PSES 892-19/20 NW
Text
PSES 892-19/20 NW
Award Date:
31 May 2022
Case No PSES 892-19/20 NW
In the matter between
LETLHOGONOLO MILLICENT MONTWEDI APPLICANT
and
DEPARTMENT OF EDUCATION: NORTH WEST FIRST RESPONDENT
SADTU OBO NOMKHWINISI. THEMBA SECOND RESPONDENT
ARBITRATOR: KENNETH DLAMINI
HEARD: 28 FEBRUARY 2022
CLOSING ARGUMENTS: 15 MARCH 2022
DATE OF AWARD: 31 MAY 2022
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing commenced on 29 March 2021. It proceeded on 30 March 2021 and it was part-heard at the Ngaka Modiri Molema District offices situated at Mafikeng. It was finalized on 28 February 2022.
2. The Applicant, Ms Letlhogonolo Millicent Montwedi was present and represented by Advocate Rabaone Gaoraelwe. In turn the First Respondent, Provincial Department of Education, North West Province was represented by one Mr David Ntloane, a Deputy Director - Employment Relations. The Second Respondent, Ms Elisa Nomkhwinisi Themba was represented by Mr Tsholofelo Monkwe, a union official from SADTU.
3. The proceedings were manually and digitally recorded. All witnesses testified under oath.
ISSUES TO BE DECIDED
4. I am required to determine whether or not the First Respondent committed an unfair labour practice as contemplated by Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the Act) as amended by not promoting the Applicant to a Deputy Chief Education Specialist PL5 position for Home Languages, following an interview process held on 21 October 2019.
5. The relief sought by the Applicant is to be retrospectively promoted with back pay to the Deputy Chief Education Specialist position for Home Languages which the Second Respondent was promoted into. In turn the First Respondent and the Second Respondent want the Application of the Applicant to be dismissed.
BACKGROUND TO THE DISPUTE
6. The Applicant is currently employed by the First Respondent as a Senior Education Specialist PL 3 in the Naledi Sub-district since 2011. The Applicant is earning an annual salary of R 417, 051. 00.
7. The First Respondent had advertised a Deputy Chief Education Specialist position PL 5 to which
the Applicant, Second Respondent and two other candidates had responded had applied for. All four candidates including the Applicant were shortlisted and interviewed on 21 October 2019. The Second Respondent was eventually promoted.
8. Aggrieved by her non-promotion, the Applicant referred an unfair labour practice dispute to the
Council on 29 January 2020.
SURVEY OF EVIDENCE AND ARGUMENTS
THE APPLICANT’S EVIDENCE
9. In her evidence in chief, the Applicant testified that following the interview process she only
became aware of the Second Respondent’s promotion on 19 January 2020 as the First Respondent had failed to informed her about the outcome of the interview process. She thereafter wrote a letter to the First Respondent wherein she requested to be furnished with reasons for her non-promotion by the First Respondent without any success.
10. She then referred an unfair labour practice dispute to the Council. After conciliation failed. She
referred the matter for arbitration.
11. She stated that she had applied for two positions. The first one being that of a Deputy Chief
Education Specialist for Home Languages, foundation phase. The second position she had also applied for was that of a Deputy Chief Education Specialist: Mathematics. She was only shortlisted and interviewed for the position of Deputy Chief Education Specialist Home Languages foundation phase and not for DCES for Mathematics.
12. The Second Respondent had applied for Deputy Chief Education Specialist position for Home
Languages foundation phase and the DCES position for Mathematics. The Second Respondent was not successful in the DCES for mathematics position and she was however successful for the Deputy Chief Specialist Home Languages foundation phase position and the Second Respondent was eventually promoted.
13. The Applicant continued to state that she has seven years’ experience as a subject advisor in first
additional languages (FAL) in the foundation phase, a primary teaching diploma. She is registered with SACE and has a driver’s licence and as such she stated that she should have been promoted to the position of the Deputy Chief Education Specialist PL5 for Home Languages as advertised by the First Respondent.
14. She argued that she had a competitive advantage over the Second Respondent, who has similar
years of experience, skills and knowledge in mathematics and not in home languages like her. She further argued that the Second Respondent has been a subject advisor for mathematics and she holds a secondary teaching qualification.
15. The Applicant stated the conduct or decision of the First Respondent of not promoting her
substantially prejudiced her in a number of ways amongst others including the decision by the shortlisting panel to add an additional criterion which was not part of the advertised position. The failure by the interview panel to inform her about the outcome of the interview process, despite having requested reasons for her non-appointment in writing from the First Respondent without any success.
16. The Applicant stated that the Second Respondent who was eventually promoted did not meet the
inherent requirement of the position in the first instance. The Second Respondent did not have the requisite eight years’ experience in languages compared to her. Instead, the Second Respondent has seven years uninterrupted exposure in Mathematics.
17. The Applicant went further and questioned the composition and the competency of the interviewing
panel as well as the decision to exclude of one Ms Roodman, Chief Education Specialist from the interviewing panel to whom she (Applicant) would have reported to had she been successful. She stated that none of the interview panel (Senior Managers) who constituted the interview panel came from the language directorate. She said the interview panel had no direct involvement or knowledge of the post requirements or an in-depth knowledge of languages in general.
18. During the interview process, the Applicant stated that she was only asked general questions by the
interview, questions which had nothing to do or relevant to the requirements of the advertised postion. She initially stated that there is no distinction between first additional languages and home languages, but the Applicant conceded that there is a difference between the two including that mathematics was not a language.
19. When asked whether she had previously worked with the Second Respondent, the Applicant stated
that she had never worked with the Second Respondent at any level.
THE APPLICANT’S CLOSING ARGUMENT
20. Regarding the conduct of the shortlisting and interview panels. The Applicant party submitted that it
is not in dispute that the First Respondent has a prerogative to appoint or promote any candidate that it wishes to appoint or promote. However, such prerogative should be exercised fairly. This is because it falls under what is termed “administrative decision and action”, and the law requires that such decisions and actions to be clothed with the requisite fairness.
21. The First Respondent panels including the Head of Department abused its prerogative by promoting
an underserving, unqualified candidate in the form of the Second Respondent. The Second Respondent should have not been shortlisted in the first instance. The Second Respondent is a wife of a high-ranking and well-known SADTU office bearer at provincial level. The trade union was part of the shortlisting and interviews panel, and never declared any vested or conflict of interest in the outcome of those processes. The minutes (although unsigned) of both panels do not reflect any such declaration, or the chairpersons of those panels dealing with that important aspect. They therefore condoned it.
22. Clause 33 of the ELRC’s Collective Agreement No. 3 of 2016, which clearly states as follows:
“Where the Applicant in a promotion dispute is unable to prove that he/she 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 or she should generally, at least demonstrate that there was conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidates was dishonest and missed the interview panel or employer”. It was argued that the testimony the Applicant had demonstrated such arbitrary reasons which substantially disadvantaged and prejudiced the Applicant from being promoted by the First Respondent to the contested position in question.
23. The Applicant party submitted and argued that there are basically three incidents wherein
administrative decisions and actions were taken, and which adversely impacted on the Applicant, which therefore should be subjected to the scrutiny of section 33 of the Constitution. Firstly, the decision by the shortlisting panel to arbitrarily add more criteria for shortlisting which was not part of the advertisement and thereby “open a window” for unqualifying candidates such as the Second Respondent to be shortlisted, and later interviewed and promoted. Secondly, the decision by the shortlisting panel to shortlist the Second Respondent despite her having had absolutely no working exposure or working experience to languages for an uninterrupted period of seven years preceding her appointment into the contested position. Thirdly, Failure by the First Respondent to produce the criteria used during the interviews and only producing it during the cross-examination stage of the First Respondent’s second witness.
24. The Head of Department of the First Respondent was not called as a witness to testify at the
arbitration and justify her rationale for her administrative decision not to promote the Applicant. Even the Second Respondent failed to testified as well. All these events raised questions about the credibility of the entire process.
25. First Respondent deviated from the requirements contained in the job advertisement and shortlisted
an unqualifying candidate. This in itself cannot pass the lawfulness scrutiny. Clearly such an unqualifying candidate was being favoured, and afforded an unfair opportunity and advantage to contest alongside qualifying candidates, including the Applicant.
26. During her testimony, the first witness of the First Respondent, she instead of explaining why the
shortlisting panel added more criteria to the shortlisting which was not in the advertisement, specifically: “SES in subjects” as stated in the shortlisting minutes, she questioned the accuracy of those minutes which in any case were unsigned and therefore not an official or valid set of shortlisting minutes and she stated what should have been in those minutes is “SES in foundation phase”. Effectively therefore, that additional criteria opened the door for the Second Respondent to be shortlisted despite lacking experience in languages, by including a neutral requirement of “SES in subjects”. That is unlawful.
27. No policy instrument or letters of appointment were presented showing that both panels and the
respective chairpersons were duly appointed and as such having powers to add more requirements during their shortlisting phase. They therefore acted unlawfully by according to themselves powers that they did not have. It is clear therefore from the above that the test for lawfulness was failed by both the shortlists and interview panels to the detriment of the Applicant, and to the advantage of the Second Respondent.
28. Regarding the Second Respondent, the Applicant party argued that the less said about the Second
Respondent, the better. by and large, the arbitration proceedings continued as if she was not there as a party. Second Respondent opted not to testify and have her version heard as to why she thinks she is the best candidate for the contested position, and not the Applicant.
29. Applicant was never notified about the outcome of the interviews including reasons for her non-
appointment. The reason why the Applicant sought that information, was precisely to deal with what is contained in Section B, clause 8 of ELRC’s collective agreement No.3 of 2016 (i.e., that a better candidate than her was appointed and that she was not prejudiced by that appointment). An adverse inference can therefore be drawn that, when that information was initially sought, it did not exist, and had to be “manufactured” for purposes of the impending arbitration. The Applicant testified extensively on the prejudice she has suffered as a result of the conduct of the First Respondent, and the wrongful appointment of the Second Respondent ahead of her. The prejudice manifests in the following: The First Respondent has not suffered any prejudice from its decision to promote an unqualifying and wrong candidate. If anything, it put the name of the First Respondent into disrepute. The First Respondent stand to suffer no prejudice to arise from the Applicant being rightly put in her rightful position retrospectively. That is a fair and right thing to do and given effect of the protections for employees contained in the Constitution of the Republic, as well as the LRA.
30. Even if the First Respondent were to argue that the reversal of the Second Respondent’s promotion
will be prejudicial in any way, that is a price to pay for practicing unfair labour practices at the workplace, and therefore warranted. Whilst the Second Respondent unduly benefited monetarily (in terms of a higher salary and benefits), she also benefited in terms of being afforded the seniority which placed her in better stead to operate at a more senior level and to also contest for even other senior positions.
31. In short, the Second Respondent suffered no prejudice from her irregular promotion. Instead, she
benefitted unduly. Even if the Second Respondent were to argue that the reversal of her promotion will be prejudicial in any way, that will not be true. There can never be any prejudice to arise from reversing a wrongful promotion that fails to pass the test for fairness.
32. The Applicant in this case demonstrated on a balance of probabilities the existence of an unfair labour
practice against her, and that the Second Respondent was not the best candidate for the contested position and that the Applicant was the best candidate based on the reasons advanced hereinabove.
33. The promotion of the Second Respondent in the post of Deputy Education Specialist: Home
Languages be reversed. The Applicant be promoted to the position of Deputy Education Specialist: Home Languages retrospectively from the date of the Second Respondent’s irregular promotion in that position, including the lost salary for that position retrospectively.
34. A costs order to be issued against the First and Second Respondents for defending a dispute based
on spurious, frivolous and vexatious reasons when it was totally unnecessary for them to defend this dispute as they had no case or defence they put forth. Those costs should be in the form of ELRC fees incurred in adjudicating over this dispute, legal fees incurred by the Applicant, disbursements as well as witness fees.
THE RESPONDENT’S EVEIDENCE
35. The first witness of the First Respondent, Dr Mammen she testified that she is the First Respondent’s Director for curriculum development, early childhood development, general and further education. She holds an Honours degree, Master’s degree and PhD in curriculum studies and as such she has an extensive knowledge in curricula matters. She stated that she was the chairperson of the shortlisting panel and she was not involved during the interviews process apart from the drafting of the advertised position in collaboration with the Respondent’s Human Resources Department.
36. She went on to state that the First Respondent had received about for 49 applications for the position in question. As part of the elimination process, the shortlisting panel which she was part of it had agreed on an additional criterion to be added in order to raise the bar given that the advertised position was a management position. Four candidates including the Applicant met the requirements of the position. They were later shortlisted and interviewed. She disputed that the added criteria was intended to prejudiced any of the candidates which were shortlisted and interviewed afterwards. All four candidates including the Applicant were afforded the opportunity to compete on an equal footing.
37. She maintained that the position requirements was an experience and knowledge of 8 years actual teaching and appropriate experience in home language in the foundation phase. The position did not focus on candidates who were specialists first additional languages, mathematics or home languages etc. She said such an assumption would have been misplaced. She went on to state that at foundation phase (Class room teaching) all educators teach all four basic subjects. She admitted that the Second Respondent had 12 years of actual teaching and appropriate experience on one hand, while on the other hand, the Applicant has more years. Both the Applicant and the Second Respondent had the required experience for the DCES position.
38. She explained that first additional languages and home language are different as they use two different policy documents and are also managed separately. She conceded that mathematics was not a language. She explained that first additional language (FAL) is done across the curriculum. Every subject in the foundation phase is taught through language and that the depth and content of FAL and Home Language (HL) differs. Similarly, so are the skills and competencies.
39. She refuted the Applicant’s claim that the interview panel was not competent or suitable to interview the candidates. She explained the roles and relevance of each of the three interview panel members and maintained that all the members of the interview panel qualified to conduct the interviews and to come up with a suitable candidate based on performance.
40. The second witness of the First Respondent, Ms Kathleen Gopane testified that she is the Respondent’s Director for Curriculum Support since March 2018. Prior to becoming a director for curriculum support she was a Chief Education Specialist and she also a former Deputy Principal. Since 2006 she had been involved in the recruitment and selection process at different levels including that of Deputy Chief Education Specialists.
41. She stated that 49 applications were received for the position in question and through the elimination process the list of candidates was narrowed down to four candidates including the Applicant. All four candidates were shortlisted and interviewed wherein the Second Respondent was eventually promoted based on her performance during the interview process.
42. She went on to state that she was the chairperson of the interview panel which prior to the interviews, the panel had drawn up the appropriate instrument in line with the advertised position to measure each candidates’ level of competence, skills, knowledge and other requisite attributes, which the panel did. She said the measuring instruments was used on all four candidates including the Applicant. Each candidate was asked a set of questions by the interview panel and scored accordingly. Based on the final score of each candidate a decision was then taken that the Second Respondent was the suitable candidate on the basis of having obtained the highest final score of 50 percent against the Applicant’s 39.3 percent.
43. She disputed the Applicant’s allegation that the Applicant was asked general questions during the interviews. She stated that it could not have been possible for an interview panel to come up with an instrument designed or drawn up just to measure general questions.
44. The witness further presented the instrument in question which the interview panel had drawn to measure the knowledge, skills and competencies of each candidate required by the position, the scoring sheets as well as the minutes of the interview panel bundle A, pages 19-23. She explained how each candidate was scored by each of the interviewing panel. She stated that following the interview process none of the interviewed candidates raised an objection and as such the entire process was deemed to have been conducted in a fair manner wherein each of the four candidates including the Applicant had acknowledged such.
45. Regarding the advertised position, the witness stated that the position required eight years of actual teaching and appropriate experience in home languages in the foundation phase and not a subject specialist. The Applicant and the Second Respondent had taught all four foundation phase subjects at classroom level and both met the requirements of the advertised position hence they were shortlisted and interviewed, with the Second Respondent eventually successful.
46. She stated that the additional criteria aimed at further reducing the list of candidates to be interviewed. The advertised position was at management level and as such management skills, knowledge of policies of the department relevant to the subject and pronouncements relevant was a requisite. During the interview process the Applicant was unable to demonstrate convincingly in these areas.
47. Regarding the composition of the interview panel. The witness stated that the panel was well constituted with managers who are relevant to the advertised position. She stated that the three-member interview panel consisted of herself as the chairperson, one Ms Bopape a Chief Education Specialist for Libraries which has a strong link with home languages. Mr Mayeng was the acting Chief Education Specialist overseeing the schools wherein the successful candidate will work within those schools.
48. Responding to the exclusion of Ms Roodman, Chief Education Specialist and to whom the Applicant would have reported to had she been successful. She stated that Ms Roodman was the acting Chief Education Specialist. At the time Ms Roodman was also a candidate having applied for another position. The witness argued that Ms Roodman was not the only expert or official knowledgeable as far as the content of the position was concerned. She stated that an interview process can not be a one person show or band. The witness further argued that the Respondent has a prerogative to decide as to who become a interview panel member based on credentials. She said the Respondent can call anyone who is relevant and who meet the requirements to become an interview panel member.
49. She maintained that the interview panel was well constituted and all members of the panel were relevant and competent to do the task they had been given and for which they did.
CLOSING ARGUMENTS OF THE FIRST RESPONDENT.
50. On behalf of the First Respondent, Mr David Ntloane submitted and argued as follows;
51. That the Applicant’s case has no merit as it centred around what the Applicant’s wishes, dishonest testimony regarding what transpired during the interviews as well as elements which are not part of the Respondent’s job Advert.
52. Following the promotion of the Second Respondent, the Applicant lodged a grievance of unfair labour practice, which was not promptly addressed as the relevant official had succumbed to Covid 19 and the Applicant exercised her right to refer a dispute to the Council.
53. Despite raising a number of issues amongst others including the constitution and competence of the interview panel, the added criteria which was not part of the job advert, that the Second Responded does not have the skills and knowledge for languages a relevant to the post and that she was the best candidate for the job. During cross-examination, the Applicant conceded that the Second Respondent met the requirements as stated in the advert, which is a) A recognised three-year teacher’s qualification (REQV 13) and b) must be registered with SACE and c) have a valid driver’s
54. The Applicant, under cross examination, also conceded that she never worked with the Second Respondent and therefore she does not know the skills that the Second Respondent possesses. The Applicant also conceded during cross examination that both of them have a minimum experience of Eight (8) years actual teaching in the foundation phase, but disputed that Second Respondent have appropriate experience in Home Languages in Foundation Phase. license (Code 8).
55. The first witness of the First Respondent stated that 49 applications were received. After elimination of those who did not qualify, the panel had to agree on the additional criteria “to raise the bar” and eliminate further. After the added criteria four candidates of whom two were the Applicant and the Second Respondent were shortlisted and interviewed.
56. The first witness further testified that the Experience and Knowledge required for the post did not focus on candidates who were education specialists in FAL, mathematics, home language, etc. As is, eight (8) years actual teaching and appropriate experience in home languages in foundation phase was required.
57. The witness testified that Second Respondent had 12 years of actual teaching and appropriate experience in home languages in the foundation phase whereas the Applicant have more years.
THE SECOND RESPONDENT CLOSING ARGUMENT.
58. The requirements of the advertised position were as follows; Experience and knowledge: Eight (8) years actual teaching and appropriate experience in Home Languages in Foundation Phase. In-depth knowledge of the Acts, regulations, prescripts and relevant policies in education. So, the Applicant’s interpretation that the 8 years actual teaching experience relates to home language is incorrect. The 8 years actual teaching experience is a requirement as enshrined in paragraph B.3.2 of Personnel Administrative Measures (PAM) which deals with minimum requirements for the appointment for institution-based and office-based educators.
59 The Applicant, under cross-examination, admitted that the Second Respondent has 12 years actual teaching experience. She also admitted that the Second Respondent in her 12 years actual teaching experience offered home Languages, amongst others. So, it is clear that the Second Respondent complied with the experience and knowledge as stipulated in the advert. She had 12 years actual teaching experience and appropriate experience in Home Language. The Applicant’s understanding that the appropriate experience in Home Language must be at Senior Education Specialist (SES) level is not in the advert. This understanding is tantamount to crafting her own advert which is obviously not her prerogative. The advert wanted appropriate experience in Home Language and that is all.
60. The first witness of the First Respondent clarified that they agreed on an additional criterion because the post was also a managerial post hence, they shortlisted Senior Education Specialists (SES). She further testified that they considered the Second Respondent because she was also a school principal, and it was relevant because the post is a managerial post. Over and above the applicant’s 17 actual teaching experience, she was also considered because she was a departmental head for about 7 years. Therefore, it is incorrect that FAL was considered when the applicant was shortlisted.
61. The witness further testified that she has experience in languages and the two policy documents Home Languages and FAL are the same and that there is no specialization in the foundation phase and that is the reason they shortlisted SES in the foundation phase. In other words, educators in the foundation phase teach all the subjects.
62. The second witness of the First Respondent clarified that she is a Director for Curriculum Support and
the post in question is a curriculum post. She testified further that Mr Mayeng is the acting Chief Education Specialist and the incumbent will work in schools following under his jurisdiction. She further testified that Ms Bopape is the CES for Libraries and that there is a relationship between Libraries and languages. She again testified that the supervisor one Ms Roodman could not be in the interview panel because she was a candidate in another post she had applied for and also that she was not a substantive CES. She disputed that the composition of the panel could have prejudiced the Applicant because all panel members deal with curriculum and the post was a curriculum post.
ANALYSIS OF ARGUMENT AND EVIDENCE
Applicable law
63 In terms of Section 186(2) (a) of the LRA, which reads “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 or training of the employee or relating to the provision benefits to an employee. In this case, the Applicant is challenging her non-promotion by the First Respondent.
64. In Pamlin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT (Handed
down on 09 May 2018) the Court emphasised 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 substantive 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.
65. In Arries v CCMA and others (2006) 27 ILJ 2324 (LC) the Court held that there are limited grounds
on which a commissioner, or a Court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an Employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.
66. There are two components to a complaint regarding a failure to promote an employee as an
unfair labour practice. The one relates to the procedure followed by the employer. The other relates to the substantive merits and it concerns the suitability of the candidate for promotion to the post in question. I am mindful of the fact that I am only limited to look into the substantive merits raised in relation to the non- promotion of the Applicant and to determine whether First Respondent acted fairly and in good faith during the promotion exercise.
67. It is trite law that in a promotion dispute, What the Applicant in this case has to show, in absence of
a right to be promoted being established is that the conduct of the First Respondent in failing to
promote her considered overall was unfair.
68. The case of the Applicant in the main is that she was substantially prejudiced procedurally and substantively by the conduct and decision of the First Respondent on the following grounds. Firstly, that the First Respondent did not inform her about the outcome of the interview process, despite having requested reason(s) for her non-promotion from First Respondent in writing without any success.
69. Secondly, that the shortlisting panel added an additional criterion which was not part of the advertised position. Thirdly, that the interviewing panel which was not well constituted and not competent on issues pertaining to the position and that the Chief Education Specialist to whom she (Applicant) would have reported to had she been successful was excluded from the interview panel. The shortlisting panel basically lacked the requisite expertise in languages relevant to the advertised position. That the First Respondent floated its own laid down guidelines regulating promotion.
70. Fourthly, that the Second Respondent should have not been shortlisted the Second Respondent in the first-place, reason being that the Second Respondent did not meet the requirements of the advertised position. That the Second Respondent’s spouse occupies a high position with the labour movement or trade union which also participate in the process without the necessary disclosure made or recorded anywhere or even in the minutes, which are also disputed as they were not signed as a true record of what transpired during the interview process.
71. The Second Respondent has experience, skills and knowledge in mathematics and not in home languages compared to her (Applicant), hence the Applicant believes that she had an upper hand over the Second Respondent.
72. Lastly, that during the interview process, the Applicant argued that she was only asked general questions by the interviewing panel which had nothing to do with the advertised position.
73. In light of the above the Applicant testified and argued that based on her seven years’ experience, skills and knowledge as a subject advisor in first additional languages (FAL) in the foundation phase including having a primary teaching diploma and registered with SACE and having a driver’s licence. She was the suitable candidate for the position.
74. Turning to the case of the First Respondent. The first witness of the First Respondent, she testified that she was only involved in the drafting of the advert together with the First Respondent’s Human Resources Department. She said she played no role in the interviews process.
75. Regarding the additional criteria, the first witness of the First Respondent testified that the shortlisting panel had agreed on the additional criterion in order to raise the bar as the position was at management level and to ensure that only a sizeable or a handful qualifying candidates remain and for which the Applicant and the Second Respondent both met the requirements of the position, hence they were afforded the opportunity to attend the interviews and competed openly.
76. The first witness of the First Respondent further testified that the position required 8 years actual teaching and appropriate experience in home language in foundation phase The position did not focus specifically on candidates who are currently senior educational specialists for first additional languages, home language, mathematics etc. She stated that Applicant and the Second Respondent had the required class room teaching experience in the foundation phase wherein they taught all four foundation phase subjects.
77. She vehemently defended both the composition and competence of both panels. She stated that the interview panel was well constituted and that the individuals had the requisite skills, knowledge and competence to do the job of selecting and recommending the suitable candidate on behalf of the First Respondent. She further argued that all the laid down prescripts were adhered to the letter.
78. The version of the second witness of the First Respondent also corroborated the version of the first witness of the First Respondent in all aspects. The second witness of the First Respondent presented the designed instrument which was used to measure each of the candidates’ knowledge, skills, competencies as well as the total attributes required in line with the advertised position. The witness explained how each candidate was scored by each panel member. She further presented the scoring sheets used by the interview panel and minutes, although not signed.
79. Regarding the general questions, the second witness of the First Respondent argued that based on knowledge it is not possible for an interview panel to come up with an instrument to only measure general questions. She stated that she was the chairperson of the interview process and she disputed that the Applicant was asked general questions during the interviews.
80. The instrument used and the scoring sheets were not challenged on any material grounds by the Applicant party, except that the interview panel minutes were not signed. No evidence to the contrary was presented before me by the Applicant to rebut the First Respondent’s evidence presented.
81. In this case, it is common cause that the dispute is concerning promotion as both the Applicant
and the Second Respondent have an existing contract of employment with the Respondent. It is also common cause that prior to the Deputy Chief Education Specialist PL5 being advertised, the Applicant and the Second Respondent were both Senior Education Specialists PL3 for first additional languages and mathematics for Grade R up to Grade 3 respectively. It is further common cause that they both applied, shortlisted and interviewed for the Deputy Chief Education Specialist position PL5. It is also not disputed that the Second Respondent was eventually successful and promoted to the position.
82. It is also common cause that the Second Respondent obtained a final average score of 50 percent
against a final average score of 39.3 percent obtained by the Applicant. It was further not disputed that both the Applicant and the Second Respondent met the inherent requirement of the position. The requirements of the position in question are captured in the advert as, a recognized three-year teacher’s qualification (REQV 13) and must be registered with SACE, valid driver’s license Code 8. Experience and knowledge of 8 years actual teaching and appropriate experience in home languages in foundation phase. In-depth knowledge of the Acts, regulations, prescripts and relevant policies in education.
83. It is also not disputed that both the Applicant and the Second Respondent taught the same subjects
at the foundation phase before being promoted to the positions of being Senior Education Specialists wherein the Applicant became a Senior Education Specialist in first additional languages (FAL). The Second Respondent became a Senior Education Specialist in Mathematics.
84. It further not disputed that the Applicant holds a primary teaching diploma, registered with SACE
whereas the Second Respondent holds a secondary teaching diploma and she (Second Respondent) is a former School principal also registered with the SACE. That the advertised position was a management position. It is further common cause that the Applicant and the Second Respondent had not only applied for the Deputy Chief Education Specialist in home languages position but also for the position of Deputy Chief Education Specialist in Mathematics. The Applicant and the Second Respondent were unsuccessful for Deputy Chief Education Specialist position for mathematics.
85. Regarding the absence of the Ms Roodman my view is that it was necessary so that the interview
panel could arrive at an independent decision according to their own in-sights without any interference.
Any interviewing panel is constituted to serve a purpose. It is a management tool to assist in this case the First Respondent to have arrived at a final decision on promotion in question.
86. The substantive issues relate to the Applicant’s core experience for suitable promotion versus
that of the Second Respondent, this in my view is primarily a matter for the First Respondent through the selected interviewing panel.
87. Having had regard to the entire evidence presented before me in this case including credibility and
reliability of witnesses, I am not persuaded by the Applicant’s argument that her non appointment by the First Respondent was as a result of an irrational, grossly unreasonable or mala fides reasons. As such I am reluctant to interfere with the conduct and decision of the First Respondent in as far as the promotion of the Second Respondent was concerned.
88. The Applicant party indicated that it is seeking costs in the form of the council fees incurred in
adjudicating over the dispute, legal fees incurred by the Applicant, disbursements as well as witness fess on the basis that both the First and the Second Respondent defended a frivolous and vexatious matter or dispute. But the test is whether it would be in accordance with the law and fairness to grant costs. My view is that all the parties involved in this matter had a right to defend their respective positions including the Applicant who had challenged her non-appointment. It would be fair to make no order as to costs.
AWARD
89. I make the following Award
90. The Applicant has failed to demonstrate that the First Respondent committed an unfair labour
practice as contemplated by Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the Act) as amended by promoting the Second Respondent instead of her (Applicant) into the advertised Deputy Chief Education Specialist PL5 position for Home Languages, following an interview process held on 21 October 2019
91. The Applicant’s application is here dismissed.
92. No order as to costs.
Kenneth Dlamini
Panellist: ELRC
In the matter between
LETLHOGONOLO MILLICENT MONTWEDI APPLICANT
and
DEPARTMENT OF EDUCATION: NORTH WEST FIRST RESPONDENT
SADTU OBO NOMKHWINISI. THEMBA SECOND RESPONDENT
ARBITRATOR: KENNETH DLAMINI
HEARD: 28 FEBRUARY 2022
CLOSING ARGUMENTS: 15 MARCH 2022
DATE OF AWARD: 31 MAY 2022
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing commenced on 29 March 2021. It proceeded on 30 March 2021 and it was part-heard at the Ngaka Modiri Molema District offices situated at Mafikeng. It was finalized on 28 February 2022.
2. The Applicant, Ms Letlhogonolo Millicent Montwedi was present and represented by Advocate Rabaone Gaoraelwe. In turn the First Respondent, Provincial Department of Education, North West Province was represented by one Mr David Ntloane, a Deputy Director - Employment Relations. The Second Respondent, Ms Elisa Nomkhwinisi Themba was represented by Mr Tsholofelo Monkwe, a union official from SADTU.
3. The proceedings were manually and digitally recorded. All witnesses testified under oath.
ISSUES TO BE DECIDED
4. I am required to determine whether or not the First Respondent committed an unfair labour practice as contemplated by Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the Act) as amended by not promoting the Applicant to a Deputy Chief Education Specialist PL5 position for Home Languages, following an interview process held on 21 October 2019.
5. The relief sought by the Applicant is to be retrospectively promoted with back pay to the Deputy Chief Education Specialist position for Home Languages which the Second Respondent was promoted into. In turn the First Respondent and the Second Respondent want the Application of the Applicant to be dismissed.
BACKGROUND TO THE DISPUTE
6. The Applicant is currently employed by the First Respondent as a Senior Education Specialist PL 3 in the Naledi Sub-district since 2011. The Applicant is earning an annual salary of R 417, 051. 00.
7. The First Respondent had advertised a Deputy Chief Education Specialist position PL 5 to which
the Applicant, Second Respondent and two other candidates had responded had applied for. All four candidates including the Applicant were shortlisted and interviewed on 21 October 2019. The Second Respondent was eventually promoted.
8. Aggrieved by her non-promotion, the Applicant referred an unfair labour practice dispute to the
Council on 29 January 2020.
SURVEY OF EVIDENCE AND ARGUMENTS
THE APPLICANT’S EVIDENCE
9. In her evidence in chief, the Applicant testified that following the interview process she only
became aware of the Second Respondent’s promotion on 19 January 2020 as the First Respondent had failed to informed her about the outcome of the interview process. She thereafter wrote a letter to the First Respondent wherein she requested to be furnished with reasons for her non-promotion by the First Respondent without any success.
10. She then referred an unfair labour practice dispute to the Council. After conciliation failed. She
referred the matter for arbitration.
11. She stated that she had applied for two positions. The first one being that of a Deputy Chief
Education Specialist for Home Languages, foundation phase. The second position she had also applied for was that of a Deputy Chief Education Specialist: Mathematics. She was only shortlisted and interviewed for the position of Deputy Chief Education Specialist Home Languages foundation phase and not for DCES for Mathematics.
12. The Second Respondent had applied for Deputy Chief Education Specialist position for Home
Languages foundation phase and the DCES position for Mathematics. The Second Respondent was not successful in the DCES for mathematics position and she was however successful for the Deputy Chief Specialist Home Languages foundation phase position and the Second Respondent was eventually promoted.
13. The Applicant continued to state that she has seven years’ experience as a subject advisor in first
additional languages (FAL) in the foundation phase, a primary teaching diploma. She is registered with SACE and has a driver’s licence and as such she stated that she should have been promoted to the position of the Deputy Chief Education Specialist PL5 for Home Languages as advertised by the First Respondent.
14. She argued that she had a competitive advantage over the Second Respondent, who has similar
years of experience, skills and knowledge in mathematics and not in home languages like her. She further argued that the Second Respondent has been a subject advisor for mathematics and she holds a secondary teaching qualification.
15. The Applicant stated the conduct or decision of the First Respondent of not promoting her
substantially prejudiced her in a number of ways amongst others including the decision by the shortlisting panel to add an additional criterion which was not part of the advertised position. The failure by the interview panel to inform her about the outcome of the interview process, despite having requested reasons for her non-appointment in writing from the First Respondent without any success.
16. The Applicant stated that the Second Respondent who was eventually promoted did not meet the
inherent requirement of the position in the first instance. The Second Respondent did not have the requisite eight years’ experience in languages compared to her. Instead, the Second Respondent has seven years uninterrupted exposure in Mathematics.
17. The Applicant went further and questioned the composition and the competency of the interviewing
panel as well as the decision to exclude of one Ms Roodman, Chief Education Specialist from the interviewing panel to whom she (Applicant) would have reported to had she been successful. She stated that none of the interview panel (Senior Managers) who constituted the interview panel came from the language directorate. She said the interview panel had no direct involvement or knowledge of the post requirements or an in-depth knowledge of languages in general.
18. During the interview process, the Applicant stated that she was only asked general questions by the
interview, questions which had nothing to do or relevant to the requirements of the advertised postion. She initially stated that there is no distinction between first additional languages and home languages, but the Applicant conceded that there is a difference between the two including that mathematics was not a language.
19. When asked whether she had previously worked with the Second Respondent, the Applicant stated
that she had never worked with the Second Respondent at any level.
THE APPLICANT’S CLOSING ARGUMENT
20. Regarding the conduct of the shortlisting and interview panels. The Applicant party submitted that it
is not in dispute that the First Respondent has a prerogative to appoint or promote any candidate that it wishes to appoint or promote. However, such prerogative should be exercised fairly. This is because it falls under what is termed “administrative decision and action”, and the law requires that such decisions and actions to be clothed with the requisite fairness.
21. The First Respondent panels including the Head of Department abused its prerogative by promoting
an underserving, unqualified candidate in the form of the Second Respondent. The Second Respondent should have not been shortlisted in the first instance. The Second Respondent is a wife of a high-ranking and well-known SADTU office bearer at provincial level. The trade union was part of the shortlisting and interviews panel, and never declared any vested or conflict of interest in the outcome of those processes. The minutes (although unsigned) of both panels do not reflect any such declaration, or the chairpersons of those panels dealing with that important aspect. They therefore condoned it.
22. Clause 33 of the ELRC’s Collective Agreement No. 3 of 2016, which clearly states as follows:
“Where the Applicant in a promotion dispute is unable to prove that he/she 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 or she should generally, at least demonstrate that there was conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidates was dishonest and missed the interview panel or employer”. It was argued that the testimony the Applicant had demonstrated such arbitrary reasons which substantially disadvantaged and prejudiced the Applicant from being promoted by the First Respondent to the contested position in question.
23. The Applicant party submitted and argued that there are basically three incidents wherein
administrative decisions and actions were taken, and which adversely impacted on the Applicant, which therefore should be subjected to the scrutiny of section 33 of the Constitution. Firstly, the decision by the shortlisting panel to arbitrarily add more criteria for shortlisting which was not part of the advertisement and thereby “open a window” for unqualifying candidates such as the Second Respondent to be shortlisted, and later interviewed and promoted. Secondly, the decision by the shortlisting panel to shortlist the Second Respondent despite her having had absolutely no working exposure or working experience to languages for an uninterrupted period of seven years preceding her appointment into the contested position. Thirdly, Failure by the First Respondent to produce the criteria used during the interviews and only producing it during the cross-examination stage of the First Respondent’s second witness.
24. The Head of Department of the First Respondent was not called as a witness to testify at the
arbitration and justify her rationale for her administrative decision not to promote the Applicant. Even the Second Respondent failed to testified as well. All these events raised questions about the credibility of the entire process.
25. First Respondent deviated from the requirements contained in the job advertisement and shortlisted
an unqualifying candidate. This in itself cannot pass the lawfulness scrutiny. Clearly such an unqualifying candidate was being favoured, and afforded an unfair opportunity and advantage to contest alongside qualifying candidates, including the Applicant.
26. During her testimony, the first witness of the First Respondent, she instead of explaining why the
shortlisting panel added more criteria to the shortlisting which was not in the advertisement, specifically: “SES in subjects” as stated in the shortlisting minutes, she questioned the accuracy of those minutes which in any case were unsigned and therefore not an official or valid set of shortlisting minutes and she stated what should have been in those minutes is “SES in foundation phase”. Effectively therefore, that additional criteria opened the door for the Second Respondent to be shortlisted despite lacking experience in languages, by including a neutral requirement of “SES in subjects”. That is unlawful.
27. No policy instrument or letters of appointment were presented showing that both panels and the
respective chairpersons were duly appointed and as such having powers to add more requirements during their shortlisting phase. They therefore acted unlawfully by according to themselves powers that they did not have. It is clear therefore from the above that the test for lawfulness was failed by both the shortlists and interview panels to the detriment of the Applicant, and to the advantage of the Second Respondent.
28. Regarding the Second Respondent, the Applicant party argued that the less said about the Second
Respondent, the better. by and large, the arbitration proceedings continued as if she was not there as a party. Second Respondent opted not to testify and have her version heard as to why she thinks she is the best candidate for the contested position, and not the Applicant.
29. Applicant was never notified about the outcome of the interviews including reasons for her non-
appointment. The reason why the Applicant sought that information, was precisely to deal with what is contained in Section B, clause 8 of ELRC’s collective agreement No.3 of 2016 (i.e., that a better candidate than her was appointed and that she was not prejudiced by that appointment). An adverse inference can therefore be drawn that, when that information was initially sought, it did not exist, and had to be “manufactured” for purposes of the impending arbitration. The Applicant testified extensively on the prejudice she has suffered as a result of the conduct of the First Respondent, and the wrongful appointment of the Second Respondent ahead of her. The prejudice manifests in the following: The First Respondent has not suffered any prejudice from its decision to promote an unqualifying and wrong candidate. If anything, it put the name of the First Respondent into disrepute. The First Respondent stand to suffer no prejudice to arise from the Applicant being rightly put in her rightful position retrospectively. That is a fair and right thing to do and given effect of the protections for employees contained in the Constitution of the Republic, as well as the LRA.
30. Even if the First Respondent were to argue that the reversal of the Second Respondent’s promotion
will be prejudicial in any way, that is a price to pay for practicing unfair labour practices at the workplace, and therefore warranted. Whilst the Second Respondent unduly benefited monetarily (in terms of a higher salary and benefits), she also benefited in terms of being afforded the seniority which placed her in better stead to operate at a more senior level and to also contest for even other senior positions.
31. In short, the Second Respondent suffered no prejudice from her irregular promotion. Instead, she
benefitted unduly. Even if the Second Respondent were to argue that the reversal of her promotion will be prejudicial in any way, that will not be true. There can never be any prejudice to arise from reversing a wrongful promotion that fails to pass the test for fairness.
32. The Applicant in this case demonstrated on a balance of probabilities the existence of an unfair labour
practice against her, and that the Second Respondent was not the best candidate for the contested position and that the Applicant was the best candidate based on the reasons advanced hereinabove.
33. The promotion of the Second Respondent in the post of Deputy Education Specialist: Home
Languages be reversed. The Applicant be promoted to the position of Deputy Education Specialist: Home Languages retrospectively from the date of the Second Respondent’s irregular promotion in that position, including the lost salary for that position retrospectively.
34. A costs order to be issued against the First and Second Respondents for defending a dispute based
on spurious, frivolous and vexatious reasons when it was totally unnecessary for them to defend this dispute as they had no case or defence they put forth. Those costs should be in the form of ELRC fees incurred in adjudicating over this dispute, legal fees incurred by the Applicant, disbursements as well as witness fees.
THE RESPONDENT’S EVEIDENCE
35. The first witness of the First Respondent, Dr Mammen she testified that she is the First Respondent’s Director for curriculum development, early childhood development, general and further education. She holds an Honours degree, Master’s degree and PhD in curriculum studies and as such she has an extensive knowledge in curricula matters. She stated that she was the chairperson of the shortlisting panel and she was not involved during the interviews process apart from the drafting of the advertised position in collaboration with the Respondent’s Human Resources Department.
36. She went on to state that the First Respondent had received about for 49 applications for the position in question. As part of the elimination process, the shortlisting panel which she was part of it had agreed on an additional criterion to be added in order to raise the bar given that the advertised position was a management position. Four candidates including the Applicant met the requirements of the position. They were later shortlisted and interviewed. She disputed that the added criteria was intended to prejudiced any of the candidates which were shortlisted and interviewed afterwards. All four candidates including the Applicant were afforded the opportunity to compete on an equal footing.
37. She maintained that the position requirements was an experience and knowledge of 8 years actual teaching and appropriate experience in home language in the foundation phase. The position did not focus on candidates who were specialists first additional languages, mathematics or home languages etc. She said such an assumption would have been misplaced. She went on to state that at foundation phase (Class room teaching) all educators teach all four basic subjects. She admitted that the Second Respondent had 12 years of actual teaching and appropriate experience on one hand, while on the other hand, the Applicant has more years. Both the Applicant and the Second Respondent had the required experience for the DCES position.
38. She explained that first additional languages and home language are different as they use two different policy documents and are also managed separately. She conceded that mathematics was not a language. She explained that first additional language (FAL) is done across the curriculum. Every subject in the foundation phase is taught through language and that the depth and content of FAL and Home Language (HL) differs. Similarly, so are the skills and competencies.
39. She refuted the Applicant’s claim that the interview panel was not competent or suitable to interview the candidates. She explained the roles and relevance of each of the three interview panel members and maintained that all the members of the interview panel qualified to conduct the interviews and to come up with a suitable candidate based on performance.
40. The second witness of the First Respondent, Ms Kathleen Gopane testified that she is the Respondent’s Director for Curriculum Support since March 2018. Prior to becoming a director for curriculum support she was a Chief Education Specialist and she also a former Deputy Principal. Since 2006 she had been involved in the recruitment and selection process at different levels including that of Deputy Chief Education Specialists.
41. She stated that 49 applications were received for the position in question and through the elimination process the list of candidates was narrowed down to four candidates including the Applicant. All four candidates were shortlisted and interviewed wherein the Second Respondent was eventually promoted based on her performance during the interview process.
42. She went on to state that she was the chairperson of the interview panel which prior to the interviews, the panel had drawn up the appropriate instrument in line with the advertised position to measure each candidates’ level of competence, skills, knowledge and other requisite attributes, which the panel did. She said the measuring instruments was used on all four candidates including the Applicant. Each candidate was asked a set of questions by the interview panel and scored accordingly. Based on the final score of each candidate a decision was then taken that the Second Respondent was the suitable candidate on the basis of having obtained the highest final score of 50 percent against the Applicant’s 39.3 percent.
43. She disputed the Applicant’s allegation that the Applicant was asked general questions during the interviews. She stated that it could not have been possible for an interview panel to come up with an instrument designed or drawn up just to measure general questions.
44. The witness further presented the instrument in question which the interview panel had drawn to measure the knowledge, skills and competencies of each candidate required by the position, the scoring sheets as well as the minutes of the interview panel bundle A, pages 19-23. She explained how each candidate was scored by each of the interviewing panel. She stated that following the interview process none of the interviewed candidates raised an objection and as such the entire process was deemed to have been conducted in a fair manner wherein each of the four candidates including the Applicant had acknowledged such.
45. Regarding the advertised position, the witness stated that the position required eight years of actual teaching and appropriate experience in home languages in the foundation phase and not a subject specialist. The Applicant and the Second Respondent had taught all four foundation phase subjects at classroom level and both met the requirements of the advertised position hence they were shortlisted and interviewed, with the Second Respondent eventually successful.
46. She stated that the additional criteria aimed at further reducing the list of candidates to be interviewed. The advertised position was at management level and as such management skills, knowledge of policies of the department relevant to the subject and pronouncements relevant was a requisite. During the interview process the Applicant was unable to demonstrate convincingly in these areas.
47. Regarding the composition of the interview panel. The witness stated that the panel was well constituted with managers who are relevant to the advertised position. She stated that the three-member interview panel consisted of herself as the chairperson, one Ms Bopape a Chief Education Specialist for Libraries which has a strong link with home languages. Mr Mayeng was the acting Chief Education Specialist overseeing the schools wherein the successful candidate will work within those schools.
48. Responding to the exclusion of Ms Roodman, Chief Education Specialist and to whom the Applicant would have reported to had she been successful. She stated that Ms Roodman was the acting Chief Education Specialist. At the time Ms Roodman was also a candidate having applied for another position. The witness argued that Ms Roodman was not the only expert or official knowledgeable as far as the content of the position was concerned. She stated that an interview process can not be a one person show or band. The witness further argued that the Respondent has a prerogative to decide as to who become a interview panel member based on credentials. She said the Respondent can call anyone who is relevant and who meet the requirements to become an interview panel member.
49. She maintained that the interview panel was well constituted and all members of the panel were relevant and competent to do the task they had been given and for which they did.
CLOSING ARGUMENTS OF THE FIRST RESPONDENT.
50. On behalf of the First Respondent, Mr David Ntloane submitted and argued as follows;
51. That the Applicant’s case has no merit as it centred around what the Applicant’s wishes, dishonest testimony regarding what transpired during the interviews as well as elements which are not part of the Respondent’s job Advert.
52. Following the promotion of the Second Respondent, the Applicant lodged a grievance of unfair labour practice, which was not promptly addressed as the relevant official had succumbed to Covid 19 and the Applicant exercised her right to refer a dispute to the Council.
53. Despite raising a number of issues amongst others including the constitution and competence of the interview panel, the added criteria which was not part of the job advert, that the Second Responded does not have the skills and knowledge for languages a relevant to the post and that she was the best candidate for the job. During cross-examination, the Applicant conceded that the Second Respondent met the requirements as stated in the advert, which is a) A recognised three-year teacher’s qualification (REQV 13) and b) must be registered with SACE and c) have a valid driver’s
54. The Applicant, under cross examination, also conceded that she never worked with the Second Respondent and therefore she does not know the skills that the Second Respondent possesses. The Applicant also conceded during cross examination that both of them have a minimum experience of Eight (8) years actual teaching in the foundation phase, but disputed that Second Respondent have appropriate experience in Home Languages in Foundation Phase. license (Code 8).
55. The first witness of the First Respondent stated that 49 applications were received. After elimination of those who did not qualify, the panel had to agree on the additional criteria “to raise the bar” and eliminate further. After the added criteria four candidates of whom two were the Applicant and the Second Respondent were shortlisted and interviewed.
56. The first witness further testified that the Experience and Knowledge required for the post did not focus on candidates who were education specialists in FAL, mathematics, home language, etc. As is, eight (8) years actual teaching and appropriate experience in home languages in foundation phase was required.
57. The witness testified that Second Respondent had 12 years of actual teaching and appropriate experience in home languages in the foundation phase whereas the Applicant have more years.
THE SECOND RESPONDENT CLOSING ARGUMENT.
58. The requirements of the advertised position were as follows; Experience and knowledge: Eight (8) years actual teaching and appropriate experience in Home Languages in Foundation Phase. In-depth knowledge of the Acts, regulations, prescripts and relevant policies in education. So, the Applicant’s interpretation that the 8 years actual teaching experience relates to home language is incorrect. The 8 years actual teaching experience is a requirement as enshrined in paragraph B.3.2 of Personnel Administrative Measures (PAM) which deals with minimum requirements for the appointment for institution-based and office-based educators.
59 The Applicant, under cross-examination, admitted that the Second Respondent has 12 years actual teaching experience. She also admitted that the Second Respondent in her 12 years actual teaching experience offered home Languages, amongst others. So, it is clear that the Second Respondent complied with the experience and knowledge as stipulated in the advert. She had 12 years actual teaching experience and appropriate experience in Home Language. The Applicant’s understanding that the appropriate experience in Home Language must be at Senior Education Specialist (SES) level is not in the advert. This understanding is tantamount to crafting her own advert which is obviously not her prerogative. The advert wanted appropriate experience in Home Language and that is all.
60. The first witness of the First Respondent clarified that they agreed on an additional criterion because the post was also a managerial post hence, they shortlisted Senior Education Specialists (SES). She further testified that they considered the Second Respondent because she was also a school principal, and it was relevant because the post is a managerial post. Over and above the applicant’s 17 actual teaching experience, she was also considered because she was a departmental head for about 7 years. Therefore, it is incorrect that FAL was considered when the applicant was shortlisted.
61. The witness further testified that she has experience in languages and the two policy documents Home Languages and FAL are the same and that there is no specialization in the foundation phase and that is the reason they shortlisted SES in the foundation phase. In other words, educators in the foundation phase teach all the subjects.
62. The second witness of the First Respondent clarified that she is a Director for Curriculum Support and
the post in question is a curriculum post. She testified further that Mr Mayeng is the acting Chief Education Specialist and the incumbent will work in schools following under his jurisdiction. She further testified that Ms Bopape is the CES for Libraries and that there is a relationship between Libraries and languages. She again testified that the supervisor one Ms Roodman could not be in the interview panel because she was a candidate in another post she had applied for and also that she was not a substantive CES. She disputed that the composition of the panel could have prejudiced the Applicant because all panel members deal with curriculum and the post was a curriculum post.
ANALYSIS OF ARGUMENT AND EVIDENCE
Applicable law
63 In terms of Section 186(2) (a) of the LRA, which reads “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 or training of the employee or relating to the provision benefits to an employee. In this case, the Applicant is challenging her non-promotion by the First Respondent.
64. In Pamlin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT (Handed
down on 09 May 2018) the Court emphasised 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 substantive 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.
65. In Arries v CCMA and others (2006) 27 ILJ 2324 (LC) the Court held that there are limited grounds
on which a commissioner, or a Court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an Employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.
66. There are two components to a complaint regarding a failure to promote an employee as an
unfair labour practice. The one relates to the procedure followed by the employer. The other relates to the substantive merits and it concerns the suitability of the candidate for promotion to the post in question. I am mindful of the fact that I am only limited to look into the substantive merits raised in relation to the non- promotion of the Applicant and to determine whether First Respondent acted fairly and in good faith during the promotion exercise.
67. It is trite law that in a promotion dispute, What the Applicant in this case has to show, in absence of
a right to be promoted being established is that the conduct of the First Respondent in failing to
promote her considered overall was unfair.
68. The case of the Applicant in the main is that she was substantially prejudiced procedurally and substantively by the conduct and decision of the First Respondent on the following grounds. Firstly, that the First Respondent did not inform her about the outcome of the interview process, despite having requested reason(s) for her non-promotion from First Respondent in writing without any success.
69. Secondly, that the shortlisting panel added an additional criterion which was not part of the advertised position. Thirdly, that the interviewing panel which was not well constituted and not competent on issues pertaining to the position and that the Chief Education Specialist to whom she (Applicant) would have reported to had she been successful was excluded from the interview panel. The shortlisting panel basically lacked the requisite expertise in languages relevant to the advertised position. That the First Respondent floated its own laid down guidelines regulating promotion.
70. Fourthly, that the Second Respondent should have not been shortlisted the Second Respondent in the first-place, reason being that the Second Respondent did not meet the requirements of the advertised position. That the Second Respondent’s spouse occupies a high position with the labour movement or trade union which also participate in the process without the necessary disclosure made or recorded anywhere or even in the minutes, which are also disputed as they were not signed as a true record of what transpired during the interview process.
71. The Second Respondent has experience, skills and knowledge in mathematics and not in home languages compared to her (Applicant), hence the Applicant believes that she had an upper hand over the Second Respondent.
72. Lastly, that during the interview process, the Applicant argued that she was only asked general questions by the interviewing panel which had nothing to do with the advertised position.
73. In light of the above the Applicant testified and argued that based on her seven years’ experience, skills and knowledge as a subject advisor in first additional languages (FAL) in the foundation phase including having a primary teaching diploma and registered with SACE and having a driver’s licence. She was the suitable candidate for the position.
74. Turning to the case of the First Respondent. The first witness of the First Respondent, she testified that she was only involved in the drafting of the advert together with the First Respondent’s Human Resources Department. She said she played no role in the interviews process.
75. Regarding the additional criteria, the first witness of the First Respondent testified that the shortlisting panel had agreed on the additional criterion in order to raise the bar as the position was at management level and to ensure that only a sizeable or a handful qualifying candidates remain and for which the Applicant and the Second Respondent both met the requirements of the position, hence they were afforded the opportunity to attend the interviews and competed openly.
76. The first witness of the First Respondent further testified that the position required 8 years actual teaching and appropriate experience in home language in foundation phase The position did not focus specifically on candidates who are currently senior educational specialists for first additional languages, home language, mathematics etc. She stated that Applicant and the Second Respondent had the required class room teaching experience in the foundation phase wherein they taught all four foundation phase subjects.
77. She vehemently defended both the composition and competence of both panels. She stated that the interview panel was well constituted and that the individuals had the requisite skills, knowledge and competence to do the job of selecting and recommending the suitable candidate on behalf of the First Respondent. She further argued that all the laid down prescripts were adhered to the letter.
78. The version of the second witness of the First Respondent also corroborated the version of the first witness of the First Respondent in all aspects. The second witness of the First Respondent presented the designed instrument which was used to measure each of the candidates’ knowledge, skills, competencies as well as the total attributes required in line with the advertised position. The witness explained how each candidate was scored by each panel member. She further presented the scoring sheets used by the interview panel and minutes, although not signed.
79. Regarding the general questions, the second witness of the First Respondent argued that based on knowledge it is not possible for an interview panel to come up with an instrument to only measure general questions. She stated that she was the chairperson of the interview process and she disputed that the Applicant was asked general questions during the interviews.
80. The instrument used and the scoring sheets were not challenged on any material grounds by the Applicant party, except that the interview panel minutes were not signed. No evidence to the contrary was presented before me by the Applicant to rebut the First Respondent’s evidence presented.
81. In this case, it is common cause that the dispute is concerning promotion as both the Applicant
and the Second Respondent have an existing contract of employment with the Respondent. It is also common cause that prior to the Deputy Chief Education Specialist PL5 being advertised, the Applicant and the Second Respondent were both Senior Education Specialists PL3 for first additional languages and mathematics for Grade R up to Grade 3 respectively. It is further common cause that they both applied, shortlisted and interviewed for the Deputy Chief Education Specialist position PL5. It is also not disputed that the Second Respondent was eventually successful and promoted to the position.
82. It is also common cause that the Second Respondent obtained a final average score of 50 percent
against a final average score of 39.3 percent obtained by the Applicant. It was further not disputed that both the Applicant and the Second Respondent met the inherent requirement of the position. The requirements of the position in question are captured in the advert as, a recognized three-year teacher’s qualification (REQV 13) and must be registered with SACE, valid driver’s license Code 8. Experience and knowledge of 8 years actual teaching and appropriate experience in home languages in foundation phase. In-depth knowledge of the Acts, regulations, prescripts and relevant policies in education.
83. It is also not disputed that both the Applicant and the Second Respondent taught the same subjects
at the foundation phase before being promoted to the positions of being Senior Education Specialists wherein the Applicant became a Senior Education Specialist in first additional languages (FAL). The Second Respondent became a Senior Education Specialist in Mathematics.
84. It further not disputed that the Applicant holds a primary teaching diploma, registered with SACE
whereas the Second Respondent holds a secondary teaching diploma and she (Second Respondent) is a former School principal also registered with the SACE. That the advertised position was a management position. It is further common cause that the Applicant and the Second Respondent had not only applied for the Deputy Chief Education Specialist in home languages position but also for the position of Deputy Chief Education Specialist in Mathematics. The Applicant and the Second Respondent were unsuccessful for Deputy Chief Education Specialist position for mathematics.
85. Regarding the absence of the Ms Roodman my view is that it was necessary so that the interview
panel could arrive at an independent decision according to their own in-sights without any interference.
Any interviewing panel is constituted to serve a purpose. It is a management tool to assist in this case the First Respondent to have arrived at a final decision on promotion in question.
86. The substantive issues relate to the Applicant’s core experience for suitable promotion versus
that of the Second Respondent, this in my view is primarily a matter for the First Respondent through the selected interviewing panel.
87. Having had regard to the entire evidence presented before me in this case including credibility and
reliability of witnesses, I am not persuaded by the Applicant’s argument that her non appointment by the First Respondent was as a result of an irrational, grossly unreasonable or mala fides reasons. As such I am reluctant to interfere with the conduct and decision of the First Respondent in as far as the promotion of the Second Respondent was concerned.
88. The Applicant party indicated that it is seeking costs in the form of the council fees incurred in
adjudicating over the dispute, legal fees incurred by the Applicant, disbursements as well as witness fess on the basis that both the First and the Second Respondent defended a frivolous and vexatious matter or dispute. But the test is whether it would be in accordance with the law and fairness to grant costs. My view is that all the parties involved in this matter had a right to defend their respective positions including the Applicant who had challenged her non-appointment. It would be fair to make no order as to costs.
AWARD
89. I make the following Award
90. The Applicant has failed to demonstrate that the First Respondent committed an unfair labour
practice as contemplated by Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the Act) as amended by promoting the Second Respondent instead of her (Applicant) into the advertised Deputy Chief Education Specialist PL5 position for Home Languages, following an interview process held on 21 October 2019
91. The Applicant’s application is here dismissed.
92. No order as to costs.
Kenneth Dlamini
Panellist: ELRC