PSES 258-21/22NC

Case Number: PSES 258-21/22NC
Commissioner: Catherine Willows
Date of Award: 24 October 2022

In the matter between

MR ABDUL TIER
(Applicant)

And

DEPARTMENT OF EDUCATION: NORTHERN CAPE
1st Respondent

SCHOOL GOVERNING BODY OF WILLIE THERON PRIMARY SCHOOL
2nd Respondent

MR ISAAC LEON GERALD JANSEN
3rd Respondent



DETAILS OF HEARING AND REPRESENTATIONS

1. This arbitration was heard on the 9th March 2022; 25 May 2022; 26 May 2022; 28th June 2022; 4 October 2022 and 7 October 2022. The processes were conducted virtually, via Zoom Virtual Conferencing.

2. It came before the ELRC in terms of Section 186(2) (a) of the Labour Relations Act 66 of 1995 (the LRA).

3. The Applicant, Mr Abdul Tier, was represented by Advocate Nathan Williams. The 1st Respondent, Department of Education: Northern Cape, was represented by Mr Chwaro Kgotlagomang, legal representative of Howell & Groenewald Attorneys. The 3rd Respondent, Mr Isaac Leon Gerald Jansen, was represented by his Public Service Association Representative, Mr Ledibane.

4. Interpretation services were not required.

5. It was agreed upon between the parties that one bundle of documents were to be utilised, such identified and categorised as “Applicant Bundle”, the evidence of which was accepted unless specifically placed in dispute.

6. The proceedings were digitally recorded, and hand-written notes are on file.

7. The Applicant and the 1st and 3rd Respondent submitted closing arguments on 14 October 2022, and such have been considered in preparation of this Award but not repeated herein.

8. I have considered all the evidence and argument, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and determination of the dispute.

ISSUE TO BE DECIDED

9. The issue to be determined is whether the 1st Respondent’s conduct of not appointing the Applicant for Post of Deputy Principal of Willie Theron Primary School (Pixley Ka Seme District), Post No. 2020-09/2 advertised in Vacancy Circular 1 of 2020 and published on 7 September 2020 constitutes an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.

10. The Applicant’s representative indicated that the Applicant is challenging both the substantive and procedural fairness of the appointment of the 3rd Respondent to the post of Deputy Principal of Willie Theron Primary School (Pixley Ka Seme District).

11. Providing further detail, the Applicant’s representative indicated that there were ten (10) issues in dispute for determination.

12. These are: (a) Whether the 3rd Respondent should have been shortlisted for the position as the 3rd Respondent did not provide an academic / qualification transcript. (b) The records and record-keeping of the interview panel were insufficient in that no details were provided as to answers given by the applicant’s in the interview process. (c) The composition of the interview panel was altered from that of the shortlisting panel. (d) No recommendation was provided to the HOD by the SGB. (e) No order of preference of candidates was submitted to the HOD by the SGB. (f) The scoring of the Applicant and the 3rd Respondent in terms of the 5th criteria, that of extra-curricular activities. (g) The scoring of the Applicant was altered for that of extra-curricular activities from the shortlisting to the interview process. (h) The timeframes as provided in terms of the vacancy circular were not adhered to. (i) The Applicant contends that had the scoring been correct for extra-curricular activities, such would have increased the Applicant’s score resulting in him being the highest score awarded. (j) whether an unfair labour practice was perpetuated against the Applicant in terms of substantive and procedural unfairness.

13. The Applicant, in terms of relief, is requesting the appointment to be set aside and for the process to be started afresh.

SURVEY OF EVIDENCE AND ARGUMENT

APPLICANTS’ CASE
14. The Applicant submitted under oath that he commenced employment on 1 January 2008 and is a Post Level 1 Educator at Willie Theron Primary School. He was appointed on a permanent basis on 1 January 2009. He applied for the position of Deputy-Principal at Willie Theron Primary School when such post was gazetted on 7 September 2020. At the time that he applied for the position he was also the Acting Departmental Head.

15. The first issue that he raised was how he was scored in terms of extra-curricular activities. He stated that he is a Level 1 soccer coach and runs the extra-curricular activities at the school. The 3rd Respondent was awarded one (1) point for extra-curricular activities in the short listing process but he has no or little activities. As such, the 3rd Respondent should not have been awarded any points for such as no information was provided in terms for him to be awarded such. This essentially “brought him into the equation” whereby he was improperly advanced into the process.

16. The Applicant submitted that he provided details of his community involvement and supplied certified copies of all his qualifications. The 3rd Respondent did not provide certified copies and as such, his application was incomplete and he should have been disqualified. The Applicant stated “there is no contest between us – i am clearly surpassed in terms of extra-curricular activities”.

17. In terms of the interview process, the Applicant stated that the composition of the panel of short listing to that of interview changed. There were also no records or minutes provided. The 3rd Respondent’s score for extra-curricular activities went from a one (1) to a five (5) with no details being provided as to what warranted such score. This was corroborated in the Resource Person report of Ms K De Wee on 18 November 2020 whereby she criticised the process.

18. The Applicant stated that his main issue is that the SGB never made a recommendation as such the appointment of the 3rd Respondent was flawed. The school did not benefit from the appointment and is suffering. The process was not fair in terms of the recruitment process and this was a “gruesome” experience for him as an Applicant. The process followed was a mockery of the provisions relating to such and the Applicant stated that he suffered trauma as a result.

19. Under cross-examination, the Applicant explained the basis for his allegation of substantive unfairness was that the 3rd Respondent should not have been allocated any marks for extra-curricular activities. Because he was erroneously so, this placed in him in the process where he should not have been. Furthermore, the SGB did not provide a recommendation list, and therefore everything that they did was wrong and unfair.

20. The 3rd Respondent was allocated marks to which he was not entitled to and there was accordingly no reason for his appointment. The SGB’s recommendation is a prerequisite for appointment and it was proven in the shortlisting and interview process that the Applicant was the best candidate.

21. Furthermore the Applicant stated that in terms of the rules, the 3rd Respondent did not provide certified copies of his academic transcript. As such, his application was incomplete and he should have been disqualified. If the 3rd Respondent had been properly scored, there would have never been a tie between himself and him.

1st witness: Ms K De Wee

22. Ms Katie De Wee was subpoenaed by the Applicant and she duly appeared and testified under oath. She has had forty-two (42) years of service with the Respondent and retired at the end of March 2022. Prior to such, she was the Circuit Manager for the Tembalihle Circuit, “Priska” a remote office of De Aar since 2015. The Willie Theron Primary School was not part of her circuit but the relevant circuit manager was on leave at the time so she was instructed to assist with the shortlisting and interviews.

23. In closing, the Applicant submitted that the 3rd Respondent should not have been shortlisted as he did not provide evidence of his academic transcripts for two qualifications and he should have scored a zero on the criteria of co-curricular involvement, extra-mural activities and community involvement based on the evidence presented in his CV.

24. The Applicant testified that had the 3rd Respondent scored correctly, there would not have been a tie/draw in the scores. Comprehensive undisputed testimony related to his background, qualifications, competencies, leadership and community involvement was provided. The Applicant provided a clear understanding of the context of the school, demographics of the learners, crime, literacy, poverty and the socio-economic situations of the surrounding families as well as the communities who utilise the services of the school. The Applicant made out a case as to why these criteria would have definitive value and weight in breaking a tie/draw between the 3rd Respondent and himself.

25. The contrast between the 3rd Respondent and the Applicant in relation to the criteria of co-curricular involvement, extra-mural activities and community involvement was striking, obvious and overwhelmingly in favour of the Applicant.

26. In terms of the unfair procedure, the Applicant demonstrated through the evidence that the SGB failed to comply with the rules in relation to the “Recommendation Procedure” in terms of section 6 (3) (a), (b) and (c) of the Employment of Educators Act (EEA). Section 6 (3) (a) requires that the SGB submit a recommendation for appointment based on the selection and recruitment process of documented shortlisting, interviews and calculations of scores in relation to fair criteria.

27. On 15 December 2020, the SGB delegated their statutory authority of recommendation to the district office and agreed to abide by the decision of the Head of Department. The SGB has no authority to do this and the Head of Department has in turn, no authority to make an appointment of the 3rd Respondent. The Head of Department failed as it was his duty to ensure that the SGB did comply with all the rules of the Vacancy Circular.

28. The Head of Department is in addition, vicariously liable for the failures of the SGB as there is no evidence that any disciplinary action was taken against the SGB to hold them accountable to the EEA. The appointment of the 3rd Respondent should have been denied by the Head of Department according to the rules of the Vacancy Circular but instead this conduct of appointment in May 2021 serves as further proof of gross and capricious failure on the part of the 1st Respondent.

29. A promotion may only be made on the recommendation of the SGB and such recommendation must be made within two months after being requested to do so, failing which, the Acting Head of the First Respondent, may make an appointment without such recommendation. What is not permitted is for the SGB to delegate its powers to the any official, office of or the Acting Head of the First Respondent. The powers of an SGB are prescribed by statute and more particularly at section 20 (i) of the Schools Act, Act 84 of 1996. One such power is the power to recommend the appointment of educators to the Head of Department.

30. As such, it was requested that in terms of relief, the maximum permissible compensation be awarded to the Applicant in the sum of R 373 548,84 as the annual gross remuneration.

FIRST RESPONDENT’S CASE:

31. The Respondent submitted that the timeline of events were as follows: The SGB had a meeting on the 8th of October 2020 whereat they selected among themselves a selection committee. On the 9th of November 2020, another SGB meeting was held where the criteria were determined and accepted by the selection committee. It was at this meeting that 6 candidates were nominated for invitation to the interview.

32. The members of the selection committee awarded points as per NCK7. Their scores were recorded on NCK8 in respect of each candidate and the Applicant was awarded 144 points and the 3rd Respondent was awarded 148 points. The NCK11 indicated that each candidate was interviewed and at the end of the interviews, the Applicant was awarded 113 points. This is evidenced by NCK12 in respect of the Applicant.

33. The NCK12 in respect of the 3rd Respondent shows that he was awarded 110 points. The NCK13 indicated that the Applicant was awarded a cumulative score of 37.7 whereas the 3rd Respondent was awarded 36.7 points. In terms of NCK14 the Applicant and the 3rd Respondent were awarded equal total scores of 73.7 and both ranked number 1.

34. The interview committee was required to complete the NCK15 with names of the recommended candidates in order of preference, however the interview committee failed and/or neglected to do so. The committee advised the SGB that there was a tie and the committee recommended that the post be re-advertised. This is apparent from the minutes of the 17th of November 2020 as well as the NCK15.

35. On the 18th of November 2020, the SGB unanimously accepted the “recommendation” that the post has to be re-advertised. On the 3rd of December 2020, the Acting Head of Department sent a letter to the SGB of Willie Theron Primary School wherein he confirmed the SGB had come to the conclusion that they are unable to recommend any candidates for appointment due to a tie to the scores. The Acting Head of Department reminded the SGB of their obligation to make a recommendation to his office in compliance with the provisions of section 6(3)(c) of the Employment of Educators Act, 76 of 1998.

36. The Acting Head of Department advised the SGB that in the light of the fact that they failed to comply with Section 6(3)(c), his office has no authority to re-advertise the vacancy. He further implored the SGB to provide him with a recommendation in order of preference. The Acting Head of Department finally informed the SGB that in the event of their failing to provide his office with a recommendation, that would result in him making an appointment without any further reference to them.

37. Pursuant to the letter by the Head of Department, the SGB responded by sending correspondence stating that they leave the decision to make a recommendation in the hands of the District Office. The Acting Head of Department, then ultimately made an appointment without the recommendation of the SGB.

38. The Applicant averred that he was a better candidate as he was incorrectly scored during both the shortlisting and the interview process and that the 3rd Respondent was also incorrectly scored in both the interview and shortlisting stages of the process.

39. He alleged that the CV of the 3rd Respondent did not disclose any extra and co-curricular activities and consequently he should not have been awarded any points. However, it was submitted that the 3rd Respondent had attached a certificate issued by the Sol Plaatje Emergency Services that he had completed a “Elementary Fire Fighting Course”. This would suffice in terms of community engagement and as such, the 3rd Respondent was not unfairly advantaged at the expense of the Applicant.

40. The allocation of point in respect of extra and co-curricular activities by the shortlisting committee was in order.

41. In addition, the Applicant submitted that the 3rd Respondent should not have been shortlisted as he failed to attach his qualification transcript. The Applicant relied upon clause 5.5 of the Vacancy Circular which provided that:-

“Certified copies of original qualifications (matric certificate, degrees, diplomas and certificate) and certified copies of qualifications which includes all subjects passed and dates on which all requirements for the qualifications were met must be attached to the application form”.

42. However, the Applicant failed to consider the provisions of clause 5.17 of the vacancy circular 1/2020 which provided that: -

“Incomplete application, faxed applications, e-mailed applications, applications without either one of the following documents:

(a) Curriculum Vitae
(b) Originally certified copies of matric certificate
(c) Qualifications
(d) Identification document
(e) SACE Certificate of registration
(f) Applications which are sent or delivered to the wrong address will be disqualified”

43. The Applicant failed to establish that the 3rd Respondent fell within any of the categories set out above for him to be disqualified.

Mr Sandile Beuzana

44. Mr Beuzana testified under oath and submitted that he had been employed by the 1st Respondent for thirty-one (31) years and at the time of the dispute he was the Acting Superintendent - General (Head of Department) for the Department of Education for the Northern Cape. He signed the vacancy circular and involved in the notice to advertise the relevant positions. The normal process is for the SGB to do the shortlisting an interview process and recommend a candidate to him.

45. But in the present matter, there was a “tie” between the Applicant and the 3rd Respondent and the SGB did not make a recommendation. He confirmed that he engaged in written correspondence with the SGB and instructed them to make a recommendation within the prescribed legislation. Ultimately the SGB did not comply.

46. Mr Beuzana stated that he has a responsibility to ensure the schools within his district adequately staffed. As such, he was required to complete the process and therefore he looked at all the candidates who were shortlisted for the post. He stated that he considered and scrutinized the two candidates that had “tied” for the post. He came to the conclusion that the 3rd Respondent was better suited as over the years he had acted as an Acting Principal and as the post was a managerial position, experience was crucial.

47. Mr Beuzana stated that it was his opinion that the 3rd Respondent was able to perform the work, his experience was essential and that he would be the best fit.

48. In terms of his assessment of the Applicant, Mr Beuzana stated that the Applicant had been a Post Level 1 teacher from 2008 and in terms of experience, he had such as an acting HOD. However, he explained that when you are an acting HOD, you work with a couple of educators in a grade or subject. As an acting principal, you are responsible for all the educators in the school.

49. Mr Beuzana further stated that he did not observe any incorrect scoring in terms of extra-curricular activities. In addition, the 3rd Respondent had attached all the relevant documents and therefore did not stand to be disqualified on the basis of such omission. Upon his assessment of the documentary evidence provided to him, the 3rd Respondent was not unfairly advantaged and that it was clear in his assessment that the 3rd Respondent was the preferred candidate on the basis of experience and competence.

50. Mr Beuzana stated that they do not look at the person but rather on paper what is provided to him. There was no unfairness in the process and as such, no unfair labour practice was perpetuated.

Mr Mzwandile Mothelesi

51. Mr Mothelesi testified under oath and stated that he is the Director for Human Resources in Practices and Administration for the Provincial Office for the Department of Education in the Northern Cape. He stated that on the 7th September 2020 the vacancy circular was published with the closing date of 25 September 2020.

52. In terms of the present dispute, the Acting HOD took a decision to appoint and once such decision was made, they carry out the decision in terms of recruitment and selection. In terms of the training provided to SGB’s, if they are not happy with the decision of the HOD, they may appeal such decision.

53. In this matter, the SGB did not appeal such decision and that his unit followed all the prescripts of the law.


54. In closing it was submitted that it would be untenable to find that the 1st Respondent had acted in an unreasonable or arbitrary manner in appointing the 3rd Respondent in the light of the evidence presented by the witnesses in the matter.

55. It was submitted that the Applicant's application was duly considered but he was not appointed because he lacked the leadership experience which the 1st Respondent considered relevant.

56. The Commissioner does not have the authority to dictate to the 1st Respondent whom to promote unless there is clear evidence of unfair conduct on its part. As such, in terms of relief, the 1st Respondent prayed that the application be dismissed with costs.

THIRD RESPONDENT

57. The 3rd Respondent’s representative submitted in closing arguments that the 3rd Respondent submitted a transcript of his teaching diploma and therefore clause 5.5 of the circular was met.

58. The 3rd Respondent had met all the set requirements, and it was correct to short-list him. The Applicant did not raise any substantive issue that gave rise to the unfair preference the 3rd Respondent enjoyed during the short-listing, interviews, and subsequent appointment to the deputy principal post.

59. Therefore it was requested that the Applicant’s dispute be dismissed.


ANALYSIS OF EVIDENCE AND ARGUMENTS

60. Section 186 (2) of the Labour Relations Act 66 of 1995 (“the LRA”) defines unfair labour practice as:-
“any unfair act or omission that arises between an employer and an employee involving-
a. Unfair conduct by the employer relating to the promotion....”

61. The test is therefore whether the conduct or omission of the employer was unfair when coming to the decision to promote a particular employee.

62. In determining whether the employer was fair or not the following have to be taken into account: -

• 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 arbitrary, or capricious, or unfair or
• Whether the employer failed to apply its mind to the promotion of the employee; or
• Whether the employer’s decision not to promote was motivated by bad faith;
• Whether the employer’s decision not to promote was discriminatory,
• Whether there were insubstantial reasons for the employer’s decision not to promote.
• Whether the employer’s decision not to promote was based on a wrong principle.
• Whether the decision was taken in a biased manner.
(see City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC).

63. It is trite that the onus of proof in matters relating to the unfair labour practice rests with the applicant. The applicant has to prove that the employer acted in one or more of the above instances.

64. The Constitution of the Republic guarantees everyone the right to fair labour practices, which right is further given effect through the provisions of section 6 of the Labour Relations Act (LRA) and the Employment Equity Act (EEA). Despite the guarantees, it has been held that the LRA does not create a right or entitlement to be promoted, unless there is some agreement or law assuring the employee that right. This bearing in mind that in accordance with the principles established in Apollo Tyres South Africa (Pty) v CCMA and Others, an employee who alleges a case of unfair labour practice relating to a promotion need not to prove that he has a right to promotion.

65. The obligation in terms of section 186(2) of the LRA is to act fairly towards the employee in the selection and promotion process but taking into account that it is the prerogative of the employer to make appointments. The exercise of that prerogative is nonetheless not immune from scrutiny, as instances of gross unreasonableness in its exercise may lead to drawing of inferences of bad faith.

66. To that end, it is trite that central to disputes pertaining to appointments or promotion of employees is the principle that that courts and commissioners alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions.
67. Any form of interference should be with the objective of dispensing fairness to both parties.

68. The onus to establish that conduct complained of constitutes an unfair labour practice within the meaning of section 186(2) of the LRA rests on the employee. The employee must therefore be able to lay the evidentiary foundation for his claim of an unfair labour practice. Mere dissatisfaction with the outcome of a recruitment or selection process is not sufficient to sustain that claim. In order to succeed with claim related to promotions or failure to appoint, an employee must inter alia, demonstrate that as against the successful candidate;
i. the/she met all inherent requirements of the position;
ii. he/she was the best candidate for the position;
iii. that not being promoted caused unfair prejudice to him/her;
iv. and that there is a causal connection between the unfairness complained of and the prejudice suffered.

69. The mere fact that the employee has the required experience, ability and technical qualifications for the post is however not sufficient, nor is it sufficient for the employee to merely assert that he or she scored higher in the interview process or some other criterion linked to the selection process. There is still a burden on him to demonstrate that the decision to appoint someone else to the post in preference to him or her was unfair.

70. City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and Others (2013) 34 ILJ 1156 (LC) at para 19; Department of Justice v Commission for Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 248 (LAC) at para 73, where it was held that; “…An employee who complains that the employer's decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct is not established, that is the end of the matter. If that decision or conduct is proved, the enquiry into whether the conduct was unfair can then follow.

71. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and Others it was also emphasised 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 motivated 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.

72. In terms of section 6(1)(b) of the Employment of Educators Act, the ultimate decision to make appointment is that of the HOD, after receipt and consideration of the recommendations of the SGB. Thus, for all intents and purposes, any reference to ‘employer’ for the purposes of a finding of unfairness should be in reference to the HOD as the statutorily mandated official who takes decisions on behalf of the Department.

73. The Applicant in this dispute bears the onus to prove that the Respondent committed an unfair labour practice relating to promotion in relation to him. He needs to prove that the dispute referred is indeed related to a promotion, that there was some form of unfair conduct on the part of the Respondent during the promotion process and that such unfair conduct constituted an unfair labour practice and; that he is entitled to the relief sought.

74. In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion.

75. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.

76. Expressed somewhat differently, the employee must demonstrate that he was overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. He must show that on the criteria used to select another person above him, he stood head and shoulders above that person (see Grogan, J. Workplace Law, 6th Ed. Juta, Cape Town. 2001 at 235 and Ndlovu v CCMA and Others(2000) 21 ILl 1653 (LC) at 1653H).

77. The Applicant has raised a number of issues in dispute. These are: he was the better candidate as compared to the incumbent; Extra-curricular activities were a distinct category and was incorrectly scored by the SGB. If the extra and co-curricular activities were scored correctly, he would have been the better candidate; the 3rd Respondent ought not to have been shortlisted as he submitted an incomplete application in that he failed to submit qualification transcript; composition of the interview panel in that the shortlisting panel should be the same as the interview panel; the SGB failed to submit a recommendation with order of preference; non-compliance with the timelines and the parties failed to adhere to same and the 3rd Respondent gained from an unfair procedure.

78. It was not disputed that the 3rd Respondent had submitted a certificate issued by the Sol Plaatje Emergency Services that he had completed a “Elementary Fire Fighting Course”. On the basis of such, one can ascertain that he was awarded one (1) point for such extra- curricular activities. Fire-fighting would be a form of extra-curricular activity and community engagement and therefore I cannot find fault with the scoring of one point for such. The Applicant may have surpassed the 3rd Respondent in terms of extra-curricular activities but this does not follow that the 3rd Respondent’s allocation of one point for his would be accordingly unfair.

79. In terms of the failure to submit the qualification transcript, the Applicant averred that the 3rd Respondent should have been disqualified from the process. However, as elucidated by the 1st and 3rd Respondent, the provisions of clause 5.17 of the vacancy circular 1/2020 were complied with and there was accordingly no basis for the assertion that the 3rd Respondent stood to be disqualified.

80. The pertinent issue in this matter was the failure of the SGB to make a recommendation. The Applicant submitted that in terms of prevailing law and dicta, the SGB cannot negate this responsibility and that the actions of the 1st Respondent were unlawful and accordingly unfair.

81. Mr Beuzana was articulate in his evidence when he submitted that whilst it was “normal” and preferential for the SGB to recommend a candidate to him, his actions in considering the candidates and making an appointment upon his assessment of the suitability for the position were lawful and permissible in terms of the prevailing provisions.

82. The Regulatory Framework in respect of the Appointment of Educators provides in the Employment of Educators Act:

“6. POWERS OF EMPLOYERS.
(1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator—
(a) in the service of the Department of Basic Education shall be made by the Director-General; or
(b) in the service of a provincial department of education shall be made by the Head of Department.

(3) (a) Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial department of education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned.

(l) A recommendation contemplated in paragraph (a) shall be made within two months from the date on which a governing body was requested to make a recommendation, failing which the Head of Department may, subject to paragraph (a), make an appointment without such recommendation.

83. On the basis of such, I cannot arrive at a conclusion that the actions of Mr Beuzana in his official capacity were in conflict with his empowering provisions. He had the authority to make the appointment in the absence of a recommendation by the SGB.

84. Furthermore, Mr Beuzana succinctly and thoroughly provided a clear synopsis of the assessment criteria he utilized when assessing the curriculum vitae’s of the 3rd Respondent and Applicant. Critical for him was the competence and experience in the position as it was a managerial position. On the basis of his assessment of the competing candidates, he arrived at the sensical conclusion that the 3rd Respondent would be a better fit. I cannot fault this reasoning.

85. I cannot negate the incidence of onus that rests upon the Applicant that the decision not to appoint him was on the basis of some unacceptable, irrelevant or invidious comparison. There was no evidence of such that was able to be sustained.

86. It follows that in my assessment of the evidence and explanations given by the parties, that sufficient evidence was not tendered in order to support a version that the actions of the Respondent were unfair and grossly unreasonable. I am not persuaded to interfere with the managerial prerogative of an employer where such discretion was not exercised capriciously, or for unsubstantial reasons or based upon a wrong principle or in a biased manner.

87. The Applicant has not succeeded in discharging the onus to prove his claim of unfair labour practice based on promotion by the 1st Respondent.

88. In light of the above I make the following award.
AWARD
a) The Applicant’s application fails.

b) No order as to costs is made.
Signature:
Catherine Willows
ELRC Panellist