ELRC537-21/22EC
Text
ELRC537-21/22EC
Award Date:
24 May 2022
Case Number: ELRC537-21/22EC
Commissioner: Henk Jacobs
Date of Ruling: 24 May 2022
In the matter between
L Royi
(Applicant)
And
Department of Education – Eastern Cape
(Respondent)
Union/Applicant’s representative:
Telephone:
Telefax:
E-mail:
Respondent’s representative:
Respondent’s address:
Telephone:
Telefax:
E-mail:
Details of hearing and representation
1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), was held virtually and face to face at the District Offices of the Education Department, King Williams Town on 15 December 2021, 19 April 2022 and 12 May 2022.
2 The applicant, Ms L Royi, was present and represented herself during the proceedings. The 1st respondent, the Department of Education – Eastern Cape, was represented by Mr T. Tsheko a Senior Labour Relations Officer for the Respondent. The 2nd respondent, Ms S. Ndungane was present and represented herself during the proceedings.
3 The hearing was held in English and was digitally recorded.
4 Partied further agree to file written heads of argument by no later than 20 May 2022 in writing, both parties did so.
Issue to be decided
4. The issue to be decided is whether or not the Applicant was subject to an unfair labour practice when she was excluded from beings shortlisted for the post of Principal at Ngqika Primary School, and if so, to determine the appropriate relief.
Background to the matter
5. The Applicant applied for the post of Principal as advertised bulletin 1 of 2021 and was not shortlisted. The Applicant referred an alleged unfair labour practice dispute to the Education Labour Relations Council (ELRC) pertaining promotion.
6. The Applicant does not wish for the appointment of Ms Ndungane be set aside; the Applicant sought compensation.
7. The following facts are common cause: A post for Principal was advertised by the Respondent, the Applicant applied and was not shortlisted. The Applicant was excluded based on her failure to attach her statement of results as well as the absence of any Financial Management qualification.
8. The following facts are in dispute: The Applicant alleged that the reason for not being shortlisted constitutes and alleged unfair labour practice.
9. The parties submitted bundles of documents into record which he will rely on during the proceedings. The documents were accepted the extent that they are what they purports to be.
Survey of evidence
10. This is a summary and does not reflect all of the arguments heard and considered in reaching a decision.
11. Ms Royi testified under oath on behalf of herself, and Mr Mnyaiza testified under oath for the Respondent.
Applicant’s evidence
12. Ms Royi testified in short, that she was better qualified than the successful candidate for the post. She was excluded based on her not having a financial management qualification and no statement of results were attached to her application.
13. The Applicant made reference to the master list on bundle A of who was shortlisted and states that no.4 on the list has a Leadership Diploma and was shortlisted, no.10 was shortlisted, and she is better qualified than that person, no13, 15, 16 and 18 was shortlisted without any financial management qualification.
14. The Applicant further testified that the duties of a Deputy Principal, the post she currently holds is the same as that of a principal in terms of the Personnel Administrative Measures (the PAM). The post that was advertised are for intermediate teachers and not for Primary teachers. There was no requirement for Financial Management in terms of the advertisement.
15. The shortlisting criteria on page 7 of bundle A states that a statement of results must be attached, and the Applicants testified that she does not know what that is, she further testified that she complied with all the criteria for the post and that financial management is part of a deputy principals’ duties.
16. The Applicant also testified that the successful candidate did not submit a statement of results with her application and should thus not be shortlisted. The successful candidate does have a financial management qualification, but no computer literacy which was a requirement for the post.
17. The Applicant testified that there was a deviation from the shortlisting criteria and the post requirements as advertised.
18. Under cross-examination, the Applicant states that the reason for attaching academic records is to identify subject specialisation and the confirm the authenticity of the qualification and for a management diploma there is no need for academic records as it does not form part of the curriculum.
Respondents evidence
19. Mr Mnyaiza testified that he is an educator employed by the Respondent as is also part of the School Governing Body (SGB) at Ngqika Primary School. The successful candidate was short listed on the basis that she acted for more than 12 months at the school in the post of principal for which she applied.
20. Under cross-examination, Mr Mnyaiza confirmed that they did not consider the successful applicant’s application, she was short listed purely on the basis that she acted for longer than 12 months in the post. They had about 50 applicants and had to reduce it to 5, they took the successful candidate’s application and put it aside in default.
21. Mr Mnyaiza further confirmed that there was no involvement from the successful candidate throughout the recruitment process. The successful candidate did not attach her academic records to her application.
Analysis
22. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
23. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provisions of benefits to an employee”.
24. It is common cause that the Applicant is complaining about not being shortlisted although she meets all the requirements for the post. It is common cause that the reason provided for the Applicants exclusion from being short listed was that she failed to attach academic records to her application and that she does not have a financial management qualification.
25. It is further common cause that the successful candidate also did not attach her academic records to her application and that she attended and received a certificate of attendance for basic financial management for schools.
26. There are two processes that should be discussed in order to come to a conclusion, first is the sifting process that is done by the Employing Department. The PAM states that the employment department must acknowledge all applications, they must confirm whether the application was complete and if the applicant meets the minimum requirements for the post.
27. In this instance, a master list was provided to the school and includes the Applicants application, all shortlisted candidates referred to by the Applicant has a comment from the Employment Department that states “no comment” and other comments also appears on the list.
28. It is strange that the Applicants application made it to the school without her attaching her academic results, and the same may apply to the successful candidate. The PAM is clear that they must indicate if the application is complete which includes ensuring that all required documentation was attached.
29. Now turning to the shortlisting process. Page one of Bundle RC which is the Bulletin the post was advertised in provides all applicants with the relevant information that should be attached to the application which includes the academic records of the qualifications. The Applicant in argument states that she met the minimum requirements for the post and had to be shortlisted.
30. The interviewing panel compiled shortlisting criteria as they should in terms of the PAM, all parties agree to the criteria. The first criteria on page 7 of the Applicants bundle A, referred to a statement of results. It is common cause the Applicant failed to submit a statement of results, or for the use of a different term, her academic records to her application. On that basis, there can be no argument made that the Applicant was unfairly excluded from being shortlisted, she simply did not comply with the requirements of the application process.
31. The Applicant testified to the reason for the academic records to be attached as it speaks directly to the curriculum requirements for the post. It is sad that the Applicant failed to attach her academic results as it resulted in her being excluded.
32. With reference to the successful candidate who also did not submit a statement of results, the PAM in item B5.4.9 states that “An educator, who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted.” It is thus correct that the successful candidate was shortlisted by default as she acter for more than 12 months in the post. The panel had no choice in this instance, but to include the successful candidate as the PAM made use of the word “must”, and not may which would give the panel a choice.
33. The Respondent in arguments ates that there is no right to a promotion. That I agree with, save that applicant have the right not to be unfairly excluded from competing for the post. The Applicant was not excluded from competing, what was required of her was to attach her academic records.
34. With regards to the financial management qualification, it becomes academic as the Applicant was excluded in the first round as she did not attach her academic records already. The issue of the financial management qualification formed part of the second-round shortlisting criteria.
35. In light of the above, I find it appropriate to make the following award.
Award
36. The Applicant, Ms L. Royi, was not subjected to any unfair labour practice by the Respondent, the Department of Education -Eastern Cape when she was not shortlisted for the post of principal at Ngqika Primary School.
37. The Applicant, Ms L. Royi is not entitled to any relief.
Signature:
Commissioner: Henk Jacobs
Commissioner: Henk Jacobs
Date of Ruling: 24 May 2022
In the matter between
L Royi
(Applicant)
And
Department of Education – Eastern Cape
(Respondent)
Union/Applicant’s representative:
Telephone:
Telefax:
E-mail:
Respondent’s representative:
Respondent’s address:
Telephone:
Telefax:
E-mail:
Details of hearing and representation
1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), was held virtually and face to face at the District Offices of the Education Department, King Williams Town on 15 December 2021, 19 April 2022 and 12 May 2022.
2 The applicant, Ms L Royi, was present and represented herself during the proceedings. The 1st respondent, the Department of Education – Eastern Cape, was represented by Mr T. Tsheko a Senior Labour Relations Officer for the Respondent. The 2nd respondent, Ms S. Ndungane was present and represented herself during the proceedings.
3 The hearing was held in English and was digitally recorded.
4 Partied further agree to file written heads of argument by no later than 20 May 2022 in writing, both parties did so.
Issue to be decided
4. The issue to be decided is whether or not the Applicant was subject to an unfair labour practice when she was excluded from beings shortlisted for the post of Principal at Ngqika Primary School, and if so, to determine the appropriate relief.
Background to the matter
5. The Applicant applied for the post of Principal as advertised bulletin 1 of 2021 and was not shortlisted. The Applicant referred an alleged unfair labour practice dispute to the Education Labour Relations Council (ELRC) pertaining promotion.
6. The Applicant does not wish for the appointment of Ms Ndungane be set aside; the Applicant sought compensation.
7. The following facts are common cause: A post for Principal was advertised by the Respondent, the Applicant applied and was not shortlisted. The Applicant was excluded based on her failure to attach her statement of results as well as the absence of any Financial Management qualification.
8. The following facts are in dispute: The Applicant alleged that the reason for not being shortlisted constitutes and alleged unfair labour practice.
9. The parties submitted bundles of documents into record which he will rely on during the proceedings. The documents were accepted the extent that they are what they purports to be.
Survey of evidence
10. This is a summary and does not reflect all of the arguments heard and considered in reaching a decision.
11. Ms Royi testified under oath on behalf of herself, and Mr Mnyaiza testified under oath for the Respondent.
Applicant’s evidence
12. Ms Royi testified in short, that she was better qualified than the successful candidate for the post. She was excluded based on her not having a financial management qualification and no statement of results were attached to her application.
13. The Applicant made reference to the master list on bundle A of who was shortlisted and states that no.4 on the list has a Leadership Diploma and was shortlisted, no.10 was shortlisted, and she is better qualified than that person, no13, 15, 16 and 18 was shortlisted without any financial management qualification.
14. The Applicant further testified that the duties of a Deputy Principal, the post she currently holds is the same as that of a principal in terms of the Personnel Administrative Measures (the PAM). The post that was advertised are for intermediate teachers and not for Primary teachers. There was no requirement for Financial Management in terms of the advertisement.
15. The shortlisting criteria on page 7 of bundle A states that a statement of results must be attached, and the Applicants testified that she does not know what that is, she further testified that she complied with all the criteria for the post and that financial management is part of a deputy principals’ duties.
16. The Applicant also testified that the successful candidate did not submit a statement of results with her application and should thus not be shortlisted. The successful candidate does have a financial management qualification, but no computer literacy which was a requirement for the post.
17. The Applicant testified that there was a deviation from the shortlisting criteria and the post requirements as advertised.
18. Under cross-examination, the Applicant states that the reason for attaching academic records is to identify subject specialisation and the confirm the authenticity of the qualification and for a management diploma there is no need for academic records as it does not form part of the curriculum.
Respondents evidence
19. Mr Mnyaiza testified that he is an educator employed by the Respondent as is also part of the School Governing Body (SGB) at Ngqika Primary School. The successful candidate was short listed on the basis that she acted for more than 12 months at the school in the post of principal for which she applied.
20. Under cross-examination, Mr Mnyaiza confirmed that they did not consider the successful applicant’s application, she was short listed purely on the basis that she acted for longer than 12 months in the post. They had about 50 applicants and had to reduce it to 5, they took the successful candidate’s application and put it aside in default.
21. Mr Mnyaiza further confirmed that there was no involvement from the successful candidate throughout the recruitment process. The successful candidate did not attach her academic records to her application.
Analysis
22. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
23. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provisions of benefits to an employee”.
24. It is common cause that the Applicant is complaining about not being shortlisted although she meets all the requirements for the post. It is common cause that the reason provided for the Applicants exclusion from being short listed was that she failed to attach academic records to her application and that she does not have a financial management qualification.
25. It is further common cause that the successful candidate also did not attach her academic records to her application and that she attended and received a certificate of attendance for basic financial management for schools.
26. There are two processes that should be discussed in order to come to a conclusion, first is the sifting process that is done by the Employing Department. The PAM states that the employment department must acknowledge all applications, they must confirm whether the application was complete and if the applicant meets the minimum requirements for the post.
27. In this instance, a master list was provided to the school and includes the Applicants application, all shortlisted candidates referred to by the Applicant has a comment from the Employment Department that states “no comment” and other comments also appears on the list.
28. It is strange that the Applicants application made it to the school without her attaching her academic results, and the same may apply to the successful candidate. The PAM is clear that they must indicate if the application is complete which includes ensuring that all required documentation was attached.
29. Now turning to the shortlisting process. Page one of Bundle RC which is the Bulletin the post was advertised in provides all applicants with the relevant information that should be attached to the application which includes the academic records of the qualifications. The Applicant in argument states that she met the minimum requirements for the post and had to be shortlisted.
30. The interviewing panel compiled shortlisting criteria as they should in terms of the PAM, all parties agree to the criteria. The first criteria on page 7 of the Applicants bundle A, referred to a statement of results. It is common cause the Applicant failed to submit a statement of results, or for the use of a different term, her academic records to her application. On that basis, there can be no argument made that the Applicant was unfairly excluded from being shortlisted, she simply did not comply with the requirements of the application process.
31. The Applicant testified to the reason for the academic records to be attached as it speaks directly to the curriculum requirements for the post. It is sad that the Applicant failed to attach her academic results as it resulted in her being excluded.
32. With reference to the successful candidate who also did not submit a statement of results, the PAM in item B5.4.9 states that “An educator, who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted.” It is thus correct that the successful candidate was shortlisted by default as she acter for more than 12 months in the post. The panel had no choice in this instance, but to include the successful candidate as the PAM made use of the word “must”, and not may which would give the panel a choice.
33. The Respondent in arguments ates that there is no right to a promotion. That I agree with, save that applicant have the right not to be unfairly excluded from competing for the post. The Applicant was not excluded from competing, what was required of her was to attach her academic records.
34. With regards to the financial management qualification, it becomes academic as the Applicant was excluded in the first round as she did not attach her academic records already. The issue of the financial management qualification formed part of the second-round shortlisting criteria.
35. In light of the above, I find it appropriate to make the following award.
Award
36. The Applicant, Ms L. Royi, was not subjected to any unfair labour practice by the Respondent, the Department of Education -Eastern Cape when she was not shortlisted for the post of principal at Ngqika Primary School.
37. The Applicant, Ms L. Royi is not entitled to any relief.
Signature:
Commissioner: Henk Jacobs