ELRC644-20/21 EC
Text
ELRC187-21/22WC
Award Date:
04 March 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC187-21/22WC
In the Arbitration matter between:
Henry Nathan Rudolph Marais Applicant
and
Western Cape Education Department Respondent
ARBITRATION AWARD
Venue of arbitration: Online (Via Zoom)
Date: 8 November 2021, 19 November 2021 and 8 February 2022
Parties present:
Arbitrator: Marlon Plaatjies
Applicant’s Representative: Mr. R. Baard (SAOU Official)
Applicant: Henry Nathan Rudolph Marais
Respondent’s Representative: Mr. M. Muller (Labour Relations Officer)
DETAILS OF HEARING AND REPRESENTATION
[1] An arbitration hearing was conducted on 8 November 2021, 19 November 2021 and 8 February 2022. The arbitration hearing was conducted in terms of section 191(1) [191(5)(a)] of the Labour Relations Act, 66 of 1995 (the LRA), as amended, and finalized on the 8 February 2022.
[2] The Applicant, Henry Nathan Rudolph Marais, was represented by Mr. R. Baard from SAOU, a registered trade union. The Respondent, Western Cape Education Department was represented by Mr. M. Muller, the Respondent’s Labour Relations Officer.
[3] The proceedings were conducted in English and were manually and digitally recorded. Interpretation services were not required.
ISSUE TO BE DECIDED
[4] I have to determine whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA.
[5] The Applicant sought to be compensated in the event that I find in his favour.
Common cause issues
[6] The following were regarded as common cause between the parties:
a) The Applicant was employed as an educator, level one (1) and was teaching Intermediate phase (Grade 6);
b) His date of appointment was on 1 July 2009;
c) The Applicant earned a salary of R320 271.00 per annum;
d) The had a post graduate certificate in education (PGCE), which was more suited for a high school education, Further Education and Training (FET) band;
BACKROUND
[7] The Applicant referred an alleged unfair labour practice dispute in terms of section 186(2) of the LRA. The arbitration proceedings were conducted over (three) 3 days. Both parties submitted their heads of argument in writing on or before 14 February 2022.
SURVEY OF EVIDENCE AND ARGUMENT
[8] The Applicant bore the onus to prove that the Respondent committed an unfair labour practice. All relevant testimony was duly considered, but I only summarize the evidence relevant to my decision in terms of this award (Section 138 of the LRA).
THE APPLICANT’S EVIDENCE AND ARGUMENTS
[9] The Applicant submitted a bundle of documents consisting of 42 pages, numbered from page 1 to 42, which I admitted as Bundle “A” (hereinafter referred to as “R”).
Pages 1 to 40 was submitted on 8 November 2021 and pages 41 to 42 was submitted on 19 November 2021.
Mr. Henry Nathan Rudolph Marais (the Applicant) testified under oath as follows:
[10] He was acting in the position (Departmental Head – Intermediate Phase) for a few times (on a few occasions). The position became vacant in 2019 when the Departmental Head retired. The position was advertised and he applied, as he thought he was a suitable candidate as per the advertisement. He attended an interview during 2019. He did not receive any feedback. He received an e-mail from “e-recruitment” stating that the position would be re-advertised.
[11] There was a member of the School Governing Body (SGB) who informed him that he was the only person nominated by the SGB for appointment to the post and to be interviewed for the position. He did not want to mention the name of the SGB member who told him that as her preferred to keep the name a secret.
[12] The position was re-advertised during 2020 and the closing date for application was during February 2021. Vacancy list 1 of 2021 was published in 2020. He again applied for the position in 2020. He did not receive any information from the school regarding the post. Around May / June 2021 the newly established SGB stated that the recruitment process had to be started.
[13] He received an e-mail from Mr. Wyngaard (Deputy Director: Recruitment and Selection) dated 24 May 2021, informing him that he would not be able to get a promotion in a primary school (page 7 of “A”).
[14] The e-mail stated the following:
“In order to be appointed or promoted to a post an educator has to be suitably qualified for the phase/subjects of the relevant post. Experience in wrong phase not taken into account. For example, if you apply for a post or promotion in the Intermediate Phase you must have an Intermediate Phase qualification which is a BED in Intermediate Phase or have a 120 credit specialization in the relevant phase (See explanation below)
These requirements is captured in the following National prescripts and gazette Policy on the Minimum Requirements for Teacher Education Qualifications (MR TEQ); Govt Gazette 38487 dated 17 February 2015 (Extract of Intermediate Phase Requirement attached) National Education Policy on Recognition and Evaluation of Qualifications for Employment in Education( Extract attached) It seems as if this educator has a Degree and PGCE in the Further Education and Training (FET) and is thus qualified to teach or be promoted in the FET Phase (Grade I -12). In order to be promoted in the Intermediate phase the educator should do a 120 credit qualification in Intermediate phase (which could be an Advanced Certificate, Advanced Diploma, Honors etc). See extract of Section 13, Qualifications and Programmes for Continuing Professional Development; These qualifications is (are) offered by the WCED's Cape Teaching and Learning lnstitute (CTLI).
Full Bursary is given to permanent educators. It is noted that the educator indicates that he/she was appointed in the Intermediate Phase in 2009 by the WCED despite having an FET qualification. Yes, this could have happened or there was also cases where Principals moved educators to phases for which they are not qualified. The WCED is now ensuring that educators are appointed /promoted to the right phases in order to promote quality education and to be in line with the National policies and Prescripts. Experience in the wrong phase will not be taken into account for appointment /promotion. You have to be suitably qualified in the relevant phase.”
[15] He stated that all his experience had been gained in the intermediate phase, which was from grade 4 to grade 6. He had been teaching in the intermediate phase and he was suitably qualified as he was able to do the work. He was qualified to teach at a primary school based on his experience and the training, as well as workshops he attended. He was never made aware of the fact that the Western Cape Education Department (WCED) was ensuring that educators were appointed or promoted to the right phases in order to promote quality education, and in order to be in line with the national policies and prescripts, as stated by Mr. Wyngaard in the email. If he would have been made aware of that, he would not have applied for the position.
[16] He acted in the position during 2019, 2020 and 2021. He was still acting in the position and nobody had been appointed. He referred to pages 24 to 31 of “A” as the “Preface to the vacancy list 3 of 2019.” Point 5.6.3 on page 28 stated the following: “Please also note that applicants not qualified in a specific phase/learning area/subject(s) as per advertised post will not be appointed/promoted to such posts.” [It must be noted for the record that Preface to the vacancy list 1 of 2021 stated the same]. He stated that he had been acting in the position for so long and he had an expectation to be appointed.
During cross-examination
[17] It was put to him that he had to have the specific qualification for the post in order to be promoted. He disagreed and stated that the requirement for the position was wrong (incorrect). He stated that experience had to count for something and should be considered. All his experience in teaching was within the intermediate phase. It was put to him that he did not have the correct qualification to be promoted. He needed to have the specific qualification for the phase, which would be a B-ED qualification in the intermediate Phase, or 120 credits specialization in the relevant phase. He disagreed and stated that he was already teaching in the intermediate phase.
[18] He agreed that he only acted periodically, meaning that he only acted 3 months at a time (page 42 of “A”). He agreed that he was not the only person acting in the position, as other educators were also afforded the opportunity to act. Page 42 of “A” stated that applications were received from three applicants for the acting position and different people would be afforded the opportunity to act in order to gain experience in the position.
[19] He was referred to page 12 of “A” as the post advertisement. It was put to him that the advertisement stated that the Departmental Head would be dealing with Technology as a subject and he was not qualified to teach Technology as a subject. He disagreed and stated that a teacher would teach the subject. He was asked whether he agreed that the Departmental Head must be qualified to teach Technology in order to oversee the teacher who had to teach the subject. He responded in the negative. He agreed that nothing prevented him from doing a course which would qualify him to teach in the intermediate phase.
[20] He was referred to pages 28 to 46 as Collective agreement concluded in the ELRC on 27 August 2016. It was put to him that he did not have a right to be promoted, even if he met the minimum requirements for the advertised post in terms of experience. He responded in the positive. It was put to him that nothing prevented him to again apply for the post, as the post was again advertised under vacancy list 1 of 2021. He stated that he was aware of that, but the email from Wyngaard stated that he would not be considered for that post.
[21] He was referred to item 37 on page 39 (Collective agreement) which stated the following: “There is no general right to promotion. What employees do have, is a right to be fairly considered for promotion when a vacancy arises. It is however expected that the employer should appoint the best candidate when selecting candidates for promotion. This expectation is subject to the employer’s right to appoint a weaker candidate in the name of affirmative action in order to address imbalances of the past.”
[22] It was put to him that he was fairly considered for that post during 2019, as he was shortlisted and interviewed. He agreed and stated that he was interviewed by the SGB. He agreed that item 39 stated that it was a managerial prerogative of the employer to promote or not. He was referred to item 44 which stated: “The mere fact that an employee is already acting in a post, does not give him or her an automatic right to a promotion when a position becomes available.” He stated that he was the only person invited for the interviews during 2019 and he was also the only person nominated for the position.
[23] He agreed that an appointment to the post had not been finalized. He was asked how he could ask for relief from the Council for a post that had not been finalized. He stated that the e-mail from Wyngaard stated that he would not be considered for promotion. It was put to him that nothing in the email was unfair or arbitrary, because he did not meet the requirements. He stated that the WCED documents stated that experience was not a requirement. He agreed that the WCED through the Head of Education decided who should be appointed through her/his delegated authority and that Wyngaard did not influence appointments.
THE RESPONDENT’S EVIDENCE AND ARGUMENTS
[24] The Respondent submitted a bundle of documents consisting of 88 pages, numbered from page 1 to 88, which I admitted as Bundle “R” (hereinafter referred to as “R”).
Pages 1 to 46 was submitted on 8 November 2021 and pages 47 to 88 was submitted on 19 November 2021.
Mr. Harry Wyngaard testified under oath as follows:
[25] He was employed as the Deputy Director: Recruitment and Selection for
approximately fifteen (15) years. It was important for an educator to have the relevant qualification for the phase. If an educator had a FET qualification, he/she could not expect to be promoted. The fact that the Applicant acted in the post, did not qualify him to be promoted. If there was nobody suitably qualified to act in a post, they would allow people who were not suitably qualified to act for a specific period.
During cross-examination
[26] He stated that the Applicant was not suitably qualified. He had a qualification to teach at a high school and Intermediate phase was primary school (grade 4 to 6). Since 2016 they were checking on every appointment to ensure that an educator is suitably qualified to be appointed in a phase. He did not know what happened in terms of the Applicant being appointed as an educator in the Intermediate phase in 2009. The experience of the Applicant did not provide him with the required qualification.
[27] The Applicant was recommended by the SGB during 2019. SGB only made recommendation and the Head of the Department or his authority would decide on the appointment. His email to the Applicant was an email in general, whereby he stated that should he apply for position (promotion) in the intermediate phase, he would not be considered, as he did not have the qualification.
[28] The Department was busy correcting the wrongs of the past and was now consistent. That was why he stated in the e-mail that the Applicant would not be promoted to a post for which he did not qualify for appointment. He was not qualified to be promoted in the Intermediate phase, but he was suitably qualified to be promoted in the FET phase. The SGB and the Principal appointed people in acting positions and not the WCED. When the WECD received the forms, a person would already be appointed to act in a position. It was put to him that the WCED already deemed the Applicant fit for appointment, even if he was not suitably qualified. He responded in the negative.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
[29] In this matter, the Applicant bears the onus to prove that the Respondent committed an unfair labour practice. The Applicant is claiming that he was treated unfairly as he was not considered for promotion to the position of Departmental Head at Liebenberg Primary School.
[30] The Applicant’s case is that he was suitably qualified to compete for the Departmental Head position, as he had experience in teaching in the intermediate phase and that his experience should count for something. His version is that he had been acting in the position and therefore there was a reasonable expectation created that he would be appointed to the position. His evidence is that he was not provided with an opportunity to compete for the position, based on the email of Wyngaard, who stated that he could not be promoted to the post, as he did not have the required qualification within the intermediate phase.
[31] When considering the evidence presented at the arbitration, I find that the Applicant failed to prove that the Respondent committed an unfair labour practice. My reasons are based on the following:
31.1 The email was sent by Wyngaard and the Applicant agreed during cross-examination that Wyngaard did not have the authority to influence appointments of candidates, but that the authority lied with the Head of Education through his/her delegated authority. He agreed that the post was re-advertised, but stated that the email from Wyngaard stated that he would not be considered for that post. His reason for not re-applying for the position was based on the email from Wyngaard. In IMATU obo Visagie v Mogale City Municipality (JR 86/15) [2017] ZALCJHB 432 (handed down on 20 November 2017) it was held that the law requires the Employee to show the existence of the conduct or decision complained of. Therefore, the onus rests with the Employee. It follows that if the Employee is challenging the process and that decision or conduct by the Employer is not established by the Employee, then that is the end of the matter. Surely, somebody who did not have authority, could not be seen to be making decisions on behalf of the employer.
31.2 In Swarts v National Commissioner South African Police Services and others (D 915/13) 2015 ZALCD 7 (handed down on 20 January 2015) the Court held that when considering an unfair labour practice dispute concerning promotion is not enough for the candidate to meet the minimum requirements required for the job. The question is whether the candidate meets the inherent requirements of the post. In this case the Commissioner had failed to consider that the successful candidate did not meet the requirements for the post and should never have been shortlisted. What should be noted from this case is that it places emphasis on the fact that an applicant must meet the inherent requirements for the position.
31.3 The Applicants evidence in the current matter that he qualifies for appointment based on the fact that her was working as a teacher in the intermediary phase and that he was acting in the Departmental Head position. In De Nysschen v GPSSBC and others (2007) 28 ILJ 375 (LC) the Court held that although the incumbent does not enjoy a right to automatic promotion in an upgraded post, the discretion not to promote should be exercised in a way which does not constitute an unfair labour practice and does not fall foul of the balanced approach called for by the Constitution, which provides for a balanced approach. On the one hand, fair labour practices and affirmative action must be observed. On the other hand, effectiveness, efficiency, high ethical standards and progressive human resource policies are crucial and the question at hand had to be interpreted in that context. To determine whether the discretion is fairly exercised will always depend on the facts of the matter.
31.4 The advertisement for the position clearly indicated that the Departmental Head
would deal with Technology as a subject. The Applicant agreed that he did not have technology as a subject as he stated that it would be thought by the teacher. I have to agree with the Respondent in that if Technology would be part of the subjects to be dealt with by the Departmental Head, he/she must possess the required qualification in order to manage the teacher in respect of the success of the specific subject. It would be unfair to expect a person to manage a subject that he himself did not have the required qualification or knowledge for managing it. The preface to the vacancy lists stated that applicants not qualified in a specific phase/learning area/subject(s) as per advertised post will not be appointed/promoted to such posts.
31.5 In Head of the Department of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC) a school Principal was overlooked for promotion because another candidate was appointed after the position was advertised and a competitive selection process was followed. The Court held that the Commissioner had reasoned that the first Respondent had a preferential right to be appointed to the post because he had been promised appointment by a member of the school’s Governing Body. However, the Commissioner had paid no regard to the facts that the Department retained discretion to advertise the post if it wished to do so, and in the circumstances was obliged to do so. The Commissioner had erred by holding that the Department was estopped from denying a promise by a Member of the Governing Body that the third Respondent would be appointed to the post. The Governing Body could not override the provisions of the binding prescripts which required the Department to advertise the post and to follow a competitive interview process.
31.6 The Applicant’s case is that a member of the SGB had informed him that he was the only person nominated by the SGB for appointment to the post and to be interviewed for the position during 2019. He did not want to mention the name of the SGB member who told him that as he preferred to keep the name a secret. The Applicant’s evidence in this regard should not stand. There is no evidence that the person who allegedly mentioned this to the Applicant, acted formally on behalf of the SGB when mentioning that. Also, the SGB may recommend, but did not have the final say in the appointment to the position. What is evident from the Applicant’s evidence in respect of the 2019 application, is that he was afforded a fair opportunity to compete for the position. Item 37 on page 39 of the Collective agreement concluded in the ELRC during 2016 states that there is no general right to promotion and what employees do have, is a right to be fairly considered for promotion when a vacancy arises.
31.7 In Malatji v City of Tshwane Metropolitan Municipality and others (JR 654/17) [2019] ZALCJHB 300 (handed down on 7 November 2019) the Court held that it is trite that a promotion for the purposes of section 186(2)(a) involves a move by an existing Employee to a higher rank or position that carries greater status, responsibility and authority. The Court held considering the requirements outlined in the advertisement for the position and the Applicant’s qualifications, it is apparent that the Applicant did not establish that he was entitled to be shortlisted and to be appointed for the position as he failed to show that he possessed a tertiary related qualification in policing and had the minimum of 8 years applicable experience in policing at senior management level. It follows that the Municipality’s conduct was not unfair. There is therefore, no merit to the Applicant’s contention that the arbitrator misconstrued the nature of the dispute and the evidence before him.
31.8 In Mogale City Local Municipality v IMATU obo Visagie and others (JR 86/15) [2017] ZALCJHB 432 (handed down on 20 November 2017) the Court emphasized the notion that candidates who do not possess the qualifications required for a position as set out in advertisement cannot expect to be appointed or promoted merely on the ground that they have experience.
31.9 One of the requirements of the position, in terms of the advertisement, was that the
Departmental Head would deal with Technology as a subject. The Applicant agreed that he did not have technology as a subject as he stated that it would be thought by the teacher (reporting to the Departmental Head). I have to agree with the Respondent in that if Technology would be part of the subjects to be dealt with by the Departmental Head, he/she must possess the required qualification in order to manage the specific subject. It would be unfair to expect a person to manage a subject that he himself did not have the required qualification or knowledge of.
31.10 The evidence place before me is that the Applicant does not have the required
qualification in order to be promoted to the position. The Applicant in his evidence even stated that the requirements for the position was wrong. It is not for the Applicant to set requirements for a position, but for the Department of Education. The uncontested evidence of the Respondent suggest that Wyngaard did not have the authority to appoint people to positions. Even if he had the authority to do such, it could not be said that his email amounted to an unfair labour practice, as his email only emphasized what the inherent requirements for the position was and that a person could not be appointed to the position if that person did not possess the inherent requirements for the position.
31.11 The Applicant himself testified that he would not have applied for the position (in 2019) if he knew that the Western Cape Education Department (WCED) was ensuring that educators were appointed or promoted to the right phases in order to promote quality education, and in order to be in line with the national policies and prescripts.
[32] The Applicant did not discharge the onus of proof to prove that the Respondent committed an unfair labour practice and I therefore find that the Respondent did not commit an unfair labour practice in terms of section 186(2) of the LRA.
AWARD
[33] The Respondent, Western Cape Education Department did not commit an unfair labour practice in terms of section 186(2) of the LRA.
[34] The claim of the Applicant, Henry Nathan Rudolph Marais for relief is accordingly dismissed.
[35] ELRC Case management is directed to close the file.
Signature:
Commissioner: Marlon Plaatjies
Date: 04 March 2022 Place: George
Case No ELRC187-21/22WC
In the Arbitration matter between:
Henry Nathan Rudolph Marais Applicant
and
Western Cape Education Department Respondent
ARBITRATION AWARD
Venue of arbitration: Online (Via Zoom)
Date: 8 November 2021, 19 November 2021 and 8 February 2022
Parties present:
Arbitrator: Marlon Plaatjies
Applicant’s Representative: Mr. R. Baard (SAOU Official)
Applicant: Henry Nathan Rudolph Marais
Respondent’s Representative: Mr. M. Muller (Labour Relations Officer)
DETAILS OF HEARING AND REPRESENTATION
[1] An arbitration hearing was conducted on 8 November 2021, 19 November 2021 and 8 February 2022. The arbitration hearing was conducted in terms of section 191(1) [191(5)(a)] of the Labour Relations Act, 66 of 1995 (the LRA), as amended, and finalized on the 8 February 2022.
[2] The Applicant, Henry Nathan Rudolph Marais, was represented by Mr. R. Baard from SAOU, a registered trade union. The Respondent, Western Cape Education Department was represented by Mr. M. Muller, the Respondent’s Labour Relations Officer.
[3] The proceedings were conducted in English and were manually and digitally recorded. Interpretation services were not required.
ISSUE TO BE DECIDED
[4] I have to determine whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA.
[5] The Applicant sought to be compensated in the event that I find in his favour.
Common cause issues
[6] The following were regarded as common cause between the parties:
a) The Applicant was employed as an educator, level one (1) and was teaching Intermediate phase (Grade 6);
b) His date of appointment was on 1 July 2009;
c) The Applicant earned a salary of R320 271.00 per annum;
d) The had a post graduate certificate in education (PGCE), which was more suited for a high school education, Further Education and Training (FET) band;
BACKROUND
[7] The Applicant referred an alleged unfair labour practice dispute in terms of section 186(2) of the LRA. The arbitration proceedings were conducted over (three) 3 days. Both parties submitted their heads of argument in writing on or before 14 February 2022.
SURVEY OF EVIDENCE AND ARGUMENT
[8] The Applicant bore the onus to prove that the Respondent committed an unfair labour practice. All relevant testimony was duly considered, but I only summarize the evidence relevant to my decision in terms of this award (Section 138 of the LRA).
THE APPLICANT’S EVIDENCE AND ARGUMENTS
[9] The Applicant submitted a bundle of documents consisting of 42 pages, numbered from page 1 to 42, which I admitted as Bundle “A” (hereinafter referred to as “R”).
Pages 1 to 40 was submitted on 8 November 2021 and pages 41 to 42 was submitted on 19 November 2021.
Mr. Henry Nathan Rudolph Marais (the Applicant) testified under oath as follows:
[10] He was acting in the position (Departmental Head – Intermediate Phase) for a few times (on a few occasions). The position became vacant in 2019 when the Departmental Head retired. The position was advertised and he applied, as he thought he was a suitable candidate as per the advertisement. He attended an interview during 2019. He did not receive any feedback. He received an e-mail from “e-recruitment” stating that the position would be re-advertised.
[11] There was a member of the School Governing Body (SGB) who informed him that he was the only person nominated by the SGB for appointment to the post and to be interviewed for the position. He did not want to mention the name of the SGB member who told him that as her preferred to keep the name a secret.
[12] The position was re-advertised during 2020 and the closing date for application was during February 2021. Vacancy list 1 of 2021 was published in 2020. He again applied for the position in 2020. He did not receive any information from the school regarding the post. Around May / June 2021 the newly established SGB stated that the recruitment process had to be started.
[13] He received an e-mail from Mr. Wyngaard (Deputy Director: Recruitment and Selection) dated 24 May 2021, informing him that he would not be able to get a promotion in a primary school (page 7 of “A”).
[14] The e-mail stated the following:
“In order to be appointed or promoted to a post an educator has to be suitably qualified for the phase/subjects of the relevant post. Experience in wrong phase not taken into account. For example, if you apply for a post or promotion in the Intermediate Phase you must have an Intermediate Phase qualification which is a BED in Intermediate Phase or have a 120 credit specialization in the relevant phase (See explanation below)
These requirements is captured in the following National prescripts and gazette Policy on the Minimum Requirements for Teacher Education Qualifications (MR TEQ); Govt Gazette 38487 dated 17 February 2015 (Extract of Intermediate Phase Requirement attached) National Education Policy on Recognition and Evaluation of Qualifications for Employment in Education( Extract attached) It seems as if this educator has a Degree and PGCE in the Further Education and Training (FET) and is thus qualified to teach or be promoted in the FET Phase (Grade I -12). In order to be promoted in the Intermediate phase the educator should do a 120 credit qualification in Intermediate phase (which could be an Advanced Certificate, Advanced Diploma, Honors etc). See extract of Section 13, Qualifications and Programmes for Continuing Professional Development; These qualifications is (are) offered by the WCED's Cape Teaching and Learning lnstitute (CTLI).
Full Bursary is given to permanent educators. It is noted that the educator indicates that he/she was appointed in the Intermediate Phase in 2009 by the WCED despite having an FET qualification. Yes, this could have happened or there was also cases where Principals moved educators to phases for which they are not qualified. The WCED is now ensuring that educators are appointed /promoted to the right phases in order to promote quality education and to be in line with the National policies and Prescripts. Experience in the wrong phase will not be taken into account for appointment /promotion. You have to be suitably qualified in the relevant phase.”
[15] He stated that all his experience had been gained in the intermediate phase, which was from grade 4 to grade 6. He had been teaching in the intermediate phase and he was suitably qualified as he was able to do the work. He was qualified to teach at a primary school based on his experience and the training, as well as workshops he attended. He was never made aware of the fact that the Western Cape Education Department (WCED) was ensuring that educators were appointed or promoted to the right phases in order to promote quality education, and in order to be in line with the national policies and prescripts, as stated by Mr. Wyngaard in the email. If he would have been made aware of that, he would not have applied for the position.
[16] He acted in the position during 2019, 2020 and 2021. He was still acting in the position and nobody had been appointed. He referred to pages 24 to 31 of “A” as the “Preface to the vacancy list 3 of 2019.” Point 5.6.3 on page 28 stated the following: “Please also note that applicants not qualified in a specific phase/learning area/subject(s) as per advertised post will not be appointed/promoted to such posts.” [It must be noted for the record that Preface to the vacancy list 1 of 2021 stated the same]. He stated that he had been acting in the position for so long and he had an expectation to be appointed.
During cross-examination
[17] It was put to him that he had to have the specific qualification for the post in order to be promoted. He disagreed and stated that the requirement for the position was wrong (incorrect). He stated that experience had to count for something and should be considered. All his experience in teaching was within the intermediate phase. It was put to him that he did not have the correct qualification to be promoted. He needed to have the specific qualification for the phase, which would be a B-ED qualification in the intermediate Phase, or 120 credits specialization in the relevant phase. He disagreed and stated that he was already teaching in the intermediate phase.
[18] He agreed that he only acted periodically, meaning that he only acted 3 months at a time (page 42 of “A”). He agreed that he was not the only person acting in the position, as other educators were also afforded the opportunity to act. Page 42 of “A” stated that applications were received from three applicants for the acting position and different people would be afforded the opportunity to act in order to gain experience in the position.
[19] He was referred to page 12 of “A” as the post advertisement. It was put to him that the advertisement stated that the Departmental Head would be dealing with Technology as a subject and he was not qualified to teach Technology as a subject. He disagreed and stated that a teacher would teach the subject. He was asked whether he agreed that the Departmental Head must be qualified to teach Technology in order to oversee the teacher who had to teach the subject. He responded in the negative. He agreed that nothing prevented him from doing a course which would qualify him to teach in the intermediate phase.
[20] He was referred to pages 28 to 46 as Collective agreement concluded in the ELRC on 27 August 2016. It was put to him that he did not have a right to be promoted, even if he met the minimum requirements for the advertised post in terms of experience. He responded in the positive. It was put to him that nothing prevented him to again apply for the post, as the post was again advertised under vacancy list 1 of 2021. He stated that he was aware of that, but the email from Wyngaard stated that he would not be considered for that post.
[21] He was referred to item 37 on page 39 (Collective agreement) which stated the following: “There is no general right to promotion. What employees do have, is a right to be fairly considered for promotion when a vacancy arises. It is however expected that the employer should appoint the best candidate when selecting candidates for promotion. This expectation is subject to the employer’s right to appoint a weaker candidate in the name of affirmative action in order to address imbalances of the past.”
[22] It was put to him that he was fairly considered for that post during 2019, as he was shortlisted and interviewed. He agreed and stated that he was interviewed by the SGB. He agreed that item 39 stated that it was a managerial prerogative of the employer to promote or not. He was referred to item 44 which stated: “The mere fact that an employee is already acting in a post, does not give him or her an automatic right to a promotion when a position becomes available.” He stated that he was the only person invited for the interviews during 2019 and he was also the only person nominated for the position.
[23] He agreed that an appointment to the post had not been finalized. He was asked how he could ask for relief from the Council for a post that had not been finalized. He stated that the e-mail from Wyngaard stated that he would not be considered for promotion. It was put to him that nothing in the email was unfair or arbitrary, because he did not meet the requirements. He stated that the WCED documents stated that experience was not a requirement. He agreed that the WCED through the Head of Education decided who should be appointed through her/his delegated authority and that Wyngaard did not influence appointments.
THE RESPONDENT’S EVIDENCE AND ARGUMENTS
[24] The Respondent submitted a bundle of documents consisting of 88 pages, numbered from page 1 to 88, which I admitted as Bundle “R” (hereinafter referred to as “R”).
Pages 1 to 46 was submitted on 8 November 2021 and pages 47 to 88 was submitted on 19 November 2021.
Mr. Harry Wyngaard testified under oath as follows:
[25] He was employed as the Deputy Director: Recruitment and Selection for
approximately fifteen (15) years. It was important for an educator to have the relevant qualification for the phase. If an educator had a FET qualification, he/she could not expect to be promoted. The fact that the Applicant acted in the post, did not qualify him to be promoted. If there was nobody suitably qualified to act in a post, they would allow people who were not suitably qualified to act for a specific period.
During cross-examination
[26] He stated that the Applicant was not suitably qualified. He had a qualification to teach at a high school and Intermediate phase was primary school (grade 4 to 6). Since 2016 they were checking on every appointment to ensure that an educator is suitably qualified to be appointed in a phase. He did not know what happened in terms of the Applicant being appointed as an educator in the Intermediate phase in 2009. The experience of the Applicant did not provide him with the required qualification.
[27] The Applicant was recommended by the SGB during 2019. SGB only made recommendation and the Head of the Department or his authority would decide on the appointment. His email to the Applicant was an email in general, whereby he stated that should he apply for position (promotion) in the intermediate phase, he would not be considered, as he did not have the qualification.
[28] The Department was busy correcting the wrongs of the past and was now consistent. That was why he stated in the e-mail that the Applicant would not be promoted to a post for which he did not qualify for appointment. He was not qualified to be promoted in the Intermediate phase, but he was suitably qualified to be promoted in the FET phase. The SGB and the Principal appointed people in acting positions and not the WCED. When the WECD received the forms, a person would already be appointed to act in a position. It was put to him that the WCED already deemed the Applicant fit for appointment, even if he was not suitably qualified. He responded in the negative.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
[29] In this matter, the Applicant bears the onus to prove that the Respondent committed an unfair labour practice. The Applicant is claiming that he was treated unfairly as he was not considered for promotion to the position of Departmental Head at Liebenberg Primary School.
[30] The Applicant’s case is that he was suitably qualified to compete for the Departmental Head position, as he had experience in teaching in the intermediate phase and that his experience should count for something. His version is that he had been acting in the position and therefore there was a reasonable expectation created that he would be appointed to the position. His evidence is that he was not provided with an opportunity to compete for the position, based on the email of Wyngaard, who stated that he could not be promoted to the post, as he did not have the required qualification within the intermediate phase.
[31] When considering the evidence presented at the arbitration, I find that the Applicant failed to prove that the Respondent committed an unfair labour practice. My reasons are based on the following:
31.1 The email was sent by Wyngaard and the Applicant agreed during cross-examination that Wyngaard did not have the authority to influence appointments of candidates, but that the authority lied with the Head of Education through his/her delegated authority. He agreed that the post was re-advertised, but stated that the email from Wyngaard stated that he would not be considered for that post. His reason for not re-applying for the position was based on the email from Wyngaard. In IMATU obo Visagie v Mogale City Municipality (JR 86/15) [2017] ZALCJHB 432 (handed down on 20 November 2017) it was held that the law requires the Employee to show the existence of the conduct or decision complained of. Therefore, the onus rests with the Employee. It follows that if the Employee is challenging the process and that decision or conduct by the Employer is not established by the Employee, then that is the end of the matter. Surely, somebody who did not have authority, could not be seen to be making decisions on behalf of the employer.
31.2 In Swarts v National Commissioner South African Police Services and others (D 915/13) 2015 ZALCD 7 (handed down on 20 January 2015) the Court held that when considering an unfair labour practice dispute concerning promotion is not enough for the candidate to meet the minimum requirements required for the job. The question is whether the candidate meets the inherent requirements of the post. In this case the Commissioner had failed to consider that the successful candidate did not meet the requirements for the post and should never have been shortlisted. What should be noted from this case is that it places emphasis on the fact that an applicant must meet the inherent requirements for the position.
31.3 The Applicants evidence in the current matter that he qualifies for appointment based on the fact that her was working as a teacher in the intermediary phase and that he was acting in the Departmental Head position. In De Nysschen v GPSSBC and others (2007) 28 ILJ 375 (LC) the Court held that although the incumbent does not enjoy a right to automatic promotion in an upgraded post, the discretion not to promote should be exercised in a way which does not constitute an unfair labour practice and does not fall foul of the balanced approach called for by the Constitution, which provides for a balanced approach. On the one hand, fair labour practices and affirmative action must be observed. On the other hand, effectiveness, efficiency, high ethical standards and progressive human resource policies are crucial and the question at hand had to be interpreted in that context. To determine whether the discretion is fairly exercised will always depend on the facts of the matter.
31.4 The advertisement for the position clearly indicated that the Departmental Head
would deal with Technology as a subject. The Applicant agreed that he did not have technology as a subject as he stated that it would be thought by the teacher. I have to agree with the Respondent in that if Technology would be part of the subjects to be dealt with by the Departmental Head, he/she must possess the required qualification in order to manage the teacher in respect of the success of the specific subject. It would be unfair to expect a person to manage a subject that he himself did not have the required qualification or knowledge for managing it. The preface to the vacancy lists stated that applicants not qualified in a specific phase/learning area/subject(s) as per advertised post will not be appointed/promoted to such posts.
31.5 In Head of the Department of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC) a school Principal was overlooked for promotion because another candidate was appointed after the position was advertised and a competitive selection process was followed. The Court held that the Commissioner had reasoned that the first Respondent had a preferential right to be appointed to the post because he had been promised appointment by a member of the school’s Governing Body. However, the Commissioner had paid no regard to the facts that the Department retained discretion to advertise the post if it wished to do so, and in the circumstances was obliged to do so. The Commissioner had erred by holding that the Department was estopped from denying a promise by a Member of the Governing Body that the third Respondent would be appointed to the post. The Governing Body could not override the provisions of the binding prescripts which required the Department to advertise the post and to follow a competitive interview process.
31.6 The Applicant’s case is that a member of the SGB had informed him that he was the only person nominated by the SGB for appointment to the post and to be interviewed for the position during 2019. He did not want to mention the name of the SGB member who told him that as he preferred to keep the name a secret. The Applicant’s evidence in this regard should not stand. There is no evidence that the person who allegedly mentioned this to the Applicant, acted formally on behalf of the SGB when mentioning that. Also, the SGB may recommend, but did not have the final say in the appointment to the position. What is evident from the Applicant’s evidence in respect of the 2019 application, is that he was afforded a fair opportunity to compete for the position. Item 37 on page 39 of the Collective agreement concluded in the ELRC during 2016 states that there is no general right to promotion and what employees do have, is a right to be fairly considered for promotion when a vacancy arises.
31.7 In Malatji v City of Tshwane Metropolitan Municipality and others (JR 654/17) [2019] ZALCJHB 300 (handed down on 7 November 2019) the Court held that it is trite that a promotion for the purposes of section 186(2)(a) involves a move by an existing Employee to a higher rank or position that carries greater status, responsibility and authority. The Court held considering the requirements outlined in the advertisement for the position and the Applicant’s qualifications, it is apparent that the Applicant did not establish that he was entitled to be shortlisted and to be appointed for the position as he failed to show that he possessed a tertiary related qualification in policing and had the minimum of 8 years applicable experience in policing at senior management level. It follows that the Municipality’s conduct was not unfair. There is therefore, no merit to the Applicant’s contention that the arbitrator misconstrued the nature of the dispute and the evidence before him.
31.8 In Mogale City Local Municipality v IMATU obo Visagie and others (JR 86/15) [2017] ZALCJHB 432 (handed down on 20 November 2017) the Court emphasized the notion that candidates who do not possess the qualifications required for a position as set out in advertisement cannot expect to be appointed or promoted merely on the ground that they have experience.
31.9 One of the requirements of the position, in terms of the advertisement, was that the
Departmental Head would deal with Technology as a subject. The Applicant agreed that he did not have technology as a subject as he stated that it would be thought by the teacher (reporting to the Departmental Head). I have to agree with the Respondent in that if Technology would be part of the subjects to be dealt with by the Departmental Head, he/she must possess the required qualification in order to manage the specific subject. It would be unfair to expect a person to manage a subject that he himself did not have the required qualification or knowledge of.
31.10 The evidence place before me is that the Applicant does not have the required
qualification in order to be promoted to the position. The Applicant in his evidence even stated that the requirements for the position was wrong. It is not for the Applicant to set requirements for a position, but for the Department of Education. The uncontested evidence of the Respondent suggest that Wyngaard did not have the authority to appoint people to positions. Even if he had the authority to do such, it could not be said that his email amounted to an unfair labour practice, as his email only emphasized what the inherent requirements for the position was and that a person could not be appointed to the position if that person did not possess the inherent requirements for the position.
31.11 The Applicant himself testified that he would not have applied for the position (in 2019) if he knew that the Western Cape Education Department (WCED) was ensuring that educators were appointed or promoted to the right phases in order to promote quality education, and in order to be in line with the national policies and prescripts.
[32] The Applicant did not discharge the onus of proof to prove that the Respondent committed an unfair labour practice and I therefore find that the Respondent did not commit an unfair labour practice in terms of section 186(2) of the LRA.
AWARD
[33] The Respondent, Western Cape Education Department did not commit an unfair labour practice in terms of section 186(2) of the LRA.
[34] The claim of the Applicant, Henry Nathan Rudolph Marais for relief is accordingly dismissed.
[35] ELRC Case management is directed to close the file.
Signature:
Commissioner: Marlon Plaatjies
Date: 04 March 2022 Place: George