ELRC 632-22/23LP

Case Number: ELRC 632-22/23LP
Commissioner: Ramadimala Jacky Mateta
Date of Award: 27 March 2023

In the MATTER between

Makhubela T.G
Employee

And

Department of Education-Limpopo
(Respondent)


Union/Applicant’s representative: Mr. Shibambu G.R (Sadtu Official)
Union/Applicant’s address: Mavalani High School
P.O. Box 1591
Giyani
0826
Telephone: 082 041 4347/ 063 981 1357
Telefax:
E-mail: tintswalogloriaatgm@gmail.com


Respondent’s representative: Mr. Nyathela N.E (LR Deputy Manager)
Respondent’s address: Cnr Biccard and
Polokwane
0700
Telephone: 079 872 1777
Telefax:
E-mail:

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration proceedings were held and finalized on the 13th of March 2023 at the respondent’s Mopani District in Giyani.
2. The employee party Ms. Tintshwalo Grace Makhubela (“Applicant” hereinafter) was present and dealt with her matter represented by Mr. Shibambu G.R, a representative from Sadtu.
3. The employer party, Department of Education-Limpopo (“1st Respondent” hereafter) was also in attendance and was represented by Nyathela N.E, Labour Relations Deputy Manager of the respondent. The successful candidate, Mr. Maluleke M.P (“2nd Respondent” hereafter) also attended and chose to be represented jointly with the 1st Respondent by Mr. Nyathela N.E.
4. The arbitration proceedings followed only an adversarial approach as both parties were sufficiently represented in the proceedings. Bundle of documents were received from only the respondent party and was marked bundle A (“A” hereafter).
5. Parties requested for the extension and submission of their closing arguments in writing and were given until the 20th of March 2023.
6. At the conclusion of this award, both parties had submitted their written closing arguments.
7. The inquiry was recorded both electronically and manually.

PRELIMINARY ISSUES:

10. Before starting with the arbitration proceedings, parties confirmed to have held a Pre-Arbitration Conference. Minutes of the pre-arb conference were read into records, the copy was handed over and parties confirmed the binding nature of their pre-minutes.

11. It was agreed that the dispute being arbitrated is an alleged unfair labour practice dispute relating to promotion. It was also agreed that successful candidate Mr. Maluleke M.P was joined as a second respondent in the matter. Mr. Maluleke was also in attendance of the arbitration proceedings and chose to be represented jointly with the 1st respondent by Mr. Nyathela N.E.

12. It was also agreed that the applicant is an employee of the respondent. At the time of the alleged unfair labour conduct, she was occupying the position of a CS1 educator at Mavalani High School.

13. It was also common cause that she applied for the HOD, promotional position at Mavalani High School, advertised in the respondent’s Open Vacancy List No.1 Volume 3/2022 dated the 1st of June 2022 and was not appointed. The second respondent was in turn appointed.

14. The applicant avers that her non-appointment to the position of the HOD at Mavalani high School at stated above amounts to unfair labour practice as defined in terms of section 186(2) of the labour relations Act 66 of 1995 (“Act” hereafter). She is praying for an order that says that the respondent has committed an unfair labour practice, to be appointed on the Departmental Head (HOD) post number 6 at Mavalani High School effectively nullifying the appointment of the second respondent

15. The 1st Respondent contended that the non-appointment of the applicant does not amount to unfair labour practice and that the applicant’s claim should be dismissed.

16. Parties agreed that the matter is correctly placed under the jurisdiction of the Council for determination and the relief sought.

WHAT TO BE DETERMINED
17. The applicant has alleged that her non-appointment to the departmental Head post no. 6 at Mavalani High amounts to an unfair labour labour practice. I was therefore required to determine as to whether failure by the 1st Respondent to appoint the applicant on a promotional post HOD post no 6 at Mavalani High amounts to an unfair labour practice, and if found so to determine an appropriate remedy.

BACKGROUND TO THE ISSUES

18. The applicant submitted that the dispute comes after the 1st Respondent’s MEC having instituted a Commission of Enquiry, Netshivhefe Commission into the alleged corruption in the appointments and filling of posts in the Mopani District of the respondent. The commission was established after there has been outcry amongst the stakeholders that there were some elements of corruption in the filling of posts in the respondent’s Mopani District.

19. Various stakeholders including SADTU and the department appeared before the Commission. However, the Commission has still to give its report. That then made all aggrieved employees to proceed and lodge disputes in the ELRC and other councils.

20. The applicant’s dispute comes after the respondent having issued a Government Gazette and advertised some posts. The applicant had applied for post number 6, HOD post at Mavalani High. Shortlisting was held on the 10th of August 202 and the applicant was amongst those who were shortlisted. The 2nd Respondent was not shortlisted.

21. Some days after shortlisting, the 1st Respondent without any dispute received, decided to nullify the shortlisting result and to restart the process. SADTU then decided not to attend the second shortlisting. From the second shortlisting the applicant was shortlisted together with the 2nd Respondent.

22. Interviews were held and the 2nd Applicant was then appointed. The applicant for that reason views the 2nd Respondent’s appointment as irregular and her non appointment as an unfair labour practice. For that reason, she decided to approach the council and lodged a dispute. The applicant therefore bears an onus to prove that the 2nd Respondent’s appointment was irregular and also prove on balance of probabilities that the 2nd Respondent’s failure to appoint her amounts to an unfair labour practice.


SURVEY OF EVIDENCE AND ARGUMENTS

Applicant’s case

Evidence:

23. Ms. Tintswalo Gloria Makhubela testified as a witness in her matter. The summary of her evidence is that she is an employee of the 1st Respondent stationed at Mavalani high School as an Educator. She is now having 26 years in the service of the 1st Respondent occupying that position.

24. Around June 2022, the 2nd Respondent advertised a position of the HOD, post number 6 at Mavalani High School. She applied for the position as she felt she met all the requirement of the post. The Secretary of the School Governing Body (“SGB” hereafter) phoned her and invited her to the interview. There were no restrictions stipulated in the advertisement. The advertisement also stated that the 1st Respondent is an equal opportunity employer. She has been teaching English and produced good result results for the past years and felt that she was more eligible for the promotion.

25. There was no prior training offered in relation to the post. No meeting was called by either the SGB or the principal about the requirements to that post. There was no circular circulated about the Employment Equity or the inherent requirements of the post. She only learned that the post was marked an employment equity post and that women at her school are over-represented after the appointment. Had she known about that she would not have applied for the position.

26. The 1st Respondent’s application of the Employment Equity Act is erratic as in her view the Designated groups that should benefit from the Employment are women, people of other races and people with physical disabilities.

27. The same position was sometimes in the past advertised. She was told that the post was frozen as the Department and the SGB were not in agreement as to the candidate that should fill the post.

28. Under cross-examination she indicated that she did not suspect that there were acts of corruption in appointment of the 2nd Respondent. She conceded that at the time of the advertisement there were more females than men in the SMT of Mavalani High School. She also agreed that what circular no. 151 of 2021 states in paragraph 3.3.2 in page 52 is that in case of Heads of Department, African females are over-represented. She also agrees that the implication of the circular as read from page 53 paragraph 4 is that the Head of the Department was directing that all advertised posts should be filled by the persons from underrepresented groups. She however still insisted that the Head of the Department was unfair because she was not aware of such a circular and that had she was known about it, she would not have applied for the position. She conceded that the circular was directed to educators; SGB’s; Circuit Managers; Principals and District Managers. She agreed that if the circular did not reach her, then it would not be the fault of the Head of Department.

29. She agreed that the implication of ELRC Collective Agreement no. 2 of 2020, Amendment of Limpopo’s Collective Agreement no. 1 of 2008: Guidelines for Sifting, Shortlisting and Interview Procedures for School and Office Based Educators Posts is that the SGB only recommends and the final decision to appoint is vested into the Head of the Department. She conceded that she and the 2nd Respondent were both recommended by the SGB and therefore was given an opportunity to contest for the position. She also conceded that the Head of Department in appointing the 2nd Respondent was acting within his/her powers. She also conceded that the Collective Agreement does not state that the Head of Department is bound by the recommendation of the SGB. She also agreed that the Collective Agreement (page 73) in its paragraph 37 states that there is no general right to promotion. She also agreed that the Collective Agreement states that the Head of department can still appoint a weaker or a least ranked candidate. She agreed that the 2nd Respondent was teaching English Grade 12 for the past three years and was producing good results. She conceded that the Head of Department does not make decision to appoint only based on performance in the interviews. She however argued that the Head of Department is always represented at the school level by principals and that if she did not receive the circular then the Head of Department must be responsible.

1st Respondent’s case

30. Mr. Sam Nyiko Sono testified. The summary of his evidence is that he is the Acting Deputy Director Corporate Services for the 1st Respondent. His roles and responsibilities is amongst others filling of the vacant posts in the department. When the 1st Respondent advertised posts, the SGB conduct sifting and interviews and make recommendations. The report would normally be submitted, which circuit would also through its panel of experts write its own report and submit to the District. His role starts only after the receipt of the SGB report and recommendations from the circuit.

31. In the matter at hand the 1st Respondent advertised an HOD post at Mavalani High School. The 1st Respondent has delegated the function of appointment to the District. The district received the SGB report and recommendations from the circuit. The SGB recommended candidates ranked in order of preference for appointment. That means then that the Head of Department may appoint anyone from the recommended candidates.

32. In appointing the most suitable candidate the Head of Department directs that District must consider number of things. Amongst them is circular 150 of 2021. In that circular the Head of Department outlined Employment Equity Profiles of Principals, Deputy Principals and Departmental Heads (HODs). He specifically stated in that circular that the provision of circular n0. 154 of 2020 read together with the Employment Equity profiles of the advertised posts must be strictly adhered to when candidates are selected for appointment to the posts. He stressed that the advertised posts must be filled by the applicants from underrepresented groups (page 53). Post no 6 of Mavalani High School also was bound by the same instruction. At Mavalani High School the applicant and the 2nd Respondent were recommended, ranked first and second respectively.

33. The report which was received from the circuit specifying that Maluleke M.P is recommended for appointment as the Departmental Head of Mavalani High School is supported as per circular 154 of 2020. He (witness) after having satisfied that circular 150 of 2021 and 154 of 2020 were followed, he supported the appointment of Mr. Maluleke M.P as the Departmental Head. Mr. Maluleke M.P. was subsequently appointed.

34. He could not confirm if the applicant was aware of the circular however, stated that the circular was addressed to the District Directors, Circuit Managers, Principals of schools, Educators and the SGBs. What he is aware of is that the circular was explained when the SGBs were attending a workshop for filling of posts advertised in the open vacancy list referred.

35. Under cross-examination he confirmed that Mavalani High School SGB also wrote a letter to the circuit. He confirmed that there was no complaint received from Mavalani SGB. He agreed that they were also trained through a collective agreement and the circular. He confirmed that the District office has Equity Profiles of all schools and all schools and circuits are aware of their profiles as the information was received from schools and circuits offices.

2nd Respondent

36. The second Respondent Mr. Maluleke M.P. chose not to take a stand and lead any viva voce evidence.

ANALYSIS OF EVIDENCE AND ARGUMENT:

As to whether the non-appointment of the applicant amounts to unfair labour practice.

37. The applicant contended that her non-appointment by the 1st Respondent to post no. 6, Departmental Head post at Mavalani amounts to unfair labour practice. The reason she says so is that the 2nd Respondent’s appointment was irregular; that the respondent has errored in its application of the Employment Equity Act. The applicant’s representative in his exposition to what he said is the applicant’s opening statement went all through and submitted that the applicant’s Constitutional rights were violated.

38. It should be noted that ELRC is a creature of statute. My duty is only limited by statutes to determine whether the 1st respondent has committed an unfair labour practice as defined in section 186(2) of the Act or any other legislation that defines the employer’s conduct under their provision as an unfair labour practice. Section 186(2)(a) of the Act defines an Unfair Labour Practice as, “any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee”.

39. In the dispute at hand the real issue is promotion. In deciding whether a decision not to promote amounts to an unfair labour practice, the general rule according to City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) is to consider whether failure or refusal by the employer to promote the employee was caused by unacceptable, irrelevant or invidious consideration on the part of the employer or; whether the employer’s decision was arbitrary or capricious or unfair; whether the employer failed to apply its mind to the promotion of the employee; whether employer’s decision not to promote was motivated by bad faith; whether employer’s decision not to promote was discriminatory; or whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was taken in a biased manner.

40. In certain sectors parties have adopted collective agreements that are to serve as guidelines in determining the promotion disputes. In education there is a Collective Agreement number 3 0f 2016, ELRC Guidelines: Promotion Arbitration. The applicant argued throughout the arbitration proceedings that the Collective agreement does not supersede the Constitution. It should however be noted that section 23 of the Act specifically states that a collective agreement binds the parties to the collective agreement, each party to the collective agreement and their members in so far as the provisions of the collective agreement are applicable to them.

41. The applicant was represented by SADTU, a signatory of the collective agreement. The Collective Agreement referred to above specifically states that the agreement applies and binds all employees of the employer as defined in the Employment of educators Act, 1998 (as amended) whether such employees are members of the trade union parties to the agreement (par. 2.2). It is for that reason that the applicant cannot escape the application of the collective agreement in the arbitration that is to determine her dispute over promotion.

42. The applicant is disputing both procedural and substantive fairness of the 1st Respondent’s act or omission of not appointing her on a promotional post. The guidelines (par. 36) states that substantive unfairness relates to the reason for not promoting the employee whereas procedural unfairness relates to the unfair process applied by the employer during the course of recruitment and selection process. It further states that as soon as the promotion has been made by the employer, the employer becomes responsible for any unfair conduct of the SGB committed during the process.

As to whether the conduct/omission of the employer was procedurally unfair.

43. The parties agreed in the collective agreement that the process that must be followed during recruitment and selection process of educators are contained in the Employment of educators Act, PAM and Resolution 5 of 1998 and also various resolutions adopted in the provincial chambers. In Limpopo there is a Collective Agreement 2 of 2020, Guidelines for Sifting, Shortlisting and Interview Procedures for School Based and Office based Educators.

44. I considered the applicant’s submission in opening that the 1st Respondent advertised the position, which she applied and was shortlisted, however the shortlisting results were nullified and shortlisting was redone without anyone having lodged any dispute about it. The applicant in her evidence never testified to this effect and shown how the second shortlisting have disadvantaged her or prejudiced her from fairly participating in the process or being appointed.

45. The respondent’s witness also did not testify about this. The applicant during her evidence under cross-examination conceded to have been shortlisted in the second shortlisting process and having been given an opportunity to contest for the position. The applicant also conceded that the Collective Agreement gives the Head of Department the powers to appoint any person and that also that in doing so is not bound by the recommendations of the SGB.

46. I considered the respondent’s evidence that before appointing the 2nd Respondent, they received a report from the circuit which was specifying that recommendation that Mr. Maluleke M.P is recommended for appointment as the Departmental Head of Mavalani High School is supported and it was for that reason that the District appointed Mr. Maluleke M.P. The Guidelines support the view that held In Nooman v Safety and Security Bargaining Council and others (2012) 33 ILJ 2597 (LAC) that states that the employee must at least demonstrate that there was a conduct that denied him/her a fair opportunity to compete for the post or conduct that was arbitrary or motivated by an unreasonable reason or that the successful candidate was dishonest and misled the interview panel or employer. The applicant confirmed that she does not suggest that there was an element of corruption in appointment of the 2nd Respondent therefore this does not apply.

47. The Guidelines also support the view that was held in Kimberly Junior School v The Head of Department Northern Cape Education Department (2009) 4 ALL SA 135 (SCA) where it was held that a recommendation by the SGB is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such a recommendation, the promotion is ultra vires and unlawful.

48. The evidence was supported by the documents in page 55 of the bundle. For that reason, I do not find that the 1st Respondent has followed any procedure that is unfair or that has prejudiced the applicant from fairly competing for the position or being appointed to the Departmental Head position, post no. 6 at Mavalani High School.

As to whether the conduct/omission of the employer was substantively unfair.

49. The applicant has alleged that her non-appointment to the post was substantively unfair. That then means that she is challenging the reason behind her non-appointment. It is common cause that the applicant was recommended by the SGB ranked no 1 for appointment to the position of the Departmental Head at Mavalani High School. I considered the respondent’s evidence that reason why the applicant was not appointed was that the department had an Employment Equity Plan. I considered the evidence that the Employment Equity Profile that was developed shows that in there was overrepresentation in position of the Departmental Heads. I considered the evidence that the 1st Respondent issued a circular where it directed that all the positions that were advertised must be filled by applicants from under-representative groups. The applicant conceded that according to the employment Equity Profile, African female are over- represented in the Departmental Heads positions.

50. The applicant contended that the 1st Respondent applied the Employment Equity Act wrongly as in her view the Act speaks of person from designated groups and designated groups according to her are women, people of other races and people with physical disabilities. Section 49 of the Employment Equity Act provides that Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or application of the Act except where the Act provides otherwise. I was not called upon to determine as to whether the 1st Respondent has applied Employment Equity Act correctly, but to determine whether the reason advanced by the 1st Respondent not promote the applicant was a fair reason. The applicant conceded that the 1st Respondent has powers to appoint anyone after considering Employment of educators Act, PAM, Employment Equity Act and relevant collective agreements.

51. The Collective Agreement also appreciates the fact that the decision to promote or not falls within the managerial prerogative of the employer and that in the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, an arbitrator should not readily interfere with the discretion. I don’t find any gross unreasonableness; or bad faith or any serious flaws in the decision or reason not to appoint the applicant. For that reason, I find that the applicant has failed to prove on balance of probabilities that the decision by the 1st Respondent is substantively unfair.

52. Having found as above, I don’t find that there existed any unfair labour practice as envisaged by the Act. The respondent’s act/omission of not appointing the applicant to a promotional post does not amount to unfair labour practice. For that reason, the applicant’s referral stands to be dismissed.

AWARD

58. The 1st Respondent did not commit any unfair labour practice.

59. The applicant’s referral is hereby dismissed.

Ramadimala Jacky Mateta

Sector: Education