ELRC 546-19/20EC
Text
ELRC 546-19/20EC
Award Date:
13 April 2022
Case Number: ELRC 546-19/20EC
Panelist: Hadley Saayman
Date of Award: 13 APRIL 2022
In the ARBITRATION between
MAYASE, MBUYISELO
(Applicant)
And
DEPARTMENT OF BASIC EDUCATION -EC 1ST RESPONDENT
MR FRED EVERY 2ND RESPONDENT
MS NOSIZWE JACOBS 3RD RESPONDENT
MR MONGEZI MCONO 4TH RESPONDENT
MS ANN NTOMBANA 5TH RESPONDENT
MR THANDILE MKELE 6TH RESPONDENT
Applicant’s representative: Mr M Mayase (In Person)
Applicant’s address: P.O.Box 42
Alice
5700
Telephone: 078 656 7974
E-mail: mayasemv@gmail.com
1st Respondent’s representative: Mr G Jacobs
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 082 2109 646
Emai:
Ms V Van Wyk
SAOU
082 2109 646
2nd Respondent’s representative:
Union:
Telephone:
E-mail:
Ms C Royi
SADTU
082 2109 646
3rd to 6th Respondents representative:
Union:
Telephone:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act (LRA) for several times and finalised on 17 March 2022 at the District Office of Department of Education, Fort Beaufort. The Applicant represented himself and the Respondent was represented by Mr G Jacobs, an EDO. The proceedings were digitally recorded. Both parties submitted written closing arguments by 24 March 2022, which were considered.
ISSUE TO BE DECIDED
2. I have to determine whether any unfair labour practice in terms of section 186(2)(a) of the Labour Relations
Act (LRA) relating to promotion was committed by the 1strespondent in respect of the applicant, and if so,
the appropriate relief.
BACKGROUND TO THE ISSUES
3. The Applicant applied for one of the five (5) vacant positions of Education Development Officers which
was advertised in Circular 25 of 2018/2019 in the Amathole West District under reference ECDOE 18/1/19.
4. The Applicant was initially shortlisted by the Respondent on 14 March 2019 and invited to the interview
process which was scheduled for 27 March 2019.
5. On 26 March 2019, the Applicant was called by the 1st Respondent that the interviews had been postponed
and that he would be informed of the new date.
6. The interviews were then held on 11 April 2019, but the Applicant was not invited for the same.
7. Regarding relief, the applicant seeks that the entire process be set aside and or compensation.
SURVEY OF EVIDENCE AND ARGUMENT
8. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the
Labour Relations Act 66 of 1995 (LRA), relevant to the dispute at hand.
APPLICANT’S EVIDENCE
9. The Applicant, Mr Mbuyielo Mayase testified that he holds the following qualifications, inter alia: Master of Public Administration, BEd (Honours), Further Diploma in Education Management, Senior Teacher’s Diploma. He had 24 years of teaching and 12 years’ experience as a School Principal. He was a School Principal at Maasdorp Primary School. He claimed that the Department was not consistent when they shortlisted and appointed EDOs. He submitted that the 2nd Respondent, Mr F Every should not have been shortlisted and appointed, because Mr Every did not meet the minimum requirements for the vacancy as an EDO. The Applicant submitted that he qualified and met all the requirements to have been shortlisted and appointed as an EDO.
1st RESPONDENT’S EVIDENCE
10. The 1st Respondent called only one witness, Mr Mzukisi Jack, a Chief-Director responsible for cluster B.
Mr Jack testified that he was the chairperson of the shortlisting and interview panels on 3 April 2019 and 11 April 2019 respectively. There were One Hundred and Thirty (136) applications for five (5) vacancies. They were shortlisted to sixteen (16) candidates. Except for the advertised requirement, the panel also considered additional criteria, inter alia: performance of candidates with specific focus on literacy and numeracy, National Circular D2, learner numbers, equity, demographics, race, gender, and language. Candidates were separated in Secondary and Primary Schools as well as the leaner numbers. The process was fair, and the Unions also observed the process.
2nd to 6th RESPONDENTS’S EVIDENCE
11. The respondents elected not to submit any evidence.
ANALYSIS OF EVIDENCE AND ARGUMENT
12. Section 186(2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia: (2) “Unfair labour practice” means any unfair act or omission that arises between an employer and
an employee involving —
(a) unfair conduct by the employer relating to the promotion, demotion, probation (ex-cluding disputes about dismissals for a reason relating to probation) or training of an em-ployee or relating to the provision of benefits to an employee;…
13. The LRA requires employers to treat employees fairly when they apply for promotions. An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all of the ele-ments of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
14. Fairness requires that the position and interests of both the employee and employer are taken into ac-count in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper re-gard to the objectives sought to be achieved by the LRA.
15. The Applicant submitted that the 1stRespondent’s conduct has denied him a fair opportunity and there-by prejudiced him in presenting his candidature for the advertised position as Education Development Officer (EDO).
16. The Applicant submitted that he met the minimum criteria to be shortlisted for the position of an EDO.
17. It was common cause that the Applicant was shortlisted during the initial process.
18. The 1st Respondent submitted that the Superintendent General (SG) revoked his Internal Memorandum wherein he directed that the District Director should be the Chairperson of the selection panel for EDO’s and it was replaced with the direction as per circular 8 of 2019 dated 22 March 2022, the chair-person was substituted with the Cluster Chief Director. The SG also directed that the selection pro-cess be redone. The 1st Respondent also submitted that the Cluster Chief Director, Mr M Jack on 3 April 2019, send a memo to all candidates for the post of EDO’s to confirm the afore mentioned. The Applicant submitted that he was never informed that the process would be redone as well as the memo of Mr Jack. However, he conceded that it was the prerogative of the SG to request that the pro-cess be redone. It is with this process that the Applicant has an issue.
19. The shortlisting criteria as stated in the Respondent’s minutes of 3 April 2019, were the following:
• Three-year tertiary Qualification in Education (RVQ13)
• Minimum of five (5) years’ experience as a principal of a performing school
• Driver’s licence
• Computer Literacy
• Registration with SACE
20. It was further common cause that Mr F Every was not shortlisted during the initial process.
21. The 1st Respondent argued that they used additional criteria when the process was redone. Surely, addi-tional criteria should raise the bar and not lower the standards. In particular when it comes to Circuit Man-agers, which was the case in this dispute.
22. The 1st Respondent submitted that the Applicant was the principal of an underperforming school. Howev-er, no documentary evidence was adduced by the 1st Respondent to substantiate the same.
23. The requirements stated in the advertisement were as follows:
• A recognised RVQ 13 qualification in the education profession, which includes a minimum of 8 years minimum teaching experience
• Registration with SACE as professional educator
• 5 years minimum management experience as a principal of a top performing school
• Must be registered with SACE
• Hands on experience and knowledge of teacher development and curriculum policy implemen-tation practices
• A sound knowledge of the National Curriculum and Assessment Policy Statements and topical curriculum transformation issues.
• Proven experience of leading and co-ordinating school improvement projects
• Ability to work independently as well as in a team
• Good communication skills (written & verbal)
• Computer skills with excellent knowledge of Microsoft Packages
• A valid driver’s licence
24. The Applicant submitted that the 1st Respondent was not consistent in the shortlisting and appointment process when it shortlisted and appointed Mr F Every as an EDO. It was common cause that Mr Every did not have the minimum of five (5) years’ experience as a principal before he was shortlisted and ap-pointed as an EDO by the Respondent. It was common cause that the Applicant had about twelve years’ experience as a principal. It was also common cause that the Applicant qualified for most of the criteria as set out in the advertisement.
25. The 1st respondent submitted that the Applicant was not shortlisted, because he was a principal of a small and non-viable school, which the 1st responded conceded that it does not mean that a principal of a small school does not qualify to be considered as an EDO.
26. In Ga-Segonyana Local Municipality v Venter N.O. and Others (JR961/13) [2016] ZALCJHB 391; (11 October 2016) the Court held that the factors to be considered whether or not the employer had act-ed fairly are the following:
• whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer;
• or whether the employer’s decision was motivated by bad faith,
• was arbitrary, capricious, unfair or discriminatory;
• whether there were insubstantial reasons for the employer’s decision not to promote;
• whether the employer’s decision not to promote was based upon a wrong principle;
• or was taken in a biased manner;
• whether the employer failed to apply its mind to the promotion of the employee;
• or whether the employer failed to comply with applicable procedural requirements related to
promotions.
27. It was common cause that the minutes of the shortlisting process did not state that additional criteria were used by the panel or that the minimum criteria, especially relating to experience as a principal had been reduced.
28. The Applicant further submitted that the non-compliance of the recruitment protocol and procedures has unfairly prejudiced him and that there is a causal connection between the unfairness complained of and the prejudice suffered by the Applicant.
29. The Applicant also argued that changing the requirements of the Bulletin was arbitrary as well as the
inconsistency of the Respondent’s conduct was grossly irregular.
30. The 1st Respondent could not rationally justify the elimination of the Applicant’s application for the va-cancy as EDO. The argument of the 1st Respondent that the Applicant did not meet the criteria of being a principal at a top performing school as per Circular D2 does not take the matter any further.
31. The judgment in Ncane v Lyster, 2017 (38) ILJ 907 (LAC) confirms that labour forums and the court will not easily interfere with an employer’s decision regarding who should and who should not be promoted. It also highlights the requirements that employers must comply with so that not promoting a candidate for promotion would be viewed as fair by the labour tribunal or court.
32. In the matter of Noonan v Safety and Security Sectoral Bargaining Council and Others (PA 1/11) [2012] ZALAC 9 (1 June 2012), the Labour Appeal Court held that material errors in the recruitment pro-cess will render the process unfair, whether or not the decision to appoint can be rationally justified.
33. The scheme of the LRA requires of the employer to adduce evidence “that is sufficient to persuade a court, at the end ... that the claim or the defense, as the case may be, should succeed”. As has become apparent from Edcon Ltd v Pillemer NO (2010) 1 BLLR 1 (SCA)., it is not sufficient to rely on general statements made without providing supporting evidence and putting material in front of the decision maker to ensure that he or she reaches a reasonable decision.
34. Considering the evidence and submissions in totality, I am of the view that the 1st Respondent’s con-duct has denied the Applicant a fair opportunity and thereby prejudiced him in presenting his candidature for the advertised positions. I must emphasise that even if the Applicant was shortlisted, it does not flow mero moto that he would have been appointed as an EDO. The crisp issue is the unfair sifting out during the second process.
35. It therefore follows that the 1st Respondent has committed an unfair labour practice as envisaged by sec-tion 186(2)(a) of the LRA.
36. In deciding on just and equitable relief, I must have regard to the circumstances in totality, the unfair conduct of the respondent in eliminating the applicant without having regard to his right to due process and fair labour practices.
37. The Applicant is entitled to compensation in the amount of R25 000.00 (Twenty- Five Thousand Rand).
AWARD
38. The 1st Respondent, the Department of Basic Education-EC has committed an unfair labour practice as contemplated by Section 186(2) of the LRA by not shortlisting the Applicant for the advertised position of Education Development Officer.
39. The 1st Respondent, Department of Basic Education-EC is ordered to pay the Applicant, Mbuyiselo Mayase the amount of R 25 000.00 (Twenty- Five Thousand Rand) by no later than 30 May 2022. The afore-mentioned amount will be subjected to the normal statutory deductions.
40. The Head of The Department of Education-EC, (HOD) must ensure that payment be effected to
the applicant, Mbuyiselo Mayase by no later than 30 May 2022.
Signature:
Commissioner: Hadley Saayman
Sector: Education
Panelist: Hadley Saayman
Date of Award: 13 APRIL 2022
In the ARBITRATION between
MAYASE, MBUYISELO
(Applicant)
And
DEPARTMENT OF BASIC EDUCATION -EC 1ST RESPONDENT
MR FRED EVERY 2ND RESPONDENT
MS NOSIZWE JACOBS 3RD RESPONDENT
MR MONGEZI MCONO 4TH RESPONDENT
MS ANN NTOMBANA 5TH RESPONDENT
MR THANDILE MKELE 6TH RESPONDENT
Applicant’s representative: Mr M Mayase (In Person)
Applicant’s address: P.O.Box 42
Alice
5700
Telephone: 078 656 7974
E-mail: mayasemv@gmail.com
1st Respondent’s representative: Mr G Jacobs
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 082 2109 646
Emai:
Ms V Van Wyk
SAOU
082 2109 646
2nd Respondent’s representative:
Union:
Telephone:
E-mail:
Ms C Royi
SADTU
082 2109 646
3rd to 6th Respondents representative:
Union:
Telephone:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act (LRA) for several times and finalised on 17 March 2022 at the District Office of Department of Education, Fort Beaufort. The Applicant represented himself and the Respondent was represented by Mr G Jacobs, an EDO. The proceedings were digitally recorded. Both parties submitted written closing arguments by 24 March 2022, which were considered.
ISSUE TO BE DECIDED
2. I have to determine whether any unfair labour practice in terms of section 186(2)(a) of the Labour Relations
Act (LRA) relating to promotion was committed by the 1strespondent in respect of the applicant, and if so,
the appropriate relief.
BACKGROUND TO THE ISSUES
3. The Applicant applied for one of the five (5) vacant positions of Education Development Officers which
was advertised in Circular 25 of 2018/2019 in the Amathole West District under reference ECDOE 18/1/19.
4. The Applicant was initially shortlisted by the Respondent on 14 March 2019 and invited to the interview
process which was scheduled for 27 March 2019.
5. On 26 March 2019, the Applicant was called by the 1st Respondent that the interviews had been postponed
and that he would be informed of the new date.
6. The interviews were then held on 11 April 2019, but the Applicant was not invited for the same.
7. Regarding relief, the applicant seeks that the entire process be set aside and or compensation.
SURVEY OF EVIDENCE AND ARGUMENT
8. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the
Labour Relations Act 66 of 1995 (LRA), relevant to the dispute at hand.
APPLICANT’S EVIDENCE
9. The Applicant, Mr Mbuyielo Mayase testified that he holds the following qualifications, inter alia: Master of Public Administration, BEd (Honours), Further Diploma in Education Management, Senior Teacher’s Diploma. He had 24 years of teaching and 12 years’ experience as a School Principal. He was a School Principal at Maasdorp Primary School. He claimed that the Department was not consistent when they shortlisted and appointed EDOs. He submitted that the 2nd Respondent, Mr F Every should not have been shortlisted and appointed, because Mr Every did not meet the minimum requirements for the vacancy as an EDO. The Applicant submitted that he qualified and met all the requirements to have been shortlisted and appointed as an EDO.
1st RESPONDENT’S EVIDENCE
10. The 1st Respondent called only one witness, Mr Mzukisi Jack, a Chief-Director responsible for cluster B.
Mr Jack testified that he was the chairperson of the shortlisting and interview panels on 3 April 2019 and 11 April 2019 respectively. There were One Hundred and Thirty (136) applications for five (5) vacancies. They were shortlisted to sixteen (16) candidates. Except for the advertised requirement, the panel also considered additional criteria, inter alia: performance of candidates with specific focus on literacy and numeracy, National Circular D2, learner numbers, equity, demographics, race, gender, and language. Candidates were separated in Secondary and Primary Schools as well as the leaner numbers. The process was fair, and the Unions also observed the process.
2nd to 6th RESPONDENTS’S EVIDENCE
11. The respondents elected not to submit any evidence.
ANALYSIS OF EVIDENCE AND ARGUMENT
12. Section 186(2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia: (2) “Unfair labour practice” means any unfair act or omission that arises between an employer and
an employee involving —
(a) unfair conduct by the employer relating to the promotion, demotion, probation (ex-cluding disputes about dismissals for a reason relating to probation) or training of an em-ployee or relating to the provision of benefits to an employee;…
13. The LRA requires employers to treat employees fairly when they apply for promotions. An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all of the ele-ments of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
14. Fairness requires that the position and interests of both the employee and employer are taken into ac-count in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper re-gard to the objectives sought to be achieved by the LRA.
15. The Applicant submitted that the 1stRespondent’s conduct has denied him a fair opportunity and there-by prejudiced him in presenting his candidature for the advertised position as Education Development Officer (EDO).
16. The Applicant submitted that he met the minimum criteria to be shortlisted for the position of an EDO.
17. It was common cause that the Applicant was shortlisted during the initial process.
18. The 1st Respondent submitted that the Superintendent General (SG) revoked his Internal Memorandum wherein he directed that the District Director should be the Chairperson of the selection panel for EDO’s and it was replaced with the direction as per circular 8 of 2019 dated 22 March 2022, the chair-person was substituted with the Cluster Chief Director. The SG also directed that the selection pro-cess be redone. The 1st Respondent also submitted that the Cluster Chief Director, Mr M Jack on 3 April 2019, send a memo to all candidates for the post of EDO’s to confirm the afore mentioned. The Applicant submitted that he was never informed that the process would be redone as well as the memo of Mr Jack. However, he conceded that it was the prerogative of the SG to request that the pro-cess be redone. It is with this process that the Applicant has an issue.
19. The shortlisting criteria as stated in the Respondent’s minutes of 3 April 2019, were the following:
• Three-year tertiary Qualification in Education (RVQ13)
• Minimum of five (5) years’ experience as a principal of a performing school
• Driver’s licence
• Computer Literacy
• Registration with SACE
20. It was further common cause that Mr F Every was not shortlisted during the initial process.
21. The 1st Respondent argued that they used additional criteria when the process was redone. Surely, addi-tional criteria should raise the bar and not lower the standards. In particular when it comes to Circuit Man-agers, which was the case in this dispute.
22. The 1st Respondent submitted that the Applicant was the principal of an underperforming school. Howev-er, no documentary evidence was adduced by the 1st Respondent to substantiate the same.
23. The requirements stated in the advertisement were as follows:
• A recognised RVQ 13 qualification in the education profession, which includes a minimum of 8 years minimum teaching experience
• Registration with SACE as professional educator
• 5 years minimum management experience as a principal of a top performing school
• Must be registered with SACE
• Hands on experience and knowledge of teacher development and curriculum policy implemen-tation practices
• A sound knowledge of the National Curriculum and Assessment Policy Statements and topical curriculum transformation issues.
• Proven experience of leading and co-ordinating school improvement projects
• Ability to work independently as well as in a team
• Good communication skills (written & verbal)
• Computer skills with excellent knowledge of Microsoft Packages
• A valid driver’s licence
24. The Applicant submitted that the 1st Respondent was not consistent in the shortlisting and appointment process when it shortlisted and appointed Mr F Every as an EDO. It was common cause that Mr Every did not have the minimum of five (5) years’ experience as a principal before he was shortlisted and ap-pointed as an EDO by the Respondent. It was common cause that the Applicant had about twelve years’ experience as a principal. It was also common cause that the Applicant qualified for most of the criteria as set out in the advertisement.
25. The 1st respondent submitted that the Applicant was not shortlisted, because he was a principal of a small and non-viable school, which the 1st responded conceded that it does not mean that a principal of a small school does not qualify to be considered as an EDO.
26. In Ga-Segonyana Local Municipality v Venter N.O. and Others (JR961/13) [2016] ZALCJHB 391; (11 October 2016) the Court held that the factors to be considered whether or not the employer had act-ed fairly are the following:
• whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer;
• or whether the employer’s decision was motivated by bad faith,
• was arbitrary, capricious, unfair or discriminatory;
• whether there were insubstantial reasons for the employer’s decision not to promote;
• whether the employer’s decision not to promote was based upon a wrong principle;
• or was taken in a biased manner;
• whether the employer failed to apply its mind to the promotion of the employee;
• or whether the employer failed to comply with applicable procedural requirements related to
promotions.
27. It was common cause that the minutes of the shortlisting process did not state that additional criteria were used by the panel or that the minimum criteria, especially relating to experience as a principal had been reduced.
28. The Applicant further submitted that the non-compliance of the recruitment protocol and procedures has unfairly prejudiced him and that there is a causal connection between the unfairness complained of and the prejudice suffered by the Applicant.
29. The Applicant also argued that changing the requirements of the Bulletin was arbitrary as well as the
inconsistency of the Respondent’s conduct was grossly irregular.
30. The 1st Respondent could not rationally justify the elimination of the Applicant’s application for the va-cancy as EDO. The argument of the 1st Respondent that the Applicant did not meet the criteria of being a principal at a top performing school as per Circular D2 does not take the matter any further.
31. The judgment in Ncane v Lyster, 2017 (38) ILJ 907 (LAC) confirms that labour forums and the court will not easily interfere with an employer’s decision regarding who should and who should not be promoted. It also highlights the requirements that employers must comply with so that not promoting a candidate for promotion would be viewed as fair by the labour tribunal or court.
32. In the matter of Noonan v Safety and Security Sectoral Bargaining Council and Others (PA 1/11) [2012] ZALAC 9 (1 June 2012), the Labour Appeal Court held that material errors in the recruitment pro-cess will render the process unfair, whether or not the decision to appoint can be rationally justified.
33. The scheme of the LRA requires of the employer to adduce evidence “that is sufficient to persuade a court, at the end ... that the claim or the defense, as the case may be, should succeed”. As has become apparent from Edcon Ltd v Pillemer NO (2010) 1 BLLR 1 (SCA)., it is not sufficient to rely on general statements made without providing supporting evidence and putting material in front of the decision maker to ensure that he or she reaches a reasonable decision.
34. Considering the evidence and submissions in totality, I am of the view that the 1st Respondent’s con-duct has denied the Applicant a fair opportunity and thereby prejudiced him in presenting his candidature for the advertised positions. I must emphasise that even if the Applicant was shortlisted, it does not flow mero moto that he would have been appointed as an EDO. The crisp issue is the unfair sifting out during the second process.
35. It therefore follows that the 1st Respondent has committed an unfair labour practice as envisaged by sec-tion 186(2)(a) of the LRA.
36. In deciding on just and equitable relief, I must have regard to the circumstances in totality, the unfair conduct of the respondent in eliminating the applicant without having regard to his right to due process and fair labour practices.
37. The Applicant is entitled to compensation in the amount of R25 000.00 (Twenty- Five Thousand Rand).
AWARD
38. The 1st Respondent, the Department of Basic Education-EC has committed an unfair labour practice as contemplated by Section 186(2) of the LRA by not shortlisting the Applicant for the advertised position of Education Development Officer.
39. The 1st Respondent, Department of Basic Education-EC is ordered to pay the Applicant, Mbuyiselo Mayase the amount of R 25 000.00 (Twenty- Five Thousand Rand) by no later than 30 May 2022. The afore-mentioned amount will be subjected to the normal statutory deductions.
40. The Head of The Department of Education-EC, (HOD) must ensure that payment be effected to
the applicant, Mbuyiselo Mayase by no later than 30 May 2022.
Signature:
Commissioner: Hadley Saayman
Sector: Education