ELRC816-21/22LP
Text
ELRC816-21/22LP
Award Date:
05 July 2022
Case Number: ELRC816-21/22LP
Panelist: Grace Mafa-Chali
Date of Award: 05 July 2022
In the ARBITRATION between
SADTU obo Thomas Mabasa
(Applicant)
And
Department of Education –Limpopo
(1st Respondent)
Nyiko Nurse Manganyi
(2nd Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration in terms of section 186(2)(a) of the Labour Relations Act (herein referred as the LRA) on 15 June 2022 and 17 June 2022. The Applicant, Mr Thomas Mabasa was represented by Mr Hendrik Makhafola, union of-ficial of SADTU, and the 1st Respondent, the Department of Education-Limpopo Province was represented by Mr Eric Nyathela, Labour Relations Officer. The 2nd Respondent and incumbent, Ms Nyiko Nurse Manganyi represented herself.
2. At the end of the proceedings, parties requested to submit written closing arguments and were directed to do so within 7 days, which was by the latest 24 June 2022. The parties obliged except the 2nd Respondent. I have considered the submitted closing arguments in my analysis of evidence and my findings hereunder.
ISSUE TO BE DECIDED
3. I am required to determine whether the 1st Respondent committed an unfair labour practice against the Applicant as contemplated by Section 186(2)(a) of the LRA.
4. If so, to determine the appropriate relief.
BACKGROUND TO THE ISSUES
5. The Applicant is currently employed as an Educator at Soshangane High School in Mpumalanga Province since 01 April 2007 and is earning a monthly basic salary of R 24 770.50.
6. He applied for the vacant position of Head of Department for English and Life Sciences Grade 10-12 at Dumazi High School in Limpopo, which was advertised in the Open Vacancy List No 1, Volume 3/2021 for Departmental Heads dated 02 September 2021.
7. The Applicant, the 2nd Respondent, Ms Nyiko Manganyi and two other candidates, R S Mabasa and S R Rikhotso were shortlisted and interviewed on 25 November 2021.
8. During the interviews R S Mabasa was scored 80,8% and S R Rikhotso 70% and were ranked number 1 and number 2 respectively.
9. The Applicant was ranked number 3 by the interview panel with average score of 62,6 % and the 2nd Respondent was ranked number 4 with the average score of 45,6%. The 2nd Respondent was subsequently appointed to the advertised position of Head of Department.
10. There was no challenge on the interviews panel and SGB’s recommendations. It was common cause that the 2nd Respondent was appointed to the advertised post of HOD at salary level 08, within the salary band of R353 979,00- R876 609,00 per annum and the Applicant was not appointed.
11. The Applicant argued that he should have been appointed as he met the minimum requirements, curriculum needs and has relevant experience. He contested the recommendations of the Deputy Director: Corporate Services and the appointment decision of the 2nd Respondent by the District Director in the Memo dated 29 December 2021.
12. The Respondent argued that the 2nd Respondent was appointed as she matched the curriculum needs of the school which are English and Life Sciences and was teaching at the secondary school since February 2005; as opposed to the Applicant who has English and History as his subjects in his Secondary Teachers Diploma.
13. Regarding relief, the Applicant seeks the setting aside of the appointment of the 2nd Respondent and that he be appointed to the position retrospectively from 01 January 2022, the date on which the 2nd Respondent was appointed.
14. Parties used a common bundle of documents submitted by the Respondent, which I marked as Bundle AR.
SURVEY OF PARTIES’S EVIDENCE AND ARGUMENTS
This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the LRA, relevant to the dispute at hand.
APPLICANT’S EVIDENCE
The Applicant, Mr Thomas Mabasa testified under oath as follows:
15. He started working for the Department of Education on 01 April 2007 as an Educator- PL1 at Soshangane High School in Mpumalanga. He applied for the advertised post of Head of Department position at Dumazi High School in Limpopo.
16. He was shortlisted and interviewed. He rated number 3 during the interviews. Candidates number 1 and number 2 were appointed somewhere else. He was the one to be appointed and available as the SGB was to follow the candidates in terms of their ratings obtained during the interviews.
17. The HOD was supposed to appoint him but instead appointed the 2nd Respondent who was number 4 and skipped him at number 3. He stood an equal opportunity to be employed in the position as the standards must be equal.
18. Reference was made to Page 55 of Bundle AR on the candidates’ recommendation by the SGB and their order of preference. He was the next available candidate to be appointed but the 1st Respondent did not follow its policy or rules.
19. The 1st Respondent should have followed equity as in the HOD level, men are scarce but it was not followed. Reference was also made to Pages 75 and 76 of Bundle AR which are Guidelines for the Implementation of the 2015/2020 Employment Equity Plan in the appointment of employees in Limpopo Department of Education.
20. The statistics on the profiles for Head of Department on Page 88 of Bundle AR show that African males are 1847 with totals including other races of 1872, and African female s are1816, with totals including other races of 1884. This shows that he should have been appointed in terms of the employment equity guidelines as provided in the last paragraph of the circular on Page 89 of Bundle AR.
21. References were made to Pages 69 to 71 of Bundle AR which are recommendations for the advertised position. Reference was also made to Page 85- Provisions of the Collective Agreement No 1 of 2008 in the Education Labour Relations Council, Limpopo Chamber, Clauses 13.1.1 and 13.1.2 which provide that Superintendent General shall make the final decision on appointment subject to satisfying her/herself that agreed upon procedures were followed and that the decision is in compliance with the Employment of Educators Act of 1998 and South African Schools Act 84 of 1996, the Labour Relations Act 66 of 1995, Education Laws Amendment Act of 2005 and the Employment Equity Plan and any applicable policy.
22. Clause 13.2 of the above provisions further provides that when the Superintendent General considers the recommendation as stipulated in Clause 10, the SGB before making an appointment ensures that it has met the requirements in Clauses 10.2 and 10.3.
23. Further reference was also made to Page 88 of Bundle AR. The Employment Equity Act was not followed as the profiles show that African males were underrepresented, with 1872 total males and 1884 total females.
24. He seeks to be appointed as HOD and the order be made to set aside the appointment of the 2nd Respondent in the same position.
The Applicant closed his case.
1st RESPONDENT’S EVIDENCE
Mr Sam Nyiko Sono testified under oath as follows:
25. He is currently responsible for the 1st Respondent’s Corporate Services since October 2021.
26. He explained the process of recruitment and that once applications are received, they are sent to the schools and specifically given to the Chairperson of the SGB and the Principal, who will then present the applications to the SGB in terms of Collective Agreement 2 of 2020.
27. Reference was made to Pages 77 to 79 of Bundle AR, Paragraph 5.1.1 in relation to the establishment of the interview committee for school based posts. He further explained the sifting, shortlisting and interview processes.
28. The SGB would sit to make recommendations after the interviews and forward them to the Circuit Manager who will do the checklist of all the required documents and if all in order, submit them to the district office. The Circuit Manager had a conflict with the school, interfered with the process before the shortlisting and also confiscated the applications.
29. On advice of the provincial office of the 1st Respondent, the SGB was advised to write a formal letter to the Circuit Manager to demand return of the applications. When the SGB submitted the recommendations to the Circuit Manager after the interviews, she refused to take them.
30. In this instance the Circuit Manager did not check the recommendations and did not also complete the RF-7 form as she refused to take them.
31. At the district level, a memo was developed to advise the HOD how the post was advertised, the recommendations of the interview panel and of the SGB as they appear on Pages 69 to 71 of Bundle AR. The Memo is just an internal document that gives an outline of the recruitment process and the HOD is not bound by the recommendations in the memo.
32. The reason why the Applicant was not appointed was because the advert required English and Life Sciences as curriculum needs, and the Applicant only possesses English and History and no Life Sciences. In the first instance the Applicant was not supposed to have been shortlisted had the interview committee followed Clause 6.3 of the collective agreement.
33. The Applicant’s argument that he was the suitable candidate does not hold water as he had only one required subject instead of two. Therefore, he met only one part of the requirements.
34. Before the recommendations are sent to the HOD, the advert is checked against the qualifications of the recommended candidates in line with Clause 6.3 on Page 82 of Bundle AR.
35. Page 42 of Bundle AR shows that Ms Manganyi has English and Biology which is now Life Sciences and she did both subjects up to Level 3. As provided in Clause
6.3 on Page 82, it leaves him with no option but to confirm that Ms Manganyi was the most suitable candidate for the position as she fully met the curriculum needs of the department as advertised in the position.
36. There must be a differentiation between the two processes of RR (Rationalisation and Redeployment) and Management of Promotional Posts. Promotional posts are handled on the basis of an advert, hence it is important to present the curriculum needs of the school and for the applicants to submit their qualifications which will guide the relevance of such applicants against the advertised post.
37. Whereas with RR, the person is already teaching and the post is not advertised. In trying to balance the teacher pupil ratio, it causes a move of teachers from one school to another where there is a vacancy. In this instance the consideration is the skill which can be used in placing the educator and there are no appointments or promotions but placements or absorptions as a result of staff movements on the same level.
38. The Primary Teachers Diploma did not disqualify Ms Manganyi to teach at the secondary school. She also did her Advanced Certificate in Mathematics as on Page 43 of Bundle AR, which was an improvement on her qualifications to enable her to teach up to Grace 12.
39. On her CV on Page 38 of Bundle AR, it shows that Ms Manganyi has an experience in teaching at the secondary school level since 2005 to date. Her qualifications did not exclude her to teach at the secondary school.
40. The issue of the employment equity statistics on Page 88 of Bundle AR that males are underrepresented in the HOD category is irrelevant as the Applicant was not even supposed to have been shortlisted. Furthermore, the curriculum needs of the school as advertised was key. Those statistics are merely guidelines for those that meets the curriculum needs of the school as advertised. In addressing the imbalances of the past race is critical factor, then followed by gender.
41. With reference to Pages 55 and 85 of Bundle AR, it was important to note that even if the recommendations were made by the interview panel and SGB, the Superintendent General has a final decision on the appoinemnt. Ms Manganyi was also a recommended candidate and she also met all the requirements of the post as well as relevant experience of more than 10 years at the same school where she applied even up to Grade 12 according to her qualifications.
42. Looking at the subjects the Applicant did at Grade 12, the marks he obtained in Biology, between 33,3% -39% scale, as the major subject, he would not have been allowed at tertiary level to study Biology. In contrast to the marks Ms Manganyi obtained at her matric of 50%-59%, she would have been admitted at tertiary level to study Biology. The admission percentage for major subjects like Maths and Sciences is at tertiary level is 50% and above, and Life Science falls within this category.
43. He was the signatory of the recommendations on Page 70 and he was satisfied that as the Department, Ms Manganyi met all the requirements of the position and was also qualified.
1st Respondent closed its case.
2nd RESPONDENT’S EVIDENCE
Ms Nyiko Nurse Manganyi testified under oath as follows:
44. She was appointed by the 1st Respondent as the Head of Department because she was qualified for the positon based on the documents that have been presented at the arbitration proceedings.
45. She was better qualified than the Applicant in terms of experience and the curriculum needs.
46. She believed that in terms of equity, there are more African males, 1847 against 1816 females in the position of HOD.
47. Should her appointment be set aside, she will be financially prejudiced as she has been earning the salary of HOD since January 2022, and as a result she added more expenditures due to her promotion.
48. She will also be emotionally affected if her appointment is set aside as she knew that she was the HOD, and that may cause her diseases like depression.
2nd Respondent closed her case.
ANALYSIS OF PARTIES’ EVIDENCE AND ARGUMENTS
49. Section 186 (2)(a) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia:
“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving —
unfair conduct by the employer relating to the promotion, demotion, probation (ex-cluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; …
50. The LRA requires employers to treat employees fairly when they apply for promo-tions. An employee who alleges that he/she is the victim of an unfair labour practice bears the onus of proving all the elements of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
51. Fairness requires that the position and interests of both the employee and employer be taken into consideration in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the LRA.
52. In Buffalo City Public FET College v CCMA & Others (P 372/12) [2016] ZALCPE 18, the court held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the employee to prove that he/she is a suitable candi-date for the position in question.
53. The Applicant submitted and argued that he should have been appointed in the HOD position as he met all the requirements, was experienced and moreover was ranked number 3 by the interview panel and SGB in their recommendations. It was submitted that candidates number 1 and 2 were not available to take up the ap-pointment and therefore as he was the next candidate number 3, he was supposed to be appointed.
54. A first determination must be made whether or not the Applicant met the require-ments of the advert. The advert required the candidate to have the relevant qualifica-tions and the curriculum needs were specified to be English and Life Sciences. The Applicant and the 2nd Respondent’s qualifications were submitted in evidence, which I have considered. It is clear that the Applicant is qualified in English and History and not Life Sciences. Therefore, he did not meet the curriculum requirements although he has 13 years’ experience as an Educator the high school.
55. The Applicant argued that the interview panel rankings should have been consid-ered as the other two candidates were not available to take up the appointment and he was ranked number 3.
56. The argument of the Applicant is reliant on the scoring percentages obtained by candidates during the interviews. It is my considered view that the outcome of inter-view process is not the only determination on the recommendation of the suitable candidate for appointment. The best and suitable candidate is not necessarily the candidate that obtains more scores during the interview.
57. The interview scores must be considered together with the requirements of the ad-vert, which in this instance English and Life Science and Personnel Administrative Measures (PAM) requirements.
58. It was common cause that the PAM requirements for the Departmental Head are: a recognised 3 or 4-year qualification which includes professional teacher education, registration with SACE as a professional educator, and 3 years of teaching experi-ence and good extra and co-curriculum skills.
59. The fact that a candidates scored less points than others or was ranked last during the interviews cannot be a ground to exclude a candidate to be recommended with-out looking at the other requirement of the advert and PAM requirements.
60. I am convinced that the Applicant was not supposed to have even been shortlisted as argued by the 1st Respondent as he clearly did not meet the minimum require-ment of the curriculum needs because he did not have Life Sciences in his teaching qualification.
61. The Applicant furthermore argued that the 1st Respondent in the appointment of the 2nd Respondent disregarded its own Employment Equity Circular 116 of 2019 in that the 1st Respondent did not follow the equity guidelines plan to appoint a male as they were underrepresented.
62. The evidence before me has not shown that the position was an affirmative action position. Taking into account Circular 116 to determine the employment equity con-siderations, it became clear that there were no Whites, Coloureds and Indians can-didates interviewed for this position. The profiles comparisons must therefore be made between African males and African female candidates. African males are 1872 and African females are 1816. Therefore, African females are underrepresented in the HOD job category not African males.
63. The evidence before me is clear that the Applicant did not meet the curriculum needs of the school as required by the advert as correctly argued by the Respond-ents although he has 13 years of teaching experience at high school level. He met only the English requirement and not for Life Sciences. There was evidence that the 2nd Respondent has obtained even an additional qualification in Natural Sciences at MASTEC.
64. In the light that the first two candidates were not offered appointment, and the Appli-cant did not meet the curriculum requirements, I can accept the evidence of the 1st Respondent’s witness Mr Sono, that it was not unreasonable for the District Director to appoint the next suitable candidate in the recommendations, the 2nd Respondent, as she met the advert requirements on qualifications, experience of teaching at the secondary school with 14 years’ experience, and also that in terms of the employ-ment equity profiles, she falls within the underrepresented category profile of fe-males. The 2nd Respondent’s evidence also corroborated the 1st Respondent ‘evi-dence in this regard.
65. The Applicant did not provide any constructive or substantive evidence of biasness by the District Director in the appoinemnt decision. I have however also considered that the District Director is not bound by the recommendations of the interview panel or SGB, provided there are reasons not to accept such recommendations.
66. I have already found that there were justified reasons in this instance to deviate on those recommendations. I am satisfied that in making the appointment decision, the District Director considered the provisions of paragraph 13 of Collective Agreement 3 of 2020.
67. The evidence of Mr Sono was also undisputed that the provisions of Paragraph 13.2 of the Collective Agreement could not be adhered to as the Circuit Manager’s con-duct of confiscating the applications and being uncooperative in the recruitment pro-cess made it impossible for the submission to pass through her office to check and complete RF-7 form, hence the memo for the recommendations was generated by the cluster head in the district office. This procedural deviation cannot nullify the whole recruitment process.
68. In coming to my findings above, I am guided by the court’s decision in the Labour Appeal Court judgement that held that the balance must be struck between the managerial prerogative to promote employees and the principle that labour forums must intervene in the labour arena if fairness so requires. The judgment in Ncane v Lyster 2017 38 ILJ 907 (LAC) confirms that labour forums and the court will not eas-ily interfere with an employer’s decision regarding who should and who should not be promoted.
69. In Noonan v SSSBC and others [2012] 33 IJL 2597 (LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair oppor-tunity to compete for a post. Any conduct that denies an Employee an opportunity to compete for a post constitutes an unfair labour practice. If the Employee is not de-nied the opportunity to compete for the post, the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mis-takes in the process of evaluation do not constitute unfairness justifying an interfer-ence with the decision to appoint.
70. In the absence of satisfactory and convincing evidence that the decision to appoint the 2nd Respondent was unreasonable, bad faith, biased, seriously flawed, arbitrary, capricious, or based on a wrong principle, I agree with the 1st Respondent’s argu-ments in the citied judgments of National Commissioner of the SAPS v Safety and Security Bargaining Council & Others (2005) 26 ILJ 903 and SAPS v SSBC [2010] 8 BLLR 892 (LC), and I cannot therefore interfere with the 1st Respondent’s discretion to promote the 2nd Respondent.
71. Having considered the evidence in its totality, I am convinced that the 1st Respond-ent has granted the Applicant a fair opportunity in presenting his candidature for the vacancy and that the Applicant failed to discharge the onus to proof that the 1st Re-spondent committed an unfair labour practice against him as envisaged by Section 186(2)(a) of the LRA.
72. I therefore find that the Applicant is not entitled to the relief sought.
AWARD
73. The 1st Respondent, the Department of Education-Limpopo, did not commit an unfair labour practice against the Applicant as contemplated by Section 186(2)(a) of the LRA.
74. The Applicant, Mr Thomas Mabaso is not entitled to the relief sought.
Signature:
Commissioner: Grace Mafa-Chali
Sector: Education
Panelist: Grace Mafa-Chali
Date of Award: 05 July 2022
In the ARBITRATION between
SADTU obo Thomas Mabasa
(Applicant)
And
Department of Education –Limpopo
(1st Respondent)
Nyiko Nurse Manganyi
(2nd Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration in terms of section 186(2)(a) of the Labour Relations Act (herein referred as the LRA) on 15 June 2022 and 17 June 2022. The Applicant, Mr Thomas Mabasa was represented by Mr Hendrik Makhafola, union of-ficial of SADTU, and the 1st Respondent, the Department of Education-Limpopo Province was represented by Mr Eric Nyathela, Labour Relations Officer. The 2nd Respondent and incumbent, Ms Nyiko Nurse Manganyi represented herself.
2. At the end of the proceedings, parties requested to submit written closing arguments and were directed to do so within 7 days, which was by the latest 24 June 2022. The parties obliged except the 2nd Respondent. I have considered the submitted closing arguments in my analysis of evidence and my findings hereunder.
ISSUE TO BE DECIDED
3. I am required to determine whether the 1st Respondent committed an unfair labour practice against the Applicant as contemplated by Section 186(2)(a) of the LRA.
4. If so, to determine the appropriate relief.
BACKGROUND TO THE ISSUES
5. The Applicant is currently employed as an Educator at Soshangane High School in Mpumalanga Province since 01 April 2007 and is earning a monthly basic salary of R 24 770.50.
6. He applied for the vacant position of Head of Department for English and Life Sciences Grade 10-12 at Dumazi High School in Limpopo, which was advertised in the Open Vacancy List No 1, Volume 3/2021 for Departmental Heads dated 02 September 2021.
7. The Applicant, the 2nd Respondent, Ms Nyiko Manganyi and two other candidates, R S Mabasa and S R Rikhotso were shortlisted and interviewed on 25 November 2021.
8. During the interviews R S Mabasa was scored 80,8% and S R Rikhotso 70% and were ranked number 1 and number 2 respectively.
9. The Applicant was ranked number 3 by the interview panel with average score of 62,6 % and the 2nd Respondent was ranked number 4 with the average score of 45,6%. The 2nd Respondent was subsequently appointed to the advertised position of Head of Department.
10. There was no challenge on the interviews panel and SGB’s recommendations. It was common cause that the 2nd Respondent was appointed to the advertised post of HOD at salary level 08, within the salary band of R353 979,00- R876 609,00 per annum and the Applicant was not appointed.
11. The Applicant argued that he should have been appointed as he met the minimum requirements, curriculum needs and has relevant experience. He contested the recommendations of the Deputy Director: Corporate Services and the appointment decision of the 2nd Respondent by the District Director in the Memo dated 29 December 2021.
12. The Respondent argued that the 2nd Respondent was appointed as she matched the curriculum needs of the school which are English and Life Sciences and was teaching at the secondary school since February 2005; as opposed to the Applicant who has English and History as his subjects in his Secondary Teachers Diploma.
13. Regarding relief, the Applicant seeks the setting aside of the appointment of the 2nd Respondent and that he be appointed to the position retrospectively from 01 January 2022, the date on which the 2nd Respondent was appointed.
14. Parties used a common bundle of documents submitted by the Respondent, which I marked as Bundle AR.
SURVEY OF PARTIES’S EVIDENCE AND ARGUMENTS
This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the LRA, relevant to the dispute at hand.
APPLICANT’S EVIDENCE
The Applicant, Mr Thomas Mabasa testified under oath as follows:
15. He started working for the Department of Education on 01 April 2007 as an Educator- PL1 at Soshangane High School in Mpumalanga. He applied for the advertised post of Head of Department position at Dumazi High School in Limpopo.
16. He was shortlisted and interviewed. He rated number 3 during the interviews. Candidates number 1 and number 2 were appointed somewhere else. He was the one to be appointed and available as the SGB was to follow the candidates in terms of their ratings obtained during the interviews.
17. The HOD was supposed to appoint him but instead appointed the 2nd Respondent who was number 4 and skipped him at number 3. He stood an equal opportunity to be employed in the position as the standards must be equal.
18. Reference was made to Page 55 of Bundle AR on the candidates’ recommendation by the SGB and their order of preference. He was the next available candidate to be appointed but the 1st Respondent did not follow its policy or rules.
19. The 1st Respondent should have followed equity as in the HOD level, men are scarce but it was not followed. Reference was also made to Pages 75 and 76 of Bundle AR which are Guidelines for the Implementation of the 2015/2020 Employment Equity Plan in the appointment of employees in Limpopo Department of Education.
20. The statistics on the profiles for Head of Department on Page 88 of Bundle AR show that African males are 1847 with totals including other races of 1872, and African female s are1816, with totals including other races of 1884. This shows that he should have been appointed in terms of the employment equity guidelines as provided in the last paragraph of the circular on Page 89 of Bundle AR.
21. References were made to Pages 69 to 71 of Bundle AR which are recommendations for the advertised position. Reference was also made to Page 85- Provisions of the Collective Agreement No 1 of 2008 in the Education Labour Relations Council, Limpopo Chamber, Clauses 13.1.1 and 13.1.2 which provide that Superintendent General shall make the final decision on appointment subject to satisfying her/herself that agreed upon procedures were followed and that the decision is in compliance with the Employment of Educators Act of 1998 and South African Schools Act 84 of 1996, the Labour Relations Act 66 of 1995, Education Laws Amendment Act of 2005 and the Employment Equity Plan and any applicable policy.
22. Clause 13.2 of the above provisions further provides that when the Superintendent General considers the recommendation as stipulated in Clause 10, the SGB before making an appointment ensures that it has met the requirements in Clauses 10.2 and 10.3.
23. Further reference was also made to Page 88 of Bundle AR. The Employment Equity Act was not followed as the profiles show that African males were underrepresented, with 1872 total males and 1884 total females.
24. He seeks to be appointed as HOD and the order be made to set aside the appointment of the 2nd Respondent in the same position.
The Applicant closed his case.
1st RESPONDENT’S EVIDENCE
Mr Sam Nyiko Sono testified under oath as follows:
25. He is currently responsible for the 1st Respondent’s Corporate Services since October 2021.
26. He explained the process of recruitment and that once applications are received, they are sent to the schools and specifically given to the Chairperson of the SGB and the Principal, who will then present the applications to the SGB in terms of Collective Agreement 2 of 2020.
27. Reference was made to Pages 77 to 79 of Bundle AR, Paragraph 5.1.1 in relation to the establishment of the interview committee for school based posts. He further explained the sifting, shortlisting and interview processes.
28. The SGB would sit to make recommendations after the interviews and forward them to the Circuit Manager who will do the checklist of all the required documents and if all in order, submit them to the district office. The Circuit Manager had a conflict with the school, interfered with the process before the shortlisting and also confiscated the applications.
29. On advice of the provincial office of the 1st Respondent, the SGB was advised to write a formal letter to the Circuit Manager to demand return of the applications. When the SGB submitted the recommendations to the Circuit Manager after the interviews, she refused to take them.
30. In this instance the Circuit Manager did not check the recommendations and did not also complete the RF-7 form as she refused to take them.
31. At the district level, a memo was developed to advise the HOD how the post was advertised, the recommendations of the interview panel and of the SGB as they appear on Pages 69 to 71 of Bundle AR. The Memo is just an internal document that gives an outline of the recruitment process and the HOD is not bound by the recommendations in the memo.
32. The reason why the Applicant was not appointed was because the advert required English and Life Sciences as curriculum needs, and the Applicant only possesses English and History and no Life Sciences. In the first instance the Applicant was not supposed to have been shortlisted had the interview committee followed Clause 6.3 of the collective agreement.
33. The Applicant’s argument that he was the suitable candidate does not hold water as he had only one required subject instead of two. Therefore, he met only one part of the requirements.
34. Before the recommendations are sent to the HOD, the advert is checked against the qualifications of the recommended candidates in line with Clause 6.3 on Page 82 of Bundle AR.
35. Page 42 of Bundle AR shows that Ms Manganyi has English and Biology which is now Life Sciences and she did both subjects up to Level 3. As provided in Clause
6.3 on Page 82, it leaves him with no option but to confirm that Ms Manganyi was the most suitable candidate for the position as she fully met the curriculum needs of the department as advertised in the position.
36. There must be a differentiation between the two processes of RR (Rationalisation and Redeployment) and Management of Promotional Posts. Promotional posts are handled on the basis of an advert, hence it is important to present the curriculum needs of the school and for the applicants to submit their qualifications which will guide the relevance of such applicants against the advertised post.
37. Whereas with RR, the person is already teaching and the post is not advertised. In trying to balance the teacher pupil ratio, it causes a move of teachers from one school to another where there is a vacancy. In this instance the consideration is the skill which can be used in placing the educator and there are no appointments or promotions but placements or absorptions as a result of staff movements on the same level.
38. The Primary Teachers Diploma did not disqualify Ms Manganyi to teach at the secondary school. She also did her Advanced Certificate in Mathematics as on Page 43 of Bundle AR, which was an improvement on her qualifications to enable her to teach up to Grace 12.
39. On her CV on Page 38 of Bundle AR, it shows that Ms Manganyi has an experience in teaching at the secondary school level since 2005 to date. Her qualifications did not exclude her to teach at the secondary school.
40. The issue of the employment equity statistics on Page 88 of Bundle AR that males are underrepresented in the HOD category is irrelevant as the Applicant was not even supposed to have been shortlisted. Furthermore, the curriculum needs of the school as advertised was key. Those statistics are merely guidelines for those that meets the curriculum needs of the school as advertised. In addressing the imbalances of the past race is critical factor, then followed by gender.
41. With reference to Pages 55 and 85 of Bundle AR, it was important to note that even if the recommendations were made by the interview panel and SGB, the Superintendent General has a final decision on the appoinemnt. Ms Manganyi was also a recommended candidate and she also met all the requirements of the post as well as relevant experience of more than 10 years at the same school where she applied even up to Grade 12 according to her qualifications.
42. Looking at the subjects the Applicant did at Grade 12, the marks he obtained in Biology, between 33,3% -39% scale, as the major subject, he would not have been allowed at tertiary level to study Biology. In contrast to the marks Ms Manganyi obtained at her matric of 50%-59%, she would have been admitted at tertiary level to study Biology. The admission percentage for major subjects like Maths and Sciences is at tertiary level is 50% and above, and Life Science falls within this category.
43. He was the signatory of the recommendations on Page 70 and he was satisfied that as the Department, Ms Manganyi met all the requirements of the position and was also qualified.
1st Respondent closed its case.
2nd RESPONDENT’S EVIDENCE
Ms Nyiko Nurse Manganyi testified under oath as follows:
44. She was appointed by the 1st Respondent as the Head of Department because she was qualified for the positon based on the documents that have been presented at the arbitration proceedings.
45. She was better qualified than the Applicant in terms of experience and the curriculum needs.
46. She believed that in terms of equity, there are more African males, 1847 against 1816 females in the position of HOD.
47. Should her appointment be set aside, she will be financially prejudiced as she has been earning the salary of HOD since January 2022, and as a result she added more expenditures due to her promotion.
48. She will also be emotionally affected if her appointment is set aside as she knew that she was the HOD, and that may cause her diseases like depression.
2nd Respondent closed her case.
ANALYSIS OF PARTIES’ EVIDENCE AND ARGUMENTS
49. Section 186 (2)(a) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia:
“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving —
unfair conduct by the employer relating to the promotion, demotion, probation (ex-cluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; …
50. The LRA requires employers to treat employees fairly when they apply for promo-tions. An employee who alleges that he/she is the victim of an unfair labour practice bears the onus of proving all the elements of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
51. Fairness requires that the position and interests of both the employee and employer be taken into consideration in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the LRA.
52. In Buffalo City Public FET College v CCMA & Others (P 372/12) [2016] ZALCPE 18, the court held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the employee to prove that he/she is a suitable candi-date for the position in question.
53. The Applicant submitted and argued that he should have been appointed in the HOD position as he met all the requirements, was experienced and moreover was ranked number 3 by the interview panel and SGB in their recommendations. It was submitted that candidates number 1 and 2 were not available to take up the ap-pointment and therefore as he was the next candidate number 3, he was supposed to be appointed.
54. A first determination must be made whether or not the Applicant met the require-ments of the advert. The advert required the candidate to have the relevant qualifica-tions and the curriculum needs were specified to be English and Life Sciences. The Applicant and the 2nd Respondent’s qualifications were submitted in evidence, which I have considered. It is clear that the Applicant is qualified in English and History and not Life Sciences. Therefore, he did not meet the curriculum requirements although he has 13 years’ experience as an Educator the high school.
55. The Applicant argued that the interview panel rankings should have been consid-ered as the other two candidates were not available to take up the appointment and he was ranked number 3.
56. The argument of the Applicant is reliant on the scoring percentages obtained by candidates during the interviews. It is my considered view that the outcome of inter-view process is not the only determination on the recommendation of the suitable candidate for appointment. The best and suitable candidate is not necessarily the candidate that obtains more scores during the interview.
57. The interview scores must be considered together with the requirements of the ad-vert, which in this instance English and Life Science and Personnel Administrative Measures (PAM) requirements.
58. It was common cause that the PAM requirements for the Departmental Head are: a recognised 3 or 4-year qualification which includes professional teacher education, registration with SACE as a professional educator, and 3 years of teaching experi-ence and good extra and co-curriculum skills.
59. The fact that a candidates scored less points than others or was ranked last during the interviews cannot be a ground to exclude a candidate to be recommended with-out looking at the other requirement of the advert and PAM requirements.
60. I am convinced that the Applicant was not supposed to have even been shortlisted as argued by the 1st Respondent as he clearly did not meet the minimum require-ment of the curriculum needs because he did not have Life Sciences in his teaching qualification.
61. The Applicant furthermore argued that the 1st Respondent in the appointment of the 2nd Respondent disregarded its own Employment Equity Circular 116 of 2019 in that the 1st Respondent did not follow the equity guidelines plan to appoint a male as they were underrepresented.
62. The evidence before me has not shown that the position was an affirmative action position. Taking into account Circular 116 to determine the employment equity con-siderations, it became clear that there were no Whites, Coloureds and Indians can-didates interviewed for this position. The profiles comparisons must therefore be made between African males and African female candidates. African males are 1872 and African females are 1816. Therefore, African females are underrepresented in the HOD job category not African males.
63. The evidence before me is clear that the Applicant did not meet the curriculum needs of the school as required by the advert as correctly argued by the Respond-ents although he has 13 years of teaching experience at high school level. He met only the English requirement and not for Life Sciences. There was evidence that the 2nd Respondent has obtained even an additional qualification in Natural Sciences at MASTEC.
64. In the light that the first two candidates were not offered appointment, and the Appli-cant did not meet the curriculum requirements, I can accept the evidence of the 1st Respondent’s witness Mr Sono, that it was not unreasonable for the District Director to appoint the next suitable candidate in the recommendations, the 2nd Respondent, as she met the advert requirements on qualifications, experience of teaching at the secondary school with 14 years’ experience, and also that in terms of the employ-ment equity profiles, she falls within the underrepresented category profile of fe-males. The 2nd Respondent’s evidence also corroborated the 1st Respondent ‘evi-dence in this regard.
65. The Applicant did not provide any constructive or substantive evidence of biasness by the District Director in the appoinemnt decision. I have however also considered that the District Director is not bound by the recommendations of the interview panel or SGB, provided there are reasons not to accept such recommendations.
66. I have already found that there were justified reasons in this instance to deviate on those recommendations. I am satisfied that in making the appointment decision, the District Director considered the provisions of paragraph 13 of Collective Agreement 3 of 2020.
67. The evidence of Mr Sono was also undisputed that the provisions of Paragraph 13.2 of the Collective Agreement could not be adhered to as the Circuit Manager’s con-duct of confiscating the applications and being uncooperative in the recruitment pro-cess made it impossible for the submission to pass through her office to check and complete RF-7 form, hence the memo for the recommendations was generated by the cluster head in the district office. This procedural deviation cannot nullify the whole recruitment process.
68. In coming to my findings above, I am guided by the court’s decision in the Labour Appeal Court judgement that held that the balance must be struck between the managerial prerogative to promote employees and the principle that labour forums must intervene in the labour arena if fairness so requires. The judgment in Ncane v Lyster 2017 38 ILJ 907 (LAC) confirms that labour forums and the court will not eas-ily interfere with an employer’s decision regarding who should and who should not be promoted.
69. In Noonan v SSSBC and others [2012] 33 IJL 2597 (LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair oppor-tunity to compete for a post. Any conduct that denies an Employee an opportunity to compete for a post constitutes an unfair labour practice. If the Employee is not de-nied the opportunity to compete for the post, the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mis-takes in the process of evaluation do not constitute unfairness justifying an interfer-ence with the decision to appoint.
70. In the absence of satisfactory and convincing evidence that the decision to appoint the 2nd Respondent was unreasonable, bad faith, biased, seriously flawed, arbitrary, capricious, or based on a wrong principle, I agree with the 1st Respondent’s argu-ments in the citied judgments of National Commissioner of the SAPS v Safety and Security Bargaining Council & Others (2005) 26 ILJ 903 and SAPS v SSBC [2010] 8 BLLR 892 (LC), and I cannot therefore interfere with the 1st Respondent’s discretion to promote the 2nd Respondent.
71. Having considered the evidence in its totality, I am convinced that the 1st Respond-ent has granted the Applicant a fair opportunity in presenting his candidature for the vacancy and that the Applicant failed to discharge the onus to proof that the 1st Re-spondent committed an unfair labour practice against him as envisaged by Section 186(2)(a) of the LRA.
72. I therefore find that the Applicant is not entitled to the relief sought.
AWARD
73. The 1st Respondent, the Department of Education-Limpopo, did not commit an unfair labour practice against the Applicant as contemplated by Section 186(2)(a) of the LRA.
74. The Applicant, Mr Thomas Mabaso is not entitled to the relief sought.
Signature:
Commissioner: Grace Mafa-Chali
Sector: Education