ELRC814-21/22LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN

Case Number ELRC814-21/22LP

In the matter between:

M. J. BVUMA
Applicant

and

DEPARTMENT OF EDUCATION - LIMPOPO
First Respondent

and

M. PHAKULA
Second Respondent

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This matter was scheduled to be conducted via online video conferencing on 31 March 2022 , 12 May 2022, 4 August 2022, 19 September 2022, 21 November 2022 and 9 February 2023. The matter had been postponed on numerous occasion due to the ill health of participants in the process. On each such occasion the request for postponement was supported by a medical certificate from a doctor.

2. The applicant, Mr Mugwambana Joseph Bvuma(Bvuma) was represented first by Mr. Makafola of SADTU and thereafter by Mr. Molaudzi of SADTU. The respondent, the Department of Education - Limpopo Province, was represented by Mr. Nyathela, the deputy director of labour relations.

3. A joinder ruling was issued on 31 March 2022 in terms of which Ms. Millicent Phakula was joined to these proceedings. Ms Phakula was represented on 12 May 2022. She agreed to be represented by the aforesaid Mr. Nyathela.

THE ISSUE IN DISPUTE

4. I must decide whether the conduct of the respondent in not appointing Bvuma into post number 14 of the open vacancy list number 1 volume 3/2021 constitutes an unfair labour practice as contemplated in section 186(2)(a) Of the Labour Relations Act 66 of 1995 as amended (LRA).

THE BACKGROUND TO THE DISPUTE

5. Bvuma started his career in education in 1995 and at the Leleni Primary School in Aberdeen and is currently an educator at level PL1 at the Nyavana Primary School.

6. The applicant applied for the post advertised by the respondent for a position at the Nyavana Primary School and had been shortlisted, interviewed and ranked number 1.
7. The post in question is post 14 advertised in open vacancy list 1 volume 3/2021 with requirements of Mathematics grade 4 to 5 (page 13 of the respondent’s bundle).

8. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.

9. It is the contention for the applicant that he had applied for the post, was shortlisted and interviewed and was the first ranked candidate and recommended first by the School Governing Body (SGB). He meets the curriculum needs for the post and meets all requirements.

10. The argument for the applicant is thus that he was the best candidate for the post and had been recommended by the SGB. In terms of the Educators Act the HOD is not allowed to deviate from the recommendation of the SGB without, as per case law, informing the SGB with reasons why it had done so.

11. The applicant contends too that the second respondent does not possess the curriculum needs in mathematics to teach grades 4 and 5.

12. The applicant contends too that the respondent had not applied its own employment equity plan in so far as the underrepresentation of black males is concerned.

13. It is the contention of the first respondent that when it appointed the second respondent into the post it considered the curriculum needs of the post and the interest of the learners.

14. It also considered the fact that the 2nd respondent was ranked and recommended by the SGB.

15. It also considered that the second respondent meets the requirements for the post while the applicant does not meet the curriculum needs for the post.

SUMMARY OF EVIDENCE AND ARGUMENT

16. It was common cause that the applicant had applied for the post and that he had been shortlisted and interviewed.

17. It was agreed between the parties that the applicant was the first ranked candidate and also the first recommended candidate by the SGB.

18. It was common cause that the second respondent had also applied for the post, had been shortlisted and interviewed. She was ranked second.

19. It was also common cause that the applicant does not challenge the scores attained at the interviews.
20. The applicant and the second respondent were also recommended in the above order by the school governing body.

21. The respondent submitted documentary evidence to which the applicant did not record any objections.

22. Bvuma testified under oath on his own behalf. Windsor Raholane(Raholane), a manager in human resources testified under oath for the respondent.

The evidence for the applicant
23. The applicant stated that in his senior primary diploma he did Mathematics. Mathematics as a subject is not included in his senior certificate as he obtained an “H” symbol but could not confirm this.

24. His statement of symbols at page 20 shows the subjects or learning areas the applicant studied at college and Mathematics is not included.

25. The dictionary definition of the Subject didactics is that it is a term that contains all language subjects including mathematics under senior primary.

26. His senior primary teacher’s diploma proves that he is competent in all curriculum requirements.

27. The second respondent’s symbols show specialization in mathematics for junior primary level.

28. The old system has two types of school viz. junior primary and senior and currently there were 3 phases

29. The applicant disagrees with the decision of the HOD that the second respondent has Mathematics and that the applicant does not meet the curriculum needs. His disagreement is based on the second respondent meeting only lower primary teaching qualifications and not at intermediate and senior phase.

30. The decision of the HOD was influenced by outside sources that he would never be appointed as he does not have mathematic and also because the employment equity plan for the province had not been given effect to where males are underrepresented at the school.

31. The advertisement for the post however does not prescribe female or male.

Evidence for the respondent
32. Raholane testified that the respondent was seeking a teacher to teach Mathematics in grades 4 and 5 to fill the post.

33. Although the applicant had been ranked first it was the responsibility of the human resources department to look at the advertisement for the post. The post required that the candidate has mathematics as a subject. They would then check which one of the candidates was most suitable for the position.

34. The second respondent was found to be the most suitable candidate as she met all the curriculum needs as per the advertisement while the applicant did not.

35. The school needed a mathematics teacher so they should be given that and not another teacher. This is the reason the second respondent was appointed as department head at the school.

36. The applicant’s statement of results also does not show mathematics.

37. On the other hand the statement of results for the second respondent shows that she does have mathematics as a subject.

38. Regarding the applicant’s contention that the respondent failed to implement its employment equity plan as there are more females as heads of department than males, Raholane testified that this would be applicable only if the applicant met the minimum qualifications for the post. The applicant did not meet the minimum requirements for the post.

39. The second respondent did mathematics 3 at college and qualifies to teach mathematics up to grade 7.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

40. It is clear from the evidence presented at this arbitration that the applicant alleges an unfair labour practice perpetrated by the respondent in that it had failed to appoint him into the post notwithstanding his having met the curriculum needs for the post.

41. In the main, the issue pertains to whether or not the applicant does meet the curriculum requirements for an educator to teach mathematics at the school as per the advertisement for the post.

42. The documentary evidence presented at this arbitration shows nothing to have me conclude that the applicant is qualified to teach mathematics.

43. The applicant’s reference to the dictionary definition of the subject didactics does not come to his assistance as it still does not have me conclude that he is qualified to teach mathematics and that this does not meet the curriculum needs of the school.

44. In fact the manner in which the applicant expresses himself in support of his contention that he has qualified in mathematics is so nebulous that it cannot be expected of the respondent to fathom whether or not the applicant meets the curriculum needs for the post as required by the advertisement.

45. On the other hand the evidence shows especially through the testimony of Raholane that the second respondent is qualified to teach mathematics and to the level of grade 7.

46. The contention of the applicant is that the second respondent is qualified to teach mathematics from sub A to standard 1.

47. On the other hand his contention is that a senior primary teacher’s diploma such as he has qualifies one to teach mathematics from grade 2 to grade 7.

48. In this regard I have no reason to doubt the testimony of Raholane given his expertise on such matters and to reject that of the applicant as speculative at best.

49. I find further that it cannot be said that the respondent had conducted itself in a manner that can be said to be capricious or vitiated by malice or fraud. This was held as recently as 2022 in Mashaba v University of Johannesburg and Others (JA 140/2021) [2022] ZALAC 116; (2023) 44 ILJ 156 (LAC); [2023] 2 BLLR 119 (LAC) (18 October 2022. Although this case pertains to the failure to shortlist a candidate, the principles expressed by the Court in that matter find application in casu.

50. The applicant’s allusion to rumours in the school and the village influencing the decision of the HOD does not assist him in this regard for lack of substance and corroboration. The court also held that there must be a rational connection between the outcome or the decision and the facts on which such decision is based.

51. In this regard it must be borne in mind that the post is that of a head of department, which includes the supervision and guidance of other teachers, and which places the second respondent in a stronger position on account of her qualifications which include mathematics 3 at college.

52. The applicant has not met the advertised requirements for the post which, it must be borne in mind, is a head of department post . His non appointment on that basis and the appointment of the second respondent for the reasons stated cannot be said to constitute an unfair labour practice. Further in this regard it cannot be overlooked that the applicant himself testified that he had attained an “H” symbol for mathematics in his matric year.

53. It is to be noted further that the applicant’s senior certificate does not reflect mathematics as a subject. A reading of this certificate shows that the applicant had not passed mathematics as a subject at matric level. In other words the applicant had failed mathematics at matric level.

54. The totality of the evidence in respect of the applicant’s academic record in mathematics is poor.

55. This state of affairs pertaining to the applicant’s academic record in mathematics lends credence to the argument of the respondent that it would not be in the best interest of the child were the applicant to be appointed into a head of department post requiring mathematics as a subject.

56. I thus find myself reluctant to interfere with the decision of the first respondent to appoint the second respondent into the position in accordance with its prerogative to do so.

57. Having thus considered all the evidence presented at this arbitration I find that the respondent, in failing to appoint the applicant into the post has not perpetrated an unfair labour practice as contemplated in S186?


AWARD

58. This application for relief in terms of the provisions of the Labour Relations Act 66 of 1995 as amended (LRA) is dismissed.

COMMISSIONER: L. MARTIN
14 FEBRUARY 2023