ELRC320-23/24EC

Case Number: ELRC320-23/24EC
Commissioner: Henk Jacobs
Date of Ruling: 13 March 2024

In the matter between


SADTU obo N B Sontlaba
(Applicant)

And

Department of Education – Eastern Cape
(1st Respondent)

Mr H Hendricks
(2nd Respondent)

Union/Applicant’s representative:
Mr S Gashi

Telephone:
Telefax:
E-mail: sgash@sadtu.org.za

Respondent’s representative:
Respondent’s address:

Telephone: Mr EW Hector
Telefax:
E-mail: Euan.Hector@ecdoe.gov.za

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held Virtually on 18 October 2023 and 21 February 2024.

2 The applicant, Ms N B Sontlaba, was represented by Mr. R Gashi an official from the South African Democratic Teachers Union (SADTU), the 1st respondent, the Education Department - Eastern Cape, was represented by Mr Hector, an Employment Relations Officer employed by the Respondent, and the second Respondent, Mr H Hendricks were absent from the proceedings.

3 The hearing was held in English and was digitally recorded.

4 Mr Hector submits that the 2nd Respondent made a conscious decision not to be part of the proceedings and that the arbitration should proceed in his absence.

5 Parties further agreed to file heads of argument by no later than 04 March 2024, both parties did so.


Issue to be decided

6. The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA, by not promoting the Applicant to the post of Principal at Parkside Primary School.

Background to the matter

7. The Applicant referred an alleged unfair labour practice dispute pertaining to promotion to the Education Labour Relations Council after she applied for the post of Head of Department, as advertised in Volume 2 of 2023 – 575.

8. The Applicant was employed as a level 1 Educator from 1 March 2014 and earns a gross salary of R34 864.00 per month.

9. In terms of issues in dispute, the Applicant submits that the interview panel did not have a quorum, there was no ratification of the recommendation, and the 2nd Respondent did not hold the appropriate qualifications for the post. The Applicant possess better attributes than that of the 2nd Respondent.

10. The Applicant sought that the appointment of the 2nd Respondent be set aside and that the recruitment process be conducted afresh, or compensation.

Survey of submissions

11. This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.

Applicant’s evidence

12. The Applicant testified that she applied for the post as she met all the requirements for the post, she was shortlisted and interviewed, during the interview process she noted that some panel members was not making notes while she was being interviewed.

13. She was advised that she could answer in IsiXhosa, although one of the panellists was coloured and would not have understood her answers as there was no one to interpret her answers in English. The Applicant further testified that she was not sure how her responses were captured.

14. Page 7 of the Respondent’s bundle reflects that Mr J Matomela did not take notes when she was interviewed, only the questions reflect on the minutes for Mr Matomela. Page 12 of the Respondent’s bundle reflects that the 2nd Respondent did not submit any qualifications in terms of the requirements as the Bulletin required grade 10 to 12 qualifications.

15. Page 17 of the Respondent’s bundle is an affidavit dated 31 May 2022 wherein the 2nd Respondent stated that his qualifications were stolen during a house robbery during 2022 and that he applied for copies from the relevant institutions. Page 18 is an advice of results of the 2nd Respondent’s Diploma of Education III examination for senior primary, and page 19 is a statement of results from the College of Education for Further Training.

16. The Applicant testified that the qualifications were not in line with the requirements and what was required was IsiXhosa or English with Geography for grade 10 to 12. The Applicant also testified that no union member attend the interviews, although page 2 of the Respondent’s bundle reflects that SADTU was present. There was an attendance register which was not provided for the arbitration, there was no ratification of the recommendation, nor was there a recommendation from the SGB. The Applicant also testified that no possible answers were discussed with the interview panel as some of the SGB members are not educators, they would not know what answers to expect.

17. Mr Shushu (SADTU) testified that he was appointed as a union observer for the interview process, he had to assess all the information and comment on the recommendation. He noted a number of issues, the panel did agree on the requirements and added three criteria, it was also agreed that all shortlisted candidates should meet all the requirements.

18. The panel agree to shortlist the 2nd Respondent albeit he did not submit qualifications, instead he submitted an affidavit, he also did not have ICT, instead, he was an assessor which is different from ICT.

19. Mr Shushu also testified that the panel made reference to equity but did not understood equity. During the interview he raised the issue that possible answers were not discussed with the parent component of the SGB, the chairperson indicated that they would do so afterwards.

20. After the interviews, the secretary announced the scores, the candidates were ranked, and the panel moved to recommendations. The recommendation was not ratified by the SGB and they had two candidates that ranked second.

Respondent’s evidence

21. Mr Mdingi testified that he was the Resource person during the interviews and the panel had decided from the onset that they will rely on scores. The final scores were Mr Hendricks with 90% and the Applicant had 76%. The interview panel then recommend Mr Hendricks for the post and the SADTU representative agreed with everything.

22. Under cross examination, Mr Mdingi stated that he was delegated by the SGB to profile the post, Mr Hendricks did not submit qualifications, only an affidavit as it was accepted as no educator will be appointed without the necessary qualifications, he also did not have ICT, but was an assessor and it was accepted as a replacement qualification for ICT. It was agreed that one cannot be an assessor without being computer literate.

23. Mr Mdingi further confirmed that the possible answers were not printed but were discussed.


Analysis

24. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.

25. The definition of an unfair labour practice in terms of section 186(2)(a) of the LRA includes “any 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 provisions of benefits to an employee”.

26. The Applicant contests that the process was unfair as the interview panel did not have a quorum, there was no ratification of the recommendation, and the 2nd Respondent did not comply with the minimum requirements as he did not submit any qualifications, save for an affidavit. The Applicant also made reference to the non-compliance with the Educators Act when the post was profiled, an issue that was not raised during the narrowing down of issues but surfaced during the proceedings.

27. The only regulation that guides the process is the Personnel Administrative Measures (PAM) which states as follows:

“SCOPE OF APPLICABILITY
1.1 This PAM is applicable to educators at schools, technical colleges, colleges of education and education control and auxiliary services that concern themselves with all those activities aimed at educating and teaching pupils/students, in respect of both formal and non-formal education.

1.2 As regards the matters that are regulated in this PAM, only those measures contained herein shall apply, and there may, in respect of the matters regulated herein, be no deviation from the prescribed measures: Provided that should there be cases not covered by the measures contained herein or should there be any doubt as to the application of the provisions in individual cases, or should there be cases that could justify a deviation from policy, particulars thereof shall be submitted to the Department of Education with a view to a decision regarding such application or possible deviation by the Minister of Education, or the possible amendment or supplementing of the measures by the Minister of Education, with the concurrence of the Minister of State Expenditure in the event of an amendment or supplementation having a financial implication, after negotiation and agreement in terms of the Labour Relations Act, 1995.

B 5.4 Shortlisting and interviews (school-based educator posts)

B.5.4.1 Interview Committees must be established at educational institutions where vacancies are advertised.
B.5.4.2 The Interview Committee must comprise:
B.5.4.2.1 One departmental representative (who may be the school principal), as an observer and resource person.
B.5.4.2.2 The principal of the school (if he/she is not the departmental representative), except in the case where he/she is an applicant.
B.5.4.2.3 Members of the SGB, excluding educator members who are applicants to the advertised post/s.
B.5.4.3.4 One union representative per union that is a party to the provincial chamber of the ELRC. The union representatives will be observers to the shortlisting, interviews and the drawing up of a preference list.
B.5.4.3 Each Interview Committee must appoint from amongst its members a chairperson and a secretary.
B.5.4.4 All applications that meet the minimum requirements and provisions of the advertisement must be handed over to the SGB responsible for that specific institution.
B.5.4.5 The SGB is responsible for the convening of the Interview Committee and they must ensure that all relevant persons/trade unions are informed at least 5 working days prior to the date, time and venue for the shortlisting, interviews and the drawing up of the preference list.
B.5.4.6 Where the principal of the institution is an applicant, a departmental official may assist the SGB.
B.5.4.7 In considering the applications, the Interview Committee must ensure that the principles of equity, redress and representivity are complied with and they must adhere to: (Section 6(b) (i – v), EEA)
B.5.4.7.1 The democratic values and principles referred to in paragraph B.5.1.1.
B.5.4.7.2 The procedures stipulated in paragraph B.5.
B.5.4.7.3 The minimum requirements for appointment with regard to educational qualifications, statutory and experiential requirements stipulated in paragraph B.3.2.1.
B.5.4.7.4 Procedures that would ensure that the recommendation is not obtained through undue influence on the members of the SGB.
B.5.4.8 The Interview Committee must also consider:
B.5.4.8.1 The curricular needs of the institution.
B.5.4.8.2 The obligations of the employer towards serving educators.
B.5.4.9 The list of short-listed candidates for interview purposes should not exceed five per post. An educator, who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted.
B.5.4.10 The interviews will be conducted according to agreed upon guidelines and procedures. These are to be jointly agreed upon by the parties to the provincial chamber.
B.5.4.11 All interviewees must receive similar treatment during the interviews.
B.5.4.12 At the conclusion of the interviews the Interview Committee must rank the candidates in order of preference, together with a brief motivation, and submit this to the SGB for their recommendation to the relevant employing department.
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. It is evident that PAM is applicable to all educators and that it regulates the recruitment process for educators. It is further common cause that the Applicant applied for the post, she was shortlisted and interviewed for the post.

29. I will now turn to whether the interview panel was quorate. No evidence was presented regarding this, save that the Applicant testified that no one from the unions were present, and that the minutes of the meeting was incorrectly captured that someone from SADTU attended. The Applicant’s version must be rejected as Mr Shushu testified that he was appointed as the union observer which correspond with the minutes, on that basis, and in the absence of any other evidence, I conclude that the interview panel was properly constituted and quorate.

30. Turning to the issue of ratification and recommendation. The PAM at clauses 5.4.12 and 13 states that at the conclusion of the interviews, the panel should rank the candidates in order of preference and submit to the SGB for recommendation to the employment department.

31. It is common cause that the latter part of the process did not occur where the SGB conducted a meeting to ratify the recommendation and submit the recommendation to the employment department, instead, the interview committee embarked on the process of recommendation.

32. The question to answer then is whether the non-adherence to the process as set out in the PAM prejudiced the Applicant in any form or manner. It was established that the interview panel decided to use scores as their criteria for ranking the candidates, all candidates were asked the same questions and were scored accordingly.

33. The Applicant scored 76% and the 2nd Respondent scored 90%, it would then follow that the 2nd Respondent obtained the best score and accordingly was ranked first and recommended, had the ranking been submitted to the SGB, the outcome would have been the same, the 2nd Respondent would have been recommended based on the score he obtained.

34. The Applicant could not have been prejudiced by the procedural error during the process, it was not the Applicant’s case that the panel was biased towards the 2nd Respondent by means of establishing some form of relation between the 2nd Respondent and the panel. Mr Shushu testified that the 2nd Respondent assisted the school before in the capacity as an accessor. An accessor has a specific purpose and acts in a professional capacity to ensure that examinations were conducted ethically, and the curriculum was properly covered in terms of the standard (my emphasis). On that basis, the Applicant failed to establish a comprehension of bias. In order to do so, there must be a nexus between the conduct of the panel and the scores, however, the SADTU representative agreed with the scores.

35. The Applicant in argument submits that the Respondent failed to provide evidence on how the scoring was done. The substantive onus rest on the Applicant to establish that the Respondent committed an alleged unfair labour practice, therefore, the Applicant must establish that the scoring was done irrationally and in a manner that prejudiced the Applicant, the Applicant failed to do so.

36. Turning to the issue of qualifications, what is important is that the 2nd Respondent complied with the minimum requirements as per the Respondent’s bundle of documents. The fact that he did not submit the actual qualifications was accepted by the shortlisting panel and so was the affidavit. I would have agreed with the Applicant had the 2nd Respondent omitted to submit any qualifications, but he did not, he submitted an affidavit and statement of results. On that basis, the 2nd Respondents inclusion was in line with the requirements.

37. The issue if the ICT qualification; the panel accepted the accessors qualification as sufficient, although, I must agree with the Applicant it is different than an ICT qualification. The argument for someone to be an accessor, he or she needs to be computer literate also holds true, on that basis, the decision to accept the accessor qualification is not capricious or irrational.

38. The Applicant referred to Mr Matomela who did not take notes of her answers, Mr Matomela did not testify, however, by not taking notes and observing the answers provided does not automatically relate to an incorrect score, someone can observe the answers and still provide an objective score.

39. For the sake of completeness, I will deal with the issue of profiling the post, Mr Mdingi testified that he was authorised by the SGB to conduct a meeting with the educators to profile the post. The post was accepted by the Education Department, and it is not the Applicant’s case that the post was incorrectly profiled, the Applicant had no issue with the post profile.

40. It is trite that no employee has a right to be promoted, only a right to compete for the post through a fair process. The Applicant had equal opportunity to compete for the post, she was not prejudiced in any form or manner by the recommendation being made by the interview panel, instead of the SGB.

41. At the same time, one can also not condone the non-compliance of the PAM as well as the Employment of Educators Act 76 of 1998 that echoes the provisions of the PAM. One must also be careful not to create a precedent that it is accepted to be in breach of the provisions of the PAM.

42. In this instance, the SGB did not raise an issue that they did not form part of the recommendation, as part of the SGB was part of the interview panel. Had the SGB disputed the recommendation, I am convinced that they would have indicated so and testified in support of the Applicant’s case.

43. During the proceedings, the issue of Employment Equity was loosely referred to, but no evidence in this regard was tendered, nor the reason for referring to it and the consequence, on that basis, I accept that it was a non-issue.

44. In light of the above, I find it appropriate to make the following award.


Award

45. The Applicant, Ms N B Sontlaba, failed to establish that the Respondent, the Education Department - Eastern Cape committed an unfair labour practice in terms of section 186)2) of the LRA.

46. The Applicant is not entitled to any relief.


Signature:

Commissioner: Henk Jacobs