence, the matter was postponed to the agreed date of 8 March 2021.
7. On 8 March 2021 the matter proceeded to conclusion at Durban Teachers Centre, Overport. All parties were present and represented.
ISSUE TO BE DECIDED
8. The applicants referred a dispute relating to an unfair promotion to the post of HOD (posts 357 and 358) at Columbia Primary School and argued that they were unfairly treated in that regard.
9. The issue to be decided was whether the respondent committed an unfair labour practice against the applicants in terms of s 186(2)(a) of the Labour Relations Act 66 of 1995, as amended.
PRELIMINARY ISSUES
10. The matters under PSES 941-18/19 and PSES 942-18/19 were consolidated by consent on 22 May 2019 on the basis that both applicants were challenging the same promotion process on the same grounds against the same respondent.
11. The two successful candidates to the posts were also joined to the dispute and the requisite certificate of outcome was issued.
12. There were some preliminary issues relating to documents but at the time of arbitration the bundles A to C were admitted as being what they purported to be, and the first respondent added bundle D.
13. As at 8 March 2021, the representatives (who were new to the matter) agreed to be bound by the pre-arbitration minute.
BACKGROUND TO THE ISSUE
14. The applicants are both educators employed by Columbia Primary in Greenwood Park with over 20 years’ service each.
15. During or about 2017 the school advertised via the Department of Education (DOE) for two head of department posts. Both applicants applied for the posts but were not shortlisted or interviewed, despite meeting the requirements for the post.
16. They lodged a grievance against the process and a grievance committee upheld their grievance and found that the process was flawed. The school was ordered to redo the process from shortlisting stage and to change the resource person (from the principal).
17. The resource person was changed to the principal of a neighbouring school (Rosehill), but the interview committee remained the same. The applicants were again not shortlisted or interviewed and the two successful candidates were the same as those recommended in the first process.
18. The applicants took issue with the process, inter alia: SADTU was excluded from the second selection process; the composition of the interview panel was problematic and the principal unduly influenced the outcome. In specific, they recorded that the interview committee comprised of a married couple, Mr and Mrs Ngcobo, who would have voted together but who were also both close to the principal, P Naidoo. Mrs Ngcobo was the principal’s secretary and the panel secretary, and Mr Ngcobo was on the school governing body (SGB) at the time.
19. It was not disputed that the successful candidates met the requirements for the post but the applicants contended that they were overlooked for an unacceptable, irrelevant or invidious reason; that DOE failed to follow the promotion policy and that the process was unfair.
20. The applicants had lodged a second grievance but it was dismissed and hence they had referred the matter to the ELRC. The relief sought was for the process to be redone in order to give the applicants a chance to compete.
SURVEY OF EVIDENCE
Applicant’s case
Daphne Pillay
21. She had been an educator for 23 years. She obtained a Master’s degree in Education in 2020 and had started her PhD. Columbia Primary was in Greenwood Park and it was a very disadvantaged area. She felt that she could put her skills to good use in that school.
22. In her view the two posts were unfairly awarded to the successful candidates and she felt the process was flawed.
23. The posts had become vacant when the incumbents retired in 2018. Instead of appointing any internal applicant to act in the post, the school had elected to hire, at its cost, temporary educators to teach the subjects taught by the former HODs. This was, in Ms Pillay’s view, unusual and unnecessary.
24. The principal (P Naidoo) had told them repeatedly at meetings that the DOE would be sending ‘displaced HODs’ to fill the posts and that the posts were earmarked for external candidates. In fact, she had repeated that when Ms Pillay took her application to the office to be validated and the principal had validated her documents reluctantly.
25. It appeared that the principal believed that if they hired an external candidate, then DOE would pay the costs whereas if they promoted an internal candidate, the SGB would have to pay the cost of replacement teachers. This understanding was flawed but the principal would not listen to any argument on this.
26. Ms Pillay usually sat as an educator representative on the interview committee but she was recused at the outset of the meeting because she was an applicant for the post (C55). Ms Pillay had not signed the minute of that meeting. At that meeting the nominated candidates for the interview committee (IC) were G Naidoo (foundation phase HOD, now retired), SG Ngcobo (Precious’s husband and an SGB member), Mrs Ndlovu (chair of SGB) and P Ngcobo as secretary. Ms Pillay had not seconded G Naidoo and the minute was false in that regard. She was not even in the meeting and was recused.
27. The applicant testified that Ms Ngcobo and Ndlovu were close and socialised a lot after SGB meetings. G Naidoo and the principal, P Naidoo, were also very close and had taught together for years. Based on this, it was her belief that the IC would have followed P Naidoo’s view that she wanted an external resource. They were all influenced by the principal because they were all close.
28. When they were not shortlisted, they had lodged a grievance and the outcome was that the resource person, P Naidoo, was to be replaced as she had discussed the questions beforehand. The finding was that the process had to be redone. This was after a full evidentiary hearing and the finding appeared at B4.
29. It was not acceptable that the school only changed the resource person (P Naidoo) and in her view, the IC should have been changed as well given that the grievance had been upheld in regards to the allegations of bias. Also, it was clear that they would have taken into account what P Naidoo had said the first time, and this was evidence by the fact that the same two people were appointed.
30. Ms Pillay submitted that, had she been interviewed for the post, she would be appointed. She had 19 years’ experience, she was already helping the school out with the duties of an HOD, and she was studying for a Master’s degree at the time.
31. The applicants had lodged a second grievance and that outcome appeared at B2. The committee found that ‘the circuit manager delegated an official which was in line with the outcome of the grievance’. The challenge to that outcome as that the committee focused only on that aspect and ignored the fact that the other IC members were the same. They ignored the complaints of bias.
32. A further procedural irregularity was that SADTU was not invited to the second interview process. If one looked at the fax sent to SADTU with the interview dates (B54) and compared it with the handwritten note sent to SADTU noting that faxes were not going through (B51) and inviting them to the process, the applicant noted that the timing of the two documents was peculiar. The fax was sent at 15h13 whereas the handwritten letter was stamped for delivery at 15h00. It was impossible that one could send a letter stating that faxes were not transmitting even before the fax had been sent. It was also relevant that the offices are 30 minutes apart and it was impossible to get from the school in Greenwood Park to SADTU in Tongaat within that time. The logical conclusion was that the document was fabricated to cover up for the school’s failure to include SADTU at the second interview.
33. The applicant was further directed to the discrepancies in the CV shortlisting minutes at A3 and at C86. Both documents purported to be for the 16 June CV shortlisting meeting, yet they were not the same. It suggested one document was doctored or adjusted.
34. The applicant reported to Ms G Reddy. They had a good professional relationship. There had been no short-comings in her performance but she had asked her for assistance once.
35. On cross-examination Ms Pillay agreed that her documents were eventually validated and submitted for the application. She was not prevented from applying for the post.
36. It was her contention that at the election meeting of the interview committee, she was present and then recused herself. It was true that the minutes did not reflect that she recused herself, but she was not the author of the document. The document just said she would not serve on the committee because she was an applicant in the post. Mrs Ndlovu was an SGB member and the chairperson of the SGB; SG Ngcobo is a parent and an elected SGB member; and his wife is the school secretary, P Ngcobo. G Naidoo is the educator rep on the SGB and the applicant was the second educator rep. P Ngcobo was the SGB non-teaching rep.
37. The applicant was referred to C25 and it was put to her that P Ngcobo played no role in scoring. She replied that she could not comment on the process, however she would assume that the three scoring members of the IC were those who had signed the form. P Naidoo was there as the departmental nominee. On further questioning, Ms Pillay agreed that as a rule the IC secretary did not score anyone at those interviews.
38. The union representative was at the first interview and told them that the questions were discussed by the resource person before the interviews. That was not, however, the reason that they lodged the grievance – they wanted to know the criteria for shortlisting but the union led that evidence at the grievance.
39. The union was not invited to the shortlisting and interview for the second process. Mr Pillay referred the applicant to C38 wherein JT Mamba had signed present as the union rep. The applicant agreed but said that was the first process on 27 January 2018. She was then referred her to C76, which also indicated that SADTU was at the second interview. The applicant noted that they were absent at shortlisting (C72). The union had not challenged this issue as far as she knew.
40. Insofar as the different minutes at A3 and B86 were concerned, Ms Pillay had received B86 from the DOE as the official minute. A3 was given to her by the deputy principal at the school who was acting principal at the time.
41. Mr Jugath for the second respondent asked the applicant questions. She confirmed that she was elected by the staff as the educator rep on the SGB and was familiar with the election process. There was no document that precluded a married couple from being on the SGB and she had no problem with it, although it was ‘unusual’.
42. The minimum requirement for the post was three years’ teaching experience. Mrs Reddy had over 20 years’ teaching experience.
Malthie Balcharan
43. She had been employed for 18 years at the school and for 21 years as a teacher.
44. Ms Balcharan was prejudiced when her application wasn’t considered despite her meeting the requirements for the post. She was a serving member at the school and met the post requirements. She had an Honours degree.
45. The procedure followed by the respondent was flawed, influenced and biased. The principal influenced the IC not to consider any internal applicants and she had told them at several staff meetings that she wanted to bring in ‘sport people’ because she felt that the school needed to be uplifted in terms of sports. At the time they offered very little to no sport at the school. This was, however, never a post requirement in the advertisement and Balcharan in any event believed that the curriculum ought to come first, particularly as the school was underperforming academically.
46. At a further staff meeting the principal told the staff that they need not apply as the posts would be filled by displaced HODs. Balcharan had asked for those minutes but the principal refused to give it to her. She had applied anyway because she believed that the IC would consider her qualification and everything she had done for the school over the years.
47. It was fair to say that she and the principal, P Naidoo, were often at loggerheads about running the school. It was relevant that the members of the IC were part of the group that always supported the principal, and that the principal told her that she was wasting her time when she submitted her application. It was also pertinent that the principal believed that the school would be burdened with the cost of their replacements if they were both promoted. As the school was severely underprivileged, it was her belief that the SGB were eager to avoid those costs.
48. A displaced HOD occurred when educators were in surplus in other schools and had to be placed in a permanent position. As it transpired these two posts were not filled by displaced HODs.
49. It was not the norm to fill the vacant HOD posts with a temporary employee and the norm was to allow an internal candidate to act. It was unclear why the principal had not followed that route or why she believed that it would incur cost for the school as the DOE would have been liable for all costs related to a substantive post.
50. When they succeeded in the grievance, it was her understanding that there would be a new resource person from the DOE and that a new IC would be elected because of the allegations of bias. That was not what happened and the same IC sat the second time and made the same decision. P Ngcobo was the principal’s personal secretary and they were very close and she remained on the committee. Her husband was also part of the IC. It was shocking to keep the panel the same when there had been substantive allegations of prejudice that had been upheld.
51. Ms Balcharan had no idea what the criteria were for shortlisting.
52. It was very suspicious that the fax to SADTU, inviting them to the second IC, failed at 15h13 and yet the letter was allegedly served on them at 15h00. That timing was not feasible and in her opinion the documents were fabricated.
53. In her view P Naidoo had a hand in the second process and influenced the outcome. They did submit a second grievance challenging, inter alia, the fact that the school used the same IC but the grievance was dismissed. The committee found that, as the school had changed the resource person, there was no basis for the grievance. It was their finding that the circuit manager had the power to delegate someone to act as resource person.
54. Ms Balcharan wanted a fair chance to compete for this post.
55. On cross-examination it was put to her that the DOE policy was to appoint a temporary educator to any vacant substantive post. and everyone knew that. Balcharan agreed and said that she had raised that with the principal but she would not see reason. To the contrary, it was clear that the principal colluded with the SGB to secure two people to occupy the post rather than let her own staff act.
56. Ms Balcharan agreed that there was a new resource person in the second IC – a principal from a neighbouring school. As far as she knew, that lady was close friends with the principal.
57. The witness was referred to A3 point 15 which read ‘The chairperson N Ndlovu informed the house that the posts 357 and 358 will be done concurrently. She outlined the service requirements of the post and asked members to listen carefully to educational experience of the candidate and note curriculum needs of the school. CVs will be read quietly by each member’. She agreed that the identical wording appeared in the second set of minutes, C87, at point 14.
58. She was referred also to B49 which made clear the shortlisting criteria ie leadership administrative management and related experience; organisational ability and experience; professional development, educational experience and insight, leadership community related. Ms Balcharan agreed that those were the criteria for shortlisting.
59. Ms Balcharan agreed that the union representative was present for both interviews but not the short listings. She conceded also that the first grievance committee recommended changing the resource person and that was done. She agreed also that the committee had never ruled that the IC had to be changed.
60. In their second grievance they complained about the IC not being changed. The grievance forms are not in the bundle.
61. It was put to Ms Balcharan that in terms of the policy (B41 10.13) the IC must take its list of recommended names to the SGB which in turn must send the list to the district office; that there was thus nothing suspicious about the principal having participated in the ratification process as she is on the SGB; and that it might have constituted an irregularity if she was excluded. The applicant disagreed and said the new resource person should have seen the process through. It was a unique situation and the grievance committee’s finding should have been honoured from start to finish.
62. On cross-examination by the second respondent, Ms Balcharan said that the deputy principal gave her the minutes at A3. The minutes at C86 she obtained from the DOE in the formal disclosure process.
63. The principal influenced the IC to appoint external candidates and to not appoint internal candidates. It was put to her that she did not attend any meetings of the SGB and thus had no basis for that allegation. Ms Balcharan replied that from the outset it was clear that the principal didn’t want her in the post. She deliberately circumvented appointing them to act and had a personal grudge against her.
64. Balcharan had not personally witnessed the principal influencing the SGB but she based her opinion, inter alia, on the principal stating at staff meetings that displaced educators would come into the positions. The principal made those statements around July-September 2017. She also said that the school needed sports people at the same meeting. Those statements would have been minuted but her requests for those minutes from the current principal had not been answered.
65. It was noted that agreement 1/17 and HRM circular 57/17 were multi-term agreements whereby schools would determine surplus educators and movement of educators.
66. Balcharan conceded that the grievance committee never found that the school had to elect a new IC. It did state that the circuit manager must be the resource person. The role of the resource person is to assist with the logistics of the process, to assist the IC on an observer basis and to make facilities available. He or she was not a scoring member.
67. On re-examination Balcharan noted that the fact that there were two different sets of minutes lead her to believe that they had been doctored. The wording was not the same. SADTU had asked for documents on their behalf and they were not given a copy of their grievance.
Respondent’s case
68. The first respondent declined to call witnesses and submitted that it had no burden to discharge.
69. The second and third respondents also declined to lead evidence.
CLOSING ARGUMENT
70. The parties requested to submit written heads of argument and the deadline of 18 March 2021 was agreed. As the contents thereof form part of the record, I shall summarise the submissions only very briefly herein.
Applicants
71. It was the applicants’ unchallenged evidence that they were expressly discouraged from applying for the promotion posts and were told by the principal that she wanted an external candidate, based on the principal’s misunderstanding of how the posts would be financed and her desire to have an educator with ‘sporting experience’. As their evidence was not disputed and they were credible witnesses, their version relating to the allegations of bias should be believed.
72. The documents supplied by the respondent in this matter were questionable –Pillay was shown to have seconded the appointment of G Naidoo to the IC despite not being present at the meeting at all; there were two sets of minutes for the second IC; and the letter that purported to inform SADTU of the date for the interviews due to non-service of the notice by fax was delivered before the fax to SADTU was even sent. The applicants questioned the integrity of the secretary, P Ngcobo, and her husband in relation to these suspicious documents.
73. The failure of anyone properly to nominate and second G Naidoo was a material procedural defect and meant that the IC was not properly elected. As such, its decisions should be deemed null and void. The failure also by the respondent to invite the union to the shortlisting in the second process was a procedural flaw.
74. The IC was biased in favour of the principal, comprising of individuals close to the principal and the husband of her secretary. This was supported by the fact that the applicants’ grievance on this ground was upheld and the school was required to commence the process afresh with a difference resource person, ie not the principal. Notwithstanding this ruling, the same IC sat again and the same two candidates were recommended. This was a breach of the ruling - it was implicit in the finding of the grievance committee that not only should the resource person be changed, but that there should also be a new IC, and the failure to implement that change amounted to unfair conduct on the part of the first respondent.
75. The applicants had been prejudiced as a result, and the only fair outcome was for the process to be done afresh.
First Respondent
76. Mr Pillay argued that the applicants had led no evidence whatsoever to support their allegation that the process was unfair or that they were unfairly not shortlisted. They pointed to various issues in the documentation that was provided to them, but led no evidence to substantiate the discrepancies they purportedly picked up. There was no causal nexus between the principal discouraging them from applying and the fact that they were not shortlisted for the post and, in any event, the principal did not participate in the second process.
77. No evidence was led to prove that they were incorrectly or unfairly scored in the shortlisting process and there was no evidence before the arbitrator at all to justify the conclusion that they ought to have been shortlisted or that, had they been shortlisted, they would have been appointed. Interestingly, the applicants had requested all the shortlisting scoresheets but never produced same in evidence. It is not sufficient for the applicants to make the bald allegation that the shortlisting was unfair – they bear the onus and must adduce evidence to prove this.
78. The applicants made much of the fact that there was a husband and wife on the IC but that is not unlawful and no evidence was presented to prove how it impacted on the process, especially bearing in mind that P Ngcobo was merely a secretary and did not score candidates.
79. The union did attend both interviews and, if there was a concern about defective notice of the invitation, that was for the union to raise, not the applicants. In addition, the union only has observer status and so its absence from the shortlisting could have no material bearing on the outcome.
80. Lastly, the relief sought was to redo an appointment that took place three years earlier – this was not in the interest of the pupils.
Second Respondent
81. Mr Jugath noted that the applicants had been unable, under cross-examination, to provide any tangible proof to support their assertion that the principal influenced the outcome to the process, or to show how the panel was biased against them.
82. The comments about appointing ‘sports people’ and ‘displaced HODs’ were allegedly made in 2017 at a staff meeting but these averments are contradictory. It is also noteworthy that around 2017 there was a DOE circular about utilising displaced HODs and thus the principal’s remark was in all probability innocently related thereto. The applicants called no witnesses to verify these comments nor did they produce the minutes of that meeting at the arbitration.
83. The applicants made much of the fact that the IC remained the same in the second process but the grievance committee ruled only that the resource person had to be changed, and it was. Nothing prohibited the circuit manager from delegating that authority to a suitable person and he had done so.
84. There was no dispute that the two candidates who applied for the post met all of the advertised criteria and were scored the highest. There was thus no evidence that an unfair labour practice was committed.
ANALYSIS OF EVIDENCE AND ARGUMENT
85. Section 186 (2) of the Labour Relations Act 66 of 1995, as amended, provides as follows:
‘(2) Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving-
(a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) the failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 200 (Act 26 of 2000) on account of the employee having made a protected disclosure defined in that Act.’
86. The applicants’ dispute was lodged in terms of s 186 (2)(a) and it is trite law that a promotion can be challenged on any one of three grounds – that the procedure was not followed properly, that there was unfair discrimination in making the appointment or that the employer’s conduct, although neither discriminatory nor unprocedural, was ‘grossly unreasonable’ such that it led to an inference of mala fides (see in this regard Herbert v Department of Home Affairs 1998 CCMA KN10413 and Goliath v Medscheme (Pty) Ltd (1996) 17 ILJ 760 (IC)).
87. The applicants did not challenge their non-promotion on grounds of discrimination and their dispute related to procedural and substantive fairness.
88. The applicants bear the burden of proof in this regard and have to prove, for example, that they were overlooked for an unfair reason; that the respondent failed to adhere to its promotion procedures or policies; that the respondent relied on irrelevant criteria in making the appointment or that they were better candidates than the persons appointed.
89. It is not, however, sufficient for the applicants only to prove the latter and they must also show that the respondent acted unfairly in so doing (Cullen and Distell (Pty) Ltd [2001] 8 BALR 834 (CCMA)).
90. The facts in this matter were largely common cause or could not be disputed:
90.1 The applicants were both employed as educators at Columbia Primary school and had over 20 years’ service;
90.2 Two HOD posts became vacant when the incumbents retired and the posts were advertised;
90.3 The applicants were not appointed to act in the posts and the principal instead appointed temporary educators;
90.4 The principal discouraged them from applying for the posts (this evidence was unchallenged);
90.5 The applicants met the minimum requirements for the post and applied;
90.6 They were not shortlisted for the post and thus not interviewed;
90.7 The second and third respondents were both shortlisted and interviewed and were ultimately successful;
90.8 The applicants, via their union, challenged the outcome and their grievance was upheld to the extent that the grievance committee ruled that ‘the process should be redone and the resource person should be changed’;
90.9 The process was redone from shortlisting stage; the principal was excluded and the second IC made the same recommendation;
90.10 The IC comprised G Naidoo (educator rep), principal (resource person), Mr Ngcobo (SGB member), Ms Ndlovu (SGB chair) and P Ngcobo (secretary);
90.11 The second IC was comprised of the same parties, bar for the fact that the resource person (the principal) was replaced by the principal of a neighbouring school;
90.12 The resource person and the secretary are not scoring members of the panel;
90.13 The applicants’ union SADTU was present at both interview processes but not at the shortlisting; and
90.14 The applicants challenged the outcome again but that grievance was not upheld.
91. There was no material challenge to the substantive fairness of the promotion in that the applicants at all times conceded that the two successful candidates met the requirements for the posts. Although they both submitted that, had they been shortlisted for the interview process, they would have been appointed ahead of the two incumbents, there was no evidence tendered to support that submission. No evidence was led pertaining to the CVs of the relevant parties, there was no comparison between them in terms of qualification and experience, no challenge to how the two successful candidates were scored, nor did the applicants tender evidence to show that they would have fared better answering the interview questions than the two incumbents or anyone else who was shortlisted for the post.
92. In Herbert v Department of Home Affairs (supra) the commissioner assessed the facts and stated that the decision to promote an employee falls within the prerogative of management. He supported the finding in Goliath v Medscheme (supra) wherein the court said that, where discrimination is not alleged, the applicant had to show ‘gross unreasonableness such that would lead to an inference of mala fides’ before he could succeed with an unfair labour practice claim.
93. In Arries v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ 2324 (LC) the court endorsed the view that a commissioner must determine whether the employer’s discretion was exercised ‘capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner’.
94. In the light of these dicta, I cannot conclude that the applicants were better candidates than the incumbents or were overlooked for an invidious reason or that there was gross unreasonableness such that there is an inference of mala fides.
95. The focus of the applicants’ challenge during this arbitration was instead on the procedure that was followed and in terms of the pre-arbitration minute those issues were: the lack of shortlisting criteria; the failure to appoint a second different IC; that the circuit manager was not the resource person in the second process as directed by the grievance committee; and that the non-educator rep on the IC was employed by the SGB and not DOE.
96. The latter point relating to the educator representative was not actively explored or supported by evidence during this hearing and my finding shall thus focus on the other three procedural challenges.
97. There is no evidence that the respondent used irrelevant criteria to shortlist and select either candidate. Balcharan was directed to the shortlisting minutes and agreed that the four listed criteria were the factors applied by the IC in short listing for the post. No suggestion was made that those were improper, unacceptable or unfair; nor was there any evidence that the incumbents did not satisfy the shortlisting criteria or that their scores in that regard were incorrect or unfair.
98. The applicants took exception to the school’s failure to change the interview committee in the second recruitment process and argued that, as the grievance committee had found that the panel was biased in the first process, it was a logical inference from the ruling that the panel ought to have been changed. I have some difficulty with this argument. Firstly, I have no finding before me from the grievance committee to that effect (ie that the first IC was biased) and no evidence that indeed the panel was found to have been biased and/or influenced by the principal. The applicants’ grievance form was not produced in evidence, there is no minute or transcript of the grievance hearing, and the finding I have mentions only that the resource person should be changed and the process commenced afresh. This was indeed what was done.
99. Although it might well have been preferable to change the IC completely, absent any evidence as to what findings the grievance committee made in relation to bias and influence, and in the light of their very clear and explicit ruling, I cannot agree with the applicants that the failure to change the IC was problematic, unfair or a breach of the ruling of the grievance committee.
100. Much was also made of the composition of the IC but there was nothing untoward about this. The SGB is entitled, and indeed obligated, to participate in the IC and the fact that two parties are married cannot in and of itself prove bias – this the applicants would have to prove with some sort of evidence, and they did not. In addition, P Ngcobo was merely a secretary and had no scoring power at the IC. Likewise, I have only the applicants’ ipse dixit that the resource person (who also does not score candidates) was ‘close’ to the principal and would have ‘done her bidding’. It became clear on cross-examination that this was an assumption or supposition on the part of the applicants and the mere fact that meals are provided at an SGB meeting or that people are ‘close’ cannot possibly constitute objective and reasonable evidence of collusion and bias.
101. It is true that the circuit manager was not the resource person at the second hearing as per the grievance committee’s ruling but the question is whether that defect was fatal to procedural fairness. Again, no evidence was advanced to support such a conclusion. There is nothing before that suggests that the delegated resource person was biased, unfair or incompetent or that the fact that she took up the role instead of the circuit manager prejudiced the applicants or prevented them from being interviewed. The applicants’ assertions of bias and undue influence in this regard were not corroborated by any proof or objective evidence and, given that the resource person does not score the candidates and merely provides guidance on logistics and procedure, I fail to see how this defect would have impacted the outcome. There is, quite simply, no causal link between the appointment of the principal of the neighbouring school as the resource person and the outcome such that it would allow me to draw the inference that she, too, was biased against the applicants and/or unduly influenced by the principal. The applicants’ bald assertion that the two principals are ‘close’ is not sufficient to discharge the onus of proof in this regard.
102. A further point of contention was the non-attendance of SADTU at the second process. A great deal of evidence was led about the failure to serve notice on SADTU and questions were raised about the legitimacy of the documentary evidence in this regard; however, the documents in the bundle clearly proved that a SADTU official did in fact attend the second (and first) interview process. Admittedly they were not included in the shortlisting but I do not believe that that defect is so material as to warrant a finding of procedural unfairness, particularly as the unions have only observer status in the process.
103. In closing Mr Govindasamy argued that the fact that G Naidoo was not seconded by Ms Pillay as reflected in the minutes meant she was not properly appointed to the IC and thus that all acts of the IC were invalid. This was, however, never part of the applicants’ case nor was it an issue identified in the pre-arbitration minute or the opening statements. As such, the respondent was never able to respond to this assertion. Whilst I cannot dispute that there is some question over the validity of the seconding of G Naidoo at the meeting, the failure to properly ventilate what this means for the constitution of the panel during the arbitration process leaves me unable to make any finding in this regard.
104. A further challenge to the procedure was the discrepancy between the two sets of minutes at A3 and B86. The applicants averred that it was suspicious that there were two different documents on record, both of which purported to the be minute of the process. On questioning, they advised that one document was the ‘official’ minute given to them by DOE in the disclosure process preceding the case and the other they had obtained from the current acting principal. It was argued by the first respondent that this would explain the discrepancy and further that the content of the documents was in any event not materially different – both made the same findings and recommendations.
105. I am inclined to agree. There are certainly some differences in the documents and it is of concern that there are two versions, but the explanation proferred for that is not implausible and the material facts are the same. On its own, I do not believe that this would warrant a finding of procedural unfairness.
106. The Labour Court in SAPS v Safety and Security Bargaining Council & others (2010) 31 ILJ 2680 (LC) confirmed that the focus of the enquiry should be whether the candidate had a fair opportunity to compete for the post, and not whether the correct decision had been made. If the employee is given the opportunity to compete for the post, the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint. The LAC in Noonan v Safety & Security Sectoral Bargaining Council & others (2012) 33 ILJ 2597 (LAC) reaffirmed the value of process in a promotion, as well as the consideration of whether the procedural flaw prejudiced the applicant.
107. In this instance the applicants were not given the opportunity to compete for the post and the question is whether that was fair. Was the respondent’s decision not to shortlist and interview the applicants for an irrational, unfair or arbitrary reason, or so grossly unreasonable as to lead to an inference of mala fides?
108. The answer to this must be in the negative. Although the applicants contended that the principal wanted ‘sports people’ and/or ‘displaced HODs’ for the role (and their evidence in that regard was undisputed), there was no evidence that that was the sole reason the two incumbents were appointed or that it was even a factor considered by the IC in the second process.
109. No documentary evidence was presented to support the applicants’ assertions in this regard and the principal was not even party to the final decision. Moreover, those assertions were allegedly made at a staff meeting in 2017 and the appointments took place in the middle of 2018 so I cannot even be sure there was any causal link between the statements and the outcome.
110. On the evidence before me I cannot find that the principal influenced the panel as alleged, or that the panel was biased against the applicants. Assertions such as bias and undue influence are not proved merely by the making thereof – there must be some objective foundation for the allegation and some form of evidence thereof. In casu, I do not believe that the applicants have tendered such proof. It is not sufficient simply to allege that people are ‘close’, that they share food, that Balcharan was disliked by the principal, or that the principal favoured a ‘sports person’ for a certain post – there must be some connection between those factors and the decision, not only to overlook the applicants, but to unfairly appoint someone else.
111. Certainly, the applicants have failed to prove that, but for the failure to interview them, they would have been appointed to the posts and thus, even if I were inclined to accept their argument that they should ‘at least’ have been interviewed, the fact remains that the outcome would not have changed.
112. I am accordingly satisfied that the promotions were substantively fair and that the applicants have not discharged the onus to show that they were overlooked for an unfair reason or subjected to arbitrary or capricious decision-making by the respondent. In the premises, the applicants have not discharged the onus of proving that they were better candidates for the posts than the second and third respondent.
113. I also find no basis upon which to conclude that the promotion process herein was procedurally unfair.
AWARD
114. The application herein is dismissed.
DATED AT DURBAN ON THIS 23rd DAY OF MARCH 2021
Lisa Williams de Beer
Senior Commissioner
Case No.: PSES 941 & 942-18/19 KZN
Date of Award: 23 March 2021
In the ARBITRATION between:
SADTU OBO BALCHARAN & ANOTHER
(union / Applicant)
and
KWAZULU NATAL DEPARTMENT OF EDUCATION / D GOVENDER/ R REDDY
(Respondent)
Union/Applicant’s representative: Mr Govindasamy
Union/Applicant’s address:
______________________
______________________
Telephone: 0826613517
Email: admin@pg-law.co.za
Respondent’s representative: Mr Pillay/ Mr Jugath (2nd Resp) / Ms Reddy (3rd Resp) Respondent’s address: 166 Jabu Ndlovu Street
Pietermaritzburg
Telephone: _____________________________
Email: indran.pillay@kzndoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration was first heard at Dokkies KZN at 3121 ZK Matthews Road, Glenwood on 15 May, 17 and 18 July 2019. The applicants were represented by Ms Govender from SADTU, the DOE was represented by Mr Bejanath, the second respondent Mr D Govender by Mr Juguth from NAPTOSA and Ms Reddy the third respondent represented herself.
2. The matter did not proceed on the merits on those dates as there were issues with consolidation, joinder and documentation.
3. The matter was set down again on 9 December 2019 but was postponed in order for the third respondent to secure representation and for the disclosure of certain documents. Mr Chamane from SADTU had also taken the matter over from Ms Govender for the applicants and required time to prepare.
4. When it was set down again on 19 February 2020, Ms Reddy advised that she was not going to be represented by the union and would simply remain as an observer. She had not received notice, however, and requested that her email address be updated (reddyrani06@gmail.com).
5. Mr Govender noted that deshang@icloud.com was his email and he too had not received the set down notice. Mr Bejanath continued to represent the respondent and Mr Chamane represented the applicants. On that occasion, a decision was made by the applicants and their union to withdraw the matter but the notice of withdrawal was not signed at the hearing. The applicants thereafter declined to withdraw the matter and it was reinstated to the roll.
6. The matter was re-enrolled on 3 February 2021 and heard by Zoom given the restrictions imposed on in-person processes by the Covid-19 pandemic. On that occasion, Mr Pillay advised that he had taken over the matter from Mr Bejanath and Mr Govindasamy advised that he had taken over from SADTU for the applicants. Mr Jugath from NAPTOSA was present but submitted that the second respondent had not been properly served and his member was not available. The third respondent, who represented herself, was also not served with notice nor available to attend. As a consequence, the matter was postponed to the agreed date of 8 March 2021.
7. On 8 March 2021 the matter proceeded to conclusion at Durban Teachers Centre, Overport. All parties were present and represented.
ISSUE TO BE DECIDED
8. The applicants referred a dispute relating to an unfair promotion to the post of HOD (posts 357 and 358) at Columbia Primary School and argued that they were unfairly treated in that regard.
9. The issue to be decided was whether the respondent committed an unfair labour practice against the applicants in terms of s 186(2)(a) of the Labour Relations Act 66 of 1995, as amended.
PRELIMINARY ISSUES
10. The matters under PSES 941-18/19 and PSES 942-18/19 were consolidated by consent on 22 May 2019 on the basis that both applicants were challenging the same promotion process on the same grounds against the same respondent.
11. The two successful candidates to the posts were also joined to the dispute and the requisite certificate of outcome was issued.
12. There were some preliminary issues relating to documents but at the time of arbitration the bundles A to C were admitted as being what they purported to be, and the first respondent added bundle D.
13. As at 8 March 2021, the representatives (who were new to the matter) agreed to be bound by the pre-arbitration minute.
BACKGROUND TO THE ISSUE
14. The applicants are both educators employed by Columbia Primary in Greenwood Park with over 20 years’ service each.
15. During or about 2017 the school advertised via the Department of Education (DOE) for two head of department posts. Both applicants applied for the posts but were not shortlisted or interviewed, despite meeting the requirements for the post.
16. They lodged a grievance against the process and a grievance committee upheld their grievance and found that the process was flawed. The school was ordered to redo the process from shortlisting stage and to change the resource person (from the principal).
17. The resource person was changed to the principal of a neighbouring school (Rosehill), but the interview committee remained the same. The applicants were again not shortlisted or interviewed and the two successful candidates were the same as those recommended in the first process.
18. The applicants took issue with the process, inter alia: SADTU was excluded from the second selection process; the composition of the interview panel was problematic and the principal unduly influenced the outcome. In specific, they recorded that the interview committee comprised of a married couple, Mr and Mrs Ngcobo, who would have voted together but who were also both close to the principal, P Naidoo. Mrs Ngcobo was the principal’s secretary and the panel secretary, and Mr Ngcobo was on the school governing body (SGB) at the time.
19. It was not disputed that the successful candidates met the requirements for the post but the applicants contended that they were overlooked for an unacceptable, irrelevant or invidious reason; that DOE failed to follow the promotion policy and that the process was unfair.
20. The applicants had lodged a second grievance but it was dismissed and hence they had referred the matter to the ELRC. The relief sought was for the process to be redone in order to give the applicants a chance to compete.
SURVEY OF EVIDENCE
Applicant’s case
Daphne Pillay
21. She had been an educator for 23 years. She obtained a Master’s degree in Education in 2020 and had started her PhD. Columbia Primary was in Greenwood Park and it was a very disadvantaged area. She felt that she could put her skills to good use in that school.
22. In her view the two posts were unfairly awarded to the successful candidates and she felt the process was flawed.
23. The posts had become vacant when the incumbents retired in 2018. Instead of appointing any internal applicant to act in the post, the school had elected to hire, at its cost, temporary educators to teach the subjects taught by the former HODs. This was, in Ms Pillay’s view, unusual and unnecessary.
24. The principal (P Naidoo) had told them repeatedly at meetings that the DOE would be sending ‘displaced HODs’ to fill the posts and that the posts were earmarked for external candidates. In fact, she had repeated that when Ms Pillay took her application to the office to be validated and the principal had validated her documents reluctantly.
25. It appeared that the principal believed that if they hired an external candidate, then DOE would pay the costs whereas if they promoted an internal candidate, the SGB would have to pay the cost of replacement teachers. This understanding was flawed but the principal would not listen to any argument on this.
26. Ms Pillay usually sat as an educator representative on the interview committee but she was recused at the outset of the meeting because she was an applicant for the post (C55). Ms Pillay had not signed the minute of that meeting. At that meeting the nominated candidates for the interview committee (IC) were G Naidoo (foundation phase HOD, now retired), SG Ngcobo (Precious’s husband and an SGB member), Mrs Ndlovu (chair of SGB) and P Ngcobo as secretary. Ms Pillay had not seconded G Naidoo and the minute was false in that regard. She was not even in the meeting and was recused.
27. The applicant testified that Ms Ngcobo and Ndlovu were close and socialised a lot after SGB meetings. G Naidoo and the principal, P Naidoo, were also very close and had taught together for years. Based on this, it was her belief that the IC would have followed P Naidoo’s view that she wanted an external resource. They were all influenced by the principal because they were all close.
28. When they were not shortlisted, they had lodged a grievance and the outcome was that the resource person, P Naidoo, was to be replaced as she had discussed the questions beforehand. The finding was that the process had to be redone. This was after a full evidentiary hearing and the finding appeared at B4.
29. It was not acceptable that the school only changed the resource person (P Naidoo) and in her view, the IC should have been changed as well given that the grievance had been upheld in regards to the allegations of bias. Also, it was clear that they would have taken into account what P Naidoo had said the first time, and this was evidence by the fact that the same two people were appointed.
30. Ms Pillay submitted that, had she been interviewed for the post, she would be appointed. She had 19 years’ experience, she was already helping the school out with the duties of an HOD, and she was studying for a Master’s degree at the time.
31. The applicants had lodged a second grievance and that outcome appeared at B2. The committee found that ‘the circuit manager delegated an official which was in line with the outcome of the grievance’. The challenge to that outcome as that the committee focused only on that aspect and ignored the fact that the other IC members were the same. They ignored the complaints of bias.
32. A further procedural irregularity was that SADTU was not invited to the second interview process. If one looked at the fax sent to SADTU with the interview dates (B54) and compared it with the handwritten note sent to SADTU noting that faxes were not going through (B51) and inviting them to the process, the applicant noted that the timing of the two documents was peculiar. The fax was sent at 15h13 whereas the handwritten letter was stamped for delivery at 15h00. It was impossible that one could send a letter stating that faxes were not transmitting even before the fax had been sent. It was also relevant that the offices are 30 minutes apart and it was impossible to get from the school in Greenwood Park to SADTU in Tongaat within that time. The logical conclusion was that the document was fabricated to cover up for the school’s failure to include SADTU at the second interview.
33. The applicant was further directed to the discrepancies in the CV shortlisting minutes at A3 and at C86. Both documents purported to be for the 16 June CV shortlisting meeting, yet they were not the same. It suggested one document was doctored or adjusted.
34. The applicant reported to Ms G Reddy. They had a good professional relationship. There had been no short-comings in her performance but she had asked her for assistance once.
35. On cross-examination Ms Pillay agreed that her documents were eventually validated and submitted for the application. She was not prevented from applying for the post.
36. It was her contention that at the election meeting of the interview committee, she was present and then recused herself. It was true that the minutes did not reflect that she recused herself, but she was not the author of the document. The document just said she would not serve on the committee because she was an applicant in the post. Mrs Ndlovu was an SGB member and the chairperson of the SGB; SG Ngcobo is a parent and an elected SGB member; and his wife is the school secretary, P Ngcobo. G Naidoo is the educator rep on the SGB and the applicant was the second educator rep. P Ngcobo was the SGB non-teaching rep.
37. The applicant was referred to C25 and it was put to her that P Ngcobo played no role in scoring. She replied that she could not comment on the process, however she would assume that the three scoring members of the IC were those who had signed the form. P Naidoo was there as the departmental nominee. On further questioning, Ms Pillay agreed that as a rule the IC secretary did not score anyone at those interviews.
38. The union representative was at the first interview and told them that the questions were discussed by the resource person before the interviews. That was not, however, the reason that they lodged the grievance – they wanted to know the criteria for shortlisting but the union led that evidence at the grievance.
39. The union was not invited to the shortlisting and interview for the second process. Mr Pillay referred the applicant to C38 wherein JT Mamba had signed present as the union rep. The applicant agreed but said that was the first process on 27 January 2018. She was then referred her to C76, which also indicated that SADTU was at the second interview. The applicant noted that they were absent at shortlisting (C72). The union had not challenged this issue as far as she knew.
40. Insofar as the different minutes at A3 and B86 were concerned, Ms Pillay had received B86 from the DOE as the official minute. A3 was given to her by the deputy principal at the school who was acting principal at the time.
41. Mr Jugath for the second respondent asked the applicant questions. She confirmed that she was elected by the staff as the educator rep on the SGB and was familiar with the election process. There was no document that precluded a married couple from being on the SGB and she had no problem with it, although it was ‘unusual’.
42. The minimum requirement for the post was three years’ teaching experience. Mrs Reddy had over 20 years’ teaching experience.
Malthie Balcharan
43. She had been employed for 18 years at the school and for 21 years as a teacher.
44. Ms Balcharan was prejudiced when her application wasn’t considered despite her meeting the requirements for the post. She was a serving member at the school and met the post requirements. She had an Honours degree.
45. The procedure followed by the respondent was flawed, influenced and biased. The principal influenced the IC not to consider any internal applicants and she had told them at several staff meetings that she wanted to bring in ‘sport people’ because she felt that the school needed to be uplifted in terms of sports. At the time they offered very little to no sport at the school. This was, however, never a post requirement in the advertisement and Balcharan in any event believed that the curriculum ought to come first, particularly as the school was underperforming academically.
46. At a further staff meeting the principal told the staff that they need not apply as the posts would be filled by displaced HODs. Balcharan had asked for those minutes but the principal refused to give it to her. She had applied anyway because she believed that the IC would consider her qualification and everything she had done for the school over the years.
47. It was fair to say that she and the principal, P Naidoo, were often at loggerheads about running the school. It was relevant that the members of the IC were part of the group that always supported the principal, and that the principal told her that she was wasting her time when she submitted her application. It was also pertinent that the principal believed that the school would be burdened with the cost of their replacements if they were both promoted. As the school was severely underprivileged, it was her belief that the SGB were eager to avoid those costs.
48. A displaced HOD occurred when educators were in surplus in other schools and had to be placed in a permanent position. As it transpired these two posts were not filled by displaced HODs.
49. It was not the norm to fill the vacant HOD posts with a temporary employee and the norm was to allow an internal candidate to act. It was unclear why the principal had not followed that route or why she believed that it would incur cost for the school as the DOE would have been liable for all costs related to a substantive post.
50. When they succeeded in the grievance, it was her understanding that there would be a new resource person from the DOE and that a new IC would be elected because of the allegations of bias. That was not what happened and the same IC sat the second time and made the same decision. P Ngcobo was the principal’s personal secretary and they were very close and she remained on the committee. Her husband was also part of the IC. It was shocking to keep the panel the same when there had been substantive allegations of prejudice that had been upheld.
51. Ms Balcharan had no idea what the criteria were for shortlisting.
52. It was very suspicious that the fax to SADTU, inviting them to the second IC, failed at 15h13 and yet the letter was allegedly served on them at 15h00. That timing was not feasible and in her opinion the documents were fabricated.
53. In her view P Naidoo had a hand in the second process and influenced the outcome. They did submit a second grievance challenging, inter alia, the fact that the school used the same IC but the grievance was dismissed. The committee found that, as the school had changed the resource person, there was no basis for the grievance. It was their finding that the circuit manager had the power to delegate someone to act as resource person.
54. Ms Balcharan wanted a fair chance to compete for this post.
55. On cross-examination it was put to her that the DOE policy was to appoint a temporary educator to any vacant substantive post. and everyone knew that. Balcharan agreed and said that she had raised that with the principal but she would not see reason. To the contrary, it was clear that the principal colluded with the SGB to secure two people to occupy the post rather than let her own staff act.
56. Ms Balcharan agreed that there was a new resource person in the second IC – a principal from a neighbouring school. As far as she knew, that lady was close friends with the principal.
57. The witness was referred to A3 point 15 which read ‘The chairperson N Ndlovu informed the house that the posts 357 and 358 will be done concurrently. She outlined the service requirements of the post and asked members to listen carefully to educational experience of the candidate and note curriculum needs of the school. CVs will be read quietly by each member’. She agreed that the identical wording appeared in the second set of minutes, C87, at point 14.
58. She was referred also to B49 which made clear the shortlisting criteria ie leadership administrative management and related experience; organisational ability and experience; professional development, educational experience and insight, leadership community related. Ms Balcharan agreed that those were the criteria for shortlisting.
59. Ms Balcharan agreed that the union representative was present for both interviews but not the short listings. She conceded also that the first grievance committee recommended changing the resource person and that was done. She agreed also that the committee had never ruled that the IC had to be changed.
60. In their second grievance they complained about the IC not being changed. The grievance forms are not in the bundle.
61. It was put to Ms Balcharan that in terms of the policy (B41 10.13) the IC must take its list of recommended names to the SGB which in turn must send the list to the district office; that there was thus nothing suspicious about the principal having participated in the ratification process as she is on the SGB; and that it might have constituted an irregularity if she was excluded. The applicant disagreed and said the new resource person should have seen the process through. It was a unique situation and the grievance committee’s finding should have been honoured from start to finish.
62. On cross-examination by the second respondent, Ms Balcharan said that the deputy principal gave her the minutes at A3. The minutes at C86 she obtained from the DOE in the formal disclosure process.
63. The principal influenced the IC to appoint external candidates and to not appoint internal candidates. It was put to her that she did not attend any meetings of the SGB and thus had no basis for that allegation. Ms Balcharan replied that from the outset it was clear that the principal didn’t want her in the post. She deliberately circumvented appointing them to act and had a personal grudge against her.
64. Balcharan had not personally witnessed the principal influencing the SGB but she based her opinion, inter alia, on the principal stating at staff meetings that displaced educators would come into the positions. The principal made those statements around July-September 2017. She also said that the school needed sports people at the same meeting. Those statements would have been minuted but her requests for those minutes from the current principal had not been answered.
65. It was noted that agreement 1/17 and HRM circular 57/17 were multi-term agreements whereby schools would determine surplus educators and movement of educators.
66. Balcharan conceded that the grievance committee never found that the school had to elect a new IC. It did state that the circuit manager must be the resource person. The role of the resource person is to assist with the logistics of the process, to assist the IC on an observer basis and to make facilities available. He or she was not a scoring member.
67. On re-examination Balcharan noted that the fact that there were two different sets of minutes lead her to believe that they had been doctored. The wording was not the same. SADTU had asked for documents on their behalf and they were not given a copy of their grievance.
Respondent’s case
68. The first respondent declined to call witnesses and submitted that it had no burden to discharge.
69. The second and third respondents also declined to lead evidence.
CLOSING ARGUMENT
70. The parties requested to submit written heads of argument and the deadline of 18 March 2021 was agreed. As the contents thereof form part of the record, I shall summarise the submissions only very briefly herein.
Applicants
71. It was the applicants’ unchallenged evidence that they were expressly discouraged from applying for the promotion posts and were told by the principal that she wanted an external candidate, based on the principal’s misunderstanding of how the posts would be financed and her desire to have an educator with ‘sporting experience’. As their evidence was not disputed and they were credible witnesses, their version relating to the allegations of bias should be believed.
72. The documents supplied by the respondent in this matter were questionable –Pillay was shown to have seconded the appointment of G Naidoo to the IC despite not being present at the meeting at all; there were two sets of minutes for the second IC; and the letter that purported to inform SADTU of the date for the interviews due to non-service of the notice by fax was delivered before the fax to SADTU was even sent. The applicants questioned the integrity of the secretary, P Ngcobo, and her husband in relation to these suspicious documents.
73. The failure of anyone properly to nominate and second G Naidoo was a material procedural defect and meant that the IC was not properly elected. As such, its decisions should be deemed null and void. The failure also by the respondent to invite the union to the shortlisting in the second process was a procedural flaw.
74. The IC was biased in favour of the principal, comprising of individuals close to the principal and the husband of her secretary. This was supported by the fact that the applicants’ grievance on this ground was upheld and the school was required to commence the process afresh with a difference resource person, ie not the principal. Notwithstanding this ruling, the same IC sat again and the same two candidates were recommended. This was a breach of the ruling - it was implicit in the finding of the grievance committee that not only should the resource person be changed, but that there should also be a new IC, and the failure to implement that change amounted to unfair conduct on the part of the first respondent.
75. The applicants had been prejudiced as a result, and the only fair outcome was for the process to be done afresh.
First Respondent
76. Mr Pillay argued that the applicants had led no evidence whatsoever to support their allegation that the process was unfair or that they were unfairly not shortlisted. They pointed to various issues in the documentation that was provided to them, but led no evidence to substantiate the discrepancies they purportedly picked up. There was no causal nexus between the principal discouraging them from applying and the fact that they were not shortlisted for the post and, in any event, the principal did not participate in the second process.
77. No evidence was led to prove that they were incorrectly or unfairly scored in the shortlisting process and there was no evidence before the arbitrator at all to justify the conclusion that they ought to have been shortlisted or that, had they been shortlisted, they would have been appointed. Interestingly, the applicants had requested all the shortlisting scoresheets but never produced same in evidence. It is not sufficient for the applicants to make the bald allegation that the shortlisting was unfair – they bear the onus and must adduce evidence to prove this.
78. The applicants made much of the fact that there was a husband and wife on the IC but that is not unlawful and no evidence was presented to prove how it impacted on the process, especially bearing in mind that P Ngcobo was merely a secretary and did not score candidates.
79. The union did attend both interviews and, if there was a concern about defective notice of the invitation, that was for the union to raise, not the applicants. In addition, the union only has observer status and so its absence from the shortlisting could have no material bearing on the outcome.
80. Lastly, the relief sought was to redo an appointment that took place three years earlier – this was not in the interest of the pupils.
Second Respondent
81. Mr Jugath noted that the applicants had been unable, under cross-examination, to provide any tangible proof to support their assertion that the principal influenced the outcome to the process, or to show how the panel was biased against them.
82. The comments about appointing ‘sports people’ and ‘displaced HODs’ were allegedly made in 2017 at a staff meeting but these averments are contradictory. It is also noteworthy that around 2017 there was a DOE circular about utilising displaced HODs and thus the principal’s remark was in all probability innocently related thereto. The applicants called no witnesses to verify these comments nor did they produce the minutes of that meeting at the arbitration.
83. The applicants made much of the fact that the IC remained the same in the second process but the grievance committee ruled only that the resource person had to be changed, and it was. Nothing prohibited the circuit manager from delegating that authority to a suitable person and he had done so.
84. There was no dispute that the two candidates who applied for the post met all of the advertised criteria and were scored the highest. There was thus no evidence that an unfair labour practice was committed.
ANALYSIS OF EVIDENCE AND ARGUMENT
85. Section 186 (2) of the Labour Relations Act 66 of 1995, as amended, provides as follows:
‘(2) Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving-
(a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) the failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 200 (Act 26 of 2000) on account of the employee having made a protected disclosure defined in that Act.’
86. The applicants’ dispute was lodged in terms of s 186 (2)(a) and it is trite law that a promotion can be challenged on any one of three grounds – that the procedure was not followed properly, that there was unfair discrimination in making the appointment or that the employer’s conduct, although neither discriminatory nor unprocedural, was ‘grossly unreasonable’ such that it led to an inference of mala fides (see in this regard Herbert v Department of Home Affairs 1998 CCMA KN10413 and Goliath v Medscheme (Pty) Ltd (1996) 17 ILJ 760 (IC)).
87. The applicants did not challenge their non-promotion on grounds of discrimination and their dispute related to procedural and substantive fairness.
88. The applicants bear the burden of proof in this regard and have to prove, for example, that they were overlooked for an unfair reason; that the respondent failed to adhere to its promotion procedures or policies; that the respondent relied on irrelevant criteria in making the appointment or that they were better candidates than the persons appointed.
89. It is not, however, sufficient for the applicants only to prove the latter and they must also show that the respondent acted unfairly in so doing (Cullen and Distell (Pty) Ltd [2001] 8 BALR 834 (CCMA)).
90. The facts in this matter were largely common cause or could not be disputed:
90.1 The applicants were both employed as educators at Columbia Primary school and had over 20 years’ service;
90.2 Two HOD posts became vacant when the incumbents retired and the posts were advertised;
90.3 The applicants were not appointed to act in the posts and the principal instead appointed temporary educators;
90.4 The principal discouraged them from applying for the posts (this evidence was unchallenged);
90.5 The applicants met the minimum requirements for the post and applied;
90.6 They were not shortlisted for the post and thus not interviewed;
90.7 The second and third respondents were both shortlisted and interviewed and were ultimately successful;
90.8 The applicants, via their union, challenged the outcome and their grievance was upheld to the extent that the grievance committee ruled that ‘the process should be redone and the resource person should be changed’;
90.9 The process was redone from shortlisting stage; the principal was excluded and the second IC made the same recommendation;
90.10 The IC comprised G Naidoo (educator rep), principal (resource person), Mr Ngcobo (SGB member), Ms Ndlovu (SGB chair) and P Ngcobo (secretary);
90.11 The second IC was comprised of the same parties, bar for the fact that the resource person (the principal) was replaced by the principal of a neighbouring school;
90.12 The resource person and the secretary are not scoring members of the panel;
90.13 The applicants’ union SADTU was present at both interview processes but not at the shortlisting; and
90.14 The applicants challenged the outcome again but that grievance was not upheld.
91. There was no material challenge to the substantive fairness of the promotion in that the applicants at all times conceded that the two successful candidates met the requirements for the posts. Although they both submitted that, had they been shortlisted for the interview process, they would have been appointed ahead of the two incumbents, there was no evidence tendered to support that submission. No evidence was led pertaining to the CVs of the relevant parties, there was no comparison between them in terms of qualification and experience, no challenge to how the two successful candidates were scored, nor did the applicants tender evidence to show that they would have fared better answering the interview questions than the two incumbents or anyone else who was shortlisted for the post.
92. In Herbert v Department of Home Affairs (supra) the commissioner assessed the facts and stated that the decision to promote an employee falls within the prerogative of management. He supported the finding in Goliath v Medscheme (supra) wherein the court said that, where discrimination is not alleged, the applicant had to show ‘gross unreasonableness such that would lead to an inference of mala fides’ before he could succeed with an unfair labour practice claim.
93. In Arries v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ 2324 (LC) the court endorsed the view that a commissioner must determine whether the employer’s discretion was exercised ‘capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner’.
94. In the light of these dicta, I cannot conclude that the applicants were better candidates than the incumbents or were overlooked for an invidious reason or that there was gross unreasonableness such that there is an inference of mala fides.
95. The focus of the applicants’ challenge during this arbitration was instead on the procedure that was followed and in terms of the pre-arbitration minute those issues were: the lack of shortlisting criteria; the failure to appoint a second different IC; that the circuit manager was not the resource person in the second process as directed by the grievance committee; and that the non-educator rep on the IC was employed by the SGB and not DOE.
96. The latter point relating to the educator representative was not actively explored or supported by evidence during this hearing and my finding shall thus focus on the other three procedural challenges.
97. There is no evidence that the respondent used irrelevant criteria to shortlist and select either candidate. Balcharan was directed to the shortlisting minutes and agreed that the four listed criteria were the factors applied by the IC in short listing for the post. No suggestion was made that those were improper, unacceptable or unfair; nor was there any evidence that the incumbents did not satisfy the shortlisting criteria or that their scores in that regard were incorrect or unfair.
98. The applicants took exception to the school’s failure to change the interview committee in the second recruitment process and argued that, as the grievance committee had found that the panel was biased in the first process, it was a logical inference from the ruling that the panel ought to have been changed. I have some difficulty with this argument. Firstly, I have no finding before me from the grievance committee to that effect (ie that the first IC was biased) and no evidence that indeed the panel was found to have been biased and/or influenced by the principal. The applicants’ grievance form was not produced in evidence, there is no minute or transcript of the grievance hearing, and the finding I have mentions only that the resource person should be changed and the process commenced afresh. This was indeed what was done.
99. Although it might well have been preferable to change the IC completely, absent any evidence as to what findings the grievance committee made in relation to bias and influence, and in the light of their very clear and explicit ruling, I cannot agree with the applicants that the failure to change the IC was problematic, unfair or a breach of the ruling of the grievance committee.
100. Much was also made of the composition of the IC but there was nothing untoward about this. The SGB is entitled, and indeed obligated, to participate in the IC and the fact that two parties are married cannot in and of itself prove bias – this the applicants would have to prove with some sort of evidence, and they did not. In addition, P Ngcobo was merely a secretary and had no scoring power at the IC. Likewise, I have only the applicants’ ipse dixit that the resource person (who also does not score candidates) was ‘close’ to the principal and would have ‘done her bidding’. It became clear on cross-examination that this was an assumption or supposition on the part of the applicants and the mere fact that meals are provided at an SGB meeting or that people are ‘close’ cannot possibly constitute objective and reasonable evidence of collusion and bias.
101. It is true that the circuit manager was not the resource person at the second hearing as per the grievance committee’s ruling but the question is whether that defect was fatal to procedural fairness. Again, no evidence was advanced to support such a conclusion. There is nothing before that suggests that the delegated resource person was biased, unfair or incompetent or that the fact that she took up the role instead of the circuit manager prejudiced the applicants or prevented them from being interviewed. The applicants’ assertions of bias and undue influence in this regard were not corroborated by any proof or objective evidence and, given that the resource person does not score the candidates and merely provides guidance on logistics and procedure, I fail to see how this defect would have impacted the outcome. There is, quite simply, no causal link between the appointment of the principal of the neighbouring school as the resource person and the outcome such that it would allow me to draw the inference that she, too, was biased against the applicants and/or unduly influenced by the principal. The applicants’ bald assertion that the two principals are ‘close’ is not sufficient to discharge the onus of proof in this regard.
102. A further point of contention was the non-attendance of SADTU at the second process. A great deal of evidence was led about the failure to serve notice on SADTU and questions were raised about the legitimacy of the documentary evidence in this regard; however, the documents in the bundle clearly proved that a SADTU official did in fact attend the second (and first) interview process. Admittedly they were not included in the shortlisting but I do not believe that that defect is so material as to warrant a finding of procedural unfairness, particularly as the unions have only observer status in the process.
103. In closing Mr Govindasamy argued that the fact that G Naidoo was not seconded by Ms Pillay as reflected in the minutes meant she was not properly appointed to the IC and thus that all acts of the IC were invalid. This was, however, never part of the applicants’ case nor was it an issue identified in the pre-arbitration minute or the opening statements. As such, the respondent was never able to respond to this assertion. Whilst I cannot dispute that there is some question over the validity of the seconding of G Naidoo at the meeting, the failure to properly ventilate what this means for the constitution of the panel during the arbitration process leaves me unable to make any finding in this regard.
104. A further challenge to the procedure was the discrepancy between the two sets of minutes at A3 and B86. The applicants averred that it was suspicious that there were two different documents on record, both of which purported to the be minute of the process. On questioning, they advised that one document was the ‘official’ minute given to them by DOE in the disclosure process preceding the case and the other they had obtained from the current acting principal. It was argued by the first respondent that this would explain the discrepancy and further that the content of the documents was in any event not materially different – both made the same findings and recommendations.
105. I am inclined to agree. There are certainly some differences in the documents and it is of concern that there are two versions, but the explanation proferred for that is not implausible and the material facts are the same. On its own, I do not believe that this would warrant a finding of procedural unfairness.
106. The Labour Court in SAPS v Safety and Security Bargaining Council & others (2010) 31 ILJ 2680 (LC) confirmed that the focus of the enquiry should be whether the candidate had a fair opportunity to compete for the post, and not whether the correct decision had been made. If the employee is given the opportunity to compete for the post, the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint. The LAC in Noonan v Safety & Security Sectoral Bargaining Council & others (2012) 33 ILJ 2597 (LAC) reaffirmed the value of process in a promotion, as well as the consideration of whether the procedural flaw prejudiced the applicant.
107. In this instance the applicants were not given the opportunity to compete for the post and the question is whether that was fair. Was the respondent’s decision not to shortlist and interview the applicants for an irrational, unfair or arbitrary reason, or so grossly unreasonable as to lead to an inference of mala fides?
108. The answer to this must be in the negative. Although the applicants contended that the principal wanted ‘sports people’ and/or ‘displaced HODs’ for the role (and their evidence in that regard was undisputed), there was no evidence that that was the sole reason the two incumbents were appointed or that it was even a factor considered by the IC in the second process.
109. No documentary evidence was presented to support the applicants’ assertions in this regard and the principal was not even party to the final decision. Moreover, those assertions were allegedly made at a staff meeting in 2017 and the appointments took place in the middle of 2018 so I cannot even be sure there was any causal link between the statements and the outcome.
110. On the evidence before me I cannot find that the principal influenced the panel as alleged, or that the panel was biased against the applicants. Assertions such as bias and undue influence are not proved merely by the making thereof – there must be some objective foundation for the allegation and some form of evidence thereof. In casu, I do not believe that the applicants have tendered such proof. It is not sufficient simply to allege that people are ‘close’, that they share food, that Balcharan was disliked by the principal, or that the principal favoured a ‘sports person’ for a certain post – there must be some connection between those factors and the decision, not only to overlook the applicants, but to unfairly appoint someone else.
111. Certainly, the applicants have failed to prove that, but for the failure to interview them, they would have been appointed to the posts and thus, even if I were inclined to accept their argument that they should ‘at least’ have been interviewed, the fact remains that the outcome would not have changed.
112. I am accordingly satisfied that the promotions were substantively fair and that the applicants have not discharged the onus to show that they were overlooked for an unfair reason or subjected to arbitrary or capricious decision-making by the respondent. In the premises, the applicants have not discharged the onus of proving that they were better candidates for the posts than the second and third respondent.
113. I also find no basis upon which to conclude that the promotion process herein was procedurally unfair.
AWARD
114. The application herein is dismissed.
DATED AT DURBAN ON THIS 23rd DAY OF MARCH 2021
Lisa Williams de Beer
Senior Commissioner
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ELRC639-19/20EC
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