ELRC462-20/21KZN
Text
Award Date:
15 August 2021
Text
Panellist: V Naidoo
Case No.: ELRC462-20/21KZN
Date of Award: 15 August 2021
In the matter between:
NAPTOSA obo Ramraj G
Applicant
and
Department of Education - KZN
First Respondent
V Gosai
Second Respondent
Union/Applicants’ representative: Mr R Jugeth of NAPTOSA
First Respondent’s representative: Mr I Makhoee
Second Respondent’s representative: Ms D Pillay of SADTU
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an arbitration award in respect of an unfair labour practice dispute relating to promotion between NAPTOSA obo G Ramraj, the Applicant, and Department of Education - KZN, the Respondent.
2. The hearing was held on 19 March 2021; 21 April 2021 and 25 May 2021. The proceedings were conducted in English, recorded electronically and heads of arguments were submitted on paper.
ISSUE TO BE DECIDED
3. The issue to be decided is whether the First Respondent had committed an unfair labour practice relating to promotion by not promoting Applicant to the position of Department Head at Allingham Primary. The specific issues in dispute are whether the Applicant was the most suitable candidate for the post and whether the Second Respondent was not the best candidate for the position. If I find in favour of Applicant, I am required to decide on an appropriate remedy.
BACKGROUND TO THE DISPUTE
4. It is common cause that both Applicant and Second Respondent were employed by Respondent and both applied for the post of Department Head for Foundation Phase (post no 61 in HRM Bulletin 13 of 2020).
5. It is common cause that Applicant was short-listed and interviewed for the post. It is common cause that Second Respondent scored the highest with a score of 32.98 and Applicant was ranked second with a score of 28. The Second Respondent was appointed on the 28 October 2020.
SUMMARY OF THE EVIDENCE AND ARGUMENT
6. In terms of section 138(7) (a) of the Labour Relations Act no. 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the evidence and arguments led. What follows is a summary of the arguments relevant to my findings only.
Applicant’s Case
7. The Applicant testified to her qualifications and career at Allingham Primary. She specialised in Foundation Phase and was at the school since 1995. Second Respondent however was there since 2007/8 and was predominantly a Grade R educator.
8. The Applicant testified that she had mentored other educators and testified to her various administrative roles and her role as Acting Department Head. She confirmed the identity of the Interview Panel and that the Principal, Mr AD Pillay was the Resource Person.
9. The Applicant was of the view that Second Respondent had no managerial experience and did not possess a similar knowledge base.
10. Under cross-examination by the First Respondent, the Applicant was uncertain of whether Grade R fell within Foundation Phase or not. She maintained however that the Second Respondent has no knowledge of curriculum needs or necessary managerial skills.
11. Cross-examination by Second Respondent took the matter no further.
12. The Applicant was unaware of specific leaderships roles held by the Second Respondent in the ECD Cluster of many schools. She conceded that she was aware of fund-raising activities and events organized by the Second Respondent.
First Respondent’s Case
13. Mr AD Pillay (“Pillay”) testified for the First Respondent as the Principal of the School and the Resource Person for the interview process. He testified that he was trained and experienced in the role of a Resource Person. He confirmed the process undertaken in the sifting of CVs and if the application does not meet the minimum requirements, the application is rejected at the Circuit Office.
14. The Second Respondent met the minimum requirements and was therefore short-listed to be interviewed. The process was correctly followed and the scoring of candidates was consistent.
15. Under cross-examination by the Second Respondent, Pillay confirmed that every CV was read and scored. The top 5 or 6 were then interviewed. There were two union observers and the criterion used was in line with Department requirements.
16. Under cross-examination by the Applicant, Pillay disputed that Second Respondent had no managerial experience and cited her roles working with the subject advisor for approximately 30 schools and the co-ordinating of various functions and activities. He went through her application and added that if the scoring was incorrect, both union representatives would not have signed it off.
17. In re-examination, Pillay confirmed that the basis of the short-listing was the CV of the applicants’ for the post. The recommendation was done on the interview process and how each applicant responded to the questions.
18. The Second Respondent called NAPTOSA representative, Natalie Moonsamy (”Moonsamy”) as their witness. She was an observer for the process. She testified that the Interview Committee felt that Applicant’s responses to the interview questions were not in keeping with the questions posted. The process was fair and consistent.
19. Under cross-examination by the Applicant, Moonsamy confirmed that the Second Respondent came across better at the interviews and the Applicant left out some information that impacted her scoring.
20. The Applicant maintained that she was the best candidate for the post and sought that the process be redone from the short-listing phase.
21. The First Respondent argued that the process was fair and that the Applicant failed to present a persuasive case.
SURVEY OF AND ARGUMENT
22. Section 186(2)(a) of the LRA protects employees from any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer relating to promotion, demotion etc. There must be a higher post for which the employee applied than the post the employee occupied. Dissatisfaction or a general perception of unfairness is not sufficient. Whether the employer has committed an unfair labour practice is an objective, factual enquiry.
23. In Arries v CCMA & Others (2006) 27 ILJ 2324 (LC) the Labour Court made the following remarks:
• The decision-making powers inherent in the exercising of a discretion by a party or managerial prerogative, of an employer, ought not to be curtailed;
• It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.
24. In City of Cape Town v SA Municipal Workers Union obo Sylvester & Others (2013) 34 ILJ 1156 (LC) the Labour Court held that when arbitrators make an assessment about whether the failure to promote constitutes an unfair labour practice, the test is one of fairness, taking into account inter alia the following:
• Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer;
• Whether the employer’s decision was arbitrary, or capricious, or unfair;
• Whether the employer failed to apply its mind to the promotion of the employee;
• Whether the employer’s decision not to promote was motivated by bad faith;
• Whether the employer’s decision not to promote was discriminatory;
• Whether there was insubstantial reasons for the employer’s decision not to promote;
• Whether the employer’s decision not to promote was based upon a wrong principle; or
• Whether the employer’s decision not to promote was taken in a biased manner.
25. I note in this matter, that the Applicant is confident that she was the best candidate for the post however, there was no evidence presented to substantiate those assertions. There was no evidence presented to suggest that the First Respondent had conducted itself in any manner that would be deemed unfair with reference to the considerations in the City of Cape Town case referred to above.
26. The witness testimony that the process was fairly undertaken and that the candidates were all scored consistently was not disputed by Applicant.
27. After consideration for all of the evidence placed before me, the Applicant has failed to discharge the onus of proving an unfair labour practice on a balance of probabilities and it would be outside of my powers and indeed inappropriate to interfere in the decision-making of First Respondent.
AWARD
28. The First Respondent, the Department of Education – KZN, did not commit an unfair labour practice against Applicant, Ms G Ramraj.
29. The Applicant’s dispute referral is dismissed and the Second Respondent, V. Gosai, is confirmed in the position.
Dated at Durban on this the 15th day of August 2021.
______________________
ELRC Panellist
Vashnee Naidoo
Case No.: ELRC462-20/21KZN
Date of Award: 15 August 2021
In the matter between:
NAPTOSA obo Ramraj G
Applicant
and
Department of Education - KZN
First Respondent
V Gosai
Second Respondent
Union/Applicants’ representative: Mr R Jugeth of NAPTOSA
First Respondent’s representative: Mr I Makhoee
Second Respondent’s representative: Ms D Pillay of SADTU
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an arbitration award in respect of an unfair labour practice dispute relating to promotion between NAPTOSA obo G Ramraj, the Applicant, and Department of Education - KZN, the Respondent.
2. The hearing was held on 19 March 2021; 21 April 2021 and 25 May 2021. The proceedings were conducted in English, recorded electronically and heads of arguments were submitted on paper.
ISSUE TO BE DECIDED
3. The issue to be decided is whether the First Respondent had committed an unfair labour practice relating to promotion by not promoting Applicant to the position of Department Head at Allingham Primary. The specific issues in dispute are whether the Applicant was the most suitable candidate for the post and whether the Second Respondent was not the best candidate for the position. If I find in favour of Applicant, I am required to decide on an appropriate remedy.
BACKGROUND TO THE DISPUTE
4. It is common cause that both Applicant and Second Respondent were employed by Respondent and both applied for the post of Department Head for Foundation Phase (post no 61 in HRM Bulletin 13 of 2020).
5. It is common cause that Applicant was short-listed and interviewed for the post. It is common cause that Second Respondent scored the highest with a score of 32.98 and Applicant was ranked second with a score of 28. The Second Respondent was appointed on the 28 October 2020.
SUMMARY OF THE EVIDENCE AND ARGUMENT
6. In terms of section 138(7) (a) of the Labour Relations Act no. 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the evidence and arguments led. What follows is a summary of the arguments relevant to my findings only.
Applicant’s Case
7. The Applicant testified to her qualifications and career at Allingham Primary. She specialised in Foundation Phase and was at the school since 1995. Second Respondent however was there since 2007/8 and was predominantly a Grade R educator.
8. The Applicant testified that she had mentored other educators and testified to her various administrative roles and her role as Acting Department Head. She confirmed the identity of the Interview Panel and that the Principal, Mr AD Pillay was the Resource Person.
9. The Applicant was of the view that Second Respondent had no managerial experience and did not possess a similar knowledge base.
10. Under cross-examination by the First Respondent, the Applicant was uncertain of whether Grade R fell within Foundation Phase or not. She maintained however that the Second Respondent has no knowledge of curriculum needs or necessary managerial skills.
11. Cross-examination by Second Respondent took the matter no further.
12. The Applicant was unaware of specific leaderships roles held by the Second Respondent in the ECD Cluster of many schools. She conceded that she was aware of fund-raising activities and events organized by the Second Respondent.
First Respondent’s Case
13. Mr AD Pillay (“Pillay”) testified for the First Respondent as the Principal of the School and the Resource Person for the interview process. He testified that he was trained and experienced in the role of a Resource Person. He confirmed the process undertaken in the sifting of CVs and if the application does not meet the minimum requirements, the application is rejected at the Circuit Office.
14. The Second Respondent met the minimum requirements and was therefore short-listed to be interviewed. The process was correctly followed and the scoring of candidates was consistent.
15. Under cross-examination by the Second Respondent, Pillay confirmed that every CV was read and scored. The top 5 or 6 were then interviewed. There were two union observers and the criterion used was in line with Department requirements.
16. Under cross-examination by the Applicant, Pillay disputed that Second Respondent had no managerial experience and cited her roles working with the subject advisor for approximately 30 schools and the co-ordinating of various functions and activities. He went through her application and added that if the scoring was incorrect, both union representatives would not have signed it off.
17. In re-examination, Pillay confirmed that the basis of the short-listing was the CV of the applicants’ for the post. The recommendation was done on the interview process and how each applicant responded to the questions.
18. The Second Respondent called NAPTOSA representative, Natalie Moonsamy (”Moonsamy”) as their witness. She was an observer for the process. She testified that the Interview Committee felt that Applicant’s responses to the interview questions were not in keeping with the questions posted. The process was fair and consistent.
19. Under cross-examination by the Applicant, Moonsamy confirmed that the Second Respondent came across better at the interviews and the Applicant left out some information that impacted her scoring.
20. The Applicant maintained that she was the best candidate for the post and sought that the process be redone from the short-listing phase.
21. The First Respondent argued that the process was fair and that the Applicant failed to present a persuasive case.
SURVEY OF AND ARGUMENT
22. Section 186(2)(a) of the LRA protects employees from any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer relating to promotion, demotion etc. There must be a higher post for which the employee applied than the post the employee occupied. Dissatisfaction or a general perception of unfairness is not sufficient. Whether the employer has committed an unfair labour practice is an objective, factual enquiry.
23. In Arries v CCMA & Others (2006) 27 ILJ 2324 (LC) the Labour Court made the following remarks:
• The decision-making powers inherent in the exercising of a discretion by a party or managerial prerogative, of an employer, ought not to be curtailed;
• It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.
24. In City of Cape Town v SA Municipal Workers Union obo Sylvester & Others (2013) 34 ILJ 1156 (LC) the Labour Court held that when arbitrators make an assessment about whether the failure to promote constitutes an unfair labour practice, the test is one of fairness, taking into account inter alia the following:
• Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer;
• Whether the employer’s decision was arbitrary, or capricious, or unfair;
• Whether the employer failed to apply its mind to the promotion of the employee;
• Whether the employer’s decision not to promote was motivated by bad faith;
• Whether the employer’s decision not to promote was discriminatory;
• Whether there was insubstantial reasons for the employer’s decision not to promote;
• Whether the employer’s decision not to promote was based upon a wrong principle; or
• Whether the employer’s decision not to promote was taken in a biased manner.
25. I note in this matter, that the Applicant is confident that she was the best candidate for the post however, there was no evidence presented to substantiate those assertions. There was no evidence presented to suggest that the First Respondent had conducted itself in any manner that would be deemed unfair with reference to the considerations in the City of Cape Town case referred to above.
26. The witness testimony that the process was fairly undertaken and that the candidates were all scored consistently was not disputed by Applicant.
27. After consideration for all of the evidence placed before me, the Applicant has failed to discharge the onus of proving an unfair labour practice on a balance of probabilities and it would be outside of my powers and indeed inappropriate to interfere in the decision-making of First Respondent.
AWARD
28. The First Respondent, the Department of Education – KZN, did not commit an unfair labour practice against Applicant, Ms G Ramraj.
29. The Applicant’s dispute referral is dismissed and the Second Respondent, V. Gosai, is confirmed in the position.
Dated at Durban on this the 15th day of August 2021.
______________________
ELRC Panellist
Vashnee Naidoo
ELRC 302 -20 /21 NW
Text