ELRC 910-21/22 LP
Text
ELRC 910-21/22 LP
Award Date:
29 July 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY
CASE NO.: ELRC 910-21/22 LP
In the matter between:-
MASHAU LP APPLICANT
and
DEPARTMENT OF EDUCATION- LIMPOPO 1ST RESPONDENT
RAMASHIDZA T.L 2ND RESPONDENT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 06 June and 04 July 2022
CLOSING ARGUMENTS: 11 July 2022
DATE OF AWARD: 29 July 2022
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice by employer relating to promotion.
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 06 June and 04 July 2022.The Applicant was represented by Mr MH Makhafola, union official of SADTU. The respondent was represented by Mr M.Matlou, its Labour Relations Officer. The
Proceedings were recorded digitally. The parties were given until 11July 2022 to submit their closing arguments.
BACKGROUND TO THE ISSUE
2. The Applicant had referred the dispute of unfair labour practice relating to promotion to the Council for conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
3. I am required to decide whether the respondent’s failure to appoint the applicant to the position of a Principal at Sinthumule Secondary School, amounts to an act of an unfair labour practice. I will further determine appropriate relief should I find in favour of the applicant. The applicant seeks to be appointed to the disputed position.
AGREED FACTORS
4. The parties agreed to the following factors as being common course:-
4.1 The applicant is currently a school principal at Tshirululuni
Secondary School as PL2 Principal.
4.2 The applicant was shortlisted for the Principal Post which was advertised in
the Open Vacancy List No. 1 Volume 1/2021.
4.3 The 2nd respondent is the successful incumbent. She ranked number 3 by the interview committee panel and was ranked number 3 in terms of the recommendation list of the School Governing Body “SGB”.
SURVEY OF ARGUMENTS AND EVIDENCE
5. Ms Mashau testified that she scored the highest 344 (68,8%) in terms of the
Interview Committee scoring sheet. The 2nd respondent, Ms Ramashidzha scored 301 (60,2%). Therefore, she was supposed to have been appointed to
the post, not the 2nd respondent. In terms of employment equity, she should
have been appointed because she was the second recommended candidate
by the interview committee.
6. She is currently a school principal at Tshirululuni Secondary School, which is a
post Level (PL2). The Principalship post of Sinthumule Secondary School, is
post Level (PL5) and comes with a higher salary.
7. During cross examination she testified that the 1st respondent as a government
Institution is regulated by policies, prescripts, Collective Agreement. During 2021
School year, her school, Tshirululuni Secondary School obtained a pass rate of
25% comprising of all National Senior Certificate pass. There was neither
Bachelor Pass nor Diploma pass. The interview committee rated her the
second preferred candidate, entitling her appointment.
8. She admitted that it is the respondent’s Head of Department (HOD) prerogative
to appoint Principals, with powers to deviate from the recommendations made by
the School Governing Body only if he/she provides sound reasons. She admitted
that on page 83, is a list of recommended candidates by the SGB, where she was
ranked number 5 and the 2nd respondent is ranked number 3. The HOD declined
the SGB ‘s recommendation on the 24 January 2022 and as such, she was
entitled to be appointed to the post in terms of the interview committee
recommendation.
9. She admitted that in terms of page 11 of the Discovered Documents on paragraph
37, there is no general right to promotion but a right to be fairly considered for
promotion when there is vacancy.
10. Ms MV Makhari, testified for the respondent that she is the Deputy Director;
Corporate Services. Her duties and responsibilities are not limited to managing
appointments of Educators, PSA Staff and Conditions of Services. The Interview
Committee ranked the applicant as the secondbest candidate for the post.
However, the SGB of Senthumule recommended the candidates as follows :-
1. Mr. Neluheni M.L. male
2. Nematandani M.P. male
3. Ramashidza TL female
4. Ramaite T female
5. Mashau LP female
11. The Department did not comply or adhere to the SGB’s recommendation
because it was in contravention with clause 10 of the ELRC Collective
Agreement 2 of 2020 in that the first two recommended candidates were males.
In terms of clause 10.2 of this 2020 Collective Agreement, the SGB must ensure
that the principle of equity, redress and representatively are complied with and
must adhere to the democratic values and principles.
12. In terms of the SGB recommendation, only one female was recommended,
which is in contravention of clause 10.3. which provides that SGB shall submit in
order of preference to the Superintendent General (HOD) a list of at least three (3)
names of the recommended candidates.
13. Tshirululuni Secondary School under the principalship of the applicant
obtained only25% matric pass rate during 2021 academic year, which comprises
of only 4 higher certificates. Meanwhile, the 2nd respondent ‘s school at the time,
Nzhelele Secondary School obtained 77,50% matric pass rate during the 2021
academic year, comprising of 17 bachelors pass, 27 Diploma pass and 25 Higher
certificates. Nzhelele Secondary school is post Level (PL5)
14. The district office received only the SGB’s recommendation as it appears on page
83, not the one from the interview committee. The Collective Agreements (No 2
of 2020 and No 3 of 2016) do not state that the HOD must adhere to the
recommendation of the interview committee. However, both agreements indicate
that the recommendation of the SGB must be considered. The Collective
Agreement No 3 of 2016, further states that the HOD is not obliged to adhere
to the recommendation of the SGB and can deviate from such recommendation.
15. During cross examination she testified that the SGB’s recommendation was
declined because of the way they ranked the candidates, which was in
contravention of ELRC Collective Agreement No 2 of 2020 paragraph 10. The
meeting held with the SGB was after the District Director had approved the
submission to appoint the 2nd respondent. The appointment did not prejudice the
applicant.
CLOSING ARGUMENTS
16. The applicant’s representative argued that the interview committee ranked the applicant number 2 and the 2nd respondent number 3. The SGB recommended the candidates in terms of preference, the 2nd respondent number three and the applicant fifth.
17. The District summoned the SGB to a workshop whereupon they informed them that their recommendation for the 1st and 2nd preferred candidates is declined on the basis that they are not in line with the Respondent’s equity plan. The district senior manager appointed the 2nd Respondent since she was the third preferred candidate, and she is a woman. The applicant is aggrieved because she performed better than the 2nd Respondent during the interviews. Therefore, she is entitled to be appointed based on her interview performance.
18. The respondent ‘s representative argued that it is trite that there are three basic
requirements for a fair appointment or promotion :- the procedure must have been
fair, there must have been no discrimination and the decision must have been
grossly unreasonable. The authority expressed in the matter of Aries V CCMA
and Another (2006) 27 ILJ 2324 (LC) provided the third basic requirements set
for a fair appointment, namely, that decision must not have been grossly
unreasonable.
19. In Nooman V Safety and Security Sector Bargaining Council and Others
(2012) 33 ILJ 2597 (LAC), the court held that there is no right to promotion in the
ordinary course, only a right to be given an opportunity to compete for the post.
The applicant was afforded an opportunity to compete for the post, like other
shortlisted candidates. The decision to promote or not to promote falls within the
managerial prerogative of the employer as it has been attested by various
authorities.
20. The Collective agreement states that, the HOD is not bound by the SGB’s recommendation and may deviate from their recommendation where there are sound reasons for doing so. The district Director (Appointing Authority) deviated from the recommendation made by the SGB and appointed the 2nd respondent in terms of employment equity and affirmative action in compliance with paragraph 10 of the ELRC Collective Agreement No 2 of 2020 Therefore, the applicant had failed to prove her case that she was the best suitable for the post and it must be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. The applicant bears the onus to prove that the respondent committed an act of
unfair labour practice when it did not appoint her to the promotional post of a principal at post level 5. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC ,the court held that in promotion disputes, it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for an employee to show that the breach of the procedure had unfairly prejudiced him. This means that the employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate.
22. It is common cause that the interview committee ranked the applicant second, the 2nd respondent third and the highest scorer was a male. Further that the SGB recommended the candidates in terms of preference, the 2nd respondent third and the applicant fifth. The first and second were males.
23. It is not in dispute that the SGB’s recommendation for the 1st and 2nd preferred candidates was declined. The 1st respondent’s contention is that the recommendation was declined for want of compliance with its employment equity. The HOD appointed the 2nd respondent since she was the third preferred candidate, and she is a woman.
24. It is not in dispute that the interview committee scored the applicant higher than the 2nd respondent. However, clause 44 of the ELRC Collective Agreement Number 3 of 2016 “The 2016 Collective Agreement” provides that, HOD as employer must place significant weight on the recommendation of the School Governing Body who has interviewed the candidates. The role of the interview committee which comprised of co-opted members was to interview and score the candidates but not to make recommendation to the HOD. The applicant misdirected herself to contend that the interview Committee had made such recommendation. The role to make recommendation was vested on the SGB in terms of the Collective Agreement.
25. Clause 41 of the Collective agreement read with clause 42 and 43 provides that the score is not only the determining factor in appointing the best suitable candidate. It provides further that it is irrational to make appointment purely based on performance during the interview.
26. The applicant’s contention is that she was entitled to the appointment on the ground that she was ranked number two by the interview panel. This was despite that she was ranked number 5. In terms of paragraph 10.3 of the ELRC Collective Agreement 2 of 2020, which is not in dispute, the SGB shall submit in order of preference to the Superintendent General (HOD) a list of at least three (3) names of the recommended candidates. Therefore, the SGB did not recommend the applicant for the post because she ranked number five in the order of preference. She would rank number 3 following the elimination of male candidates in compliance with equity.
27. It is common cause that both Collective Agreements ( No 2 of 2020 and No 3 of 2016) make no provision that the HOD must adhere to the ranking of the interview committee but that the HOD must consider the recommendation of the SGB. The Collective Agreement No 3 of 2016, states further that the HOD
is not obliged to adhere to the recommendation of the SGB and can therefore
deviate from such recommendation.
28. The HOD’s deviation in not appointing the first or second male candidates from the preferred list of the SGB, on the basis of gender equity is justified. The 2nd respondent came first following the elimination of the two males. The deviation did not prejudice the applicant in any way. Clause 39 of the 2016 Collective Agreement provides that the decision to promote falls within the managerial prerogative of the employer. Therefore, the arbitrator should not readily interfere with the exercise of the discretion unless there is gross unreasonableness or bad faith or the decision is serious flawed. In this case there is no single aspect that persuade me to interfere with the respondent's decision.
29. There are justifiable grounds for the appointment of the 2nd respondent which were based on the candidates’ school matric performance in the academic
year,2021. It is common cause that the applicant’s Tshirululuni Secondary
School under the only obtained 25% matric pass rate comprising of 4 higher
certificates. The 2nd respondent’s Nzhelele secondary school obtained
77,50% matric pass rate in the with 17 bachelors pass, 27 Diploma pass and
25 higher certificates.
30. The applicant failed to prove that she was the best suitable candidate for the post. Reliance only on the interview performance is not sufficient to prove that she was the best suitable candidate. The applicant failed to discharge her onus in proving that the decision taken by the 1st respondent in not appointing her was grossly unreasonable or unfair. In the premise, she failed to prove on the balance of probabilities that the respondent had committed an act of unfair labour practice.
AWARD
31. The respondent did not commit an act of unfair labour practice.
32. The dispute is dismissed.
Signed and dated at Pretoria on this 29th day of July 2022.
MG Rabyanyana
M.G Rabyanyana
ELRC Panellist
CASE NO.: ELRC 910-21/22 LP
In the matter between:-
MASHAU LP APPLICANT
and
DEPARTMENT OF EDUCATION- LIMPOPO 1ST RESPONDENT
RAMASHIDZA T.L 2ND RESPONDENT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 06 June and 04 July 2022
CLOSING ARGUMENTS: 11 July 2022
DATE OF AWARD: 29 July 2022
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice by employer relating to promotion.
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 06 June and 04 July 2022.The Applicant was represented by Mr MH Makhafola, union official of SADTU. The respondent was represented by Mr M.Matlou, its Labour Relations Officer. The
Proceedings were recorded digitally. The parties were given until 11July 2022 to submit their closing arguments.
BACKGROUND TO THE ISSUE
2. The Applicant had referred the dispute of unfair labour practice relating to promotion to the Council for conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
3. I am required to decide whether the respondent’s failure to appoint the applicant to the position of a Principal at Sinthumule Secondary School, amounts to an act of an unfair labour practice. I will further determine appropriate relief should I find in favour of the applicant. The applicant seeks to be appointed to the disputed position.
AGREED FACTORS
4. The parties agreed to the following factors as being common course:-
4.1 The applicant is currently a school principal at Tshirululuni
Secondary School as PL2 Principal.
4.2 The applicant was shortlisted for the Principal Post which was advertised in
the Open Vacancy List No. 1 Volume 1/2021.
4.3 The 2nd respondent is the successful incumbent. She ranked number 3 by the interview committee panel and was ranked number 3 in terms of the recommendation list of the School Governing Body “SGB”.
SURVEY OF ARGUMENTS AND EVIDENCE
5. Ms Mashau testified that she scored the highest 344 (68,8%) in terms of the
Interview Committee scoring sheet. The 2nd respondent, Ms Ramashidzha scored 301 (60,2%). Therefore, she was supposed to have been appointed to
the post, not the 2nd respondent. In terms of employment equity, she should
have been appointed because she was the second recommended candidate
by the interview committee.
6. She is currently a school principal at Tshirululuni Secondary School, which is a
post Level (PL2). The Principalship post of Sinthumule Secondary School, is
post Level (PL5) and comes with a higher salary.
7. During cross examination she testified that the 1st respondent as a government
Institution is regulated by policies, prescripts, Collective Agreement. During 2021
School year, her school, Tshirululuni Secondary School obtained a pass rate of
25% comprising of all National Senior Certificate pass. There was neither
Bachelor Pass nor Diploma pass. The interview committee rated her the
second preferred candidate, entitling her appointment.
8. She admitted that it is the respondent’s Head of Department (HOD) prerogative
to appoint Principals, with powers to deviate from the recommendations made by
the School Governing Body only if he/she provides sound reasons. She admitted
that on page 83, is a list of recommended candidates by the SGB, where she was
ranked number 5 and the 2nd respondent is ranked number 3. The HOD declined
the SGB ‘s recommendation on the 24 January 2022 and as such, she was
entitled to be appointed to the post in terms of the interview committee
recommendation.
9. She admitted that in terms of page 11 of the Discovered Documents on paragraph
37, there is no general right to promotion but a right to be fairly considered for
promotion when there is vacancy.
10. Ms MV Makhari, testified for the respondent that she is the Deputy Director;
Corporate Services. Her duties and responsibilities are not limited to managing
appointments of Educators, PSA Staff and Conditions of Services. The Interview
Committee ranked the applicant as the secondbest candidate for the post.
However, the SGB of Senthumule recommended the candidates as follows :-
1. Mr. Neluheni M.L. male
2. Nematandani M.P. male
3. Ramashidza TL female
4. Ramaite T female
5. Mashau LP female
11. The Department did not comply or adhere to the SGB’s recommendation
because it was in contravention with clause 10 of the ELRC Collective
Agreement 2 of 2020 in that the first two recommended candidates were males.
In terms of clause 10.2 of this 2020 Collective Agreement, the SGB must ensure
that the principle of equity, redress and representatively are complied with and
must adhere to the democratic values and principles.
12. In terms of the SGB recommendation, only one female was recommended,
which is in contravention of clause 10.3. which provides that SGB shall submit in
order of preference to the Superintendent General (HOD) a list of at least three (3)
names of the recommended candidates.
13. Tshirululuni Secondary School under the principalship of the applicant
obtained only25% matric pass rate during 2021 academic year, which comprises
of only 4 higher certificates. Meanwhile, the 2nd respondent ‘s school at the time,
Nzhelele Secondary School obtained 77,50% matric pass rate during the 2021
academic year, comprising of 17 bachelors pass, 27 Diploma pass and 25 Higher
certificates. Nzhelele Secondary school is post Level (PL5)
14. The district office received only the SGB’s recommendation as it appears on page
83, not the one from the interview committee. The Collective Agreements (No 2
of 2020 and No 3 of 2016) do not state that the HOD must adhere to the
recommendation of the interview committee. However, both agreements indicate
that the recommendation of the SGB must be considered. The Collective
Agreement No 3 of 2016, further states that the HOD is not obliged to adhere
to the recommendation of the SGB and can deviate from such recommendation.
15. During cross examination she testified that the SGB’s recommendation was
declined because of the way they ranked the candidates, which was in
contravention of ELRC Collective Agreement No 2 of 2020 paragraph 10. The
meeting held with the SGB was after the District Director had approved the
submission to appoint the 2nd respondent. The appointment did not prejudice the
applicant.
CLOSING ARGUMENTS
16. The applicant’s representative argued that the interview committee ranked the applicant number 2 and the 2nd respondent number 3. The SGB recommended the candidates in terms of preference, the 2nd respondent number three and the applicant fifth.
17. The District summoned the SGB to a workshop whereupon they informed them that their recommendation for the 1st and 2nd preferred candidates is declined on the basis that they are not in line with the Respondent’s equity plan. The district senior manager appointed the 2nd Respondent since she was the third preferred candidate, and she is a woman. The applicant is aggrieved because she performed better than the 2nd Respondent during the interviews. Therefore, she is entitled to be appointed based on her interview performance.
18. The respondent ‘s representative argued that it is trite that there are three basic
requirements for a fair appointment or promotion :- the procedure must have been
fair, there must have been no discrimination and the decision must have been
grossly unreasonable. The authority expressed in the matter of Aries V CCMA
and Another (2006) 27 ILJ 2324 (LC) provided the third basic requirements set
for a fair appointment, namely, that decision must not have been grossly
unreasonable.
19. In Nooman V Safety and Security Sector Bargaining Council and Others
(2012) 33 ILJ 2597 (LAC), the court held that there is no right to promotion in the
ordinary course, only a right to be given an opportunity to compete for the post.
The applicant was afforded an opportunity to compete for the post, like other
shortlisted candidates. The decision to promote or not to promote falls within the
managerial prerogative of the employer as it has been attested by various
authorities.
20. The Collective agreement states that, the HOD is not bound by the SGB’s recommendation and may deviate from their recommendation where there are sound reasons for doing so. The district Director (Appointing Authority) deviated from the recommendation made by the SGB and appointed the 2nd respondent in terms of employment equity and affirmative action in compliance with paragraph 10 of the ELRC Collective Agreement No 2 of 2020 Therefore, the applicant had failed to prove her case that she was the best suitable for the post and it must be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. The applicant bears the onus to prove that the respondent committed an act of
unfair labour practice when it did not appoint her to the promotional post of a principal at post level 5. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC ,the court held that in promotion disputes, it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for an employee to show that the breach of the procedure had unfairly prejudiced him. This means that the employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate.
22. It is common cause that the interview committee ranked the applicant second, the 2nd respondent third and the highest scorer was a male. Further that the SGB recommended the candidates in terms of preference, the 2nd respondent third and the applicant fifth. The first and second were males.
23. It is not in dispute that the SGB’s recommendation for the 1st and 2nd preferred candidates was declined. The 1st respondent’s contention is that the recommendation was declined for want of compliance with its employment equity. The HOD appointed the 2nd respondent since she was the third preferred candidate, and she is a woman.
24. It is not in dispute that the interview committee scored the applicant higher than the 2nd respondent. However, clause 44 of the ELRC Collective Agreement Number 3 of 2016 “The 2016 Collective Agreement” provides that, HOD as employer must place significant weight on the recommendation of the School Governing Body who has interviewed the candidates. The role of the interview committee which comprised of co-opted members was to interview and score the candidates but not to make recommendation to the HOD. The applicant misdirected herself to contend that the interview Committee had made such recommendation. The role to make recommendation was vested on the SGB in terms of the Collective Agreement.
25. Clause 41 of the Collective agreement read with clause 42 and 43 provides that the score is not only the determining factor in appointing the best suitable candidate. It provides further that it is irrational to make appointment purely based on performance during the interview.
26. The applicant’s contention is that she was entitled to the appointment on the ground that she was ranked number two by the interview panel. This was despite that she was ranked number 5. In terms of paragraph 10.3 of the ELRC Collective Agreement 2 of 2020, which is not in dispute, the SGB shall submit in order of preference to the Superintendent General (HOD) a list of at least three (3) names of the recommended candidates. Therefore, the SGB did not recommend the applicant for the post because she ranked number five in the order of preference. She would rank number 3 following the elimination of male candidates in compliance with equity.
27. It is common cause that both Collective Agreements ( No 2 of 2020 and No 3 of 2016) make no provision that the HOD must adhere to the ranking of the interview committee but that the HOD must consider the recommendation of the SGB. The Collective Agreement No 3 of 2016, states further that the HOD
is not obliged to adhere to the recommendation of the SGB and can therefore
deviate from such recommendation.
28. The HOD’s deviation in not appointing the first or second male candidates from the preferred list of the SGB, on the basis of gender equity is justified. The 2nd respondent came first following the elimination of the two males. The deviation did not prejudice the applicant in any way. Clause 39 of the 2016 Collective Agreement provides that the decision to promote falls within the managerial prerogative of the employer. Therefore, the arbitrator should not readily interfere with the exercise of the discretion unless there is gross unreasonableness or bad faith or the decision is serious flawed. In this case there is no single aspect that persuade me to interfere with the respondent's decision.
29. There are justifiable grounds for the appointment of the 2nd respondent which were based on the candidates’ school matric performance in the academic
year,2021. It is common cause that the applicant’s Tshirululuni Secondary
School under the only obtained 25% matric pass rate comprising of 4 higher
certificates. The 2nd respondent’s Nzhelele secondary school obtained
77,50% matric pass rate in the with 17 bachelors pass, 27 Diploma pass and
25 higher certificates.
30. The applicant failed to prove that she was the best suitable candidate for the post. Reliance only on the interview performance is not sufficient to prove that she was the best suitable candidate. The applicant failed to discharge her onus in proving that the decision taken by the 1st respondent in not appointing her was grossly unreasonable or unfair. In the premise, she failed to prove on the balance of probabilities that the respondent had committed an act of unfair labour practice.
AWARD
31. The respondent did not commit an act of unfair labour practice.
32. The dispute is dismissed.
Signed and dated at Pretoria on this 29th day of July 2022.
MG Rabyanyana
M.G Rabyanyana
ELRC Panellist