PSES115-18/19WC
Text
ELRC581-21/22EC
Award Date:
07 June 2022
Case Number: ELRC581-21/22EC
Commissioner: Henk Jacobs
Date of Ruling: 07 June 2022
In the matter between
T. Filita
(Applicant)
And
1st Department of Education – Eastern Cape, 2nd Ms Stilane
(Respondent)
Union/Applicant’s representative:
Mr Rodney Mtywaru
Telephone:
Telefax:
E-mail: rodmtywaru@gmail.com
Respondent’s representative:
Respondent’s address: Mr Sandiso Xhalisile
Telephone:
Telefax:
E-mail: Sandiso.Xhalisile@ecdoe.gov.za
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, as amended, (the LRA), was held Virtually on 17 January 2022, and 23 May 2022.
2 The applicant, Mr T Filita, was represented by Mr. R Mtywaru, an official from the South African Democratic Teachers Union (SADTU), the 1st respondent, the Education Department - Eastern Cape, was represented by Mr S Xhalisile, a Senior Employment Relations Officer employed by the Respondent and the second Respondent, Ms Kilane, represented herself during the proceedings.
3 The hearing was held in English and was digitally recorded.
4 Parties further agree to file heads of argument by no later than 31 May 2022, both parties did so.
Issue to be decided
4. The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA, by not appointing the Applicant for the post of Principal at Parkside Primary School.
Background to the matter
5. The Applicant referred an alleged unfair labour practice dispute pertaining promotion to the Education Labour Relations Council after he applied for the post of Head of Department at Ilingwe Primary School, as advertised in volume2 of 2021, the Applicant was shortlisted, interviewed and recommended by the School Governing Body (SGB) to be appointed in the post.
6. The Applicant was not appointed, instead, the Education Department appointed the second candidate.
7. The Applicant is employed as a Post lever one educator at Ilinge Primary School and commenced employment at the Respondent during 1996.
8. The Applicant sought to be appointed in the post.
Survey of submissions
9. This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.
Applicant’s evidence
10. The Applicant testified that at a Primary School one can be asked to teach any learning area even if your qualification does not indicate that you qualified in that specific learning area. He has been teaching Technology since it was introduced at the school and attend a number of workshops in this regard, therefore, he deserved to be appointed in the post.
11. He possesses a B-Ed Honors Degree and being appointed in an HOD post does not mean you need to teach, although you may need to teach as well.
12. Under cross examination, the Applicant confirmed that the post requirements were a qualification in Natural Science, Mathematics and Technology and that he does not posses a qualification in any of those, save from his experience and workshops regarding Technology.
Respondent’s evidence
13. Ms Bence testified that she is employed by the Respondent as a Senior Personnel Practitioner and is responsible for the advertising of posts as well as dealing with the recommendations as received from the schools after the interview process.
14. The post was the post of HOD as advertised for specific subjects’ grades 4 to 7 for Natural Science, Mathematics and Technology. The Applicant was recommended to be appointed by the SGB and the Education Department then realise that he did not meet the profile for the post.
15. The Personnel Administrative Measures (the PAM) is very clear that the Phase must fit, meaning that his qualification must fit that of the post, instead, the Applicant qualified in African Languages. The SGB can only recommend a candidate and cannot appoint, it is the District Director that appoints.
16. Under cross examination, Ms Bence confirms that if a candidate meets two of the qualifications, that person is appointable, they do not look at experience, but at qualification. When the Department sift through all applications, they look if all supporting documents is present and certified, they will the forward those to the school for shortlisting by the school. The SGB had to ensure that the Applicant qualified for the post.
Analysis
17. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
18. 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”.
19. It is common cause that the Applicant challenge the Education Departments decision not to appoint him. The only regulation that guides the process is the Personnel Administrative Measures (PAM).
20. The question to answer is whether the decision not to appoint the Applicant was fair.
21. Turning to the provisions stipulated in the PAM which states as follows:
“SCOPE OF APPLICABILITY
1.1 This PAM is applicable to educators at schools, technical colleges, colleges of education and education control and auxiliary services that concern themselves with all those activities aimed at educating and teaching pupils/students, in respect of both formal and non-formal education.
1.2 As regards the matters that are regulated in this PAM, only those measures contained herein shall apply, and there may, in respect of the matters regulated herein, be no deviation from the prescribed measures: Provided that should there be cases not covered by the measures contained herein or should there be any doubt as to the application of the provisions in individual cases, or should there be cases that could justify a deviation from policy, particulars thereof shall be submitted to the Department of Education with a view to a decision regarding such application or possible deviation by the Minister of Education, or the possible amendment or supplementing of the measures by the Minister of Education, with the concurrence of the Minister of State Expenditure in the event of an amendment or supplementation having a financial implication, after negotiation and agreement in terms of the Labour Relations Act, 1995.
3.2 Sifting
(a) The employing department shall acknowledge receipt of all applications by:
(i) informing all applicants in writing of receipt;
(ii) clearly indicating whether the application is complete or not; and
(iii) indicating whether the applicant meets the minimum requirements for the post and that such applications have been referred to the institutions concerned.
(b) The employing department shall handle the initial sifting process to eliminate applications of those candidates who do not comply with requirements for the post(s) as stated in the advertisement.
(c) In the case of colleges, where applications are received at the institution, the college council shall acknowledge receipt of applications in terms of paragraph 2.1 above.
(d) Trade Union parties to Council will be given a full report, at a formal meeting, on:
(i) names of educators who have met the minimum requirements for the post/s in terms of the advertisement;
(ii) names of educators who have not met the minimum requirements for the post/s in terms of the advertisement; and
(iii) other relevant information that are reasonably incidental thereto.
3.3 Shortlisting and interviews
(a) Interview Committees shall be established at educational institution where there are advertised vacancies.
(b) The Interview Committee shall comprise:
(i) In the case of public schools: • one departmental representative (who may be the school principal), as an observer and resource person;
• the Principal of the school (if he/she is not the department’s representative), except in the case where she/he is the applicant;
• members of the school governing body, excluding educator members who are applicants to the advertised post/s; and
• one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
(ii) In the case of colleges: • one departmental representative, as an observer and resource person; • the head of the institution, except in the case where s/he is an applicant;
• members of the college council, excluding educator members who are applicants to the advertised post/s; and
• one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
(c) Each Interview Committee shall appoint from amongst its members a chairperson and a secretary.
(d) All applications that meet the minimum requirements and provisions of the advertisement shall be handed over to the school governing body responsible for that specific public school.
(e) The school governing body is responsible for the convening of the Interview Committee and they must ensure that all relevant persons/organisations are informed at least 5 working days prior to the date, time and venue of the shortlisting, interviews and the drawing up of the preference list. Where the Principal is an applicant, a departmental official may assist the school governing body.
(f) The Interview Committee may conduct shortlisting subject to the following guidelines:
(i) The criteria used must be fair, non-discriminatory and in keeping with the Constitution of the country.
(ii) The curricular needs of the school.
(iii) The obligations of the employer towards serving educators.
(iv) The list of shortlisted candidates for interview purposes should not exceed five per post.
(g) The interviews shall be conducted according to agreed upon guidelines. These guidelines are to be jointly agreed upon by the parties to the provincial chamber.
(h) All interviewees must receive similar treatment during the interviews.
(i) 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.
(j) The governing body must submit their recommendation to the provincial education department in their order of preference.
(k) In the case of colleges, the interviewing committee shall submit its ranked preference list to the college council for their recommendation to the relevant employing department.”
22. It is evident that PAM is applicable to all educators and that it regulates the recruitment process applicable to educators. It is further common cause that the Applicant applied for the said post, he was sifted in by the employing department who forward his application to the interview committee.
23. The interview committee shortlisted the Applicant, he was interviewed and recommended as the preferred candidate for the post by the SGB. The Education Department on reviewing the recommendations established that the Applicant does not meet the profile for the post in terms of his qualifications and the second recommended candidate, Ms Kilane did and was appointed. Ms Kilane specialises in Mathematics and Natural Science.
24. It is fact that the Applicant was excluded due to his qualification as an educator who specialised in African Languages and not Natural Science, Mathematics and Technology. It is further fact that the Applicant is teaching Technology for a number of years.
25. Evidence was presented that remained undisputed that a candidate must meet two of the required qualifications to be appointable, the Applicant possesses none, save that he teaches Technology. On that basis, there can be no claim that the Applicant should have been appointed or that he qualified for the post, he simply does not. The Applicant failed to establish that he was the best candidate to be appointed in the post, He is not better qualified because he hold a B-Ed Honors degree in management, his experience does not qualify him for the post in terms of qualifications.
26. The fact that he was shortlisted is of no consequence and is in no way a guarantee that he complied with the requirements of the post. The Applicant was, and is teaching at the particular school and on a balance of probabilities, he was known to the SGB. The Applicant in argument rely on the fact that the Education Department commit an alleged unfair labour practice based on the fact that they did not follow the SGB recommendation.
27. It is fact that the Applicant was recommended by the SGB, and that the SGB’s powers rests at recommendation, they do not hold the power to appoint, those powers are vested in the Education Department to appoint, and has the right to appoint who ever they believe best fit the profile for the post. There is no right to a promotion or an appointment. The Applicant had to prove that he was the best candidate for the post, he failed to do so, he was eliminated based on his qualification that falls short of the requirements.
28. In light of the above, I find it appropriate to make the following award.
Award
29. The Applicant, Mr T Filita, failed to establish that the Respondent, the Education Department -Eastern Cape committed an unfair labour practice in terms of section 186)2) of the LRA.
30. The Applicant is not entitled to any relief.
Signature:
Commissioner: Henk Jacobs
Commissioner: Henk Jacobs
Date of Ruling: 07 June 2022
In the matter between
T. Filita
(Applicant)
And
1st Department of Education – Eastern Cape, 2nd Ms Stilane
(Respondent)
Union/Applicant’s representative:
Mr Rodney Mtywaru
Telephone:
Telefax:
E-mail: rodmtywaru@gmail.com
Respondent’s representative:
Respondent’s address: Mr Sandiso Xhalisile
Telephone:
Telefax:
E-mail: Sandiso.Xhalisile@ecdoe.gov.za
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, as amended, (the LRA), was held Virtually on 17 January 2022, and 23 May 2022.
2 The applicant, Mr T Filita, was represented by Mr. R Mtywaru, an official from the South African Democratic Teachers Union (SADTU), the 1st respondent, the Education Department - Eastern Cape, was represented by Mr S Xhalisile, a Senior Employment Relations Officer employed by the Respondent and the second Respondent, Ms Kilane, represented herself during the proceedings.
3 The hearing was held in English and was digitally recorded.
4 Parties further agree to file heads of argument by no later than 31 May 2022, both parties did so.
Issue to be decided
4. The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA, by not appointing the Applicant for the post of Principal at Parkside Primary School.
Background to the matter
5. The Applicant referred an alleged unfair labour practice dispute pertaining promotion to the Education Labour Relations Council after he applied for the post of Head of Department at Ilingwe Primary School, as advertised in volume2 of 2021, the Applicant was shortlisted, interviewed and recommended by the School Governing Body (SGB) to be appointed in the post.
6. The Applicant was not appointed, instead, the Education Department appointed the second candidate.
7. The Applicant is employed as a Post lever one educator at Ilinge Primary School and commenced employment at the Respondent during 1996.
8. The Applicant sought to be appointed in the post.
Survey of submissions
9. This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.
Applicant’s evidence
10. The Applicant testified that at a Primary School one can be asked to teach any learning area even if your qualification does not indicate that you qualified in that specific learning area. He has been teaching Technology since it was introduced at the school and attend a number of workshops in this regard, therefore, he deserved to be appointed in the post.
11. He possesses a B-Ed Honors Degree and being appointed in an HOD post does not mean you need to teach, although you may need to teach as well.
12. Under cross examination, the Applicant confirmed that the post requirements were a qualification in Natural Science, Mathematics and Technology and that he does not posses a qualification in any of those, save from his experience and workshops regarding Technology.
Respondent’s evidence
13. Ms Bence testified that she is employed by the Respondent as a Senior Personnel Practitioner and is responsible for the advertising of posts as well as dealing with the recommendations as received from the schools after the interview process.
14. The post was the post of HOD as advertised for specific subjects’ grades 4 to 7 for Natural Science, Mathematics and Technology. The Applicant was recommended to be appointed by the SGB and the Education Department then realise that he did not meet the profile for the post.
15. The Personnel Administrative Measures (the PAM) is very clear that the Phase must fit, meaning that his qualification must fit that of the post, instead, the Applicant qualified in African Languages. The SGB can only recommend a candidate and cannot appoint, it is the District Director that appoints.
16. Under cross examination, Ms Bence confirms that if a candidate meets two of the qualifications, that person is appointable, they do not look at experience, but at qualification. When the Department sift through all applications, they look if all supporting documents is present and certified, they will the forward those to the school for shortlisting by the school. The SGB had to ensure that the Applicant qualified for the post.
Analysis
17. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
18. 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”.
19. It is common cause that the Applicant challenge the Education Departments decision not to appoint him. The only regulation that guides the process is the Personnel Administrative Measures (PAM).
20. The question to answer is whether the decision not to appoint the Applicant was fair.
21. Turning to the provisions stipulated in the PAM which states as follows:
“SCOPE OF APPLICABILITY
1.1 This PAM is applicable to educators at schools, technical colleges, colleges of education and education control and auxiliary services that concern themselves with all those activities aimed at educating and teaching pupils/students, in respect of both formal and non-formal education.
1.2 As regards the matters that are regulated in this PAM, only those measures contained herein shall apply, and there may, in respect of the matters regulated herein, be no deviation from the prescribed measures: Provided that should there be cases not covered by the measures contained herein or should there be any doubt as to the application of the provisions in individual cases, or should there be cases that could justify a deviation from policy, particulars thereof shall be submitted to the Department of Education with a view to a decision regarding such application or possible deviation by the Minister of Education, or the possible amendment or supplementing of the measures by the Minister of Education, with the concurrence of the Minister of State Expenditure in the event of an amendment or supplementation having a financial implication, after negotiation and agreement in terms of the Labour Relations Act, 1995.
3.2 Sifting
(a) The employing department shall acknowledge receipt of all applications by:
(i) informing all applicants in writing of receipt;
(ii) clearly indicating whether the application is complete or not; and
(iii) indicating whether the applicant meets the minimum requirements for the post and that such applications have been referred to the institutions concerned.
(b) The employing department shall handle the initial sifting process to eliminate applications of those candidates who do not comply with requirements for the post(s) as stated in the advertisement.
(c) In the case of colleges, where applications are received at the institution, the college council shall acknowledge receipt of applications in terms of paragraph 2.1 above.
(d) Trade Union parties to Council will be given a full report, at a formal meeting, on:
(i) names of educators who have met the minimum requirements for the post/s in terms of the advertisement;
(ii) names of educators who have not met the minimum requirements for the post/s in terms of the advertisement; and
(iii) other relevant information that are reasonably incidental thereto.
3.3 Shortlisting and interviews
(a) Interview Committees shall be established at educational institution where there are advertised vacancies.
(b) The Interview Committee shall comprise:
(i) In the case of public schools: • one departmental representative (who may be the school principal), as an observer and resource person;
• the Principal of the school (if he/she is not the department’s representative), except in the case where she/he is the applicant;
• members of the school governing body, excluding educator members who are applicants to the advertised post/s; and
• one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
(ii) In the case of colleges: • one departmental representative, as an observer and resource person; • the head of the institution, except in the case where s/he is an applicant;
• members of the college council, excluding educator members who are applicants to the advertised post/s; and
• one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
(c) Each Interview Committee shall appoint from amongst its members a chairperson and a secretary.
(d) All applications that meet the minimum requirements and provisions of the advertisement shall be handed over to the school governing body responsible for that specific public school.
(e) The school governing body is responsible for the convening of the Interview Committee and they must ensure that all relevant persons/organisations are informed at least 5 working days prior to the date, time and venue of the shortlisting, interviews and the drawing up of the preference list. Where the Principal is an applicant, a departmental official may assist the school governing body.
(f) The Interview Committee may conduct shortlisting subject to the following guidelines:
(i) The criteria used must be fair, non-discriminatory and in keeping with the Constitution of the country.
(ii) The curricular needs of the school.
(iii) The obligations of the employer towards serving educators.
(iv) The list of shortlisted candidates for interview purposes should not exceed five per post.
(g) The interviews shall be conducted according to agreed upon guidelines. These guidelines are to be jointly agreed upon by the parties to the provincial chamber.
(h) All interviewees must receive similar treatment during the interviews.
(i) 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.
(j) The governing body must submit their recommendation to the provincial education department in their order of preference.
(k) In the case of colleges, the interviewing committee shall submit its ranked preference list to the college council for their recommendation to the relevant employing department.”
22. It is evident that PAM is applicable to all educators and that it regulates the recruitment process applicable to educators. It is further common cause that the Applicant applied for the said post, he was sifted in by the employing department who forward his application to the interview committee.
23. The interview committee shortlisted the Applicant, he was interviewed and recommended as the preferred candidate for the post by the SGB. The Education Department on reviewing the recommendations established that the Applicant does not meet the profile for the post in terms of his qualifications and the second recommended candidate, Ms Kilane did and was appointed. Ms Kilane specialises in Mathematics and Natural Science.
24. It is fact that the Applicant was excluded due to his qualification as an educator who specialised in African Languages and not Natural Science, Mathematics and Technology. It is further fact that the Applicant is teaching Technology for a number of years.
25. Evidence was presented that remained undisputed that a candidate must meet two of the required qualifications to be appointable, the Applicant possesses none, save that he teaches Technology. On that basis, there can be no claim that the Applicant should have been appointed or that he qualified for the post, he simply does not. The Applicant failed to establish that he was the best candidate to be appointed in the post, He is not better qualified because he hold a B-Ed Honors degree in management, his experience does not qualify him for the post in terms of qualifications.
26. The fact that he was shortlisted is of no consequence and is in no way a guarantee that he complied with the requirements of the post. The Applicant was, and is teaching at the particular school and on a balance of probabilities, he was known to the SGB. The Applicant in argument rely on the fact that the Education Department commit an alleged unfair labour practice based on the fact that they did not follow the SGB recommendation.
27. It is fact that the Applicant was recommended by the SGB, and that the SGB’s powers rests at recommendation, they do not hold the power to appoint, those powers are vested in the Education Department to appoint, and has the right to appoint who ever they believe best fit the profile for the post. There is no right to a promotion or an appointment. The Applicant had to prove that he was the best candidate for the post, he failed to do so, he was eliminated based on his qualification that falls short of the requirements.
28. In light of the above, I find it appropriate to make the following award.
Award
29. The Applicant, Mr T Filita, failed to establish that the Respondent, the Education Department -Eastern Cape committed an unfair labour practice in terms of section 186)2) of the LRA.
30. The Applicant is not entitled to any relief.
Signature:
Commissioner: Henk Jacobs