ELRC627-22/23KZN

Panellist: V Naidoo
Case No.: ELRC627-22/23KZN
Date of Award: 24 April 2023

In the matter between:


SADTU obo C Naidoo
Applicant

and

Department of Education - KZN
First Respondent

S Syed
Second Respondent

Union/Applicants’ representative: Mr S Mthimkhulu of SADTU

First Respondent’s representative: Mr I Makhoee

Second Respondent’s representative: Ms M Maguran of Bux & Associates

DETAILS OF THE HEARING AND REPRESENTATION

1. This is an arbitration award in respect of an unfair labour practice dispute relating to promotion between SADTU obo C Naidoo, the Applicant, and Department of Education - KZN, the Respondent.

2. The hearing was held on 07 February 2023; 03 March 2023; 06 March 2023 and 14 April 2023. The proceedings were conducted in English and recorded electronically.

ISSUE TO BE DECIDED

3. The issue to be decided is whether First Respondent had committed an unfair labour practice relating to promotion by not promoting Applicant to the position of Departmental Head at Dawncrest Primary School (Post no 1569 as advertised in Circular 17 of 2022). The specific issues in dispute is whether the Interview Committee (IC) was illegitimate because a Mr Appana was not invited as a member thereof; and if a Ms Hyder’s failure to recuse herself rendered the process unfair.

4. If I find in favour of Applicant, I am required to decide on an appropriate remedy.

BACKGROUND TO THE DISPUTE

5. A pre-arbitration conference was held and minutes were served on the Commissioner. The facts of the dispute are common cause and have been captured in the pre-arbitration minutes. For the sake of brevity, this shall not be repeated, unless where necessary.

6. The parties had agreed to present oral argument on this basis.

SUMMARY OF THE EVIDENCE AND ARGUMENT

7. In terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the evidence and arguments led. What follows is a summary of the arguments relevant to my findings only.

Applicant’s Case

8. Applicant argued that the IC was illegitimate because Mr Appana, a member of the School Governing Body (SGB), was not invited to participate in the process. It was their view that he was duly elected into the SGB and the act of not inviting him to participate was deliberate as he would have ensured a fair process was undertaken.

9. It was noted that Mr Appana’s post in the SGB was contested by a Mr Dhanpal and an investigation into the matter was undertaken by the Circuit Manager, a Mr Chetty. Feedback received was that the process ought to have been redone and the SGB refused to do so.

10. Ms Hyder, the Scribe of the IC is related to Second Respondent. She and Second Respondent were married to cousins. They essentially became sisters and friends and rode to work together. They eat their lunch at school together and therefore have a relationship. Ms Hyder was part of the IC and failed to declare her relationship with Second Respondent as part of the process and ought to have recused herself. This therefore suggests bias in the final recommendation.

11. The SADTU observer that was present at the interviews was unaware at the time, that Ms Hyder was related to Second Respondent. No grievance was lodged at the time because Applicant was unaware of who was appointed and whether any influence was exerted. Applicant sought for Second Respondent’s appointment to be set aside and for the interview process to be redone by an independent Committee.


First Respondent’s Case

12. First Respondent argued that Mr Appana was not included in the invitation because there was an investigation being conducted against him. That is an issue that falls outside of the jurisidiction of Council. The selection process has specific time-frames that need to be adhered to, failing which. First Respondent takes over the process from the SGB who has a legal right to conduct its own processes. Quorum was met and the process unfolded. Nowhere in the procedure manuals is there a requirement that someone in the position of Mr Appana must be included in the process or the process becomes invalid. That is a clear misdirection.

13. Mr Appana not being invited to the process was not deliberate and simply because he was the subject of an investigation. Regardless, it was immaterial as Applicant did not raise a complaint at the time. It was only when she was not appointed that she raised an issue with it. First Respondent therefore views the issue as cosmetic and convenient for Applicant to raise after the fact. If she had been appointed, no issue would have been raised regarding Mr Appana. Applicant also applied for post no 1568 at the same school, at the same time. That appointment was not challenged by Applicant.

14. With regard to the issue of Ms Hyder’s recusal, all IC members are stakeholders at the school and conduct interviews. It is conceivable that they all live in the same neighbourhood and now each other. Second Respondent’s husband passed away over a decade ago. People at the school know the dynamics at the school and bias cannot be suggested in this instance. Applicant did not mention what bias existed and no substantiation was provided.

15. If a recusal is warranted, it would be for an SGB member who would be excluded for the duration of the discussion related to the person with whom a vested interest existed. In this instance, Ms Hyder was the scribe. Her role was materially different from a scorer and cannot be considered in the same way that a scorer would be.

16. Second Respondent agreed with the submissions of First Respondent and added that Applicant has provided no solid case and the issues were blown out of proportion. The exclusion Mr Appana was because he was the subject of an investigation; Ms Hyder was not scoring or in a decision-making position and therefore has no influence over the process. Second Respondent correctly earned her position and the setting aside of her position would be a miscarriage of justice.

17. Applicant further argued that in terms of the procedures, there is no differentiation between the scribe and other members of the IC with regard to the right to recuse themselves from the process. Ms Hyder had influence over the IC from within its structures on the basis of her personal interest.

SURVEY OF AND ARGUMENT

18. S186(2)(a) of the LRA protects employees from any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer relating to promotion, demotion etc. There must be a higher post for which the employee applied than the post the employee occupied. Dissatisfaction or a general perception of unfairness is not sufficient. Whether the employer has committed an unfair labour practice is an objective, factual enquiry.

19. In Arries v CCMA & Others (2006) 27 ILJ 2324 (LC) the Labour Court made the following remarks:

• The decision-making powers inherent in the exercising of a discretion by a party or managerial prerogative, of an employer, ought not to be curtailed;

• It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.

20. In City of Cape Town v SA Municipal Workers Union obo Sylvester & Others (2013) 34 ILJ 1156 (LC) the Labour Court held that when arbitrators make an assessment whether the failure to promote constitutes an unfair labour practice, the test is one of fairness, taking into account inter alia the following:

• Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer;
• 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 the employer’s decision not to promote was motivated by bad faith;
• Whether the employer’s decision not to promote was discriminatory;
• Whether there was 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
• Whether the employer’s decision not to promote was taken in a biased manner.

21. I note in this matter, that the challenge related to one of the Governing Body members not being invited to participate in the interview process, and the scribe’s failure to recuse herself from the process rendered it unfair. At no stage during the interview process, however, did the union or Applicant object to the manner in which the IC was constituted. There was no valid argument presented on why Mr Appana specifically, was so integral to the process that his non participation rendered the process unfair. First Respondent on the other hand, provided a plausible reason for the lack of invitation, namely that the investigation relating to his appointment was underway. This was not disputed by Applicant.

22. It is common cause that Ms Hyder was the scribe in the process. She was therefore not in a position to score or have communications with the scorers during the process. SADTU officials were observers during the process, and no evidence was presented of actual interference with the process. There was no evidence presented to suggest that First Respondent had conducted itself in any manner that would be considered unfair.

23. On the basis of the above-mentioned, it is my view that Applicant failed to meet the requirements of the City of Cape Town case.

24. With consideration for all of the argument placed before me, Applicant had failed to discharge her onus and it would be outside of my powers to therefore interfere in the decision-making of First Respondent.

AWARD

25. First Respondent, Department of Education - KZN did not commit an unfair labour practice against Applicant, Ms C Naidoo.

26. The application is therefore dismissed.

Dated at Durban on this 24th day of April 2023.

ELRC Panellist
Vashnee Naidoo