ELRC722-21/22NC

Panelist: Selolong Mosoma
Case No.: ELRC722-21/22NC
Date of Award: 23 Janaury 2023

In the ARBITRATION between:

SAOU obo Y De Kock
(Union / Applicant)

and

Department of Basic Education: Northern Cape Provincial Government

(Respondent)

Applicant’s representative: Ms. A Bester
Applicant’s address: SAOU

Telephone:
Telefax:
Email

Respondent’s representative: Mr. Pisane
Respondent’s address: Department of Education Northern Cape

Telephone:
Telefax:
Email. 

ARBITRATIO AWARD

DETAILS OF HEARING AND REPRESENTATION:

1. The arbitration into the abovementioned alleged unfair labour practice dispute referred to the Council in terms of section 191 of Labour Relations Act 66 of 1995 (the Act). The matter was scheduled for 07 December 2022 and the proceedings were conducted virtually.
2. The employee party, Ms. Y De Kock (hereinafter referred to as Applicant), was represented by her union official of Suid-Afrikaanse Onderwyssers Unie Ms. A Bester. The employer party, Department of Basic Education (hereinafter referred as the Respondent), was represented by its Labour Relations Officer Mr. Pisane.
3. The matter was decided on written submission taking into account statement of case submitted and signed by both parties.
4. Both parties submitted a bundle of documents annexed bundle “A” for the Applicant and annexed “R” for the Respondent.
5. The consideration, format and conclusion of the arbitration process were based on the written submissions received from the parties.
6. The closing arguments were to be submitted to the Council on the 15 December 2022, for the Applicant and 22 December 2022 for the Respondent.

ISSUE TO BE DECIDED:

7. It must be decided whether the conduct or omission of the Respondent amount to an unfair labour practice related to promotion by failing to promote the Applicant to the position of Departmental Head at Newton primary School.
8. If I find that indeed the Respondent has committed an unfair labour practice related to promotion, the appropriate relief must be decided upon.
9. The applicant sought the following as a relief;
a. Appointment in the promotional post, or
b. Compensation, or
c. Setting aside of the second Respondent’s appointment and start the recruitment process afresh.

BACKGROUND TO THE MATTER:

7. The first Respondent advertised a substantive post of Departmental Head at Newton Primary School under post number 202106/062 in a vacancy list 1 of 2021 dated 14 June 2021.
8. Both Applicant and second Respondent applied for the position and were both shortlisted and interviewed.
9. The Applicant was nominated as the best candidate and second Respondent as the second-best candidate by the school governing body respectively.
10. On 27 October 2021, the Respondent’s Head of Department took a decision to appoint the second Respondent as the successful candidate effective 01 January 2022.
11. The Applicant was aggrieved by the Respondent’s alleged conduct or omission then referred her case to the Council hence the current dispute and sought appointment in a promotional post, compensation or setting aside of the entire recruitment process as a relief.
12. On the other hand, the Respondent averred that no unfair labour practice was committed by the Respondent and the Applicant’s case must be dismissed.

SURVEY OF EVIDENCE AND ARGUMENT:
13. The provisions of section 138 of Labour Relations Act 66 of 1995 as amended, enjoins me to issue the arbitration award with brief reasons. I intend in this award to focus only on the issues that I perceive to be pertinent to the issues that were disputed by the parties.

APPLICANT’S SUBMISSION
14. Ms. Bester on behalf of the Applicant, submitted that the HoD acted unfairly by appointing the second Respondent instead of the Applicant due to the following reasons.
15. The HoD applied equity, redress and representativity with particular reference to the racial and gender balance on the educator establishment and leaner profile of the school.
16. She submitted that the Applicant was nominated by the School Governing Body as number one candidate, however, the HoD appointed the second Respondent who was ranked number two for appointment.
17. She averred that the unfair conduct or omission became clear from the letter wrote by the HoD regarding the appointment of the second Respondent. The unfairness became clear when the HoD cited that she applied equity, redress and representivity with particular reference to racial and gender balance on the educator establishment and leaner profile of the school.
18. She stated that the vacancy list 1 of 2021 made it clear that equity, redress and representivity must be applied during the process of appointment, this is also referred to in the Employment of Educators Act, Act 76 of 1998 and the Constitution of the Republic of South Africa.
19. She indicated that there was no official guideline as to how equity, redress and representivity must be applied by the HoD during appointment or the School Governing Body during shortlisting or interview process.
20. She stated that the only measure the vacancy list provides was that the Respondent will be guided by the Employment Equity measures for designated groups, namely black people (which include , Africans, Coloured and Indians) women and people with disabilities of which the Applicant falls within.
21. She averred that the HoD’s decision was to appoint the Second Respondent based on legislation was not sufficient due to the fact that the said legislation requires the Respondent to implement measures so that affirmative action can be applied correctly and fairly by the employer.
22. She argued that in terms of section 20 of Employment Equity Act requires a every designated employer to prepare and implement an employment equity plan for the employer’s workplace. She further stated that the Respondent does not have official guidelines to ensure that affirmative action is being implemented correctly, fairly and consistently throughout the province.
23. She submitted both Applicant and second Respondent were in possession of the same qualifications with the same REQV as recognised by the South African Qualification Authority. Therefore, the HoD was wrong to conclude that the second Respondent has a better or higher qualification as a ground not to appoint the Applicant.
24. The Applicant scored 20 marks higher than the Second Respondent and the applied notion of 50% threshold by the Hod was highly unfair because there was no official rule that empowers the HoD to apply the 50% threshold.
25. The Hod should have appointed the Applicant instead of the second Respondent because of the following reasons.
a. She scored 20 marks more than the second Respondent
b. Has 25 years of experience in teaching and four years’ experience as acting HoD as opposite to the second Respondent who had only four years’ experience in teaching.
c. The school already has a coloured women as Deputy Principal and the Applicant falls within the designated group of Employment Equity Act.
26. She stated that a significant weight was supposed to have been placed on the SGB’s recommendation which the HoD did not. The Hod’s Decision not to appoint the Applicant was unacceptable and/ or unreasonable.
27. In case where affirmative action was applied, and weaker candidate was appointed by the employer like in this matter, legislation and jurisprudence governing affirmative action and employment equity will determine whether or not the Applicant was entitled to appointment. She argued that there was no official guideline and in absence of such the Respondent will not be able to prove that equity was applied fairly.
28. Lastly, she indicated that the Respondent has committed an unfair labour practice and the Applicant has proven that she was the best candidate for the post.

RESPONDENT’S SUBMISSION

29. Mr. Pisane, on behalf of the Respondent, began his submission by drawing my attention to the provisions of section 186 (2) of the Labour Relations Act, Act 66 of 1995 as amended in support of the Respondent’s case. He indicated that the Applicant has failed to make out a case of unfair labour practice in relations to promotion in line with the provisions of section 186 (2) of labour Relations Act.
30. He submitted that in terms of section (3) (1) (b) of Employment of Educators Act, Act 76 of 1998 sates that the Head of Department is the employer of educators in the service of provincial department of education in posts on the educator establishment of the department for all purposes of employment.
31. He averred that the Applicant failed to join the Head of Department and Member f the Executive Council respectively in line with the provisions Council’s Constitution.
32. In light of the above, the Applicant’s case must be dismissed for the reason that she failed to join both Head of the Department and Member of the Executive Council (MEC) respectively.
33. With regards to the letter wrote to the Applicant by the Head of the Department, he submitted the HoD made it clear that her decision to promote equity, redress and representivity is with particular preference to racial and gender balance on the educator establishment .
34. The Respondent further submitted that it was imperative that the HoD be guided by the educator establishment of the school and there was a serious imbalance with regards to educator’s establishment and School Management Team. He submitted that in terms of overall teachers’ establishment of Newton primary school there was eight (08) white male educators, seventeen (17) white female educators and four (04) coloured female educators. Therefore, white educators were overrepresented more especially white female educators at Newtown Primary school. Again, when coming to senior management team it comprised of four (04) male educators, tow (02) female educators and only one (01) coloured female educator.
35. Consequently, the decision of the Hod was correct as it was redressing the imbalances of the past in terms of race within the senior management team.
36. It was the Respondent’s submission that the decision of the HoD was correct based on the fact that the African leaners represents 43,63 % of the entire school population and 20% of senior management team comprised of African educators. This means that the African educators were underrepresented in the upper level with the school structures. So, the decision of the Hod was in compliance with provisions section 2 of the Employment Equity Act, Act 55 of 1998 as amended.
37. The Respondent indicated that the school governing body was fully aware that in terms of order of preference, the Hod, may appoint any suitable candidate on the list of recommended candidates in terms of ability. The Hod, took into consideration the need to redress the imbalances of the past in order to achieve broad representation .
38. He also submitted that it was the Respondent’s submission that the argument raised by the Applicant falls under the purview of the Employment Equity Act, Act 55 of 1998 as amended not section 186 (2) of the labour Relations Act as alleged by the Applicant. Based on this, the Applicant was supposed to refer her case to the CCMA not the Council .
39. He stated that the Applicant was correct to say there was no guideline that the HoD relied on for guidance before appointing the second Respondent.so in absence of guideline the legislations take precedence.
40. With regards to academic qualifications, the Respondent submitted that both the Applicant and second Respondent possess different qualifications because the second Respondent has Bachelor of Education in intermediate phase while on the hand the Applicant possess a higher teacher’s diploma.
41. He further submitted that the Hod did not use the language proficiency when arriving at the conclusion to appoint the second Respondent, however, he made it clear that the second Respondent has completed Afrikaans at tertiary level together with language endorsement for EA which indicates that she was competent in both languages.
42. He averred that the HoD did not rely on the threshold when a decision to appoint the second Respondent was taken. The reasons that informed the appointment of the second Respondent were outlined in the letter wrote by the HoD.
43. He indicated that the decision to promote a recommendable candidate is the prerogative of the management, in this case the HoD.
44. He further argues that the attainment of higher score itself does not guarantee an appointment to the post.
45. He stated that the HoD acted I the best interest of the children at Newton primary school when she took a decision to appoint the second Respondent.
46. Lastly, he averred that that the Applicant failed to prove that the indeed the Respondent has committed an unfair labour practice in relations to promotion. He submitted that the Applicant’s case and arguments falls under the purview of the Employment Equity Act not Labour Relations Act as alleged by the Applicant
ANALYSIS OF EVIDENCE AND ARGUMENT:
47. The Labour Relations Act 66 of 1995 as amended (LRA) under Section 186 (2) (a) defines unfair labour practice as meaning “any unfair act or omission that arises between an employer and an employee involving an unfair conduct by the employer relating to the promotion, demotion, probation.....”
48. The obligation in terms of section 186(2) of the LRA is to act fairly towards the employee during selection and promotion process but taking into account that it is the prerogative of the employer to make appointments.
49. The prerogative is nonetheless subject to scrutiny in instances of unfairness in its exercise may lead to drawing of an inference of bad faith.
50. It is trite that the courts and Commissioners alike should be reluctant , in absence of good cause to interfere with the employer’s prerogative in making appointments. Any form of interference should be with the objective of dispensing fairness to both parties.
51. The onus to establish that the conduct complained about constitutes an unfair labour practice withing the meaning of section186(2) of the LRA rests on the employee, See City of Cape Town v Sa Municipality Workers Union obo Sylvester and others (2013) 34 ILJ 1156 (LC).
52. The Employee must be able to lay evidentiary foundation for his or her 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 the claim related to promotion or failure to appoint, an employee must amongst others, demonstrate that as against the successful candidate;
a. he/she met all the inherent requirements of the position;
b. he/she was the best candidate for the position;
c. that not being promoted caused unfair prejudice to him/her
d. and that there is a casual connection between the unfairness complained of and the prejudice suffered.
53. In City of Cape Town v SA Municipal Workers Union obo Sylvester and Others supra it was also emphasized 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.
54. The unfair conduct the Applicant alleges relates to unfair promotion in that the HoD acted unfairly by appointing the second Respondent instead of the Applicant due to the following reasons.
a. The HoD applied equity, redress and representativity with particular reference to the racial and gender balance on the educator establishment and leaner profile of the school.
55. It is common cause that the SGB recommended the Applicant as the best candidate and the second Respondent as the second best after the interviews.
56. It is further common cause that the HoD appointed the second Respondent despite the recommendation of the SGB recommending the Applicant as the best candidate.
57. It is also common cause that the HoD relied on redress, representivity with particular reference to racial and gender balance on the educator establishment and leaner profile of the school when taking decision to appoint the second Respondent.
58. While I note and accept that the Applicant was recommended as the best and suitable candidate by the SGB, that alone cannot be used as a ground sufficient to sustain the claim of unfairness.
59. As I have already alluded to above, it is the employer’s prerogative to appoint its employees, as long as the employer comply with the basic tenets of fairness.
60. Paragraph 6.2 of the advert was very explicit that it was the department’s intention to promote representivity( race, gender, disability) the Department through the filing of these posts and a candidate whose transfer/promotion/appointment will promote representivity will receive preference. The Applicant conceded that in terms of vacancy list 1 of 2021 which made it clear that equity, redress and representivity must be applied during the process of appointment, this is also referred to in the Employment of Educators Act, Act 76 of 1998 and the Constitution of the Republic of South Africa.
61. The Applicant further argued that there were no guidelines in place that informed the Respondent’s decision to rely on equity, redress and representativity with particular reference to the racial and gender balance on the educator establishment and leaner profile of the school.
62. The Applicant further argued that she had attained highest score and had been recommended by the SGB as the best candidate for the post. I will not accept it as reasonable. With this in mind, I am of the view that the HoD’s letter was very clear with regards to reasons why she appointed the second Respondent instead of the Applicant. It is my considered view that this was done in line with the provisions of the advert and in the very least, the Applicant ought to have been aware of those provision more especially paragraph 6.2 of the advert.
63. While I note the Respondent’s argument regarding the equity measures that were considered in filling the position, it is important that I must mention that the affirmative action measures only apply when both candidates are suitably qualified for the post in question and because the job advertisement on record was very clear on the notation of equity requirement to be applied when the position in question was advertised, I am inclined to accept the Respondent’s argument.
64. It is trite that in absence of an employment equity plan does not preclude an employer to factor in employment equity considerations into its selection shortlisting and appointment policies.
65. For the purpose of this case therefore, diagnosing whether the alleged conduct or omission against the Respondent falls under purview of section 186(2) of the LRA or Employment Equity. In so far as a diagnosis is necessary, the unfair labour practice relating to promotion would be a matter for determination under section 186(2) of the LRA. Furthermore, the Applicant’s case is not a matter regulated under section 186(2) of the LRA given the reasons of HoD for appointing the second Respondent and arguments advanced by the Applicant’s during the proceedings that unfairness became clear when the HoD cited that she applied equity, redress and representivity with particular reference to racial and gender balance on the educator establishment and leaner profile of the school.
66. I accordingly find, based on the above discussion that, what the Applicant labelled as an unfair labour practice relating to promotion as contemplated in section 186 (2) (b) of labour Relations Act 66 of 1995 as amended was nothing but an unfair discrimination in terms of an Employment Equity Act.
67. In the premises, I find that the Applicant has failed to demonstrate that the Respondent committed an unfair labour practice and that she is entitled to the relief sought.
68. I find that the Respondent, the Department of Education, has not committed an unfair labour practice against the Applicant, Ms. Y De Kock.

AWARD:
b. The Applicant failed to demonstrate that the Respondent’s conduct or omission amounts to an unfair labour practice.
c. The matter is dismissed.

SIGNED AT BLOEMFONTEIN ON THIS 23 DAY OF January 2023.

Selolong Mosoma
ELRC Arbitrator