ELRC-676-22/23EC

Case Number: ELRC-676-22/23 EC
Commissioner: Hadley Saayman
Date: 6 October 2023

In the ARBITRATION between

NAPTOSA obo Michiels, N
(Union/Applicant)
And
Department of Education –Eastern Cape
(Respondent)

Applicant’s representative: Mr. A. Adams
Applicant’s address: 28 6th Avenue
Newton Park
Gqeberha
6230
Telephone: 041- 364 0399
Telefax:
E-mail: antona@naptosa.org.za

Respondent’s representative: Mr E. Hector
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: eun.hector@ecdoe.gov.za


DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the ELRC in terms Section 186(2)(b) of the Labour Relations Act 66 of 1995 (LRA) and was set down for a virtual finalisation of the Arbitration on 26 September 2023.

2. The Applicant was represented by Adv. D. Saayman, a Union Official standing in for Mr A. Adams, who dealt with the matter.

3. The Respondents were represented by Mr. E. Hector, a Labour Relations Officer.

ISSUES TO BE DECIDED

4. I must decide whether the respondents committed an unfair labour practice in terms of section 186(2)(a) by sifting the applicant out when she applied for a vacancy as Head of Department (HOD) of Joubertina Junior Secondary School.

SURVEY OF EVIDENCE

5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Act, relevant to the dispute at hand.

BACKGROUND

6 The applicant, Ms. Naomi Michiels is employed as a post level 1 educator at Joubertina Junior Secondary School. The post of departmental head was advertised in bulletin volume 2 of 2022, post number 923. The Applicant applied for the position, but was sifted out and therefore not shortlisted.

EVIDENCE/SUBMISSIONS OF THE APPLICANT

7. The Applicant submitted that at the time of her application, she was acting as Head of Department (Inter-Sen). She is teaching Mathematics and Life Skills and also responsible for netball, athletics and cross – country. She has a Diploma in Education (REQV 13) and has 19 years teaching experience. She has been acting Departmental Head (HOD) for about (9) months at the time of her application. She met the minimum requirements for the vacancy.

8. The applicant regards this action by the departmental sifting panel as unfair. As such she further submitted that the process embarked upon by the panel post the shortlisting phase was not only unfair to the applicant but also prejudiced her as the criteria used was unfair and feels that she was treated arbitrarily and irrationally by the panel as they failed to act in accordance with established legislation and based on unproven or untested views and suppositions.

9. The applicant submitted that the sifting panel not only acted unlawfully in subverting the process but acted unfairly, capriciously and with bias in amending the requirements. It seems probable that an overly formalistic approach was adopted in the case of the applicant as the respondent did not contend, and there was no indication, that any of the information contained in her application papers were incorrect.

RESPONDENT’S EVIDENCE/SUBMISSIONS

10. The respondent submitted that the appointment of education within the Department of Education is statutorily regulated by the provisions as set out in section 6 of the Employment of Educators Act 76 as amended, read with the procedure as set out in chapter B of the PAM of 2016.

11. The respondent follows its recruitment policies and procedures to the letter in order to avoid any discrepancies or discriminatory practices in its goal of having a suitably qualified educator in front of all classrooms.

12. The respondent submitted that it is a common law requirement that when completing a form at any institution or entity, that all fields are to be completed in full. In the rare case that you do not know it has been accepted that “N/A” (Not Applicable) is also an answer which is accepted.

13. The respondent submitted that the applicant failed to complete the Part 2 Section 19 of the official application form of the Department of Education, namely EDP01, and was thus sifted out by the department due to an incomplete application form.

14. The respondent further submitted that this stage of the recruitment process is there to specifically check if the application forms are completed full, if the qualifications of the applicants are certified and valid and lastly if the applicants meet the minimum requirements of the position advertised. This process ensures and eases the process which follows it which is the shortlisting process. The shortlisting is done at school level and at this stage the parties involved in it has their task lightened due to there not being faulty applications.

ANALYSIS OF EVIDENCE/SUBMISSIONS AND ARGUMENTS

15. It was common cause that the applicant applied for the vacancy as a Head of Department (HOD)
at Joubertina Junior Secondary School, which was advertised in bulletin volume 2 of 2022.

16. The job overview of an HOD is to engage in class teaching, be responsible for the effective
functioning of the department and to organise relevant/related extra-curricular activities so as to
ensure that the subject, learning area or phase and the education of learners is promoted in the
proper manner.

17. The formal qualifications and inherent requirements for the vacancy are as follows:
• A recognised three (3) year (REQV 13) qualification which includes professional educator
Education.
• Registration as a professional educator with the South African Council for
Educators (SACE) /proof of application for registration.

18. It was common cause that it was essential to have three (3) years teaching experience to qualify to apply for the vacancy.
19. It was common cause that the applicant was a qualified educator with about nineteen (19) years teaching experience acted as an HOD for about nine (9) months as a HOD.

20. It was also common cause that the applicant was duly registered with SACE.

21. It was common cause that the applicant did fill in her REQV 13 at section 19 of the official
application form of the Department of Education, namely EDP01 form. The respondent submitted that the applicant was sifted out during the sifting process because she failed to fill in the NQF- level of her qualifications. On the EDP01 form the NQF-level refers to short courses or certificates, which was never a requirement for the vacancy.

22. The educator employment profile form (EDP 01) form combines the information in the standard
application from and the standard CV information into one Employment Profile Form. It was
common cause that the applicant duly submitted a CV as well as certified copies of all her qualifications.

23. The employing department must handle the process of eliminating applications of those candidates who do not comply with the requirements for the post(s) as stated in the advertisement. There was no evidence that sifting of the vacancy was done by the respondent.

24. Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice
as meaning inter alia: (2) “Unfair labour practice” means any unfair act or omission that arises
between an employer and an employee involving —
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding
disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; …

25. The LRA requires employers to treat employees fairly when they apply for promotions. An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all of the elements of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.

26. Fairness requires that the position and interests of both the employee and employer are taken into account in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the Act.

27. In Mbatha V SSSBC & others (LC) JR372/13, (30 September 2015), the Labour Court remarked as follows on the applicable test for unfair labour practice disputes” [28] It has long been accepted that the decision to promote or not to promote falls within the managerial prerogative of an employer and that the courts will interfere only where such discretion was exercised capriciously, or for insubstantial reasons or based upon a wrong principle or in a biased manner.”

28. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others [2013 34 ILJ 1156 (AH).]: it was held 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 caused 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.

29. The Respondent could not rationally justify the elimination of the Applicant during the sifting process. The minutes of the sifting meeting does not even mention that sifting for the particular school or vacancy was done at all.

30. The scheme of the LRA requires of the employer to adduce evidence “that is sufficient to persuade a court, at the end ... that the claim or the defence, as the case may be, should succeed”. As has become apparent from Edcon Ltd v Pillemer NO (2010) 1 BLLR 1 (SCA), it is not sufficient to rely on general statements made without providing supporting evidence and putting material in front of the decision maker to ensure that he or she reaches a reasonable decision.

31. Considering the evidence and submissions in totality, I am of the view that the respondent’s conduct has denied the applicant a fair opportunity and thereby prejudiced her in presenting her candidature for the advertised position.

32. It therefore follows that the respondent has committed an unfair labour practice as envisaged
by section 186(2)(a) of the LRA.

33. In deciding on just and equitable relief, I must have regard to the circumstances in totality, the
salary the applicant earned, the unfair conduct of the respondent in eliminating the applicant
without having regard to her right to due process and fair labour practices.

34. The Applicant is entitled to compensation in the amount of R 25 000.00 (Twenty- Five
Thousand Rand).

AWARD

35. The respondent has committed an unfair labour practice as envisaged by section 186(2)(a) of the LRA.

36. The respondent, Department of Education: Eastern Cape is ordered to pay the Applicant, Naomi Michiels persal no.53709420 an amount of R25 000.00 (Twenty-Five Thousand Rand) subject to normal statutory deductions, by no later than 20 November 2023.

37. The Head of The Department of Education: Eastern Cape, (HOD) is ordered to ensure that payment of R 25 000.00 (Twenty- Five-Thousand) is effected to the applicant, Naomie Michiels (persal no. 53709420) by 20 November 2023.

Signature:

Commissioner: Hadley Saayman
Sector: Education