ELRC277-23/24EC

Panelist: Sally-Jean Pabst
Case No.: ELRC277-23/24EC
Date of Award: 14 November 2023

In the ARBITRATION between:

Ms Cachendra Baartman
(Union / Applicant)

and

Eastern Cape Department of Education
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was referred to the Education Labour Relations Council (the ELRC) in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA) – that of an alleged unfair labour practice relating to promotion/appointment.

2. The arbitration was conducted and concluded on 25 October 2023 – virtually via Zoom, and video-recorded.

3. The Applicant, Ms Cachendra Baartman, was present and represented by her NAPTOSA union official, Advocate Duncan Saayman.

4. The Respondent, the Eastern Cape Department of Education (the ECDOE), was represented by Ms Bethelinah Gxumayo.

5. The 2nd Respondent – the promotion post incumbent – Ms Chantel Booysen, was present and represented by her SADTU union official, Mr Nceba Matinise.

6. The School Governing Body (SGB) of George Dickerson Primary School – as having a substantial and direct interest in the outcome of the arbitration in terms of the SGB having recommended the appointment of the incumbent Ms Booysen – was represented by the SGB chairperson Mr Mbulelo Lipile.

7. The bundle of the Applicant consists of 49 pages, of which all was agreed by the Respondent party that the contents were what it purports to be.

8. The Respondent party submitted one document purporting to be a 2-page letter delegating authority from Dr AS Nuku, the Acting Head of Department of Education, to the Sarah Baartman District Director, Mr M.R.W. de Bruyn.

9. A pre-arbitration conference had been conducted by the parties, minute of which found included in the Applicant’s evidence bundle.

BACKGROUND / COMMON CAUSE FACTS
10. The Applicant, Ms Baartman, was appointed by the Respondent, the ECDOE, on 25 July 2018, and is in the employ of the Respondent as a Post Level 1 Educator Foundation Phase at George Dickerson Primary School in Grahamstown / Makanda in the Sarah Baartman District.

11. Ms Baartman applied for the promotion post, Post Level 2 Foundation Phase Head of Department as advertised in the Open Bulletin Volume 2 of 2023 post number 571, Post Description PL2 HOD Gr.1-3, but her application was sifted out and not shortlisted for interviewing.

12. Only one candidate was sifted in and interviewed and recommended – the incumbent Ms Chantel Booysen – was subsequently appointed in terms of approval by the District Director.

ISSUE TO BE DECIDED
13. I have to determine on a balance of probabilities whether the Respondent committed an unfair labour practice as defined in section 182(2)(a) of the LRA, against the Applicant.
14. If an unfair labour practice is confirmed, I must determine an appropriate remedy in terms of LRA section 193, read with section 194, of the LRA.
15. The Applicant expressed wishing in relief to this arbitration for the appointment to be set aside and the post be re-advertised, alternatively that sifting, shortlisting and interviewing be re-done by a different panel of SGB members.

SURVEY OF EVIDENCE AND ARGUMENT
16. As provided for in terms of section 138(1) of the LRA I conducted the arbitration in a manner that I considered appropriate in order to determine the dispute fairly and quickly, dealing with the substantial merits of the dispute with the minimum of legal formalities. In terms of s138(7)(a) of the LRA, I only include evidence I found particularly relevant in making a decision, and accordingly below is a brief summary of evidence.
Applicant’s Evidence

17. The Applicant, Ms Cachendra Baartman, testified under oath that her contention of an unfair labour practice emanates from the Respondent not including her (not sifting her in) as candidate to be interviewed for the promotion post: Post Level 2 Foundation Phase Head of Department Gr.1-3 as advertised on 2 May 2023 as post number 571 in the Open Bulletin Volume 2 of 2023.

18. Only three educators applied for the post, two of which were Ms Cachendra Baartman and the incumbent Ms Chantel Booysen. The Respondent then proceeded to shortlist and interview only one of the three candidates who applied – the incumbent Ms Chantel Booysen. This is in contravention of B.5.3 and B.5.4 of the Personnel Administrative Measures (the PAM), and section 6(c) of the Employment of Educators Act of 1998 which compels the SGB to firstly consult in writing with the HOD of Education in cases where fewer than three candidates are recommended, and the HOD must then decline such recommendation based on less than three educators recommended – this in terms of the PAM at B.5.5.2 – the appointment may not be made. This legislation was not adhered to in the case of this appointment, making the appointment unlawful.

19. The Applicant further contends the Respondent showed bias during the sifting process, as her application was sifted out because one section was incomplete, whereas the incumbent, Ms Booysen’s form, notably had many incomplete sections yet for some reason Ms Booysen’s form was not also sifted out.

20. Further to this, the appointment was ultra vires authorised by the District Director rather than by the HOD of Education – this in terms of a letter dated 26 June 2023 submitted into evidence by the Respondent party – in which the HOD of Education delegated authority to the District Director to authorise all post level 1 to post level 4 appointments – a power which neither the HOD of Education nor the District Director can assume, in terms of above quoted legislation prohibiting this.

21. The Applicant is a Foundation Phase Educator with more than the appropriate qualifications and experience for the position. She had completed her EDP01 Application Form in full, but she had neglected completing just section 19, as per the Respondent’s stated reason for ‘SIFTED OUT’ on page 5 of her bundle, her application was rejected. She explained she did not stipulate her NQF level and REQV level on the application form – this because she did not know what it was – her application was rejected. During cross-examination the Applicant testified that she had intended to research the NQF level and REQV levels to complete into section 19, but then she forgot to do this, before sending the form. During cross examination the Applicant assured Ms Gxumayo that she did read the instructions in the Bulletin and on the EDP01 form on how to properly, and fully, complete the form. She did complete it “to the best of her knowledge”, but concede that she should have asked her Principal or union official or done an internet search to establish the correct NQF and REQV levels to fill in on her EDP01 form.

22. Ms Baartman testified she not only meet and exceed all of the minimum requirements as set out in the PAM at B.3.1 and the post requirements as evidenced in the bundle, she also has more teaching experience than the incumbent to the post. That is why she found it very odd that the incumbent was invited for an interview, whereas she was not.

23. The incumbent’s EDP01 Application Form was explored during the Applicant’s testimony, which confirmed that indeed many sections of Ms Chantel Booysen’s EDP01 was either not fully completed, or left blank. In addition to this, particularly at section 19 of the incumbent’s EDP01, her REQV Level is stated as 14, but the NQF Level is stated as either 14 or 19 – the value being both illegible and notably in a different handwriting as compared to the handwriting on the rest of her EDP01 Application Form, indicating it was written by someone other than Ms Booysen. The incumbent’s EDP01 form also contains a notation under ‘General Comment’, ‘SIFTED IN’ and then stating “Please verify years of teaching experience.”

24. All requirements for qualification and experience for eligibility for the post in question was explored, and it was point for point confirmed by the Applicant that she is fully qualified and experienced to potentially be appointed in the post. In terms of employment equity, Ms Baartman and Ms Booysen also both fall in the exact same category, indicative that there was no differentiation in terms of equity, redress and representivity.

25. Although Ms Baartman’s, and Ms Booysen’s, ECP01’s were both not fully complete, as required in terms of the “Instructions” at the heading of the EDP01 form, one of their forms were accepted by the Department’s sifting staff, and the other not. They should either both have been accepted, or both rejected, to be fair.

26. The incumbent was appointed by the District Director, and not by the HOD of Education, as required in terms of point 12 of the ‘Management Plan for Filling of HOD & DP – Bulletin Volume 2 of 2023’ in evidence in the Applicant’s bundle. Even if the letter the Respondent submitted into evidence is accepted, nevertheless the letter at its point 3 even stipulates as follows:

“3. In exercising your authority on the powers delegated to yourself. You are required to exercise this function with circumspect and ensure that at all material times standard operating procedures for appointment, process maps, directives from Provincial Office and all statutes regulating employment of educators are adhered to.”

27. It is the Applicant’s case that the statutes as set out in the Applicant’s evidence and testimony was not adhered to when – without consultation of the HOD of Education – the District Director signed off an appointment with only one educator candidate sifted in, shortlisted, interviewed and recommended. This in direct contravention with the PAM at B.5.4.13:
“B.5.4.13. The SGB must, after having ensured that the principles and processes stipulated in paragraph B.5.4 have been adhered to, submit in order of preference to the HoD, a list of –
B.5.4.13.1 At least three names of recommended candidates; or B.5.4.13.2 Fewer than three candidates in consultation with the HoD. (Section 6(c), EEA, 1998)”
28. The PAM further, at B.5.5.1 states:
“B.5.5.1 When the HoD considers the recommendation contemplated in paragraph B.5.4.13,
he/she must, before making the appointment, ensure that the SGB has met the
requirements in paragraph B.5.4.7.
B.5.5.2 If the SGB has not met the requirements in paragraph B.5.4.13 the HoD must decline
the recommendation.”

29. Notably, at B.5.5.2 above the word “must” cannot be interpreted as affording the HOD any choice or discretion on whether or not to decline the recommendation in this case, as the SGB has clearly and undisputedly not put forward 3 recommendations, and there was also no consultation in writing with the HOD. Even if the HOD of Education ceded his appointment-powers to the District Director – the legislation, particularly here the PAM and the Employment of Educators Act, supersedes the letter the Respondent admitted into evidence, and must be primarily adhered to.

30. The Second Respondent put to the Applicant that it was informed that her (the Applicant’s) form had been incomplete, and for that reason the Applicant was not sifted in to be interviewed. The Applicant confirmed that she also understood that to have been the reason, but she had difficulty establishing what her correct NQF and REQV levels were, therefore at that time, having then been unsure of the answers, she mistakenly left it blank.
Respondent’s Evidence

31. The case of the Respondent was testified to under oath by Mr Christo Henning, the Respondent’s Recruitment Practitioner in Grahamstown in the Sarah Baartman District. He stated that he was, as the Secretariat, not present nor part of the sifting panel that had sifted out the Applicant.

32. Mr Henning was reminded how many applications had been received for the specific post - the promotion post, Post Description PL2 HOD Gr.1-3 Foundation Phase as advertised in the Open Bulletin Volume 2 of 2023 post number 571 – to which there had been only 3 educators who applied for the post.

33. It is the Respondent’s assertion is that Ms Baartman’s EDP01 Application Form to the post in question was “SIFTED OUT” because her application form was not complete, as required in terms of the Respondent’s recruitment and selection policy, as well as the advert for the post, and also the instructions at the heading of the EDP01 stating the form is required to be completed in full, with “N/A” or an “X” where applicable.

34. The witness confirmed the Sifting Criteria Form in evidence has been used for the past 5 years, and that it is used to compare the respective candidates’ qualifications etc with the requirements for the respective post. He confirmed that if the EDP01 form is incomplete – i.e. it does not have either ‘N/A’ (not applicable) or an ‘X’ in answer in all places required, such EDP01 application form must be “SIFTED OUT” with reasons for this specified on this Sifting Criteria Form, as seen in evidence, Ms Baartman’s reason was that the form was not completed in full, at section 19.

35. Specifically, Mr Henning explained that the REQV level must very importantly be provided by the candidate him/herself, on the form, as it informs the salary-level. That this is just as important as the post number, the candidate’s ID/persal-number, name and surname, contact details and qualifications, to be provided by the candidate onto the form.

36. He explained the process as starting at sifting, moving to these sifted applications transferred to a panel selected from the SGB members, who shortlists and interviews, and the successful candidates are finally recommended in order of preference, and sent for approval to various signatories. Since May or June 2023 the District Director – as opposed to the HOD of Education – signs final approval before appointment letter is issued.

37. The Respondent refutes the District Director’s lack of authority to sign appointments in terms of the letter from the HOD of Education in evidence, as the letter duly delegates the authority to the District Director. The witness has no knowledge of any limitations to the delegated authorities of the District Director.

38. During cross examination Mr Henning confirmed that the salary notch of A Promotion Post – also in this case, the HOD post the Applicant in this matter applied for – has a set salary-range depicted, as the evidence in the bundle shows. Particularly since the Applicant is already ‘in the system’ – this being a promotional post, her REQV level is easily acquired by the people doing the sifting.

39. Mr Henning further conceded that the REQV-level informing the incumbent’s salary is very easily calculated by means of the Applicant in this matter’s B-degree certificate (3-year qualification) plus her Post Grad Certificate (1-year qualification) together being 4 years of studies after matric, that any of the individuals performing the sifting of applications will very easily derive that matric (REQV10) plus 3 years plus 1 year will equate to the Applicant having an REQV-14 level, without her having to write it on the EDP01 form.

40. The witness further conceded that the CV plus the EDP01 form together is one combined employment-profile, but retorted that nevertheless if the form is incomplete, the rule remains in terms of the Bulletin and EDP01 form instructions the form must be sifted out, irrespective whether the omitted information is obvious or easy to derive.

41. The witness was thereafter taken through the EDP01 form of the incumbent, Ms Booysen, one section at a time. To this, Mr Henning conceded that indeed Ms Booysen’s EDP01 form is also incomplete – in many sections. He further confirmed that Ms Booysen’s profile in terms of employment equity and redress is indeed the same as that of Ms Baartman – they are both female, both Coloured – therefore employment equity and redress could not have been a viable reason why Ms Baartman was sifted out and Ms Booysen sifted in.

42. The incumbent Ms Booysen’s form, at section 19, was referred to, and Mr Henning agreed that to his surprise indeed the handwriting where the NQF-level is written is clearly not the same – it is very different from the handwriting on the entire rest of the form – clearly written by somebody else. He also testified that the NQF-level written in this different handwriting – although almost illegible – could only be either “14” or “19” – both which are impossible values for an NQF-level. He explained the NQF should normally be approximately half of the REQV value.

43. The witness was taken through all of the excerpts in the PAM, and he testified to the same contentions that the Applicant had – that indeed the legislation in evidence supersedes the letter ceding authority to the District Director to make appointments – that legislation must be adhered to, foremost. That the statutes was clearly not adhered to in terms of only one candidate / application having been sifted in, shortlisted and interviewed, and that the appointment have been signed off by the District Director without consultation in writing with the HOD is indeed in contravention with the PAM. Mr Henning further conceded that even if there had been consultation, the HOD in any event in terms of PAM at B.5.5.2 does not have discretion on whether to decline the recommendation resulting from only one candidate recommended – that clearly the PAM and the EEA has not been complied with, and the appointment was not made in compliance with the legislation.

44. The witness was asked whether he agrees that there had been bias in the sifting process – seeing as the Applicant was excluded and the incumbent was included – this in light of both forms not fully complete, and no employment equity / redress applicable to justification preferring one over the other. To this, the witness chose not to answer on whether there had been bias, citing that he cannot answer to that as he was the Secretariat, and “I was not on the sifting panel, here.”

ANALYSIS OF EVIDENCE AND ARGUMENT
45. I have considered all the evidence and argument lead by the parties in coming to my decision on this matter. This is a summary of the relevant evidence I found noteworthy, and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter.

46. The Applicant is claiming an unfair labour practice by the Respondent in terms of 186(2)(a) of the LRA regarding promotion:
“(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;...”

47. The LRA requires employers to treat their employees with fairness when they apply for promotion. 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.

48. It is common cause that she was unsuccessful after applying for the promotion post of HOD of Foundation Phase Gr1-3. The Applicant in this matter must prove not only the existence of an unfair labour practice, but also that it was unfair conduct by the Respondent.

49. I will deal firstly with any contradictions between the versions of the parties. The Respondent is adamant that an EDP01 form that is not complete must be sifted out. This was however clearly from both documentary evidence and testimony, not the case for the EDP01 form of Ms Booysen. It is in my view the instruction to complete the form in full was not complied with by both the applicant and the incumbent and therefore both forms should have been shifted out. However, the shifting panel applied the rule or the prescripts inconsistently by not shifting out the incumbent’s EDP01 form and therefore this shows biasness in favour of the incumbent. Therefore, the appointment of the incumbent was irregular. It is important for candidates to complete forms properly and not to submit incomplete application forms in that when they do so this is a clear indication of tardiness.

50. During cross-questioning I noted that the Applicant as witness, and then the Respondent’s witness Mr Henning, ironed out all disputes of fact and law. I found the credibility, reliability and probability of both the witnesses’ versions quite acceptable even though they were understandably playing for opposing teams.

51. Noteworthy, Mr Henning same as the Applicant during cross-questioning found it very odd that there had been a different person’s handwriting completed one part of Ms Booysen’s form, at section 19 – the NQF level. I noticed from Mr Henning’s reaction that he too found it quite disconcerting, as it was the only time during his entire testimony that he looked genuinely surprised in response, and embarrassed. He verbally expressed it as very peculiar indeed – clearly written by ‘someone else’ – such an irregularity on a successful incumbent’s application form was clearly from his demeanor not normal.

52. From the testimony lead before me, unequivocally the two witnesses on either side of the fence was interestingly in the end in agreement that there were serious and grave irregularities in the appointment of the incumbent Ms Booysen. This set against the legislation read into evidence, in light of her having been the only candidate sifted in, and that she had been sifted in at all was confirmed by Mr Henning as irregular in light of many blank sections on her EDP01 form.

53. The sifting panel, in my view, carry the blame in this matter. The SGB of the school less so, only for it having failed to alert and consult with the HOD on why they were given only one candidate by the sifting panel, whereas 3 recommendations are required for a legislatory compliant appointment, as the PAM clearly states.

54. I cannot but draw a negative inference from the Respondent party’s failure to call as witness also someone who had been on the sifting panel, to come and explain under oath why the bias in favour of Ms Booysen was perpetuated from sifting in of her clearly incomplete form, all the way through to her being the only interviewed candidate. Also that no issue was raised with the irregular NQF level value and its handwriting, and that there had been no consultation with the HOD of Education whatsoever about all of the above, is on the shoulders of the SGB and the District Director.

55. Ms Baartman can indeed claim an unfair labour practice was contravened, seeing as her form was sifted out for being incomplete, whereas Ms Booysen’s form’s incomplete sections went seemingly unnoticed by the sifting panel. From the recruitment processes and procedures there was definite deviation. Had Ms Baartman also been sifted in to be interviewed, this irregularity would probably never been brought to light.

56. Mbatha V SSSBC & others (LC) JR372/13, (30 September 2015) the Labour Court commented on the applicable test for unfair labour practice disputes, at para 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.”

57. The Respondent concluded its case without justifying its decision made when disqualifying Ms Baartman’s application during sifting. The test for fairness in promotion disputes, in terms of City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & Others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC), is in the arbitrator deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee. Relevant factors to consider include, but is not limited to, whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; 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.

AWARD
58. The claim of the Applicant, Ms Cachendra Baartman, to an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, is confirmed.

59. The appointment of the second Respondent Ms Chantel Booysen to post number 571 is set aside, and the promotion post “Post Level 2 Foundation Phase Head of Department (Gr.1-3)”, at George Dickerson Primary School in Grahamstown / Makanda in the Sarah Baartman District, must be re-advertised within a period 6 months.

Commissioner Sally-Jean Pabst
ELRC Arbitrator