PSES438-15/16LP
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PSES438-15/16LP
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Award Date:
17 March 2021
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Case Number PSES438-15/16LP
In the matter between
MR MOGANEDI MAPITSANE DAVIS
Applicants
and
DEPARTMENT OF EDUCATION – LIMPOPO
Respondent
ARBITRATION AWARD
________________________________________________________________
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was held on 23 February 2021 via Online media.
2. Both parties were present. Mr. M.K Masindi represented the Respondent whereas Mr. Moribisane Ramafoko, an attorney, represented the applicant.
3. Both parties submitted bundles of documents and same were referred to as shall be indicated here below.
4. At the end of the proceedings, both parties filed closing arguments and same were taken into account herein.
5. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
6. I am called upon to determine whether the Respondent, the Department of Education Limpopo, committed unfair Labour Practice by not shortlisting the applicant when he applied for a position of a Chief Educational Specialist (circuit manager) and thereby not appointing him in the end.
7. If I find that the Respondent has committed unfair labour practice, I will determine an appropriate remedy for the Applicant.
BACKGROUND TO THE ISSUE
8. The Applicant is a Deputy Chief Educational Specialist in the employ of the Respondent. He acted in the position of a Chief Educational Specialist for a period of thirty six (36) months. The said position was advertised and the applicant responded by submitting an application for the position.
9. The following were the requirements of the post:
• A recognized Bachelor’s degree or equivalent qualification plus a teaching qualification.
• Nine (9) years teaching experience of which three (3) years must be at management level.
• A valid driver’s license.
10. According to the Respondent, the Applicant was not shortlisted because he did not attach a copy of a driver’s license on his application. It is the position of the Respondent that by acting in that manner it did not commit unfair labour practice. His application was fairly sifted out for non-compliance as aforesaid.
11. I now have to determine whether such exclusion was unfair or not.
SURVEY OF EVIDENCE FOR THE EMPLOYEE
MR MOGANEDI MAPITSANE DAVIS TESTIFIED UNDER OATH ON HIS BEHALF AS FOLLOWS:
12. He is currently Deputy Chief Educational Specialist in the Sekhukhune South District. He has twenty one (21) years’ service with the Respondent. He holds the following qualifications:
Grade 12, BA (Education) B Accounting Science, Management Development Programme, Diploma in Management Accounting, Post Graduate Diploma in Public Management and ICTC Skills for Educators.
13. He acted in the position in contention herein from 1st June 2012 to the 30th June 2015. He performed well in his district, produced the best performing learner in the Republic, and further in 2013 his district was awarded the best performing out of thirty three (33) circuits.
14. His duties required that he travel from place to place and for that purpose, the Respondent allocated him a state vehicle for which a driver’s license was required. He had submitted the licence and same was filed in his official file.
15. The transport officer would not have allowed him to drive the said vehicle without a license. The Respondent at all times knew that he had a driver’s license.
16. At page 14 of bundle A is an advertisement of circuit manager’s (Chief Education Specialist) post. The requirements for the position are listed as:
• A recognized Bachelor’s degree or equivalent qualification plus a teaching qualification.
• Nine (9) years teaching experience of which three (3) years must be a management level.
• A valid driver’s license.
17. Paragraph 4 of the advertisement requires that the application for the position be submitted on the prescribed form Z83 and same be completed in full, that the said application be accompanied by a recent updated comprehensive Curriculum Vitae as well as certified copies of all qualifications and Identity document.
18. He had complied with above prescripts when submitting his application.
19. On receipt of his application, the Respondent has not acknowledged the receipt of his application, informing him whether his application was complete or not, whether he met the requirements or not and whether his application has been referred to authorities for further process. This has to be done in terms of Collective Agreement No. 1 of 2008.
20. According to paragraph 4.1.3 at page 24 of bundle A, the following criteria shall apply when sifting is done.
a) A recognized three (3) year (REQV 13) qualification, which must include appropriate training as an educator,
b) Registration with the South African Council for Educators (SACE)
c) The minimum years of experience for appointment to the promotion post as outlined in chapter B of the personnel Administration Measures.
d) Inclusion of certified copies of qualifications and statements of results.
There is however, no mention of driver’s license having to accompany the application form.
21. According to paragraph 7.5 of the Collective Agreement No. 1 of 2008 at page 28 of bundle A, a permanent serving educator who acted for more than twelve 12 or more continuous months in a promotion post and meets the minimum requirements must be shortlisted. The educator must have been authorized by the Head of the Department to act in the position. He had acted in the said position and was so authorized by the Head of the Department to do so. Further that, he met all the requirements notwithstanding this he was not shortlisted and felt unfairly treated by the Respondent.
22. He prayed for compensation of twelve (12) months if I find that he was unfairly treated.
UNDER CROSS EXAMINATION HE TESTIFIED AS FOLLOWS:
23. He met the minimum requirements and had submitted his copy of his driver’s license. In his understanding, the advertisement required him to possess a driver’s license; it is not a requirement that he attaches it to the application, those that must accompany the form are specified in the advertisement and driver’s license is not one of them.
SURVEY OF EVIDENCE FOR THE RESPONDENT
MR SAMUEL NETHENGWE TESTIFIED UNDER OATH FOR THE RESPONDENT AS FOLLOWS
24. The Respondent employs him as a personnel practitioner. He deals with the employment of teachers and non-teaching staff.
25. The requirements of the position in contention herein are:
• A recognized Bachelor’s degree or equivalent qualification plus a teaching qualification.
• Nine (9) years teaching experience of which three (3) years must be a management level.
• A valid driver’s license.
If an applicant does not meet anyone of the above requirements, his/her application is sifted out.
26. According to him, the Applicant did not meet the above minimum requirements, as he did not attach a copy of the driver’s license. This is clear from a list of applicants at page 7 of bundle B, that he did not attach his copy of driver’s license.
27. With regard to the paragraph starting with “Note” on the advert, they did not want to repeat what is mentioned in the paragraph starting with ‘requirements’.
UNDER CROSS EXAMINATION HE STATED THE FOLLOWING
28. He respects the Collective Agreement binding the Respondent. He admitted that amongst the documents, which the copies must be attached, the driver’s license is not one of them. He however said that is so because it is already mentioned in the paragraph dealing with requirements.
29. He conceded that he did not inform the applicants of the receipt of their application and further if they were complete or not, or met the minimum requirements or not. It was an oversight not to do so.
30. Even though the Applicant has a driver’s license, he did not attach a copy thereof on the application.
31. He knows that the Applicant acted for thirty six (36) months on the post. He further cannot dispute that the Applicant has a driver’s license and further that the Department knew about it. What he needed to see was a copy of the driver’s license attached to the application.
ANALYSIS OF EVIDENCE AND ARGUMENTS
32. The bone of contention herein is the selection criteria for shortlisting and eventually interview and appointment. The Applicant testified that he was unfairly treated, in that his application form was sifted out for non-compliance with a requirement of attaching a copy of his driver’s license of his application.
33. On the other hand, the Respondent led evidence to the effect that the Applicant had not attached a copy of his driver’s license to the application, hence his application was sifted out for non - compliance. It is the view of the Respondent that no unfair labour practice was committed.
34. It is common cause that the applicant acted in the contended position for thirty six (36) months and that he was allocated a vehicle for that purpose and that he has a license.
35. The respondent advertised the above position of which the Applicant responded by lodging his application.
36. The advertisement as stated in paragraph 1 thereof the requirements are listed as :
• A recognized Bachelor’s degree or equivalent qualification plus a teaching qualification.
• Nine (9) years teaching experience of which three (3) years must be a management level.
• A valid driver’s license.
Below this follows paragraph 4, which starts with ‘Note’. This paragraph sets out that the application must be in a form Z83, which must be completed in full, original signed and dated by the applicant; it further says the application should be accompanied by recent updated C.V as well as certified copies of all qualifications and ID document. All the requirements listed in paragraph dealing with requirements are repeated under para 4 safe for a copy of a driver’s license. These documents must be attached to the application. The driver’s license is not mentioned in a list of documents of which copies should accompany the application. Was this done by design or as a result of an oversight? I go with the former. The reason is that collective Agreement No.1 of 2008 item 4.1.3 list the sifting criteria as follows:
a) A recognized three (3) year (REQV 13) qualification, which must include appropriate training as an educator,
b) Registration with the South African Council for Educators (SACE).
c) The minimum years of experience for appointment to the promotion post as outline in chapter B of the personnel Administration Measures.
d) Inclusion of certified copies of qualifications and statements of results.
37. Copies of driver’s license is mentioned nowhere for purposes of sifting out of applications. Furthermore, this Collective Agreement is binding on the Respondent. Furthermore, item 4.1.1-4.1.3 ensures that the process of sifting is not a mechanical one. Item 4.1.1 provides for the applicants to be informed of the receipt of their applications, item 4.1.2 provides for Respondent to clearly indicate whether the application is complete or not and item 4.1.3 indicates whether the applicant meets the minimum requirements for the post and that the applications have been referred to institution concerned. This process is line with the principles of transparency and fairness. It involves a process of engagements in case there was something wrong with an application such as for example, where a candidate may have submitted a document but for whatever reason is not on the form. It is common knowledge that documents gets lost along the conveyer belt and it cannot be that once that has happened it is over for an applicant. The above process in my view is intended to address such issues.
38. My view therefore is that the driver’s license is a requirement for the position but not a necessary criterion for sifting out. If that was the case, the advertisement shall have said so, as it did with other requirements. Furthermore, this view is supported by the fact that Collective Agreement No.1of 2008, which is binding to the Respondent, does not mention the driver’s license as a sifting criterion/requirement.
39. I therefore find that the driver’s license was a requirement that the applicant had to possess but need not have a copy thereof attached to the application and therefore not a requirement for sifting purpose. The applicant met all the requirements and therefore should have qualified for shortlisting and should have been interviewed.
40. The respondent’s witness Mr Nethengwe testified that he knew that the Applicant acted in the said position for thirty six (36) months. It is further common cause that he was allocated a state vehicle, and this could not have happened without a driver’s license. Furthermore, it remains undisputed that the Applicant had submitted a driver’s license during that period and it is on his official file. Item 7,5 of the Collective Agreement No 1 of 2008 offers the Applicant special protection in that having met minimum requirement of the post he must be included in the shortlisting. Had Mr Nethengwe applied his mind to this fact, he would not have acted like a robot in sifting-out the applications. He needed to have done more, especially in line with item 4 of the above Collective Agreement, which required him to inform the applicants of the status of the applications.
41. In determining an appropriate relief for the Applicant, I will take into account the prejudice that he has suffered because of the above unfair conduct of the Respondent, especially taking into account the fact that he acted in the position for 3 years. For him not to be shortlisted for reasons indicated above is an injustice the prejudice from which the Applicant may never recover.
AWARD
42. I find that the Respondent committed Unfair Labour Practice by not shortlisting the Applicant.
43. I order the Respondent to pay to the Applicant compensation in the sum of
R657, 879, 00 being an equivalent of 12 months’ salary he would have received, had he been appointed.
44. I order that the above amount be paid on or before the 30th April 2021.
Panelist: M P Shai
17 March 2021
In the matter between
MR MOGANEDI MAPITSANE DAVIS
Applicants
and
DEPARTMENT OF EDUCATION – LIMPOPO
Respondent
ARBITRATION AWARD
________________________________________________________________
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was held on 23 February 2021 via Online media.
2. Both parties were present. Mr. M.K Masindi represented the Respondent whereas Mr. Moribisane Ramafoko, an attorney, represented the applicant.
3. Both parties submitted bundles of documents and same were referred to as shall be indicated here below.
4. At the end of the proceedings, both parties filed closing arguments and same were taken into account herein.
5. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
6. I am called upon to determine whether the Respondent, the Department of Education Limpopo, committed unfair Labour Practice by not shortlisting the applicant when he applied for a position of a Chief Educational Specialist (circuit manager) and thereby not appointing him in the end.
7. If I find that the Respondent has committed unfair labour practice, I will determine an appropriate remedy for the Applicant.
BACKGROUND TO THE ISSUE
8. The Applicant is a Deputy Chief Educational Specialist in the employ of the Respondent. He acted in the position of a Chief Educational Specialist for a period of thirty six (36) months. The said position was advertised and the applicant responded by submitting an application for the position.
9. The following were the requirements of the post:
• A recognized Bachelor’s degree or equivalent qualification plus a teaching qualification.
• Nine (9) years teaching experience of which three (3) years must be at management level.
• A valid driver’s license.
10. According to the Respondent, the Applicant was not shortlisted because he did not attach a copy of a driver’s license on his application. It is the position of the Respondent that by acting in that manner it did not commit unfair labour practice. His application was fairly sifted out for non-compliance as aforesaid.
11. I now have to determine whether such exclusion was unfair or not.
SURVEY OF EVIDENCE FOR THE EMPLOYEE
MR MOGANEDI MAPITSANE DAVIS TESTIFIED UNDER OATH ON HIS BEHALF AS FOLLOWS:
12. He is currently Deputy Chief Educational Specialist in the Sekhukhune South District. He has twenty one (21) years’ service with the Respondent. He holds the following qualifications:
Grade 12, BA (Education) B Accounting Science, Management Development Programme, Diploma in Management Accounting, Post Graduate Diploma in Public Management and ICTC Skills for Educators.
13. He acted in the position in contention herein from 1st June 2012 to the 30th June 2015. He performed well in his district, produced the best performing learner in the Republic, and further in 2013 his district was awarded the best performing out of thirty three (33) circuits.
14. His duties required that he travel from place to place and for that purpose, the Respondent allocated him a state vehicle for which a driver’s license was required. He had submitted the licence and same was filed in his official file.
15. The transport officer would not have allowed him to drive the said vehicle without a license. The Respondent at all times knew that he had a driver’s license.
16. At page 14 of bundle A is an advertisement of circuit manager’s (Chief Education Specialist) post. The requirements for the position are listed as:
• A recognized Bachelor’s degree or equivalent qualification plus a teaching qualification.
• Nine (9) years teaching experience of which three (3) years must be a management level.
• A valid driver’s license.
17. Paragraph 4 of the advertisement requires that the application for the position be submitted on the prescribed form Z83 and same be completed in full, that the said application be accompanied by a recent updated comprehensive Curriculum Vitae as well as certified copies of all qualifications and Identity document.
18. He had complied with above prescripts when submitting his application.
19. On receipt of his application, the Respondent has not acknowledged the receipt of his application, informing him whether his application was complete or not, whether he met the requirements or not and whether his application has been referred to authorities for further process. This has to be done in terms of Collective Agreement No. 1 of 2008.
20. According to paragraph 4.1.3 at page 24 of bundle A, the following criteria shall apply when sifting is done.
a) A recognized three (3) year (REQV 13) qualification, which must include appropriate training as an educator,
b) Registration with the South African Council for Educators (SACE)
c) The minimum years of experience for appointment to the promotion post as outlined in chapter B of the personnel Administration Measures.
d) Inclusion of certified copies of qualifications and statements of results.
There is however, no mention of driver’s license having to accompany the application form.
21. According to paragraph 7.5 of the Collective Agreement No. 1 of 2008 at page 28 of bundle A, a permanent serving educator who acted for more than twelve 12 or more continuous months in a promotion post and meets the minimum requirements must be shortlisted. The educator must have been authorized by the Head of the Department to act in the position. He had acted in the said position and was so authorized by the Head of the Department to do so. Further that, he met all the requirements notwithstanding this he was not shortlisted and felt unfairly treated by the Respondent.
22. He prayed for compensation of twelve (12) months if I find that he was unfairly treated.
UNDER CROSS EXAMINATION HE TESTIFIED AS FOLLOWS:
23. He met the minimum requirements and had submitted his copy of his driver’s license. In his understanding, the advertisement required him to possess a driver’s license; it is not a requirement that he attaches it to the application, those that must accompany the form are specified in the advertisement and driver’s license is not one of them.
SURVEY OF EVIDENCE FOR THE RESPONDENT
MR SAMUEL NETHENGWE TESTIFIED UNDER OATH FOR THE RESPONDENT AS FOLLOWS
24. The Respondent employs him as a personnel practitioner. He deals with the employment of teachers and non-teaching staff.
25. The requirements of the position in contention herein are:
• A recognized Bachelor’s degree or equivalent qualification plus a teaching qualification.
• Nine (9) years teaching experience of which three (3) years must be a management level.
• A valid driver’s license.
If an applicant does not meet anyone of the above requirements, his/her application is sifted out.
26. According to him, the Applicant did not meet the above minimum requirements, as he did not attach a copy of the driver’s license. This is clear from a list of applicants at page 7 of bundle B, that he did not attach his copy of driver’s license.
27. With regard to the paragraph starting with “Note” on the advert, they did not want to repeat what is mentioned in the paragraph starting with ‘requirements’.
UNDER CROSS EXAMINATION HE STATED THE FOLLOWING
28. He respects the Collective Agreement binding the Respondent. He admitted that amongst the documents, which the copies must be attached, the driver’s license is not one of them. He however said that is so because it is already mentioned in the paragraph dealing with requirements.
29. He conceded that he did not inform the applicants of the receipt of their application and further if they were complete or not, or met the minimum requirements or not. It was an oversight not to do so.
30. Even though the Applicant has a driver’s license, he did not attach a copy thereof on the application.
31. He knows that the Applicant acted for thirty six (36) months on the post. He further cannot dispute that the Applicant has a driver’s license and further that the Department knew about it. What he needed to see was a copy of the driver’s license attached to the application.
ANALYSIS OF EVIDENCE AND ARGUMENTS
32. The bone of contention herein is the selection criteria for shortlisting and eventually interview and appointment. The Applicant testified that he was unfairly treated, in that his application form was sifted out for non-compliance with a requirement of attaching a copy of his driver’s license of his application.
33. On the other hand, the Respondent led evidence to the effect that the Applicant had not attached a copy of his driver’s license to the application, hence his application was sifted out for non - compliance. It is the view of the Respondent that no unfair labour practice was committed.
34. It is common cause that the applicant acted in the contended position for thirty six (36) months and that he was allocated a vehicle for that purpose and that he has a license.
35. The respondent advertised the above position of which the Applicant responded by lodging his application.
36. The advertisement as stated in paragraph 1 thereof the requirements are listed as :
• A recognized Bachelor’s degree or equivalent qualification plus a teaching qualification.
• Nine (9) years teaching experience of which three (3) years must be a management level.
• A valid driver’s license.
Below this follows paragraph 4, which starts with ‘Note’. This paragraph sets out that the application must be in a form Z83, which must be completed in full, original signed and dated by the applicant; it further says the application should be accompanied by recent updated C.V as well as certified copies of all qualifications and ID document. All the requirements listed in paragraph dealing with requirements are repeated under para 4 safe for a copy of a driver’s license. These documents must be attached to the application. The driver’s license is not mentioned in a list of documents of which copies should accompany the application. Was this done by design or as a result of an oversight? I go with the former. The reason is that collective Agreement No.1 of 2008 item 4.1.3 list the sifting criteria as follows:
a) A recognized three (3) year (REQV 13) qualification, which must include appropriate training as an educator,
b) Registration with the South African Council for Educators (SACE).
c) The minimum years of experience for appointment to the promotion post as outline in chapter B of the personnel Administration Measures.
d) Inclusion of certified copies of qualifications and statements of results.
37. Copies of driver’s license is mentioned nowhere for purposes of sifting out of applications. Furthermore, this Collective Agreement is binding on the Respondent. Furthermore, item 4.1.1-4.1.3 ensures that the process of sifting is not a mechanical one. Item 4.1.1 provides for the applicants to be informed of the receipt of their applications, item 4.1.2 provides for Respondent to clearly indicate whether the application is complete or not and item 4.1.3 indicates whether the applicant meets the minimum requirements for the post and that the applications have been referred to institution concerned. This process is line with the principles of transparency and fairness. It involves a process of engagements in case there was something wrong with an application such as for example, where a candidate may have submitted a document but for whatever reason is not on the form. It is common knowledge that documents gets lost along the conveyer belt and it cannot be that once that has happened it is over for an applicant. The above process in my view is intended to address such issues.
38. My view therefore is that the driver’s license is a requirement for the position but not a necessary criterion for sifting out. If that was the case, the advertisement shall have said so, as it did with other requirements. Furthermore, this view is supported by the fact that Collective Agreement No.1of 2008, which is binding to the Respondent, does not mention the driver’s license as a sifting criterion/requirement.
39. I therefore find that the driver’s license was a requirement that the applicant had to possess but need not have a copy thereof attached to the application and therefore not a requirement for sifting purpose. The applicant met all the requirements and therefore should have qualified for shortlisting and should have been interviewed.
40. The respondent’s witness Mr Nethengwe testified that he knew that the Applicant acted in the said position for thirty six (36) months. It is further common cause that he was allocated a state vehicle, and this could not have happened without a driver’s license. Furthermore, it remains undisputed that the Applicant had submitted a driver’s license during that period and it is on his official file. Item 7,5 of the Collective Agreement No 1 of 2008 offers the Applicant special protection in that having met minimum requirement of the post he must be included in the shortlisting. Had Mr Nethengwe applied his mind to this fact, he would not have acted like a robot in sifting-out the applications. He needed to have done more, especially in line with item 4 of the above Collective Agreement, which required him to inform the applicants of the status of the applications.
41. In determining an appropriate relief for the Applicant, I will take into account the prejudice that he has suffered because of the above unfair conduct of the Respondent, especially taking into account the fact that he acted in the position for 3 years. For him not to be shortlisted for reasons indicated above is an injustice the prejudice from which the Applicant may never recover.
AWARD
42. I find that the Respondent committed Unfair Labour Practice by not shortlisting the Applicant.
43. I order the Respondent to pay to the Applicant compensation in the sum of
R657, 879, 00 being an equivalent of 12 months’ salary he would have received, had he been appointed.
44. I order that the above amount be paid on or before the 30th April 2021.
Panelist: M P Shai
17 March 2021
Text