ELRC1037-21/22LP
Text
ELRC1037-21/22LP
Award Date:
11 August 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD VIRTUALLY ON 14 JUNE 2022 & 07 JULY 2022
Case Number: ELRC1037-21/22LP
Commissioner: Moraka Abel Makgaa
Date: 11 August 2022
In the matter between: -
SADTU obo Phetole Solomon Maila Applicant
And
Education Department of Limpopo 1st Respondent
Phetole Solomon Maila 2nd Respondent
ARBITRATION AWARD
Nature of the dispute: Section 186(2)(a) of the LRA: unfair labour practice relating to promotion.
DETAILS OF THE HEARING AND REPRESENTATION
1 The hearing was held virtually on 14 June 2022 and 07 July 2022. The applicant was present and represented by Mr Malesela Hendrick Makhafola, Provincial Organizer of SADTU Limpopo Province. The 2nd respondent was present, and just like the 1st respondent was represented by Mr Nkhumeleng Erick Nyathela, employed by the 1st respondent as Deputy Director: Labour Relations .
2 The parties agreed that they will use a bundle of documents marked “Bundle A”, which was submitted by the 1st respondent. The applicant’s representative submitted a bundle of documents which was marked as “Bundle B”. “Bundle A” is made up of pages 1 to 80, whereas “Bundle B” is made up of pages 1-14.
3 The proceedings were digitally recorded and conducted in English.
THE ISSUE IN DISPUTE
4 The issue to be determined is whether the 1st respondent’s refusal to appoint the applicant to the post in dispute constituted an unfair labour practice for the purposes of section 186(2)(a) of the LRA. If so, I will determine the appropriate relief.
BACKGROUND TO THE DISPUTE
5 The factual background to this dispute is captured in the pre-arbitration minutes which were drafted and signed by the parties on the day of the arbitration, with the assistance of the arbitrating commissioner, and may be summarised as follows. The applicant applied for the post of principal at Modipe High School. He was shortlisted, interviewed and recommended as the second best candidate. Mr Mailula MJ got position one during the interviews, recommended as the most preferred candidate and appointed to the post in dispute with effect 01 January 2022. The entry notch of the post in dispute is R504 147.00. The 1st respondent issued the applicant with a letter confirming his disability, but the nature of the disability was not specified in the letter.
6 Aggrieved by the 1st respondent’s decision to appoint Mr Mailula, the applicant referred a dispute of unfair labour practice relating to promotion to the ELRC. The referral was accompanied by a condonation application. Condonation was granted on 07 April 2022. The matter was ultimately set down for arbitration and it came before me on 14 June 2022 and concluded on 07 July 2022.
7 Both parties filed written closing arguments, which have been taken into consideration in arriving at the conclusions herein.
PRELIMINARY ISSUES
8 At the commencement of the proceedings on 14 June 2022, representative for the 1st and 2nd respondents, Mr Nyathela, raised several preliminary issues. The first jurisdictional point was about condonation application, which was ultimately abandoned after being made aware that condonation was granted on 07 April 2022. The second preliminary point was about non-joinder of the successful candidate, in the name of Mr Mailula MJ. Just like in the case of condonation application, Mr Nyathela was made aware of the fact that the successful candidate was properly joined and that he was also copied in the email dealing with the notice of invitation to the arbitration meeting. It was indicated that the notice of set down in respect of Mr Mailula was sent to a wrong email address. It was indicated that Mr Mailula had been invited to the arbitration meeting by the 1st respondent, and that he will also be represented by Mr Nyathela. Mr Mailula confirmed that he had indeed given such instructions.
9 The second preliminary point relates to an application for my recusal on the basis that I facilitated the drafting of the pre-arbitration minutes contrary to the Constitution of the ELRC. I issued an ex tempore ruling dismissing the recusal application and made an undertaking that a written ruling will be sent to the parties in due course, which was done.
SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT
10 Phetole Solomon Maila ( who is the applicant in this case) testified under oath, and his evidence can be summarized as follows. He was appointed by the 1st respondent on a permanent basis in 2006. He was at the time of applying for the post in dispute, and even at the time of the arbitration hearing attached to Kelekeshe High School (“Kelekeshe”). He was, at the time of applying for the post, occupying a PL1 post.
11 His view is that he should have been appointed as the principal of Modipe High School had the 1st respondent implemented the provisions of the Departmental Circular No. 115 of 2019 dealing with guidelines for the implementation of the 2015 and 2020 employment equity plans. If the Department could have followed its policies, he would have been appointed to the post in dispute.
12 The 1st respondent issued him with a letter confirming his disability but did not specify the nature of his disability because doing so could have resulted in disclosing his disability to the public which could be tantamount to ill-treating people with disabilities. He was prepared to send a letter from his medical doctor to both the respondents’ representative and the ELRC, if that is necessary.
13 Under cross examination, he testified that his disability is the only basis upon which he feels he had been unfairly treated. He agreed that the reason why the 1st respondent’s letter of confirmation did not disclose his disability was because of the considerations of confidentiality. He also agreed that when making the final decision as to who to appoint the 1st respondent was also required to consider the issue of accessibility and reasonable accommodation of the applicant’s disability.
14 As to how would he have expected the 1st respondent to be able to consider placing him correctly or reasonably accommodating him, in instances where he did not disclose the nature of his disability by attaching any proof confirming the nature of his disability, he testified that if there were any queries about the nature of his disability, such queries should have been directed to Ms Mongwe MRM, who is an employee of the 1st respondent specified on the letter of confirmation as the person to who enquiries should be directed.
15 His understanding is that the guidelines refer to what must be followed by the 1st respondent when appointing educators. He declined to comment on the assertion that the guidelines contemplated in the Departmental Circular No. 116 of 2019 were merely meant to assist the decision maker to make a decision but that the decision maker is not bound by such guidelines.
16 The applicant made the following concessions. The decision maker did not have to consider affirmative action only, but it must also consider the ability of the candidate. When compared with the 2nd respondent he was found lacking in terms of ability. The post in dispute is a promotion post which requires certain skills and experience to do the job, particularly experience in management positions. The only highest qualification that he has is a Secondary Teachers Diploma as compared to the 2nd respondent who is in possession of two degrees.
17 He disagreed that the 2nd respondent had management experience that the applicant did not have on the basis that he was serving in a SADTU leadership position, where he was managing schools. As leaders of SADTU they were from time to time engaging with managers of schools trying to resolve education matters. He could not refer to any specific policy or legislation stating that SADTU leaders are managing schools.
18 In response to the assertion that the 2nd respondent was far ahead of him when it comes to management experience, which is a requirement for the post of principal, he testified that the same employer who denied him the opportunity of being appointed as a principal has appointed a CS1 educator, in the name of Mr Mochabi from Mamaila Circuit, with effect from January 2022. Mr Mochabi, just like him, he did not have managerial experience.
19 His non-appointment affected him negatively because he thought the Employment Equity Plan was in his favour, but the Department disregarded its guidelines as stipulated in the Employment Equity Plan.
SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT
20 Moshophe Winsor Raholane, testified under oath, and his evidence can be summarized as follows. He is a Manager:HRM responsible, amongst others, for processing appointments and promotions. The 1st respondent acknowledges that the applicant was shortlisted based on disability. He was interviewed and recommended by the school governing body as the number 2 candidate for the post of principal at Modipe High School, but he could not be appointed. Employment equity is one of the factors that must be considered when making an appointment, and it is also a departmental policy which cannot be ignored but it is not the only factor to be considered.
21 In the instant case, the District Director, in appointing the 2nd candidate, considered other factors such as skills and prior experience in management which are acquired either by being in the School Management Team or by having tertiary qualifications in management, such as qualifications in Education Management. The interests of the learners were also considered. People with disabilities do not have an automatic entitlement to promotion.
22 The Department was looking for a candidate who had a minimum experience in management of a school, hence the District Director appointed the 2nd respondent who was acting in the post in dispute for several months if not years. He therefore had the requisite skills to manage staff. Unlike the applicant who, at the time of the interviews, had a Secondary Teachers Diploma as his highest qualification, the 2nd respondent’s qualifications included Bachelor of Science, Higher Education Diploma and Honours Bachelor Degree in Education Management. The 2nd respondent had a certificate of competency in Maths and other related subjects which made him to understand curriculum management, as well as a certificate of competency in computer literacy which is a skill required for purposes of submitting excel reports. The applicant, on the other hand, was found wanting in as far as relevant experience and qualifications in management are concerned.
23 Under cross examination, he testified that the decision of the District Director in appointing the 2nd respondent must be read in line with the entire memo, which was generated by Corporate Services, particularly with regard to the comments made by the Deputy Director, as well as the CV and other documents of the 2nd respondent.
24 He conceded that the applicant met the minimum requirements for the post of principal, which are REQV13 and a minimum of seven years of teaching experience. That is why he was shortlisted and recommended as the second best candidate.
25 He conceded that people with disabilities are, according to the Department’s Employment Equity Plan underrepresented, but argued that in the instant case it would have not been advisable to appoint the applicant on the basis of his disability because the employer had decided to consider other factors and not employment equity. Paragraph 4 of Departmental Circular No 150 of 2021 should be understood as saying that candidates from the underrepresented groups should not be ignored but not as if it is saying posts are advertised solely for them. He disagreed with the assertion that, by being written in peremptory terms, paragraph 4 suggests that there is no room for deviation. His understanding is that the paragraph does not mean other factors such as performance of candidates and results in schools must be ignored.
26 He disagreed that, by not appointing the applicant, the respondent did not follow its own Employment Equity Plan because the posts were not advertised solely for people with disabilities. It was an Open Vacancy list, which means that everyone had the opportunity to apply.
ANALYSIS OF EVIDENCE AND ARGUMENT
27 There are no real factual disputes about what has happened and what has not happened in this case. In fact most of the issues upon which the applicant’s claim and the 1st respondent’s defence are based, are common cause issues. There was, for instance, no dispute between the parties concerning the work that was done by or obo the governing body, starting from the shortlisting, interviews and recommendation of the candidates who had to be considered for appointment. There was also no dispute that the applicant is, by virtue of his disability, a member of the designated groups as per the definition of the Employment Equity Act 55 of 1998 (“EEA”).
28 The fact that people with disabilities were, at the time of the appointment of the 2nd respondent, underrepresented in posts of principals was also not in dispute . It was also common cause that the successful candidate ( who is the 2nd respondent in this proceedings) is an African male who is from a group which was, at the time of the appointment of the 2nd respondent, overrepresented in posts of principals. It should also be common cause that the 1st respondent had, at that time, issued at least two Departmental Circulars which appear to be about restitutionary measures intended to ensure that the advertised promotion posts were filled through the appointment of candidates from the underrepresented categories.
29 In Makhothokho and Others v Pick n Pay Supply Chain (Pty) Ltd and Another (JS345/17) [2022] ZALCJHB 114 (24 May 2022), the Labour Court explained the purpose of cross examination in the following terms:
“[57] …The intended purpose of cross-examination is inter alia to reveal weaknesses in the evidence adduced, to challenge the truth or accuracy of the witness’s version, to bring to light facts reinforcing the cross-examiner’s case, to elicit favourable facts, to place a defence on record and to put the version of the cross-examining party.
[58] A party has a duty to cross-examine on aspects which he or she disputes. The rationale of the duty to cross-examine is that the witness should be cross-examined so as to afford him or her an opportunity of answering points supposedly unfavourable to him”.
[59] The failure to cross-examine a witness about an aspect of his or her evidence may have the result that the evidence may not be called into question later. The cross-examiner who disputes what the witness says has a duty to give the witness an opportunity to explain his or her evidence, to qualify it or to reveal its basis. Failure to do so has been dubbed extremely unfair and improper (citation deleted). Apart from the injustice to the witness, failure to cross-examine may indicate acceptance, comparable with an admission by silence (citation deleted). From this point of view, such evidence will carry more weight than evidence disputed by means of cross-examination and the failure to cross-examine, will be a factor increasing evidential value (citation deleted)”.
30 The cumulative effect of Mr Nyathela’s cross-examination, insofar as the reasons why the District Director has refused to appoint the applicant is concerned, appears to have been three-fold. Firstly, it was meant to dispute the applicant’s allegation that Mr Mochabi was appointed as a principal to one of the posts which were advertised together with the post in dispute, despite the fact that he was also a CS1 educator without experience in school management. Secondly, it was meant to inform the applicant that his failure to attach documentary evidence disclosing the nature of his disability made it difficult if not impossible for the 1st respondent to determine whether he would be able to perform the duties and responsibilities of the post in dispute. Thirdly, it was intended to inform the applicant that the 2nd respondent was preferred on the basis that he was more qualified in terms of ability, skills, experience, training, education and qualifications as compared to the applicant.
31 Mr Raholane’s evidence appears to have been intended to prove that the 2nd respondent had to be appointed because he was, comparatively, the most suitable candidate in terms of the criteria which were canvassed with the applicant during cross-examination. The general problem with Mr Raholane’s evidence is that it was only intended to prove issues which were not in dispute. The real issues in dispute were either down played or ignored.
32 Ordinarily, the employer is not supposed to be faltered for deciding to make an appointment on the basis of competence or ability in relation to the inherent requirements of the job as opposed to making an appointment on the basis of affirmative action or employment equity considerations, unless if an aggrieved party decides to invoke the monitoring and enforcement procedure provided for in Chapter V of the EEA. The problem in this case is the fact that the 1st respondent and some of its officials had acted with mala fide intent towards the applicant.
33 Regarding the applicant’s allegation on inconsistent application of the 1st respondent policy and procedures on promotion, the only thing which Mr Nyathela did during cross-examination was to suggest that a CS1 educator can only be appointed to the post of principal provided he or she was co-opted into the School Management Team (“SMT”) as an acting Departmental Head. Mr Nyathela ought to have realized that his cross-examination should have been much more than simply disputing the applicant’s version on a specific aspect of the case. He was also supposed to disclose what the version of the 1st respondent is on the factual allegations made by the applicant. In fact Mr Nyathela could not dispute the fact that Mr Mochabi was a CS1 educator. What he sought to do, though in general terms, was to suggest that Mr Mochabi may have been co-opted into SMT.
34 He may have forgotten to either find out the correct facts about circumstances surrounding the appointment of Mr Mochabi before commencing with his cross-examination so that he could be able to put his findings to the applicant ( if ever they were different from the applicant’s version), and to ultimately call a witness to give evidence intended to prove that the 1st respondent had either applied its policy consistently or that the case of the applicant is distinguishable from that of Mr Mochabi.
35 It is therefore determined that the 1st respondent had not only applied its policy in an inconsistent manner, but it had also failed to provide any reasons for such an inconsistency. Secondly, I do not think there is any merit in the contention which sought to suggest that a CS1 educator without experience in school management is automatically disqualified from being considered for appointment to the post of a principal. The 1st respondent’s contention must be rejected because it is bound to result in absurdity. This is so both on the version of the applicant and that of 1st respondent. Both parties are in agreement that the applicant qualified to be shortlisted, interviewed and recommended for appointment to the post in dispute. In other words, it was common cause between the parties that the inclusion of the applicant into the contest was compliant with the relevant policies and collective agreements.
36 Suggesting that CS1 educators without experience in management do not qualify to be appointed as school principals is even inconsistent with all the policies and collective agreements as regards the actual teaching experience required in the filling of a post of principal. It effectively means that the 1st respondent’s decision to introduce experience in school management at the point of making an appointment was tantamount to bad faith on the part of the 1st respondent, which was not only limited to the applicant but to the whole process of collective bargaining.
37 It is perhaps important for one to provide a summary of what the applicant’s case is all about, or what the applicant’s case is not all about. The applicant never suggested or tried to prove that he was the best candidate for the job on the basis of the usual objective criteria such as qualifications, experience or the outcome of the interviews. It appears to me that the applicant had accepted that he was found to be the second best candidate by the interview committee and recommended as such by the governing body. He has also never suggested that he had a general right to be promoted to the post in dispute, neither did he suggest that the District Director did not have a discretion to appoint any person who, in the view of the District Director, was the most suitable candidate for the job in question.
38 The applicant’s case, as I understand it, is based on a belief that the respondent’s employment equity policy and directives should have been relied on for purposes of protecting or advancing him as a person disadvantaged by unfair discrimination, or as a person belonging to the group of candidates who were, at the time of appointing the 2nd respondent, underrepresented in the posts of principals.
39 It appears to me that the applicant’s case was completely misunderstood by the 1st respondent. This is so because the 1st respondent’s whole defence, which became apparent both during cross examination of the applicant and through the evidence of Mr Raholane, was clearly founded on what can be described as the general rule referred to in clause 37 of Collective Agreement 3 of 2016 where an emphasis is made on the fact that employers are expected to appoint the best candidate for the job. What the 1st respondent failed to do or chose to ignore is explaining as to why the exception in the same clause could not be exercised by the District Director, because this is the essence of the applicant’s case.
40 Section 7(1)(b) of the Employment of Educators Act 76 of 1998 (“ the Educators Act”) empowers the Head of Department or his or her delegate to exercise a discretion similar to the one contemplated in clause 37. It is specifically provided as follows:
“ 7. Appointments and filling of posts.—(1) In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195 (1) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and which include the following factors, namely—
(a) …
(b) the need to redress the imbalances of the past in order to achieve broad representation.
41 I think it is necessary for one to outline the provisions of the relevant Departmental Circulars in some greater detail in order to provide a context to the applicant’s claim. The Departmental Circular No. 150 of 2021 provides for statistics and summaries of the employment equity profiles of appointments made in the three categories of the promotion posts (i.e Principals, Deputy Principals and Departmental Heads) as at the time of issuing the Vacancy Lists No.1 Volume 1/2021, No.1 Volume 2/2021 and No.1 Volume 3/2021 ( hereinafter to be referred to as the 2021 advertisement).The employment equity profiles were categorized on the basis of gender ( males and females) and racial groups in South Africa for purposes of showing the groups which were overrepresented and those that were underrepresented, at the time of issuing the 2021 advertisement.
42 To the extent relevant to the present case, the summaries of the employment equity profiles for posts of principals were stated as follows:
Posts of principals
“3.1.1 African males are over-represented,
3.1.2 Coloured and Indian males are under-represented
3.1.3 White males have reached the target
3.1.4 African, Coloured and White females are under-represented.
Posts of Deputy Principals
“3.2.1 African males are over-represented.
3.2.2 Coloured and Indian males are under-represented.
3.2.3 White males are over-represented.
3.2.4 African females are under-represented.
3.2.5 Coloured and Indian females are under-represented.
3.2.6 Indian females have reached the target.
3.2.7 White females are over-represented.
Posts of Departmental Heads
“3.3.1 African, Coloured, Indian and White males are under-represented.
3.3.2 African females are over-represented
3.3.3 Coloured and Indian females are under-represented
3.3.4. White females are over-represented.
People with disabilities are under-represented in the Department”.
43 Paragraph 4 of Circular No. 150 of 2021 reads as follows:
“ The provisions of Departmental Circular No 154 of 2020 together with the employment equity profiles of advertised posts must be strictly adhered to when candidates are selected for appointment to the posts ( that is advertised posts must be filled by applicants from under-represented groups)”.
44 Another relevant Circular is the Departmental Circular Number 116 of 2019, which deals with guidelines for implementation of the 2015/2020 Employment Equity Plan in the appointment of employees in Limpopo Department of Education. The main purpose of the guidelines was described as being about ensuring that the Limpopo Department of Education Employment Equity Plan is effectively implemented. Circular Number 116 of 2019, in the relevant parts, provide as follows:
“ 2. It is the responsibility of the Departmental Employment Equity representative to present the Employment Equity profile of the Province where the post has been advertised.
3. Appointments to posts created in terms of the Employment of Educators Act 1998 ( as amended)
3.1 The Interview Committee shall shortlist at least three candidates from the underrepresented groups based on the Employment Equity profile of the Province and economically active population provided that the candidates satisfy the minimum requirements of the post.
5 The Head of Department or the delegated official shall always strive to appoint any qualifying candidate from the underrepresented groups as guided by the statistics of the Employment Equity profile of the Province and economically active population regardless of scores that could be attained by the candidates from the over-represented groups.
6 This Circular should be used during shortlisting and interviewing process for the purpose of implementing affirmative action, promoting equal opportunities and redressing imbalances of the past”.
45 The net effect of the two Departmental Circulars is that the posts advertised in terms of the 2021 advertisement must be filled by applicants from underrepresented groups. It is further stated that the appointment of ‘a qualifying candidate from the underrepresented groups must be made regardless of scores that could be attained by the candidates from the overrepresented groups’.
46 The Departmental Circulars Numbers 116 of 2019 and 150 of 2021 (hereinafter to be referred to, collectively, as the 1st respondent’s policy and procedures on promotion), are couched in peremptory terms. The only reasonable inference that may be drawn is that the 1st respondent was informing all and sundry that qualifying candidates from the underrepresented groups must, from the shortlisting and recommendation stages as well as at the point of making an appointment, be given some kind of an unconditional preferential treatment.
47 There was no dispute between the parties that the appointment of the 2nd respondent (an African male candidate who was, at the time of his appointment, a member of the overrepresented groups in the posts of principals) was inconsistent with the letter and spirit of the 1st respondent’s internal policy and procedures on promotion. The main question that may have to be answered is whether the District Director’s refusal to appoint the applicant in line with the respondent’s own internal policy and procedures constituted an unfairness labour practice within the purview of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“LRA”).
48 Strictly speaking, the real question that may have to be answered is as to whether the applicant satisfied the minimum requirements of the post or whether the applicant ought to have been regarded as one of “ the qualifying candidates from the underrepresented groups as guided by the statistics of the Employment Equity profile of the Province …” . As already stated in para 44 supra, the District Director as the delegated official did not have a discretion of not appointing a qualifying candidate from the underrepresented groups as guided by the statistics of the Employment Equity profile of the Province and economically active population regardless of scores that could be attained by the candidates from the overrepresented groups”. In other words, the only time that the District Director would have had a discretion to deviate from the 1st respondent’s policy directives was if candidates from the underrepresented groups ( which in this case were four in number) were not satisfying the minimum requirements of the post or were not ‘qualifying candidates’.
49 Though there is no reference to what is meant by a ‘qualifying candidate from the underrepresented groups’, it could reasonably be concluded that the phrase refers to a candidate who met all the requirements of the advertised post. It is possible that the phrase ‘a qualifying candidate’ may have something to do with the phrase ‘a suitably qualified person’ in the EEA, particularly section 20(3) and (4), which reads as follows:
“ (3) For the purposes of this Act, a person may be suitably qualified for a job as a result of anyone of, or any combination of that person’s-
(a) Formal qualifications;
(b) Prior learning;
(c) Relevant experience; or
(d) Capacity to acquire, within a reasonable time, the ability to do the job.
(4) When determining whether a person is suitably qualified for a job; the employer must-
(a) review all the factors listed in subsection (3); and
(b) determine whether that person has the ability to do the job in terms of anyone of, or any combination of those factors”.
50 The question is whether the applicant could have been regarded as one of the qualifying candidates within the meaning and purpose of the respondent’s policy and procedures on promotion. I wish to return to this question at a later stage.
51 There appears to have been common understanding between the parties that the applicant is, by virtue of his disability, belonging to a category of persons disadvantaged by unfair discrimination, who were also, at the time of the appointment of the 2nd respondent, underrepresented in posts of principals. The only difference is that there were instances where Mr Nyathela sought to prove or suggest that the applicant’s disability may have been an irrelevant consideration because the post in dispute did not require a candidate with the kind of disability that the applicant has.
52 Mr Nyathela appears to have tried to suggest that the applicant’s disability was, in the circumstances, some kind of a double edged sword to the applicant in the sense that the disability assisted the applicant to be shortlisted but at the same time, it disqualified him from being considered when the appointment was ultimately made. Some kind of a bizarre attempt was made to suggest that the applicant could not be reasonably accommodated, even though it was not clear as to what relevance did reasonable accommodation had in this case.
53 It was also not clear as to whether, by suggesting that the applicant did not have the requisite experience and skills, the 1st respondent was trying to bring the issue of the inherent requirements of the job into the fray. If yes, why were these requirements not stated in the advertisement so that candidates such as the applicant could be able to know in advance that they stand no chance of being considered for appointment?
54 I am of the view that by causing the applicant to produce a letter from a doctor about the nature of his disability and insisting that he must be cross examined in relation thereto was not only completely unnecessary, but it was simply inconsiderate of the respondents’ representative to have done that, especially in the light of the fact that a letter from the 1st respondent confirming the applicant’s disability was submitted as part of evidence in this matter. The advisory memo from the District Corporate Services did not only make reference to the existence of such a letter but it was also recommended that the applicant be considered for appointment based on his disability.
55 One of the risks inherent in the 1st respondent’s attempt to prove or suggest that the applicant’s disability may have been one of the things which disqualified him from being promoted, was to suggest that the applicant may have been unfairly discriminated against on a listed ground. It is, however, not necessary for me to proceed any further with the possibility of unfair discrimination because the applicant had chosen a different cause of action in this case. I, however, wish to indicate that the respondents’ representative’s reckless litigation strategy had also been taken into account when determining the appropriate relief.
56 It is possible that the provisions of the Departmental Circulars Numbers 116 of 2019, 154 of 2020 and 150 of 2021 may be some of the remedial measures frowned upon by the Supreme Court of Appeal in Minister of Justice and Constitutional Development v South African Restructuring and Insolvency Practitioners Association" , where the following was said :
"[R]emedial measures must not ... encroach, in an unjustifiable manner, upon the human dignity of those affected by them. In particular, as stressed by Moseneke J in para 41 of Van Heerden, when dealing with remedial measures, it is not sufficient that they may work to the benefit of the previously disadvantaged. They must not be arbitrary, capricious or display naked preference. If they do they can hardly be said to achieve the constitutionally authorised end. One form of arbitrariness, caprice or naked preference is the implementation of a quota system, or one so rigid as to be substantially indistinguishable from a quota."
57 As things stand, it is immaterial as to whether or not any provision of the Departmental Circulars represents naked preference or reservation of jobs for the candidates from the underrepresented categories in the employ of the 1st respondent. The enquiry in this case is not about the validity or invalidity of the respondent’s policy and procedures on promotion. The correct legal position, as I understand it, is that as long as the provisions of the relevant Circulars or the Circulars themselves have not been reviewed and set aside by a court of law or replaced by other Circular(s) issued by the 1st respondent, it should be accepted that these Circulars remain valid and have legal consequences for both the 1st respondent and any other third parties which may be affected by them.
58 I now wish to deal with the question whether the applicant could have been regarded as ‘a qualifying candidate’ within the ambit of the 1st respondent’s policy and procedures on promotion. When carefully considered, the respondent’s approach, both during cross examination and through evidence of Mr Raholane, was to prove or suggest that the only favour that had to be done for the applicant was to ensure that he was shortlisted on the basis of his disability, but there was no way in which such a favour could have translated into an opportunity of him being considered for appointment. This is so because all the reasons advanced against the applicant’s candidature were, except the scores obtained by the 2nd respondent during the interviews, known to the Interview Committee, the governing body and all the relevant officials of the 1st respondent, including the District Director.
59 If indeed the 1st respondent was looking for someone with one or more degrees, experience in school management and a certificate of competency in computer, what was the point of shortlisting a candidate like the applicant? The reasons advanced as to why the applicant could not be appointed suggest that even if he could have obtained the highest scores during the interviews and recommended as the most preferred candidate, he would have not been appointed. If there is any merit in the reasons advanced by the 1st respondent, it would mean that the applicant was made to run a race that the 1st respondent knew the applicant would never win. In other words, allowing the applicant to compete with candidates who had experience in management was like making the applicant to fight a war that the 1st respondent knew is never fought and won.
60 To the extent relevant for the present purposes, the memo generated by the District Corporate Services contains the following information with regard to the five candidates who were interviewed with the applicant:
No Surname and Initials Gender Current rank Score
1 Mailula MJ Male Departmental Head 86.5%
2 Maila PS Male CS1 educator 74.8%
3 Mabidilala RR F Departmental Head 69%
4 Modiba MA F Departmental Head 66.3%
5 Phoshoko MF F Departmental Head 52.3%
61 According to paragraph 7 of the memo, the District Director was advised to appoint the applicant based on equity considerations. As a way of motivation, the following was said:
“ …Mr Maila is a person with disability and a declaration letter of disability is attached. Paragraph 3.3 of Departmental Circular No. 154 of 2020 states that “ the Employment of Educators Act, 1998 provides for the governing bodies to consider constitutional principles of equity, redress and representativity when considering applications for appointment of educators…”
62 The aforesaid information suggests that the 2nd candidate was the only candidate who was from the overrepresented group. He competed with four (4) candidates, including the applicant, who were from the underrepresented groups. If indeed the District Director was determined to follow the respondent’s policy and procedures on promotion but he or she felt that the applicant was hopelessly weak, he or she could have at least considered appointment of the third best candidate, or any other candidate recommended by the governing body because they were appointed as Departmental Heads. The objective facts in this case suggest that the 1st respondent was either disingenuous or not interested in complying with the constitutional principles of equity, redress and representativity as contemplated in its own policy and procedures on promotion, especially with regard to the people with disabilities.
63 The 1st respondent’s own employment equity profiles suggested the underrepresentation of people with disabilities was a challenge in all the categories of the advertised promotion posts. It therefore boggles one’s mind as to why would the 1st respondent not be concerned with such a picture. In fact, the 1st respondent and its officials had acted with mala fide intent towards the applicant, in the sense that he was only shortlisted to create an impression that the 1st respondent was concerned about underrepresentation of people with disabilities in promotion posts, whereas the real intention was to humiliate the applicant as someone who may have harboured baseless and unrealistic ambitions.
64 In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & Others (2013) 34 ILJ 1156 (LC),
“ It was held that the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive”.
65 In the instant case, the 1st respondent chose not to place any evidence before the arbitration as to why it had acted in contravention of its own internal policy and procedures on promotion. Put differently, the 1st respondent chose not to lead any evidence as to why it was not necessary or possible for the District Director to consider appointing the applicant or any other candidate from the underrepresented groups in pursuit of the objectives of equity, redress and representativity
66 The inescapable conclusion to be reached is that the District Director’s refusal to appoint the applicant in line with the 1st respondent’s policy and procedures on promotion was motivated by bad faith. It is therefore determined that, by refusing to appoint the applicant, the 1st respondent has committed an unfair labour practice within the contemplation of section 186(2) of the LRA.
67 The remedies that may be considered by the arbitrating commissioner where the respondent is found to have committed an unfair labour practice relating to promotion are found in section 193 read with section 194 of the LRA , which read as follows:
“ Remedies for unfair dismissals and unfair labour practice
“ 93(4) An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.
Limits on compensation
94(4) The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months remuneration.”
68 The applicant is seeking a promotion to the post in dispute with retrospective effect from 01 January 2022 . I am inclined to award the applicant an effective remedy, but not the substantive relief sought by the applicant which the 1st respondent because it would place an unjust financial burden on the 1st respondent. I do not think the applicant and his representative have done enough in their endevour to prove that the District Director’s decision to appoint a candidate from the overrepresented group as opposed to appointing the applicant was, besides being motivated by bad faith, completely unjustifiable.
69 Consequently, it is determined that payment of compensation equivalent to 6 months remuneration calculated at the minimum salary notch of the post in dispute would be a just and equitable remedy in the circumstances of this case. The minimum notch of the post in dispute is R504 147.00 per annum, and R42 012.25 per month. The total amount to be paid to the applicant is R252 073.50.
AWARD
70 The respondent is ordered to pay the applicant compensation equivalent to 6 months remuneration, amounting to R252 073.50. This amount must be paid by not later than 30 September 2022 or in the next salary run immediately after receipt of this arbitration award by the respondent.
71 Any amount due and payable to the applicant as a result of this arbitration award will attract interest at the prescribed rate as from 01 October 2022.
MORAKA ABEL MAKGAA
(ELRC PANELIST)
Case Number: ELRC1037-21/22LP
Commissioner: Moraka Abel Makgaa
Date: 11 August 2022
In the matter between: -
SADTU obo Phetole Solomon Maila Applicant
And
Education Department of Limpopo 1st Respondent
Phetole Solomon Maila 2nd Respondent
ARBITRATION AWARD
Nature of the dispute: Section 186(2)(a) of the LRA: unfair labour practice relating to promotion.
DETAILS OF THE HEARING AND REPRESENTATION
1 The hearing was held virtually on 14 June 2022 and 07 July 2022. The applicant was present and represented by Mr Malesela Hendrick Makhafola, Provincial Organizer of SADTU Limpopo Province. The 2nd respondent was present, and just like the 1st respondent was represented by Mr Nkhumeleng Erick Nyathela, employed by the 1st respondent as Deputy Director: Labour Relations .
2 The parties agreed that they will use a bundle of documents marked “Bundle A”, which was submitted by the 1st respondent. The applicant’s representative submitted a bundle of documents which was marked as “Bundle B”. “Bundle A” is made up of pages 1 to 80, whereas “Bundle B” is made up of pages 1-14.
3 The proceedings were digitally recorded and conducted in English.
THE ISSUE IN DISPUTE
4 The issue to be determined is whether the 1st respondent’s refusal to appoint the applicant to the post in dispute constituted an unfair labour practice for the purposes of section 186(2)(a) of the LRA. If so, I will determine the appropriate relief.
BACKGROUND TO THE DISPUTE
5 The factual background to this dispute is captured in the pre-arbitration minutes which were drafted and signed by the parties on the day of the arbitration, with the assistance of the arbitrating commissioner, and may be summarised as follows. The applicant applied for the post of principal at Modipe High School. He was shortlisted, interviewed and recommended as the second best candidate. Mr Mailula MJ got position one during the interviews, recommended as the most preferred candidate and appointed to the post in dispute with effect 01 January 2022. The entry notch of the post in dispute is R504 147.00. The 1st respondent issued the applicant with a letter confirming his disability, but the nature of the disability was not specified in the letter.
6 Aggrieved by the 1st respondent’s decision to appoint Mr Mailula, the applicant referred a dispute of unfair labour practice relating to promotion to the ELRC. The referral was accompanied by a condonation application. Condonation was granted on 07 April 2022. The matter was ultimately set down for arbitration and it came before me on 14 June 2022 and concluded on 07 July 2022.
7 Both parties filed written closing arguments, which have been taken into consideration in arriving at the conclusions herein.
PRELIMINARY ISSUES
8 At the commencement of the proceedings on 14 June 2022, representative for the 1st and 2nd respondents, Mr Nyathela, raised several preliminary issues. The first jurisdictional point was about condonation application, which was ultimately abandoned after being made aware that condonation was granted on 07 April 2022. The second preliminary point was about non-joinder of the successful candidate, in the name of Mr Mailula MJ. Just like in the case of condonation application, Mr Nyathela was made aware of the fact that the successful candidate was properly joined and that he was also copied in the email dealing with the notice of invitation to the arbitration meeting. It was indicated that the notice of set down in respect of Mr Mailula was sent to a wrong email address. It was indicated that Mr Mailula had been invited to the arbitration meeting by the 1st respondent, and that he will also be represented by Mr Nyathela. Mr Mailula confirmed that he had indeed given such instructions.
9 The second preliminary point relates to an application for my recusal on the basis that I facilitated the drafting of the pre-arbitration minutes contrary to the Constitution of the ELRC. I issued an ex tempore ruling dismissing the recusal application and made an undertaking that a written ruling will be sent to the parties in due course, which was done.
SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT
10 Phetole Solomon Maila ( who is the applicant in this case) testified under oath, and his evidence can be summarized as follows. He was appointed by the 1st respondent on a permanent basis in 2006. He was at the time of applying for the post in dispute, and even at the time of the arbitration hearing attached to Kelekeshe High School (“Kelekeshe”). He was, at the time of applying for the post, occupying a PL1 post.
11 His view is that he should have been appointed as the principal of Modipe High School had the 1st respondent implemented the provisions of the Departmental Circular No. 115 of 2019 dealing with guidelines for the implementation of the 2015 and 2020 employment equity plans. If the Department could have followed its policies, he would have been appointed to the post in dispute.
12 The 1st respondent issued him with a letter confirming his disability but did not specify the nature of his disability because doing so could have resulted in disclosing his disability to the public which could be tantamount to ill-treating people with disabilities. He was prepared to send a letter from his medical doctor to both the respondents’ representative and the ELRC, if that is necessary.
13 Under cross examination, he testified that his disability is the only basis upon which he feels he had been unfairly treated. He agreed that the reason why the 1st respondent’s letter of confirmation did not disclose his disability was because of the considerations of confidentiality. He also agreed that when making the final decision as to who to appoint the 1st respondent was also required to consider the issue of accessibility and reasonable accommodation of the applicant’s disability.
14 As to how would he have expected the 1st respondent to be able to consider placing him correctly or reasonably accommodating him, in instances where he did not disclose the nature of his disability by attaching any proof confirming the nature of his disability, he testified that if there were any queries about the nature of his disability, such queries should have been directed to Ms Mongwe MRM, who is an employee of the 1st respondent specified on the letter of confirmation as the person to who enquiries should be directed.
15 His understanding is that the guidelines refer to what must be followed by the 1st respondent when appointing educators. He declined to comment on the assertion that the guidelines contemplated in the Departmental Circular No. 116 of 2019 were merely meant to assist the decision maker to make a decision but that the decision maker is not bound by such guidelines.
16 The applicant made the following concessions. The decision maker did not have to consider affirmative action only, but it must also consider the ability of the candidate. When compared with the 2nd respondent he was found lacking in terms of ability. The post in dispute is a promotion post which requires certain skills and experience to do the job, particularly experience in management positions. The only highest qualification that he has is a Secondary Teachers Diploma as compared to the 2nd respondent who is in possession of two degrees.
17 He disagreed that the 2nd respondent had management experience that the applicant did not have on the basis that he was serving in a SADTU leadership position, where he was managing schools. As leaders of SADTU they were from time to time engaging with managers of schools trying to resolve education matters. He could not refer to any specific policy or legislation stating that SADTU leaders are managing schools.
18 In response to the assertion that the 2nd respondent was far ahead of him when it comes to management experience, which is a requirement for the post of principal, he testified that the same employer who denied him the opportunity of being appointed as a principal has appointed a CS1 educator, in the name of Mr Mochabi from Mamaila Circuit, with effect from January 2022. Mr Mochabi, just like him, he did not have managerial experience.
19 His non-appointment affected him negatively because he thought the Employment Equity Plan was in his favour, but the Department disregarded its guidelines as stipulated in the Employment Equity Plan.
SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT
20 Moshophe Winsor Raholane, testified under oath, and his evidence can be summarized as follows. He is a Manager:HRM responsible, amongst others, for processing appointments and promotions. The 1st respondent acknowledges that the applicant was shortlisted based on disability. He was interviewed and recommended by the school governing body as the number 2 candidate for the post of principal at Modipe High School, but he could not be appointed. Employment equity is one of the factors that must be considered when making an appointment, and it is also a departmental policy which cannot be ignored but it is not the only factor to be considered.
21 In the instant case, the District Director, in appointing the 2nd candidate, considered other factors such as skills and prior experience in management which are acquired either by being in the School Management Team or by having tertiary qualifications in management, such as qualifications in Education Management. The interests of the learners were also considered. People with disabilities do not have an automatic entitlement to promotion.
22 The Department was looking for a candidate who had a minimum experience in management of a school, hence the District Director appointed the 2nd respondent who was acting in the post in dispute for several months if not years. He therefore had the requisite skills to manage staff. Unlike the applicant who, at the time of the interviews, had a Secondary Teachers Diploma as his highest qualification, the 2nd respondent’s qualifications included Bachelor of Science, Higher Education Diploma and Honours Bachelor Degree in Education Management. The 2nd respondent had a certificate of competency in Maths and other related subjects which made him to understand curriculum management, as well as a certificate of competency in computer literacy which is a skill required for purposes of submitting excel reports. The applicant, on the other hand, was found wanting in as far as relevant experience and qualifications in management are concerned.
23 Under cross examination, he testified that the decision of the District Director in appointing the 2nd respondent must be read in line with the entire memo, which was generated by Corporate Services, particularly with regard to the comments made by the Deputy Director, as well as the CV and other documents of the 2nd respondent.
24 He conceded that the applicant met the minimum requirements for the post of principal, which are REQV13 and a minimum of seven years of teaching experience. That is why he was shortlisted and recommended as the second best candidate.
25 He conceded that people with disabilities are, according to the Department’s Employment Equity Plan underrepresented, but argued that in the instant case it would have not been advisable to appoint the applicant on the basis of his disability because the employer had decided to consider other factors and not employment equity. Paragraph 4 of Departmental Circular No 150 of 2021 should be understood as saying that candidates from the underrepresented groups should not be ignored but not as if it is saying posts are advertised solely for them. He disagreed with the assertion that, by being written in peremptory terms, paragraph 4 suggests that there is no room for deviation. His understanding is that the paragraph does not mean other factors such as performance of candidates and results in schools must be ignored.
26 He disagreed that, by not appointing the applicant, the respondent did not follow its own Employment Equity Plan because the posts were not advertised solely for people with disabilities. It was an Open Vacancy list, which means that everyone had the opportunity to apply.
ANALYSIS OF EVIDENCE AND ARGUMENT
27 There are no real factual disputes about what has happened and what has not happened in this case. In fact most of the issues upon which the applicant’s claim and the 1st respondent’s defence are based, are common cause issues. There was, for instance, no dispute between the parties concerning the work that was done by or obo the governing body, starting from the shortlisting, interviews and recommendation of the candidates who had to be considered for appointment. There was also no dispute that the applicant is, by virtue of his disability, a member of the designated groups as per the definition of the Employment Equity Act 55 of 1998 (“EEA”).
28 The fact that people with disabilities were, at the time of the appointment of the 2nd respondent, underrepresented in posts of principals was also not in dispute . It was also common cause that the successful candidate ( who is the 2nd respondent in this proceedings) is an African male who is from a group which was, at the time of the appointment of the 2nd respondent, overrepresented in posts of principals. It should also be common cause that the 1st respondent had, at that time, issued at least two Departmental Circulars which appear to be about restitutionary measures intended to ensure that the advertised promotion posts were filled through the appointment of candidates from the underrepresented categories.
29 In Makhothokho and Others v Pick n Pay Supply Chain (Pty) Ltd and Another (JS345/17) [2022] ZALCJHB 114 (24 May 2022), the Labour Court explained the purpose of cross examination in the following terms:
“[57] …The intended purpose of cross-examination is inter alia to reveal weaknesses in the evidence adduced, to challenge the truth or accuracy of the witness’s version, to bring to light facts reinforcing the cross-examiner’s case, to elicit favourable facts, to place a defence on record and to put the version of the cross-examining party.
[58] A party has a duty to cross-examine on aspects which he or she disputes. The rationale of the duty to cross-examine is that the witness should be cross-examined so as to afford him or her an opportunity of answering points supposedly unfavourable to him”.
[59] The failure to cross-examine a witness about an aspect of his or her evidence may have the result that the evidence may not be called into question later. The cross-examiner who disputes what the witness says has a duty to give the witness an opportunity to explain his or her evidence, to qualify it or to reveal its basis. Failure to do so has been dubbed extremely unfair and improper (citation deleted). Apart from the injustice to the witness, failure to cross-examine may indicate acceptance, comparable with an admission by silence (citation deleted). From this point of view, such evidence will carry more weight than evidence disputed by means of cross-examination and the failure to cross-examine, will be a factor increasing evidential value (citation deleted)”.
30 The cumulative effect of Mr Nyathela’s cross-examination, insofar as the reasons why the District Director has refused to appoint the applicant is concerned, appears to have been three-fold. Firstly, it was meant to dispute the applicant’s allegation that Mr Mochabi was appointed as a principal to one of the posts which were advertised together with the post in dispute, despite the fact that he was also a CS1 educator without experience in school management. Secondly, it was meant to inform the applicant that his failure to attach documentary evidence disclosing the nature of his disability made it difficult if not impossible for the 1st respondent to determine whether he would be able to perform the duties and responsibilities of the post in dispute. Thirdly, it was intended to inform the applicant that the 2nd respondent was preferred on the basis that he was more qualified in terms of ability, skills, experience, training, education and qualifications as compared to the applicant.
31 Mr Raholane’s evidence appears to have been intended to prove that the 2nd respondent had to be appointed because he was, comparatively, the most suitable candidate in terms of the criteria which were canvassed with the applicant during cross-examination. The general problem with Mr Raholane’s evidence is that it was only intended to prove issues which were not in dispute. The real issues in dispute were either down played or ignored.
32 Ordinarily, the employer is not supposed to be faltered for deciding to make an appointment on the basis of competence or ability in relation to the inherent requirements of the job as opposed to making an appointment on the basis of affirmative action or employment equity considerations, unless if an aggrieved party decides to invoke the monitoring and enforcement procedure provided for in Chapter V of the EEA. The problem in this case is the fact that the 1st respondent and some of its officials had acted with mala fide intent towards the applicant.
33 Regarding the applicant’s allegation on inconsistent application of the 1st respondent policy and procedures on promotion, the only thing which Mr Nyathela did during cross-examination was to suggest that a CS1 educator can only be appointed to the post of principal provided he or she was co-opted into the School Management Team (“SMT”) as an acting Departmental Head. Mr Nyathela ought to have realized that his cross-examination should have been much more than simply disputing the applicant’s version on a specific aspect of the case. He was also supposed to disclose what the version of the 1st respondent is on the factual allegations made by the applicant. In fact Mr Nyathela could not dispute the fact that Mr Mochabi was a CS1 educator. What he sought to do, though in general terms, was to suggest that Mr Mochabi may have been co-opted into SMT.
34 He may have forgotten to either find out the correct facts about circumstances surrounding the appointment of Mr Mochabi before commencing with his cross-examination so that he could be able to put his findings to the applicant ( if ever they were different from the applicant’s version), and to ultimately call a witness to give evidence intended to prove that the 1st respondent had either applied its policy consistently or that the case of the applicant is distinguishable from that of Mr Mochabi.
35 It is therefore determined that the 1st respondent had not only applied its policy in an inconsistent manner, but it had also failed to provide any reasons for such an inconsistency. Secondly, I do not think there is any merit in the contention which sought to suggest that a CS1 educator without experience in school management is automatically disqualified from being considered for appointment to the post of a principal. The 1st respondent’s contention must be rejected because it is bound to result in absurdity. This is so both on the version of the applicant and that of 1st respondent. Both parties are in agreement that the applicant qualified to be shortlisted, interviewed and recommended for appointment to the post in dispute. In other words, it was common cause between the parties that the inclusion of the applicant into the contest was compliant with the relevant policies and collective agreements.
36 Suggesting that CS1 educators without experience in management do not qualify to be appointed as school principals is even inconsistent with all the policies and collective agreements as regards the actual teaching experience required in the filling of a post of principal. It effectively means that the 1st respondent’s decision to introduce experience in school management at the point of making an appointment was tantamount to bad faith on the part of the 1st respondent, which was not only limited to the applicant but to the whole process of collective bargaining.
37 It is perhaps important for one to provide a summary of what the applicant’s case is all about, or what the applicant’s case is not all about. The applicant never suggested or tried to prove that he was the best candidate for the job on the basis of the usual objective criteria such as qualifications, experience or the outcome of the interviews. It appears to me that the applicant had accepted that he was found to be the second best candidate by the interview committee and recommended as such by the governing body. He has also never suggested that he had a general right to be promoted to the post in dispute, neither did he suggest that the District Director did not have a discretion to appoint any person who, in the view of the District Director, was the most suitable candidate for the job in question.
38 The applicant’s case, as I understand it, is based on a belief that the respondent’s employment equity policy and directives should have been relied on for purposes of protecting or advancing him as a person disadvantaged by unfair discrimination, or as a person belonging to the group of candidates who were, at the time of appointing the 2nd respondent, underrepresented in the posts of principals.
39 It appears to me that the applicant’s case was completely misunderstood by the 1st respondent. This is so because the 1st respondent’s whole defence, which became apparent both during cross examination of the applicant and through the evidence of Mr Raholane, was clearly founded on what can be described as the general rule referred to in clause 37 of Collective Agreement 3 of 2016 where an emphasis is made on the fact that employers are expected to appoint the best candidate for the job. What the 1st respondent failed to do or chose to ignore is explaining as to why the exception in the same clause could not be exercised by the District Director, because this is the essence of the applicant’s case.
40 Section 7(1)(b) of the Employment of Educators Act 76 of 1998 (“ the Educators Act”) empowers the Head of Department or his or her delegate to exercise a discretion similar to the one contemplated in clause 37. It is specifically provided as follows:
“ 7. Appointments and filling of posts.—(1) In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195 (1) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and which include the following factors, namely—
(a) …
(b) the need to redress the imbalances of the past in order to achieve broad representation.
41 I think it is necessary for one to outline the provisions of the relevant Departmental Circulars in some greater detail in order to provide a context to the applicant’s claim. The Departmental Circular No. 150 of 2021 provides for statistics and summaries of the employment equity profiles of appointments made in the three categories of the promotion posts (i.e Principals, Deputy Principals and Departmental Heads) as at the time of issuing the Vacancy Lists No.1 Volume 1/2021, No.1 Volume 2/2021 and No.1 Volume 3/2021 ( hereinafter to be referred to as the 2021 advertisement).The employment equity profiles were categorized on the basis of gender ( males and females) and racial groups in South Africa for purposes of showing the groups which were overrepresented and those that were underrepresented, at the time of issuing the 2021 advertisement.
42 To the extent relevant to the present case, the summaries of the employment equity profiles for posts of principals were stated as follows:
Posts of principals
“3.1.1 African males are over-represented,
3.1.2 Coloured and Indian males are under-represented
3.1.3 White males have reached the target
3.1.4 African, Coloured and White females are under-represented.
Posts of Deputy Principals
“3.2.1 African males are over-represented.
3.2.2 Coloured and Indian males are under-represented.
3.2.3 White males are over-represented.
3.2.4 African females are under-represented.
3.2.5 Coloured and Indian females are under-represented.
3.2.6 Indian females have reached the target.
3.2.7 White females are over-represented.
Posts of Departmental Heads
“3.3.1 African, Coloured, Indian and White males are under-represented.
3.3.2 African females are over-represented
3.3.3 Coloured and Indian females are under-represented
3.3.4. White females are over-represented.
People with disabilities are under-represented in the Department”.
43 Paragraph 4 of Circular No. 150 of 2021 reads as follows:
“ The provisions of Departmental Circular No 154 of 2020 together with the employment equity profiles of advertised posts must be strictly adhered to when candidates are selected for appointment to the posts ( that is advertised posts must be filled by applicants from under-represented groups)”.
44 Another relevant Circular is the Departmental Circular Number 116 of 2019, which deals with guidelines for implementation of the 2015/2020 Employment Equity Plan in the appointment of employees in Limpopo Department of Education. The main purpose of the guidelines was described as being about ensuring that the Limpopo Department of Education Employment Equity Plan is effectively implemented. Circular Number 116 of 2019, in the relevant parts, provide as follows:
“ 2. It is the responsibility of the Departmental Employment Equity representative to present the Employment Equity profile of the Province where the post has been advertised.
3. Appointments to posts created in terms of the Employment of Educators Act 1998 ( as amended)
3.1 The Interview Committee shall shortlist at least three candidates from the underrepresented groups based on the Employment Equity profile of the Province and economically active population provided that the candidates satisfy the minimum requirements of the post.
5 The Head of Department or the delegated official shall always strive to appoint any qualifying candidate from the underrepresented groups as guided by the statistics of the Employment Equity profile of the Province and economically active population regardless of scores that could be attained by the candidates from the over-represented groups.
6 This Circular should be used during shortlisting and interviewing process for the purpose of implementing affirmative action, promoting equal opportunities and redressing imbalances of the past”.
45 The net effect of the two Departmental Circulars is that the posts advertised in terms of the 2021 advertisement must be filled by applicants from underrepresented groups. It is further stated that the appointment of ‘a qualifying candidate from the underrepresented groups must be made regardless of scores that could be attained by the candidates from the overrepresented groups’.
46 The Departmental Circulars Numbers 116 of 2019 and 150 of 2021 (hereinafter to be referred to, collectively, as the 1st respondent’s policy and procedures on promotion), are couched in peremptory terms. The only reasonable inference that may be drawn is that the 1st respondent was informing all and sundry that qualifying candidates from the underrepresented groups must, from the shortlisting and recommendation stages as well as at the point of making an appointment, be given some kind of an unconditional preferential treatment.
47 There was no dispute between the parties that the appointment of the 2nd respondent (an African male candidate who was, at the time of his appointment, a member of the overrepresented groups in the posts of principals) was inconsistent with the letter and spirit of the 1st respondent’s internal policy and procedures on promotion. The main question that may have to be answered is whether the District Director’s refusal to appoint the applicant in line with the respondent’s own internal policy and procedures constituted an unfairness labour practice within the purview of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“LRA”).
48 Strictly speaking, the real question that may have to be answered is as to whether the applicant satisfied the minimum requirements of the post or whether the applicant ought to have been regarded as one of “ the qualifying candidates from the underrepresented groups as guided by the statistics of the Employment Equity profile of the Province …” . As already stated in para 44 supra, the District Director as the delegated official did not have a discretion of not appointing a qualifying candidate from the underrepresented groups as guided by the statistics of the Employment Equity profile of the Province and economically active population regardless of scores that could be attained by the candidates from the overrepresented groups”. In other words, the only time that the District Director would have had a discretion to deviate from the 1st respondent’s policy directives was if candidates from the underrepresented groups ( which in this case were four in number) were not satisfying the minimum requirements of the post or were not ‘qualifying candidates’.
49 Though there is no reference to what is meant by a ‘qualifying candidate from the underrepresented groups’, it could reasonably be concluded that the phrase refers to a candidate who met all the requirements of the advertised post. It is possible that the phrase ‘a qualifying candidate’ may have something to do with the phrase ‘a suitably qualified person’ in the EEA, particularly section 20(3) and (4), which reads as follows:
“ (3) For the purposes of this Act, a person may be suitably qualified for a job as a result of anyone of, or any combination of that person’s-
(a) Formal qualifications;
(b) Prior learning;
(c) Relevant experience; or
(d) Capacity to acquire, within a reasonable time, the ability to do the job.
(4) When determining whether a person is suitably qualified for a job; the employer must-
(a) review all the factors listed in subsection (3); and
(b) determine whether that person has the ability to do the job in terms of anyone of, or any combination of those factors”.
50 The question is whether the applicant could have been regarded as one of the qualifying candidates within the meaning and purpose of the respondent’s policy and procedures on promotion. I wish to return to this question at a later stage.
51 There appears to have been common understanding between the parties that the applicant is, by virtue of his disability, belonging to a category of persons disadvantaged by unfair discrimination, who were also, at the time of the appointment of the 2nd respondent, underrepresented in posts of principals. The only difference is that there were instances where Mr Nyathela sought to prove or suggest that the applicant’s disability may have been an irrelevant consideration because the post in dispute did not require a candidate with the kind of disability that the applicant has.
52 Mr Nyathela appears to have tried to suggest that the applicant’s disability was, in the circumstances, some kind of a double edged sword to the applicant in the sense that the disability assisted the applicant to be shortlisted but at the same time, it disqualified him from being considered when the appointment was ultimately made. Some kind of a bizarre attempt was made to suggest that the applicant could not be reasonably accommodated, even though it was not clear as to what relevance did reasonable accommodation had in this case.
53 It was also not clear as to whether, by suggesting that the applicant did not have the requisite experience and skills, the 1st respondent was trying to bring the issue of the inherent requirements of the job into the fray. If yes, why were these requirements not stated in the advertisement so that candidates such as the applicant could be able to know in advance that they stand no chance of being considered for appointment?
54 I am of the view that by causing the applicant to produce a letter from a doctor about the nature of his disability and insisting that he must be cross examined in relation thereto was not only completely unnecessary, but it was simply inconsiderate of the respondents’ representative to have done that, especially in the light of the fact that a letter from the 1st respondent confirming the applicant’s disability was submitted as part of evidence in this matter. The advisory memo from the District Corporate Services did not only make reference to the existence of such a letter but it was also recommended that the applicant be considered for appointment based on his disability.
55 One of the risks inherent in the 1st respondent’s attempt to prove or suggest that the applicant’s disability may have been one of the things which disqualified him from being promoted, was to suggest that the applicant may have been unfairly discriminated against on a listed ground. It is, however, not necessary for me to proceed any further with the possibility of unfair discrimination because the applicant had chosen a different cause of action in this case. I, however, wish to indicate that the respondents’ representative’s reckless litigation strategy had also been taken into account when determining the appropriate relief.
56 It is possible that the provisions of the Departmental Circulars Numbers 116 of 2019, 154 of 2020 and 150 of 2021 may be some of the remedial measures frowned upon by the Supreme Court of Appeal in Minister of Justice and Constitutional Development v South African Restructuring and Insolvency Practitioners Association" , where the following was said :
"[R]emedial measures must not ... encroach, in an unjustifiable manner, upon the human dignity of those affected by them. In particular, as stressed by Moseneke J in para 41 of Van Heerden, when dealing with remedial measures, it is not sufficient that they may work to the benefit of the previously disadvantaged. They must not be arbitrary, capricious or display naked preference. If they do they can hardly be said to achieve the constitutionally authorised end. One form of arbitrariness, caprice or naked preference is the implementation of a quota system, or one so rigid as to be substantially indistinguishable from a quota."
57 As things stand, it is immaterial as to whether or not any provision of the Departmental Circulars represents naked preference or reservation of jobs for the candidates from the underrepresented categories in the employ of the 1st respondent. The enquiry in this case is not about the validity or invalidity of the respondent’s policy and procedures on promotion. The correct legal position, as I understand it, is that as long as the provisions of the relevant Circulars or the Circulars themselves have not been reviewed and set aside by a court of law or replaced by other Circular(s) issued by the 1st respondent, it should be accepted that these Circulars remain valid and have legal consequences for both the 1st respondent and any other third parties which may be affected by them.
58 I now wish to deal with the question whether the applicant could have been regarded as ‘a qualifying candidate’ within the ambit of the 1st respondent’s policy and procedures on promotion. When carefully considered, the respondent’s approach, both during cross examination and through evidence of Mr Raholane, was to prove or suggest that the only favour that had to be done for the applicant was to ensure that he was shortlisted on the basis of his disability, but there was no way in which such a favour could have translated into an opportunity of him being considered for appointment. This is so because all the reasons advanced against the applicant’s candidature were, except the scores obtained by the 2nd respondent during the interviews, known to the Interview Committee, the governing body and all the relevant officials of the 1st respondent, including the District Director.
59 If indeed the 1st respondent was looking for someone with one or more degrees, experience in school management and a certificate of competency in computer, what was the point of shortlisting a candidate like the applicant? The reasons advanced as to why the applicant could not be appointed suggest that even if he could have obtained the highest scores during the interviews and recommended as the most preferred candidate, he would have not been appointed. If there is any merit in the reasons advanced by the 1st respondent, it would mean that the applicant was made to run a race that the 1st respondent knew the applicant would never win. In other words, allowing the applicant to compete with candidates who had experience in management was like making the applicant to fight a war that the 1st respondent knew is never fought and won.
60 To the extent relevant for the present purposes, the memo generated by the District Corporate Services contains the following information with regard to the five candidates who were interviewed with the applicant:
No Surname and Initials Gender Current rank Score
1 Mailula MJ Male Departmental Head 86.5%
2 Maila PS Male CS1 educator 74.8%
3 Mabidilala RR F Departmental Head 69%
4 Modiba MA F Departmental Head 66.3%
5 Phoshoko MF F Departmental Head 52.3%
61 According to paragraph 7 of the memo, the District Director was advised to appoint the applicant based on equity considerations. As a way of motivation, the following was said:
“ …Mr Maila is a person with disability and a declaration letter of disability is attached. Paragraph 3.3 of Departmental Circular No. 154 of 2020 states that “ the Employment of Educators Act, 1998 provides for the governing bodies to consider constitutional principles of equity, redress and representativity when considering applications for appointment of educators…”
62 The aforesaid information suggests that the 2nd candidate was the only candidate who was from the overrepresented group. He competed with four (4) candidates, including the applicant, who were from the underrepresented groups. If indeed the District Director was determined to follow the respondent’s policy and procedures on promotion but he or she felt that the applicant was hopelessly weak, he or she could have at least considered appointment of the third best candidate, or any other candidate recommended by the governing body because they were appointed as Departmental Heads. The objective facts in this case suggest that the 1st respondent was either disingenuous or not interested in complying with the constitutional principles of equity, redress and representativity as contemplated in its own policy and procedures on promotion, especially with regard to the people with disabilities.
63 The 1st respondent’s own employment equity profiles suggested the underrepresentation of people with disabilities was a challenge in all the categories of the advertised promotion posts. It therefore boggles one’s mind as to why would the 1st respondent not be concerned with such a picture. In fact, the 1st respondent and its officials had acted with mala fide intent towards the applicant, in the sense that he was only shortlisted to create an impression that the 1st respondent was concerned about underrepresentation of people with disabilities in promotion posts, whereas the real intention was to humiliate the applicant as someone who may have harboured baseless and unrealistic ambitions.
64 In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & Others (2013) 34 ILJ 1156 (LC),
“ It was held that the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive”.
65 In the instant case, the 1st respondent chose not to place any evidence before the arbitration as to why it had acted in contravention of its own internal policy and procedures on promotion. Put differently, the 1st respondent chose not to lead any evidence as to why it was not necessary or possible for the District Director to consider appointing the applicant or any other candidate from the underrepresented groups in pursuit of the objectives of equity, redress and representativity
66 The inescapable conclusion to be reached is that the District Director’s refusal to appoint the applicant in line with the 1st respondent’s policy and procedures on promotion was motivated by bad faith. It is therefore determined that, by refusing to appoint the applicant, the 1st respondent has committed an unfair labour practice within the contemplation of section 186(2) of the LRA.
67 The remedies that may be considered by the arbitrating commissioner where the respondent is found to have committed an unfair labour practice relating to promotion are found in section 193 read with section 194 of the LRA , which read as follows:
“ Remedies for unfair dismissals and unfair labour practice
“ 93(4) An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.
Limits on compensation
94(4) The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months remuneration.”
68 The applicant is seeking a promotion to the post in dispute with retrospective effect from 01 January 2022 . I am inclined to award the applicant an effective remedy, but not the substantive relief sought by the applicant which the 1st respondent because it would place an unjust financial burden on the 1st respondent. I do not think the applicant and his representative have done enough in their endevour to prove that the District Director’s decision to appoint a candidate from the overrepresented group as opposed to appointing the applicant was, besides being motivated by bad faith, completely unjustifiable.
69 Consequently, it is determined that payment of compensation equivalent to 6 months remuneration calculated at the minimum salary notch of the post in dispute would be a just and equitable remedy in the circumstances of this case. The minimum notch of the post in dispute is R504 147.00 per annum, and R42 012.25 per month. The total amount to be paid to the applicant is R252 073.50.
AWARD
70 The respondent is ordered to pay the applicant compensation equivalent to 6 months remuneration, amounting to R252 073.50. This amount must be paid by not later than 30 September 2022 or in the next salary run immediately after receipt of this arbitration award by the respondent.
71 Any amount due and payable to the applicant as a result of this arbitration award will attract interest at the prescribed rate as from 01 October 2022.
MORAKA ABEL MAKGAA
(ELRC PANELIST)