ELRC432-21/22WC

Case No: ELRC432-21/22WC

In the matter between

SADTU obo DJ Slamet Applicant

and

Western Cape Education Department First Respondent

Terrence Adonis Second Respondent


PANELLIST: Dr. GC. van der Berg
Award: Finalized on 03 May 2022


ARBITRATION AWARD


Details of hearing and representation

1. The arbitration hearing took place via digital video conference (ZOOM) on 26 November 2021, 15 December 2021, 27 January 2022, 18 February 2022 (postponed), and 07 April 2022 at 09:00. The proceedings were both digitally and manually recorded. The applicant, DJ Slamet, was represented by J Adams, an official of SADTU. The first respondent, Western Cape Education Department (“the WCED”), was represented by Vuyokazi Mthwazi, Labour Relations Officer. The second respondent, Terrence Adonis, was represented by Kenneth Williams, except on 7 April 2022. The appointed interpreter was Daniel Kova.

Issue to be decided

2. The applicant referred an unfair labour practice dispute regarding promotion in respect of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The arbitration proceeding concerned the alleged unfair labour practice by the respondent as it relates to the unlawful appointment of the second respondent to the advertised position of Deputy Principal at the Paulus Joubert High School at a post level 3 (964), as it was not in line with the provisions of the Personnel Administrative Measures (“the PAM”) as well as Resolution 5 of 1998. The successful candidate, Terrence Adonis, was joined with the consent of all parties as second respondent to the dispute.

3. I am required to determine whether or not the first respondent committed an unfair labour practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA as:
a. The School Governing Body (SGB) did not appoint the Interview Panel who did the interviews, selection and ratification;
b. Whether the appointment of the successful candidate by the WCED was unlawful as it was not in line with the provisions of the PAM as well as Resolution 5 of 1998;
c. Whether the secretary of the SGB unilaterally appointed the SGB members who must serve on the Interview Panel;
d. Whether the WCED made an appointment without verification of the selection/appointment of the Interview Panel;
e. Whether the objection raised by the Principal of the school against the nomination of the ratification meeting was ignored by the resource person;
f. Whether the process was procedurally defected.

4. In terms of appropriate relief in the event that I find that the first respondent committed an ULP:
a. Whether the appointment of the second respondent must be set aside;
b. Alternatively, the process to be redone by the WCED and SGB.

Background to the Dispute

5. The applicant was employed as an educator since 1998 and is currently employed as a Head of Department at the Paulus Joubert High School. Both the applicant and the second respondent applied for the position of Deputy Principal at Paulus Joubert High School post number 964, together with about thirty others. The applicant was shortlisted together with 4 (four) other candidates, which included the second respondent and was interviewed for the abovementioned position by the Interview Panel as selected/nominated by the SGB and WCED. He was not recommended by the Interview Panel during a so-called wrongly constituted ratification meeting for the position and the second respondent, Terrence Adonis, was then appointed in the abovementioned position by the WCED.

6. The dispute arose on 20 August 2021, and was referred to the ELRC and set down for arbitration on 26 November 2021, after a request for arbitration on 22 October 2021. Then it was postponed in a ruling dated 27 November 2021. The arbitration proceedings continued on 15 December 2021, and after the applicant and his witness testified, it was postponed as a part heard arbitration case up to 27 January 2022. It was further postponed to 18 February 2022 and gain postponed and then scheduled for 07 April 2022, when it was completed.

7. The parties did present opening statements and the first respondent presented written closing statements, as agreed or before 22 April 2022. The representative of the applicant from SADTU only submitted his closing statements on 27 April 2022, after addition time was agreed on. All parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered.

Survey of evidence and argument
Documentary evidence.
8. All parties submitted one bundle of documents. This bundle of the parties was marked as “A” pages 1-69. As it was an agreed bundle, all parties did not dispute the authenticity of the content of the bundle.
* As noted previously the proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as it is relevant for the purpose of this arbitration; it is by no means a minute of what transpired in the course of the proceedings. Section 138 of the Labour Relations Act provides in subsection (7) that within 14 days of the conclusion of the arbitration proceedings-(a) the commissioner must issue an arbitration award with brief reasons, signed by that commissioner. These follow below.
Applicant’s evidence and arguments
The applicant, Deon J Slamet, after having been sworn in, testified as follows:
9. He was employed since 1998 in the school as an educator and has thirty (30) years’ experience in the education profession. In 2016 he was appointed as a Departmental Head and in 2020 he was acting for two terms as Deputy Principal. He became aware of the shortlisted candidates of five (5) after Natalie Coetzee was also interviewed on 27 January 2021. The shortlisted candidates can be seen on page 33 of the bundle. Other candidates that were interviewed spoke to the applicant about the interviews and he, candidate September and Jacques Adams, the union official discussed it during a Zoom meeting.
10. During a meeting on 27 November 2020, as can be seen in the minutes on page 23 of the bundle, it was requested by the SGB to the District Director, Mr J Benjamin, and a WCED panel consisting of three district officials and two SGB members would constitute the Interview Panel. The SGB was supposed to discussed the two members of the SGB to be nominated on the Interview Panel in the presence of the Principal. This was never done and the secretary of the SGB unilaterally send the following two names to the WCED namely Mr T Abrahams and Ms R Meyer. On page 31 of the bundle it can be seen in point 6 (e) the candidates would be scored on the following: (1) Presentation 20; (2) Interview 70; and (3) Referees 10. It further states in 6 (d) that no cut-off score agreed upon, except that three candidates with the highest overall score will be send for the CBA test. The applicant attended an interview.
11. The ranking of the three top candidates can be seen on page 33 and the applicant was ranked three, and he received 58%. On page 38 appears minutes of the CBA feedback and ratification meeting dated 8 March 2021. The applicant was ranked number two and they said the following about him which he disagreed with; “The candidate, Deon Slamet, did not display adequately the necessary skills and competencies required in the advertisement for post 964. This was evident both during the shortlisting and interviewing process. While he is an educator with many years of teaching experience, he will need to be supported and mentored in order to competently undertake the skills and competencies as listed in the advert”.
12. He got 25 out of 30 on the CBA and the first ranking person only 16. When he was acting as Deputy Principal he did an excellent job. He did a lot of other issues on a yearly basis and he explained in detail what he did the past five years and he increased the Grade 12 results. He felt very unhappy about the process followed as the Principal was not included in the shortlisting and interview process. The WCED panel did not know the applicants and they cut out the Principal and must have stated why.

13. Under cross-examination he confirmed that he was shortlisted and interviewed for the position as Deputy Principal and that two other people of the SGB was part of the panel. He agreed that he was not prejudiced by the two other persons on the panel, but if the Principal was there he would have stated that the applicant was the best person for the position. It was put to him that the chairperson of the SGB will testify that they motivated to make the applicant a second nominee. He did not respond to this statement. The Interview Panel was constituted and consisted of four members of the WCED including the resource person, and two SGB members nominated, according to the applicant, by the secretary of the SGB. He said that the Principal should have been on the panel as he is the most capable person who knows what was going on and knows all the processes.

14. He further stated that the Principal knows him and he is the most capable person on the SGB. He said that the post of Deputy Principal was never filled the last four years due to disputes as a result of personal reasons. It was put to him that the Principal was previously the resource person of the SGB panel and no final appointment could be made. The applicant stated that the Principal was not the reason, but there were other reasons why a final recommendation could not be made. He stated that it was unconstitutional the way the other two persons of the SGB were nominated on the panel, and if he would have been appointed, he would still have a problem with the process. He was asked about the other candidates that was unknown to the Principal if he was on the panel, and the applicant stated that this is about what is right and wrong and the process was unconstitutional. He indicated that he was ranked as number two after the interviews.
The first witness of the applicant, Ivor Collins, Principal, after having been sworn in, testified as follows:
15. He testified that he is a retired Principal of the Paulus Joubert High School and he left in September 2021, with 37 years in education and five (5) years as the Principal. He was an active member of SADTU and has a lot of experience. He dedicated his life to education and the school was always first as his record speaks for itself.

16. On page 21 of the bundle appears the minutes of a SGB meeting on 17 September 2020. It spelled out the procedure to be followed in filling of the Deputy Principal position. There were two options and the SGB must took a decision for 50% SGB members and 50% of WCED or all members of the panel must be from WCED. They sent a letter to the Department on which they responded on behalf of the SGB. On page 23 it can be seen that they took a decision to inform the Department about a constituted SGB decision. The Department must do the process of the filling of the post of Deputy Principal and the committee must be all members of the Department. They further requested the Department that all processes must be done away from the school as it was the fourth time to try the appointment of a Deputy Principal. This letter was sent to the Department on 18 September 2020 and by 28 September 2020 no response was received from them. The secretary of the SGB took it on her own to send a letter to the Department with the names of the two delegates of the school. Nobody gave her the power to elect persons on the panel. It was unlawful according to pages 65 and 66 of the bundle as can be seen in the Personnel Administrative Measures (PAM) dated 12 February 2016, regarding shortlisting and interviewing of candidates in filling of school based posts.

17. The Director of Education instructed Mr D Mathys to include T Abrahams and R Meyer to be part of the panel. The Governing Body consists of 13 members and the SGB should have decided who must be the members from the SGB and not Ms F Kearns. The Principal is the representative of the SGB and he is the person who knows the process. It was never explained to him that he must not be a member of the panel as there was no meeting.

18. He objected during the so-called ratification meeting about the ranking and criteria used by the panel and when his proposal was not seconded, he wrote on his own a motivation and sent it to the resource person. The chairperson of the SGB told him that he was part of the process and the panel consisted of three WECD members and two persons of the SGB. The SGB never constituted who is to be on the panel from the SGB. The minutes of the ratification meeting on 11 March 2021 appears on pages 54 and 55 of the bundle. Mr D Mathys, Circuit Manager informed the SGB about the decision of the committee and the four candidates. There was no time for a discussion about the candidates. On page 55 he asked about the role of the committee and there was no brief to the SGB on their decision. Not even the motivation on the candidates were discussed. When he was asked about the margin between T Adonis and D Slamet the Circuit Manager said it was not big. He was asked for an explanation and the motivation was not discussed as per page 38 of the bundle. The purpose of the ratification meeting was to discuss the final ranking and then motivate who must be appointed, but they were not allowed to discuss it.

19. The following question was asked or proposal made by the SGB as can be seen on page 55: (1) “J Kok: Was die punte van die laaste drie kandidate naby of ver van mekaar? Naby; (2) F Kearns: Kan die kandidate appêl aanteken aangesien die Unies nie teenwoordig was nie? Nee, die unies het uitnodigings gekry, maar het nie opgedaag nie; (3) Mnr I Collins: stel voor dat die SBL motivering op skrif stel oor die rangorde van die drie kandidate. Hy is ontevrede. D Mathys: rede kan nie wees omdat die persoon nie by PJS is nie. SBL betaal nie die persoon se salaris nie. Is ‘n WKOD pos en die WKOD betaal die salaris; (4) J Kok stel voor dat ons die rangorde so aanvaar en dit bekragtig aangesien dit deur goeie hande gegaan het. Voorstel word gesekondeer deur Me A Roman; (5) I Collins maak teenvoorstel dat SBL ‘n motivering skryf dat ons dit nie aanvaar nie. Geen sekondant vir die teenvoorstel nie”.

20. The witness stated that the reason for the ranking was not presented to them during the ratification meeting. Mr D Mathys did not present them with any minutes or work done or handed in any documentation to motivate the ranking and the points. His concern from the start of this process was that it was unlawful as the secretary of the SGB manipulated the process. During the ratification meeting there was no time for the SGB to discuss the motivation as they were supposed to see the motivation from the panel. The ranking order on page 33 was different from the minutes of the ratification meeting. He was not happy with the rankings positions on page 33, point d. The interview persons did the scoring as can be seen in point e, and in f, it states that the panellist agreed to eliminate the presentation scores for all candidates. In point g, it states that all five candidates would now be scored as follows: (1) Presentation = 20; (2) Interview = 70; and (3) Referees = 10. According to the witness no referees were known and why was he not contacted.

21. Mr T Abrahams was part of the ratification, but he reported nothing to the Principal. The candidate that was added on page 35 was not reporting to him and the minutes of the interviews were signed by T Abrahams and R Meyer of the SGB on 4 December 2020. After Mr D Mathys left the ratification meeting, the witness was answered on page 55 by F Kearns that the Principal can motivate in writing by himself as there was already a proposal and seconded. He said that he will write a motivation as the Principal as he refused to ratify the proposal made by the SGB.

22. He stated that motivation for the nomination of the Deputy Principal was supposed to be signed by the Head of Education and neither did Abrahams and Meyer signed on pages 56 and 57. If they had this document as SGB and as Principal they could have discussed it. The 1% difference between Adonis and Slamet is wrong and how could a person who gave all his life for education been treated unlawful. It is not about a person but about the principles and the process was unlawful. The SGB was supposed to do the motivation for the nomination of the appointment. How can pages 37 to 39 be a ratification meeting and Abrahams and Meyer were the representatives and not the SGB.

23. According to page 37 in point 4 regarding the process it states in (a) that “based on the CBA feedback a score sheet attached would be used based on the Cognitive Abilities (15) and Behavioural Profile (15). It was unanimously agreed that the following would be used to rank the candidates for representation to the SGB for final ratification: Interview & Referee score = 80 and CBA score = 30”. It was however not presented to the SGB for final ratification. On page 38 it can be seen that Adonis scored 16 on CBA and Slamet 25. The Head of Education did not appointed Adonis based on the motivation and ratification of the SGB. The decision the Department took is unlawful as the SGB did not constitute the interview meeting and the ratification was supposed to be done, but it was not done.

24. Under cross-examination of the representative of the first respondent the witness agreed that he was previously four times part of the of the SGB and as Principal involved. He was also at a stage the resource person. It was put to him that they gave away their rights as SGB to the District and his response was that he must stick by the decision of the SGB and not with individual member’s decisions. The SGB has to stick by the decision of the District until the ratification meeting. The Principal must see that the process must be done lawful although it was part and parcel if the WCED.

25. He was asked where did it say that the Principal must be part of the Interview Panel and he said on page 66 under point 5.4.2. The District decided not to follow PAM and does it still apply that the Principal must be part of the Independent Panel. The witness stated that the understanding that the SGB must elect two members on the panel not the secretary of the SGB. It was put to him that it is not prescribed how it should be done to put people on the panel and he agreed. The Circuit Manager contacted the secretary and asked for the names and he was in this instance the Principal and he followed in this instance the route of the secretary. The Circuit Manager has authority to drive the process and Ms F Kearns is the secretary of the SGB. The witness stated that he did not understand why she did not call him as the Principal, but instead directly called the two people.

26. It was put to him that if he as Principal was contacted would it make a difference. He said that it was not about him, but it was unlawful that the SGB was not instrumental to nominate the two representatives on the panel. He agreed that the members of the District as their names appear on the minutes of the shortlisting for the post of Deputy Principal, page 25, are all Circuit Managers and experts in what they do and know the processes. He said that he does not think that the applicant and any of the other candidates were prejudiced by the two members of the SGB who served on the Interview Panel. The witness said that the applicant testified that the process must be redone and he is also in favour that the process must be redone as the two members of the SGB was supposed to be elected during a SGB meeting.

27. He agreed that the SGB panel and the Independent Panel are not the same until the SGB must make a decision and motivate the final appointment during a ratification meeting. The ratification meeting is called by the chairperson and attended by the full SGB to receive the outcome and to explain to the SGB what they have done with the interviews and the process. This will allow the SGB to ask questions and for motivation the final appointment. Mr D Mathys was the resource person. The three final candidates on the list were in ranking order Adonis, Slamet and Coetzee. The SGB was happy to move forward except the Principal and one other member. The witness stated that the SGB must decide on a motivation to the WCED with all the documentation in their possession and discussed.

28. On page 42 all member present at the SGB ratification meeting on 11 March 2021 signed the attendance register and they signed individually the note that they have no conflict of interest as can be seen on pages 43 to 53. During the meeting the nomination order was explained and J Kok proposed that that the ranking and the recommendations of the WCED is accepted. This proposal was accepted, but for the Principal and one other person. He did not ask for documentation, but the witness gave his indication with the outcome and he was given a change to give his view. He put his motivation in writing and sent it to the relevant people with no response from them. He felt that the resource person should have given a motivation or explained as he knew about the conflict between the Principal and some of the members of the SGB.

29. He was asked why nobody seconded his proposal and he said that the minutes is not a true reflection of what happened. There was not a decision taken which members was for or against the proposal to accept the recommendations of the panel. He further stated that he was the Principal at the school for five (5) years. The SGB have to apply and use the people who has done the job in the past. He felt that the applicant was competent to do the job of Deputy Principal. He was unhappy about the order of the nominations but agree that all five (5) candidates were treated fairly and that they were competent. When he was given the opportunity he would have let the discussion of the ranking order of the final three candidates. He is not happy with the scoring after he has seen it as part of the documentation in the bundle. Page 38 should have been given to the ratification committee of the SGB. The motivation by the Independent Panel on page 38 was not objective as no mention was made about the CBA panel marks of Slamet and Coetzee.

30. He agreed that the SGB was not given a change regarding the interviews and ranking as they were not part of the panel. Under cross examination from the representative of the second respondent, he stated that there was no ratification meeting, but only information sharing and the resource person was supposed to bring documentation to back up the decision of the panel.

31. Under re-examination he stated that the Interview Panel did not provide them with a brief motivation for the ranking. He confirmed again that the two members of the SGB was supposed to be appointed by the SGB during a meeting and not by Ms F Kearns. The purpose of the SGB meeting on 17 September 2020 was to decide on which option to use. The final voting indicated that only the WCED must handle the position of the Deputy Principal. The Director, Mr Benjamin instructed the Circuit Manager to add two additional members from the SGB to the panel. The witness disagreed with that statement. The SGB decided that the WCED must handle the process and they never change their mind to add to members of the SGB to the panel.

32. The letter on 28 September 2020 was from F Kearns where she on her own decided that T Abrahams and R Meyer would be the additional members in the process of filling the post of deputy principal. The panel of the WCED could not do the ratification on their own and the part that the Independent Panel must have done was the committee shortlisting and interviews. They had no power to do the final nominations for appointment. He was never informed about any decision that two members of the SGB must be added to the panel. He said that he does not know who did the nomination to appoint the second respondent, Mr Terrence Adonis in the position of Deputy Principal, as the members of the SGB was not given a fair chance to do a fair recommendation. He was pushing for his own position but he has the right to ask questions, and there was no consensus decision around the final ranking. The chairperson of the SGB was the chairperson of the ratification meeting and Mr D Mathys, the resource person made the announcement.
Respondent’s evidence and argument
The first respondent called three witnesses to testify
The first witness of the respondent, Darrell Mathys, Circuit Manager, Cape Winelands District, after having been sworn in, testified as follows:
33. He was the Circuit Manager until the end of 2020. He served as the resource person of the WCED on the Independent Panel who handled the process of appointment of the Deputy Principal at the school. His duties were to ensure that all the candidates were subjected to evaluation and to ensure that no candidate was advantaged or prejudiced for the position. He stated that the panel consists of himself, and three other Circuit Managers from the WCED and 2 additional members from the SGB, namely T Abrahams and R Meyer, the chairperson and another member of the SGB. Mr Benjamin is the District Manager of Cape Winelands. The SGB requested the Department for an Independent Panel and he was asked to compose the committee of four persons from the WCED and two from the SGB. According to PAM the SGB can appoint an Interview Committee and a request was made to the District Director to take over the process.

34. The request from the SGB to the District Director was made on 18 September 2020, as can be seen on page 23 in bundle “A”, and he responded to the SGB and the Interview Committee was established, and it was indicated that two members of the SGB must be added without indicating who to be added. He then requested from the secretary of the SGB, F Kearns, to provide him with the two names. He did not prescribe the process to be followed by the SGB in appointing two members. The applicant was not prejudiced in any way by the appointment of the two SGB members. The purpose of the ratification committee was to select three shortlisted candidates in ranking order. The candidates were send for psychometric testing, interviews were scored and then ranked in terms of their suitability for the advertised position. The three ranked candidates were (1) Terrence Adonis; (2) Deon Slamet; and (3) Natalie Coetzee.

35. As resource person he had a meeting with the SGB and he presented the progress made during the ratification meeting. The notice to attend the ratification meeting was sent to the members on 9 March 2020 for the meeting on 11 March 2020 at 18:00 as can be seen on page 41 of bundle “A”. He presented the SGB with the outcome and ranking of the Interview Committee. The Principal of the school did not agree with the ranking. It was explained how the processes were done and after a proposal was made to accept the ranking and it was seconded, the Principal rejected it and stated that an internal candidate of the school need to fill the post. According to him the preferred candidate would block internal promotion. The decision to accept the ranking were made by the majority of the full SGB and two Grade 12 learners of the previous year. The SGB requested the Director to take over the process and establish the committee.

36. Under cross-examination he confirmed that the purpose of the resource person is to see that the candidates who applied for the position are not prejudiced and to provide necessary resources to the SGB in processing of the post. Further to ensure that the process stayed in the framework of the law as prescribed on page 66 of bundle “A”. The SGB must be trained prior to the process of it is an internal panel of the SGB, but it was not his duty to train the two members of the SGB. The members on the Interview Committee from the WCED was appointed by the District Director and the two additional members of the SGB was nominated by them. In B 5.4.2 in the PAM on page 66 it states: “the principal of the school (if he/she is not the departmental representative), except in the case where he/she is an applicant”. In B 5.4.1 it states: “One departmental representative (who may be the school principal) as an observer and resource person”.

37. The witness stated that the SGB requested the WCED to take over the process and the District Director made the decision to ask the SGB to nominate two members of the SGB, which could have included the Principal. The process was in compliance as the Principal was excluded by the SGB. It was handled outside the processes of the PAM as the SGB requested the WCED to handle the appointment of the Deputy Principal post and then the process could differ in the composition of the Interview Committee.

38. He confirmed that the SGB was responsible to appoint two members on the Independent Interview Panel. It was dictated to the SGB the number of the members but never who they must be. On page 21 in bundle “A”, it can be seen that he was given advice, but the SGB themselves decided to vote on the two last options namely 50% SGB and 50% Department or only the Department. The final decision by the SGB was only the WCED. The secretary of the SGB, F Kearns did not call him about the reasons for their final choice. He was aware of the letter on page 23 of bundle “R” as the Director informed him of the request of the SGB. He contacted the secretary telephonically on 26 September 2020 about the two members of the SGB, and he could have sent the request by email. He was told that the two members of the SGB must be in the minutes of the shortlisting meeting as on page 25 of bundle “A”. He testified that he is not aware whether the secretary of the SGB, F Kearns, decided on her own who must be on the panel. He said further that one of the panelists was not present on 17 November 2020, and the candidate scored was obtained by an average score and he was interviewed separately.

39. The ratification meeting with SGB took place on 11 March 2020 as can be seen on pages 54 to 55 of bundle “A”. He gave a verbal report to the SGB and the minutes of the panel was not presented in writing. The motivation for the nominations of Deputy Principal that was addressed to the Head of Education as on pages 56 to 63 was not presented to the SGB in writing but verbally. The minutes of the CBA feedback on the ratification meeting that took place on 8 March 2020 was available during the ratification meeting on 11 March 2020 in written format and yet not typed. This minutes was verbally presented in the ratification meeting and questions could have been asked. The representative enquired who typed in the crosses from page 58 in the department checklist and the witness stated that it was him. According to the representative of the applicant the SGB was never constituted when they determined the members of the SGB on the panel. The witness did not comment as he was not determining the names of the two members of the SGB on the Independent Panel.

40. He was asked whether a motivation accompany each candidate’s ranking. The witness stated that he and the secretary of the panel, R Meyer, compiled the motivation for each of the ranked candidates, but during the ratification meeting with the SGB, he presented it verbally. He said the minutes was sufficient to enable the WCED to make an appointment but absent during the ratification meeting. The SGB made an informed decision based on the verbal report and the resolution indicated on pages 59 and 60 of bundle “A”. He agreed that the SGB was supposed to nominate the final candidate and the decision was not presented on pages 56 and 57. It was only done verbally. He stated that he did not capture the minutes on pages 54 and 55 and pages 56 and 57 is part of page 54 minutes. He agreed that pages 56 and 57 is not signed, but the annexures up to 63 is signed, and the documents of the whole package was sent to WCED. He stated that the panel decided on the final ranking after discussions and taking the CBA scores and interview scores into consideration. He stated that the SGB did not enquire about the written motivation, and it was put to him that he could have given the SGB the minutes on page 37, as it was signed on 10 March 2020, and the ratification was done on 11 March 2020. He stated that the minutes was done by the SGB and he went to the ratification meeting with the SGB with draft minutes. He disagreed that he deliberately withholds scoresheets for the SGB and he did not keep the Principal deliberately out of the process. He agreed that it was his duty to submit a report to the SGB in the ratification meeting.

41. Under re-examination he confirmed that the SGB gave away their powers as states on page 66 according to PAM as soon as they requested the WCED to handle the appointment process. The PAM document talk about the process to be followed when constituted an internal interview panel. The Principal is not part of an independent panel.

The second witness of the respondent, Theunis Abrahams, Chairperson of the SGB at Paulus Joubert High School, after having been sworn in, testified as follows:

42. He was part of the Interview Panel of the Deputy Principal position and his role was the chairperson of the Independent Panel. In the SGB they took the decision to ask the WCED to take over the process of the post of Deputy Principal. The reason was that the SGB did it three times before without success. He became part of the panel when the resource person informed the SGB that two of them must be on the panel. The secretary of the SGB, F Kearns contacted all the parents on the SGB and asked them whether they want to be nominated on the panel. F Kearns got back to him and gave him the two names of SGB members that would be interested. It was himself and R Meyer. He asked about the other members of the SGB and they indicated that they were not available. It was the first time he was serving on an independent panel at this school.

43. He was part of the ratification meeting that took place on 11 March 2020. He confirmed that ratification took place for this process and the meeting was attended by the whole SGB. The resource person told them verbally about the progress in the process of appointing a Deputy Principal at the school. He informed the SGB in more detail about the ranking process and the outcomes. He gave detailed reasons for the ranking and motivate it and the majority of the SGB accepted the ranking order as presented. The SGB did not accept the objection made by the Principal, Mr I Collins. He said that he is going to write a letter to the Department. The SGB stated that it was a fair process and it was followed correctly. He stated that he and the resource person did not deliberately exclude Mr I Collins from the process. During the ratification meeting they were allowed to discuss and asked questions regarding the ratings of the candidates. The resource person, Mr D Mathys reported all the information during the ratification meeting and nobody asked questions. He stated that the number one ranked candidate, Terrence Adonis, was the best candidate for the position and was appointed in the position of Deputy Principal.

44. Under cross-examination the witness stated that he never received training to be a chairperson of the SGB. He is now three years in the SGB and it was the first process that he was involved in, in filling a position at the school. He is not aware how the SGB appointed members on the Interview Panel. He agreed that it is his signature on page 61 of bundle “A” and he signed the minutes of the ratification meeting that took place on 11 March 2020. The minutes on page 56 and 57 is the motivation of the nominations, and it was given to him by R Meyer for signing it off as it was presented to him by R Meyer. He stated that pages 58 and 59 and onwards represents interview scoring and addendums like the department checklist.

45. He stated that if the position is advertised by the SGB, they must appoint the Interview Panel. In this case the process was taken over by the Department of Education on request of the SGB and then they appoint the Independent Panel. It states on page 66 under B 5.4.2 in the PAM document that the Interview Committee must comprise of: One departmental representative (who may be the school principal), as an observer and as a resource person. He said that he knows that he is responsible for teachers at the school as chairperson of the SGB. The District asked for two names and he and Ms Meyer was available as the two names from the SGB was requested over a weekend to be provided by the Monday. F Kearns contacted the parents and no one were available to be on the Interview Committee. He then told F Kearns the secretary of the SGB that he is available and she then asked teachers, and Ms R Meyer was available to be a member of the panel.

46. During the first meeting the resource person was Mr D Mathys and he introduced the panel. The Panel felt that he must be the chairperson and Ms Meyer the secretary of the panel. He was previously part of a SGB panel but not of an Independent Panel. According to him the PAM is silent on how the Independent Panel must be appointed if the process is handled by the District. He confirmed that the ranking order as on page 33 of the top three candidates are: (1) Adonis, Terence 69%; (2) Coetzee, Natalie 61% and (3) Slamet, Deon 58%. On page 56 appears the motivation for the nominations of Deputy Principal and he did not sign the document in the bundle, but he signed the document as it was brought to his workplace by Ms R Meyer and after he perused it, he signed the document. He said that Adonis did better in the interview and in total was the top candidate. The top three candidates were approved by the SGB during a ratification meeting on 11 March 2021. It was verbally presented by Mr D Mathys and questions were asked and finally it was approved by the SGB. The verification on page 64 was signed by Mr D Mathys and the Director of Education.

47. Under re-examination he confirmed that the SGB requested the District to set up the panel and to appoint the Deputy Principal. The PAM do not speak to the process of appointment of the Independent Panel. He confirmed that the resource person, Mr Mathys, presented to the panel and the SGB the motivation for the nominations as on page 56 before the SGB approved it. Nobody asked for a document or minutes regarding the motivation. The Panel decided that the minutes must be a summary of the meeting.
The third witness of the respondent, F Kearns, Teacher, after having been sworn in testified:
48. The witness stated that she was in 2019 and in 2020 the secretary of the SGB. As can be seen on page 7, she sent out a notice to the SGB to invite them to a meeting on 17 September 2020 to discuss three point of which one was the position of the deputy principal. Page 8 represents all the SGB members present. They discussed the four ways the Panel can be constituted as can be seen on page 21. At the end they decided to vote between the third and fourth option whether the Panel must consist of 50% SGB and 50% of the Department of Education or only the Department of Education. The last option was chosen and they requested the Department of Education on 18 September 2020 to handle the appointment process of the Deputy Principal position. She and T Abrahams the chairperson signed the letter and sent the request to the Director of Education, Mr J Benjamin. On 26 September 2020, Mr D Mathys called her and informed her that the Department will handle the process. He requested that two members of the SGB must be on the Panel. She immediately contacted the chairperson of the SGB who said that she must contact the parents and asked them who are available to serve on the Independent Panel constituted by the Department of Education. No one was available and then the chairperson avail himself. Mrs R Meyer was available and she sent the two names to Mr D Mathys on 28 September 2020, as can be seen in the letter on page 24. No requirements were given to her how the two persons of the SGB must be appointed.

49. She was not further involved in the process, but she was involved as a member of the SGB in the ratification meeting on 11 March 2021. The notification was sent to the SGB on 09 March 2021, as can be seen on page 40. The people who attended the ratification meeting can be seen on page 42 and the confirmation of no conflict of interest signed by all present appears up to page 53. Page 54 and 55 represent the minutes of the ratification meeting and she took the minutes. That day, Mr D Mathys explained the process that was done and how they end with the shortlisted candidates 1 to 4. He explained the reasons for the ranking verbally and question were asked. No person asked for any documentation and all were happy with the ranking order except the Principal, Mr I Collins. He said that he is going to write a letter to the Department of Education. The final decision by the SGB was to keep the ranking as motivated. She said that she did not on her own appointed the two persons of the SGB on the Interview Panel. The process in the PAM document as in B5.4.2 was not followed as the Department of Education took over and it was not any further a SGB panel.

50. Under cross-examination she confirmed that she was involved in the processes of the SGB before to appoint members on the Interview Panel. She is not aware of the process the Department of Education must follow when they took over the process to appoint a Deputy Principal. The Principal was involved in the meeting where voting took place and a final decision was taken that the Department of Education must take over the process. She said that the Director has the power to change the Interview Committee if they were requested to take over the process of filling the Deputy Principal position. She denied that no ratification was done by the SGB and agreed that no meeting of the SGB was held before the two names were sent to the Department as it was over a weekend and they wanted the names by the Monday. In the ratification meeting the motivation for the ranking was done verbally by Mr D Mathys and he answered all the questions that was asked. He also explained why Mr T Adonis was ranked no 1 and Mr D Slamet no 2. She did not approach the Principal, Mr I Collins, to be part of the interview panel as two people members of the SGB were already available. She did not contact all SGB members but first the parents.

51. Under re-examination she confirmed that the SGB has no powers to control the process if the Department took over the process. The chairperson of the SGB instructed her to first call the parents. There was nothing to gain for excluding the Principal in this process and she received no guide to how the two persons should be appointed.
The second respondent, Terrence Adonis, after having been sworn in, testified as follows:
52. The witness testified that he was appointed on 01 October 2021 as Deputy Principal at the school, and at the moment he is acting in the position as Principal. Since 2009 he was at Wellington High School and his last position was Head of Department. It was the first time he applied for a Deputy Principal post and he did not know anybody in the SGB and Interview Panel. He knows some of the teachers at the school where he was appointed as Deputy Principal as he was a sport coordinator at his previous school. He had no interaction with the chairperson and secretary of the SGB. His close relationship was with the Circuit Managers in a different District when he was employed at Wellington High School. It will put him in a stress situation if the Commissioner decides to redone the whole process. He was appointed as Deputy Principal at the school and the SGB and the Department of Education entrusted him to lead the school. He has no problems with Mr Deon Slamet. It will not be fair to him and other candidates to undergo the same process again. He was interviewed on 27 October 2020 and only appointed as Deputy Principal on 01 October 2021.
Closing arguments
53. The first respondent sent written closing arguments by 22 April 2022, as agreed on 07 April 2022. The representative of the applicant asked for further extension up to 27 April 2022, when it was submitted. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award.


Analysis of evidence and argument

54. This is a summary of the relevant evidence and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter. In this arbitration I am firstly going to refer to the Collective Agreement Number 3 of 2016 ELRC Guidelines: Promotion Arbitrations. Secondly, I am also going to refer to the PAM document and Resolution 5 of 1998. In Public Schools educators is appointed by the provincial HOD of the WCED as they have jurisdiction. The PAM consists of ministerial regulations that is based on the ELRC Collective Agreement. The procedures for appointment is based on Resolution 5 of 1998.

55. According to the aforementioned the SGB during a ratification meeting recommend to the HOD who must be appointed out of the shortlisted candidates of three. The process is as follow: (1) Vacancy that leads to an advertisement and the Interview Panel is normally appointed by the SGB and they shortlisted the candidates. (2) Then the interviews are conducted by the Interview Panel and then recommendations are made by the Interview Panel of the SGB to the HOD who to appoint. The HOD review recommendations, and the SGB may appeal.

56. The PAM, Chapter B/Resolution 5 of 1998 states that strict compliance is not necessary and recommendation must not be obtained through undue influence. The employer becomes responsible for any unfair conduct of the SGB committee during the process leading up to the promotion. Promotion is the process where an employee is evaluated to a position that carries greater authority and greater status than the current position than the employee is employed. Employers are expected to appoint the best, strongest candidate and unless the applicant proves that he was the best of all the candidates who applied for the position, no substantive unfairness has been proved. Acting in the position of Deputy Principal gave the applicant no right to be appointed.

57. According to the Personnel Administrative Measures (PAM) in B.5.4.1. the Interview Committees must be established at educational institutions where vacancies are advertised. In B.5.4.2 it states that the Interview Committee must comprise: (1) One departmental representative (who may be the school principal), as an observer and resource person; (2) The principal of the school (if he/she is not the departmental representative), except in the case were he/she is an applicant; (3) Members of the SGB, excluding educator members who are applicants to the advertised post/s; (4) One union representative per union that is party to the provincial chamber of the ELRC. The union representatives will be observers to the shortlisting, interviews and the drawing up of a preference list. In B.5.4.3 it states that each Interview Committee must appoint from amongst the members a chairperson and a secretary. It is noted that the union was invited to the process but they did not attend.

58. The applicant, Mr Deon Slamet, is currently working as a Head of Department at Paulus Joubert High School. He applied for the Deputy Principal post: post 964: Vacancy list 3/2020 at the said school. He was shortlisted and interviewed for the post however, he was unsuccessful, but he was a second nominee. Consequently, he lodged a dispute against the said appointment process. The second respondent is Mr Terrence Adonis, and he scored higher that Mr Deon Slamet in the appointment process hence the Department appointed the second respondent as he faired the best in the interviews and the SGB accepted his nomination as the first nominee at the ratification meeting, which was submitted to the HOD for appointment. Mr Terrence Adonis was therefore appointed as from 01 October 2021 in the said post.

59. The Panellist is expected to determine whether or not the first respondent committed an unfair labour practice (“ULP”) in terms of section 186 (2)(a) of the LRA as:
a. The School Governing Body (SGB) did not appoint the Interview Panel who did the interviews, selection and ratification;
b. Whether the appointment of the successful candidate by the WCED was unlawful as it was not in line with the provisions of the PAM as well as Resolution 5 of 1998;
c. Whether the secretary of the SGB unilaterally appointed the SGB members who must serve on the Interview Panel;
d. Whether the WCED made an appointment without verification of the selection/appointment of the interview Panel;
e. Whether the objection raised by the Principal of the school against the nomination of the ratification meeting was ignored by the resource person;
f. Whether the process was procedurally defected.
In terms of appropriate relief in the event that I find that the first respondent committed an ULP:
g. Whether the appointment of the second respondent must be set aside;
h. Alternatively, the process to be redone by the WCED and SGB.

60. I have enquired from the parties whether an appointment has been made in the post that the applicant contests. An appointment has been made and Terrence Adonis has been joined as the second respondent to this arbitration process. He testified in the arbitration and was present on all the mentioned days. The second respondent testified that he was appointed on 01 October 2021 as Deputy Principal at the Paulus Joubert School, and at the moment he is acting in the position as Principal. Since 2009 he was at Wellington High School and his last position was Head of Department. It was the first time he applied for a Deputy Principal post and he did not know anybody in the SGB and Interview Panel. It will put him in a stress situation if the Commissioner decides that the whole process must be redone. He was appointed as Deputy Principal at the school and the SGB and the Department of Education entrusted him to lead the School. It will not be fair to him and other candidates to undergo the same process again. He was interviewed on 27 October 2020 and only appointed as Deputy Principal on 01 October 2021.

61. In Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT (handed down on 9 May 2018) the Court emphasized that whilst in unfair labour practice disputes relating to promotion the onus is on the employee to demonstrate that the failure to promote was unfair, the employer, is in the same token, obliged to defend challenges on the substantial and procedural fairness, if it wishes to avoid a negative outcome. According to the Court, there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence it would be irrational and unreasonable to conclude that the employer acted fairly, regardless of where the onus lies.

62. The pertinent points of the testimonies of the witnesses of the first respondent are highlighted hereunder:
• The SGB as a whole voted and were in agreement that the District Director should appoint the panel; page 7-24 of the bundle support this;
• The District Director accepted the SGB request and instructed the Circuit Manager of the school who also acted as the WCED resource person to request two SGB member to join the panel. Mr D Mathys confirmed this and further testified that he contacted Ms F Kearns who was the secretary of the SGB telephonically to request for the two names;
• Two people who are part of the SGB, Mr T Abrahams and Ms R Meyer availed themselves for the Interview Panel, after Ms F Kearns contacted the parent components and no one was available;
• The nomination was ratified by the SGB and the final decision was communicated to the WCED;
• Both Mr T Abrahams and Ms F Kearns confirmed that Mr D Mathys explained why the ranking order for nomination was in that order;
• Both Mr D Mathys and Mr T Abrahams confirmed that they signed the motivation for nomination and were not sure why the one on page 56 of the bundle was not signed;
• The signed minutes on page 37 to 39 are the confirmation that the nomination on page 56 of the bundle reflects true information as they contain the exact information;
• All three witness confirmed that the PAM document on page 65-66 of the bundle is silent when it comes to the process of an Independent Panel, therefore the rules contained in it does not apply to the Independent Panel;
• Moreover, Mr T Abrahams advised that the minutes is a summary of what transpired in the meeting.

63. I must firstly decide whether the secretary of the SGB unilaterally appointed the SGB members who must serve on the Interview Panel constituted by the WCED and whether they deviated from the prescription of PAM. On 17 September 2020, the SGB took a decision that the Interview Committee must comprise of ONLY district officials. There was a vote on three proposals namely the Interview Committee must comprise out of all SGB member or 50% SGB and 50% District officials. The two proposals did not see the light as the majority decided to go for the option that the Department must handle the process of appointing the Deputy Principal.

64. According to the representative of the applicant this decision was changed when the secretary of the SGB, Ms Fiona Kearns, was instructed by the Circuit Team Manager, Mr Daryl Mathys, to add two SBL members. The decision of the SGB was unilaterally changed by the secretary of the SGB, Ms F Kearns, when she appointed Ms R Meyer (other teacher representative on SGB) and the chairperson of the SGB to serve on the Interview Committee. Ms F Kearns testified clearly that when Mr D Mathys, resource person from the WCED called her and asking for the two names, she was not informed on how the two people should be appointed. She also stated that the school did not have to apply the PAM document on page 66 of the bundle, as they opted for an Independent Panel constituted by the WCED.

65. The resource person, Mr D Mathys, testified that the SGB made a request to the District Director for an Independent Panel for the interview process. That is how the Interviewing Panel was composed. He testified that the PAM document indicates that the SGB can appoint an Interviewing Panel, and they did that by requesting the District Director to appoint the panel. The letter that was sent to the District Director is on page 23 and the District Director responded by asking for two SGB members to be on the panel. He stated that at times the District Director would make a ruling that there must be SGB member and sometimes only WCED officials. He further stated that the SGB requested the WCED to take over the process and the District Director made the decision to ask the SGB to nominate two members of the SGB, which could have included the Principal.

66. It is the submission of the first respondent that they refute the version of the applicant and based its arguments on the following. Mr D Mathys as the first witness testified that he was a Circuit Manager at Paulus Joubert until the end of 2020, and that he served on the panel as the resource person of the WCED. His responsibility as a resource person was to ensure that all candidate that applied for the position were treated fairly and not prejudice against. He testified that the District Director, Mr Benjamin, established the panel. The panel was made up of three other districts official Mr Genis, Mr Maliwa, Mr Burger and the District Director also requested two SGB members to serve on the panel. Ms F Kearns agreed that no meeting of the SGB was held before the two names were sent to the Department as it was over a weekend and they wanted the names by the Monday. She did not approach the Principal, Mr I Collins, to be part of the Interview Panel as two people were already available. She did not contact all SGB members but first the parents.

67. It is the submission of the representative of the applicant that the secretary of the SGB, Ms F Kearns deliberately excluded the Principal from the panel which was also unlawful as the PAM is clear that the Principal must be part of the Interview Committee if he is not a candidate. No reasons were provided for the Principal’s exclusion out of the Interview Committee. This was a contravention of Resolution 5 of 1998. It is his view that the SGB was supposed to select the two SGB members on the Interview Panel in a meeting with a quorum as it was done initially and not unilaterally by the secretary of the SGB. She and the chairperson of the SGB in her letter to the Director, Mr J Benjamin without consent of the SGB, request that the process must be taken away from the school. It was however testified by the Principal that it was indeed a decision of the SGB to ask the Department to take the process away from the school.

68. The Principal, Mr I Collins, testified that he is a retired Principal, with five years’ experience as principal of Paulus Joubert School and he has experience in the appointment process. He confirmed that the SGB took the decision and there was voting on which process they would follow. There were two options on the table that it is either there are 50% SGB and 50% Department or 100% WCED. There was eight people that went for 100% WCED. Therefore, the decision was that the WCED should take over the process of the Deputy Principal’s appointment. The letter that was written on 18 September 2020, stated clearly that the SGB requested that the process should be done by the Department (page 23 of the bundle). After the letter was sent to the District Director there was silence until the secretary, Ms F Kearns, taken upon her own to send the letter to Mr D Mathys to appoint Ms Meyer and Mr T Abrahams as members on the Interview Panel, and there was no SGB meeting taken place to appoint those people.

69. According to the law page 65-66 of the bundle the Principal must be the resource person hence, the Interview Panel was not constitutional. He further disputed that the instruction came from the Director, Mr Benjamin, as there is no evidence and maintained that the secretary made that decision on her own. As Principal he became aware of the two SGB members that formed part of the process when they did their process, but only questioned it when the ratification meeting took place. Prior to the ratification meeting, Mr T Abrahams informed him that the WCED has an Interview Panel that consist of four WCED officials and two SGB member. When he was asked where does it state that a Principal must be part of the Independent Panel his response referred to page 65 of the bundle which contained the PAM document. The applicant claims that the SGB and first respondent have acted unlawfully as the Interview Panel was not appointed by the SGB but by the secretary of the SGB.

70. It is clear from the testimony of Mr D Slamet that he feels like he was treated unfairly when the Principal, Mr I Collins was not appointed to be part of the Interview Panel as he himself testified that he would have been at an advantaged position should the Principal been part of the interview process. It is the submission of the representative of the first respondent that it is clear from Mr I Collins testimony, who is the witness of the applicant and the former Principal of Paulus Joubert School, that the only reason he is not in support of the Interview Panel is based on the fact that he felt like his authority was taken away from him as the Principal of the school. The testimony of Mr I Collins should not be given much weight as during cross-examination he refused to answer questions instead he posed questions or indirectly ran away from giving answers. He was also not consistent.

71. It is the testimony of Mr T Abrahams, chairperson of the SGB that as the position of Deputy Principal was already advertised three times before, the SGB decided that the District deals with it. He received the call on Saturday from Ms F Kearns informing him that Mr D Mathys was requesting two people from the school SGB to form part of the Interview Panel and those names were needed by Monday. He instructed Ms F Kearns to first call the parents and see who is available and get back to him, she got back to him to inform him they were not available. He availed himself and asked her to call the teacher component which she did and Ms R Meyer availed herself. He informed her to forward those two names to Mr D Mathys on the Monday. When it was put to him that the panel was unlawful because page 66 of the bundle states the panel must be appointed by SGB, he stated clearly that the SGB had given the process over to the Department, so the people from the WCED were the ones that were running the process.

72. Analyzing the aforementioned, I firstly find that the SGB gave away its right to do the process of appointing a Deputy Principal when it requested the District Director to appoint the Independent Interview Panel. There was no prescribed way how the two SGB members must be appointed that needs to join the Independent Panel. Despite how the two people were appointed, they are still members of the SGB and therefore meeting the requirements from the District Director. The process was in compliance as the Principal was excluded by the SGB and not by the WCED. It was handled outside the processes of the PAM as the SGB requested the WCED to handle the appointment of the Deputy Principal post and the process could differ in the composition of the Interview Committee.
73. I however, find that the Principal was left out of the panel and no acceptable reasons were provided for the Principal’s exclusion out of the Interview Committee. This was a contravention of Resolution 5 of 1998 and the PAM document by the SGB. I however find the constitution of the Independent Panel by the District acceptable and properly constituted by the District Director.

74. I must further decide whether the WCED made an appointment without verification of the selection/appointment of the Interview Panel as well as whether the objection raised by the Principal of the school against the nomination of the ratification meeting was ignored by the resource person. I must further decide whether the process was procedural defective.

75. Mr T Abrahams was asked whether a motivation accompany each candidate’s ranking. The witness stated that he and the secretary of the panel, R Meyer, compiled the motivation for each of the ranked candidates, but during the ratification meeting with the SGB, the resource person presented it verbally. He said the minutes was sufficient to enable the WCED to make an appointment but absent during the ratification meeting. The SGB made an informed decision based on the verbal report and the resolution indicated on pages 59 and 60 of bundle “A”. Ms F Kearns further testified that Mr D Mathys explained the motivation behind the ranking order of the nominations during the ratification meeting and it was approved by 11 members of the SGB.

76. As Principal, Mr I Collins testified that Ms F Kearns informed the SGB members that there was going to be a ratification meeting on 11 March 2021, and that meeting took place. In the meeting, Mr D Mathys, resource person, informed them of the process that took place and decisions that were made. He testified that there was no discussion about the candidates. He informed the SGB that he was going to write a motivation to WCED stating his unhappiness. He stated that during the ratification they were not allowed to ask questions or discuss the motivation. He said that as the SGB they did not ratify the decision of the Interviewing Panel. The ranking order was not presented to them in the meeting and Mr D Mathys did not present any documents to them. Mr D Mathys only came with the names of the three nominees. According to him, Mr D Mathys informed the SGB that Mr Adonis was first nominee Mr Slamet second and Ms Coetzee third nominee, but did not give reasons for that order or provide them with documents.

77. It is the testimony of the Principal that he did not agree with the 11 SGB members that recommended that the order must be accepted as the process has gone through good hands. He did not agree with the approval of the nomination because the secretary manipulated the process, he has no problem with the candidate appointed, but the process was unlawful. The SGB did not agree with him to write a motivation to oppose the nomination, but the SGB indicated that they do not agree with him and he should do it on his own. He testified that there is a 1% different between Mr T Adonis and Mr D Slamet and he does not understand why he could not be appointed and he loses out on 1% after he dedicated his life on the school.

78. Under cross examination, Mr I Collins confirmed that the process has been repeated four times and he was part of it. His role was that he was a member of SGB and as the Principal, he should stick and abide by the decision of the SGB in a constituted SGB meeting he only has one vote. Out of 11 SGB members at the ratification meeting, he was the only person that was unhappy and the majority rules in the SGB. He testified that he was unhappy with the order of nomination and he would have liked the SGB to discuss the ranking order. He said that even after he saw the scores and reasoning behind the rank he is still unhappy, because if the resource person would have distributed the documents to the SGB, it would have been a good exercise for the SGB to discuss.

79. Mr T Abrahams further indicated that he signed the nomination form as approved by the SGB form at his work place as Ms R Meyer brought it to him. He further testified that the ratification meeting took place as per minutes on page 42-56 of the bundle. He further made mention that Mr D Mathys gave a brief motivation or explanation of why the ranking was in that order. He said that Mr D Mathys was reading from a page but he never distributed any document to the SGB members and no one asked for the documents. Mr T Abrahams testified clearly that the minutes does not gives details word by word and it is a summary of what was discussed and that was agreed in the first meeting that is how the minutes should be taken. He and Ms R Meyer were nominated by the Independent Panel as the chairperson and secretary as they are members of the SGB during their first meeting.

80. It is the representative of the applicant further submission that an Interview Committee that does not consist of all the members of the full SGB, is not the governing body as required by the Act. It is for this reason that PAM and ELRC Resolution 5 of 1998 provides as follows: “At the conclusion of the interviews the interviewing committee shall rank the candidates in order of preference, together with a brief motivation, and submit this to the school governing body for their recommendation to the relevant employing department. The governing body must submit their recommendation to the provincial education department in their order of preference” The minutes on page 37 substantiate the fact that the ratification was done by the Interview Committee and not the full component of the SGB. The SGB was only presented with the ranking list and nothing else. This was objected by the Principal of the school but was ignored. It is their view that the resource person was supposed to entertain the Principal’s objection as it was a prerequisite of the Independent Committee to provide a motivation. It is therefore necessary for the full governing body to ratify the recommendation of the Interview Committee, and it is the governing body, and not the Interview Committee who must send a recommendation to the HOD.

81. After made an analysis of the aforementioned regarding the ratification process, I find that the SGB is entrusted with the duty of nominating a suitable person for a post but the final decision is still that of the Department (HOD) to appoint. In this case the Department appointed the first nominee as accepted by the SGB during ratification as the suitable candidate for appointment. I further find that the objection raised by the Principal of the school against the nomination at the ratification meeting was ignored by the resource person. However, it has limited influence on the majority decision of the SGB at the ratification meeting to approve the nomination of the candidates to the HOD and the appointment of the second respondent.

82. An employee who alleged that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. He must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair. It depends upon the circumstances of a particular case and essentially involves a value judgement.

83. The arbitration of a promotion dispute entails a review of the employer’s decision. In applying the Sidomo test to promotion disputes, it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair. A recommendation by a School Governing Body during a ratification meeting is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such a recommendation the promotion is ultra vires and unlawful. In this case the ratification meeting took place and the majority of the constituted SGB voted in favour of the nomination of the candidates to the HOD.

84. The aforementioned is confirmed in Kimberley Junior School v The Head of the Northern Cape Education Department [2009] 4 All SA 135 (SCA) the judge ruled that the Employment of Educators Act requires the governing body to make a recommendation to the provincial HOD. No appointment, promotion or transfer to any post on the educator establishment of a public school, may be made without the recommendation of the governing body of the public school. I therefore find that the SGB approved the nomination of the candidates during the ratification meeting. The motivation forms part of the documentation that was sent to the HOD. Therefore, the SGB met the requirement that a recommendation by a school governing body is an essential prerequisite for the appointment of an educator in a departmental position.

85. Substantive unfairness relates to the reason for not promoting the applicant whereas procedural unfairness relates to an unfair process applied by the employer during the course of the recruitment and selection process. 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 suitable candidates for promotion. The role of the arbitrator is to oversee that the employer did not act unfairly against the applicant who was not promoted. The decision to promote falls within the managerial prerogative of the employer. I find that in the absence of gross unreasonableness or bad faith and where the decision relating to promotion was not seriously flawed, the arbitrator should not readily interfere with the exercise of the discretion.

86. The applicant, Mr Deon Slamet is employed as HOD at Paulus Joubert Secondary School. He applied for the permanent position of Deputy Principal, but not recommended and appointed in the post. It is the testimony of Mr Deon Slamet that he does not agree with what was stated about his competency in the minutes, and continued to specify what he has done for the school. Under cross-examination the applicant testified that he is mostly unhappy because the Principal who is Mr I Collins, was not included in the Interview Panel and he worked closely with him and he knows everything that he has done for the school. The applicant confirmed that he was shortlisted and interviewed for the post. He agreed that the two appointed SGB members, Mr T Abrahams and Ms R Meyer, that he claims were unlawfully appointed, were part of shortlisting and interviews and he was not prejudiced by their presence on the Independent Panel.

87. It is the submission by the representative of the first respondent that on a balance of probability, the testimonies provided above by Mr D Mathys, Mr T Abraham and Ms F Kearns the witnesses of the first respondent should be accepted as a true reflection of what happened, as they were consistent throughout their testimony in chief and maintained their testimony even under cross-examination. The first respondent’s case was supported by documentary evidence that were in the form of minutes of the meeting, emails registers, prescripts and collaborated by witnesses. All the departmental witnesses indicated that they had nothing to gain from adding the two members from the SGB.

88. The Department is of the view that the applicant was not prejudiced and that the process for the filling of the post of Deputy Principal at Paulus Joubert High School was fair and that no Unfair Labour Practice exists. The Department is further strongly of the opinion that the first respondent acted in the best interest of the school and the learners when appointing the District Director to oversee the process of appointing the Deputy Principal as the process has been re-done three times at the school without success.

89. When deciding whether a procedure conducted in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should not make a finding of procedural unfairness. Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then in order for the employee to prove an unfair labour practice relating to promotion, he should generally, at least demonstrate that there was conduct that denied him a fair opportunity to compete a post.

90. I find that the procedure followed by the Independent Panel constituted by the District Director was appropriate and the applicant was not prejudiced in any way as he was shortlisted and interviewed and was nominated as one of the top three candidates. There was no conduct that denied him a fair opportunity to compete in the post as Deputy Principal.

91. In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.

92. I find that the ratification process was not flawed. The applicant request for the process to be repeated and this cannot be done as the correct procedures were followed to appoint the successful candidate. There was no discrimination against the applicant and the decision not to appoint him was not grossly unreasonable. In procedural fairness strict compliance with the guidelines for appointment provided for in the PAM is not necessary. The applicant could not prove that he was the best candidate for the position and even admitted that there was no prejudice against him.

93. As indicated, the applicant bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. From a procedural aspect I am satisfied that the applicant did not suffer prejudice during the recruitment and selection process for the promotion post. I find that the procedure followed by the HOD was fair and that no Unfair Labour Practice was committed by the first respondent to appoint the second respondent and not the applicant. Therefore, there is no need that the process must be redone and that the appointment of the second respondent must be set aside.

94. In light of the above I make the following award.



AWARD

95. The first respondent did not commit an unfair labour practice in the non-appointment of the applicant and the appointment of the 2nd respondent for the advertised position of Deputy Principal at Paulus Joubert High School at a post level 3 (964).

96. There is no order as to costs




Signature:

Panelist: Gert van der Berg
Sector: Western Cape Department of Education