IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN KOMANI

Case No ELRC587-24/25EC

In the matter between

NAPTOSA obo Nobonile Thotho Applicant

and

Department of Education: Eastern Cape 1st Respondent

and

SAOU obo Simone Morrings 2nd Respondent

ARBITRATOR:

HEARD: 27 February 2025 and 13 May 2025

CLOSING ARGUMENTS: 20 May 2025

DATE OF AWARD: 2 June 2025

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – alleged unfair conduct relating to promotion

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This matter was held at the Department of Education office in Komani, present was Mrs. Nobonile Thotho the Applicant who was at all times represented by Mr. Aaron Mhlontlo an official of NAPTOSA, the 1st Respondent is the Department of Education: Eastern Cape who at all times was represented by Mr. Thobelani Mlahleni an official of the Department, the 2nd Respondent is Mrs. Simone Morrings who at all times was represented by Mrs. Venitia van Wyk an official of SAOU.

THE ISSUE IN DISPUTE

2. I am required to determine whether the 2nd Respondent committed an unfair labour practice in relation to promotion as contemplated by Section 186(2)(a) of the Labour Relations Act of 1995 as amended (LRA), when it appointed the 2nd Respondent to the Deputy Principal post at Southbourne Primary School and if I so find to determine appropriate relief.

THE BACKGROUND TO THE DISPUTE

3. Parties had concluded a pre-arbitration minute which forms part of the Applicant’s bundle from pages 16 to 19 of the Applicant’s bundle.
4. The common cause facts are:

• That the 1st Respondent had advertised the post which is the subject of this dispute in the Open Post Bulletin: Volume 2 of 2024.
• The specific reference number of the post is Vol 2 of 2024 115.
• The post is a Deputy Principal post at Southbourne Primary School in Komani with a starting salary of R487737.00 as per the Open Post Bulletin.
• Both the Applicant and 2nd Respondent were shortlisted and interviewed for the post.
• The 2nd Respondent was recommended for appointment and was then appointed by the 1st Respondent to the post of Deputy Principal at Southbourne Primary School, the offer letter dated 2 September 2024.
• The Applicant is currently employed by the 1st Respondent on a PL2 level with an annual salary of R400079.00 at WR Sondolo Primary School.

5. The following are facts in dispute:

• Whether or not the 2nd Respondent is more experienced than the Applicant.
• Whether or not the 2nd Respondent is more qualified than the Applicant.
• Whether or not the 2nd Respondent met the requirements of the post.
• Whether or not the panel was properly constituted.
• Whether or not sifting was done in accordance with the revised PAM document.
• Whether or not the panel shortlisted and interviewed 5 candidates are required by policy.
• Whether or not the panel was biased towards the 2nd Respondent.
• Whether or not the panel recommended three candidates as required by policy.

6. The Applicant seeks compensation equivalent to 12 months remuneration as relief.
7. The parties each submitted a bundle of documents these will be referred to a “A” for the Applicant bundle “R1” for the 1st Respondent bundle and “R2” for the 2nd Respondent bundle, the documents where accepted for what they purported to be unless specifically challenged.

SURVEY OF EVIDENCE AND ARGUMENT

8. I have considered all the evidence and argument, the Labour Relations Act no. 66 of 1995 (LRA) requires brief reasons, as such I have only referred to the evidence and argument necessary to substantiate my award and was follows is a summary of the submission of the parties and not a verbatim record of proceedings.
9. All evidence was presented under oath/affirmation.

The Applicant’s Submission’s

10. The Applicant called a singular witness in proceedings that being the Applicant herself.
11. It was the submission of Nobonile Thotho that she had applied for the Deputy Principal post at Southbourne Primary School as advertised in the Open Post Bulletin Vol 2, she continued that she had met all the requirements for the post as she holds a Primary Teachers Diploma from the University of the Transkei, Advanced Certificate in Education: Education Management, Advanced Diploma: Special Needs Education, Advance Certificate in Education: Professional Education Development and a National Certificate in Word Perfect 5.1 advanced.
12. She continued that the post as advertised required that the candidates needed management and administration and computer literacy qualifications, and that the subjected taught would be English home language, Afrikaans first additional language and Mathematics, she meets these requirements and she had teaching experience in Xhosa home language, English first additional language and Mathematics.
13. it was her submission that the 2nd Respondent did not meet the minimum requirements of the post as she holds no qualification in management or computer literacy, in addition to not having the required qualifications, the 2nd Respondent EDP01 from was not complete in full as required by the recruitment policy with sections not being completed these are found in Section 21, 24 and 28. In addition to the incomplete form she submits that no CV had been attached to the 2nd Respondent’s application as such the 2nd Respondent application should have been sifted out.
14. She stated that there had been a number of procedural flaws in the recruitment process, this started at the sifting process where incomplete applications were sifted in, and progressed to where sifted out candidates were invited to the process to be interviewed, the maximum number of invited candidates for interviews also exceeded the maximum of 5 as per B5.4.9 of PAM.
15. The interview panel was further improperly constituted as one of the persons scoring had not been elected to the panel that being Boonzaaier this again being a contravention of PAM.
16. There were further no minutes which indicated that the panel had elected from their number a chairperson and secretary as required by B5.4.3 of PAM.
17. At the conclusion of the process, there was a requirement that three candidates be submitted to the 1st Respondent for possible appointment however only 1 candidate was submitted.
18. During cross-examination by the Respondents, the Applicant was asked to explain the absence of her academic transcripts, she submitted that the institutions from which she had obtained them no longer exist as such she had to do the affidavits to that effect.
19. When questioned as to why she stated that a management qualification was required for the post she indicated that it was written in the advert, she did however later concede that it could also mean management experience, but she disputed that the 2nd Respondent had management experience.
20. It was put to her that the wording of B5.4.9 states that for interview purposes there should not be more than five per post and that the word should means that it is not compulsory, she submitted that the 1st Respondent was simply playing with grammar.
21. She was asked where she found it to be a rule that each section of the EDP01 must be fully completed, she referenced the policy which stated it must be fully completed.
22. It was put to her that in terms of levels she and the 2nd Respondent were both at REQV14, she disputed this, on experience she also indicated that she is more experienced even though her application only lists 17 years she had been a temporary teacher since 2006.
23. She was asked is she had taught English home language and Afrikaans first additional language, she stated she does not.
24. It was put to her that one does not need training on computers to be computer literate, she stated that one needs training to be computer literate.
25. It was put to her that the PAM requires that a person acting in the post should also be shortlisted, and that the 2nd Respondent had been acting in the post for 12 months or more, she dispute this.

The Respondents Submission’s

26. The 1st Respondent called one witness that being Mr. Pierre Arno Swart the Principal of Southbourne Primary School and was the resource person during the appointment process.
27. He had collected the applications from the Department’s offices in Komani and then there was a meeting to select the panel, the panel consisted of four parents and two teachers. During the shortlisting process it was noticed that the working of the advert was problematic as it was not referring to the foundation phase names of the subjects, as such a decision was made not to exclude candidates and all the applicants were shortlisted.
28. The interviews were conducted for the 6 candidates with no bias towards any specific candidates, and following the interview process a suitable candidate was recommended to the 1st Respondent for appointment.
29. It was his submission that the 2nd Respondent met the requirements of the post and he disputes that she was not qualified for the post, he also submitted that at the time of the shortlisting and interviews the panel was in possession of the CV of the 2nd Respondent but he does not know where it was now.
30. He conceded that the number of candidates exceeded five as per B5.4.9 of PAM but that the wording of “should” means that it is not compulsory.
31. It was also his submission that for the post they were looking for someone with management experience as the post is on PL3, and that a qualification was not needed, the same applied to being computer literate as they were looking for someone who knows how to work on a computer.
32. He submitted that Boonzaaier had been chosen to serve on the panel but potentially due to bad minute taking she did not appear to be.
33. During questioning by the 2nd Respondent, he indicated that it had been the unions who had suggested all candidates be shortlisted due to the problematic wording of the advert, the two unions in attendance were NAPTOSA and SADTU.
34. During cross-examination by the Applicant, he confirmed that he had been the resource person during the process and conformed that Boonzaaier was not recorded as a panel member in the minutes, but he maintained that Boonzaaier was elected.
35. He was asked if a separate election was held for the chairperson and secretary of the panel, he indicated it was all done at one time.
36. He was asked who had appointed the 2nd Respondent to act in the post of deputy principal and if this was official confirmed or if it reflected on her EDP01 form, he stated he had appointed her to act in July 2023, he had no comment on the formal appointment and confirmed that the acting post does not reflect in her application.
37. It was put to him that the panel followed an improper process by considering the 2nd Respondent’s application as it contained no CV, he indicated that the application was accompanied by a CV, but he could not account for its whereabouts.
38. It was put to him that leaving open or blank spaces in the EDP01 form such as those found in the 2nd Respondent’s application would mean that the document was not fully completed, he disagreed with the proposition.
39. It was put to him that as the 2nd Respondent had failed to provide transcripts of her qualifications, the panel could not have known what she had studies, he submitted that the information was contained in the application form.
40. It was put to him that the Applicant is better qualified compared to the 2nd Respondent, he disagreed submitted that they are equally qualified as both are on REQV14 level.
41. The 2nd Respondent called one witness that being Mrs. Simone Morrings, the 2nd Respondent.
42. It was her evidence that she had applied for the post in question and she had experience first as a departmental head and then as an acting deputy principal when she was so appointed by the SGB, she is also suitably qualified to teach foundation phase.
43. She disputed that she did not have the required managerial experience and skill as she had been a departmental head, she also disputed that she is not computer literate as she did computers at school, is google trained and gives google kids.
44. In addition, it was submitted that the minimum requirement for the post was REQV 13 level of qualifications he is at REQV14 as such she met the minimum requirements.
45. She stated that when she had filed her application it was accompanied by a CV.
46. During cross-examination by the Applicant, she agreed that certain sections of her EDP01 had blank spaces but that she does not view this as rendering the form incomplete.
47. She was asked why she had not reflected her acting appointment in her EDP01 form; she submitted that she was appointed as a departmental head, she did not mention the acting appointment in the form but did reference it in the CV.
48. She was asked why her CV was not included in the bundles, she indicated that she had given her representative the documents she received from the 1st Respondent but that it did not include her CV.
49. She was asked if the principal had appointed her to act as was the evidence of Swart, she stated she was appointed by the SGB to the acting post.
50. It was put to her that she does not have a management qualification, she agreed but submitted that she had worked as a departmental head.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

51. In unfair labour practice disputes the onus to the prove the existence of the unfair labour practice rests with the employee party as such the Applicant is required to prove that an act or omission had occurred with renders her non-promotion an unfair labour practice as contemplated in Section 186(2)(a) of the LRA.
52. In making this award the closing arguments as received were considered although they may not be directly referred to hereunder.
53. Relevant case law in the determination of disputes of this nature have been considered these being De Nysschen v GPSSBC and others (2007) 28 ILJ 375 (LC) it was held that there is no automatic right to promotion, but a decision to promote must be exercised in a way that would not constitute and unfair labour practice. In Noonan v SSSBC and other [2012] 33 ILJ 2597 (LAC) it was held that a candidate has no right to promotion but must be afforded a fair opportunity to compete. Ncane v SSSBC and others (2017) 38 ILJ 907 (LAC) held that employers must abide by the law and the objective standards and criteria that it has set for promotion including eligibility for the post and ensure that the candidates had a fair opportunity to compete for the post, the process must be procedurally fair as unfairness my result in the final decision being substantively unfair.
54. In addition to the above due consideration has been given to ELRC Collective Agreement 3 of 2016 the Code of Good Practice on determining promotion disputes.
55. A significant element of the Applicant’s case is that the 1st Respondent had not complied with the prescripts of PAM and its recruitment policy. The following examples were made, that Boonzaaier formed part of the interview panel but did not appear in the minutes of the SGB meeting where the panel was elected, that there was no separate meeting to elect the chairperson and secretary of the panel, that the panel had shortlisted candidates in excess of the prescribed number and that it failed to recommend a minimum of three candidates to the 1st Respondent for appointment.
56. From the evidence before me, I can find that Boonzaaier is not recorded as being elected to the shortlisting and interview panel but had participated in those proceedings, from the minutes it does appear that only a single meeting was held, with Swart indicating that the chairperson and secretary were elected at the same meeting as the panel.
57. It is also not disputed by any party that 6 candidates had been shortlisted, with Swart indicating that PAM does not bar this practice and due to the situation faced at the time, that being that the wording of the advertisement, it was decided to err on the side of caution and have all the candidate compete.
58. The presence of the sifting form also indicates that sifting had taken place, with those sifted out being sifted back in due to the issued explained by Swart.
59. From the common cause facts, the interviews were then conducted and a candidate was recommended for appointment that being the 2nd Respondent, from the evidence before me there does not appear to be a recommendation to the 1st Respondent containing the names of the three best candidates as required by B5.4.13.1 of PAM.
60. The question now becomes do these procedural flaws create unfairness and prejudice, Observatory Girls Primary School & another v Head of Dept: Department of Education Gauteng, Case no 02/15349 [2006] JOL 17802 (W) it was held that strict compliance with recruitment processes are not required but that substantial compliance is sufficient.
61. For a procedural defect to have a material impact on a person it should be of such a nature that it limits the candidates right to fairly compete with this being the only right established by the courts.
62. The Applicant presented no evidence as to why the selection of the chairperson and secretary at the same time as the panel would have prejudiced her in competing for the post as such this is a non-issue.
63. In the present matter it was the evidence of Swart that the wording of the advert referred to intermediate phase subjects, and that it should have reflected foundation phase subjects, this was not disputed and can be seen from the advert itself, Swart continued that during the shortlisting phase this issue was raised and the unions suggested that all candidates be given the opportunity to compete due to this error. The Applicant could not establish as to how this prejudiced her as she retained the right to compete against the other candidates.
64. In addition to the above the wording of B5.4.9 of PAM is ambiguous as by using the wording of “should not exceed five” does not create an absolute bar in having more candidates but limits the number for convenience, again it was not established by the Applicant as to how the inclusion of an additional candidate would have prejudiced her from fairly competing.
65. From the evidence before me there is no document from the School showing that it had submitted more than just the 2nd Respondent’s name to the 1st Respondent, as stated above at least three candidates should have been listed, and this can be argues to be significant enough to create prejudice but only if the Applicant was in the top three candidates, which she was not as she placed fourth in the interview process.
66. From the evidence serving before me, it cannot find that the 1st Respondent’s failure to strictly adhere to PAM had created prejudice to the Applicant as she retained the ability to compete.
67. On the issue of the completeness of the EDP01 form, I cannot agree with the Applicant that the leaving of a blank space should invalidate the application as if the information requested is provided in the form then it must be viewed as complete, however should critical information be omitted then such application must be rejected, there is nothing in the document itself or the policy document which directs that each section must be completed in such a manner that no blank spaces appear.
68. In coming to the substantive challenge, the Applicant raised that the 2nd Respondent did not meet the minimum requirements for the post and that she was also not qualified for the post.
69. Firstly, it appears from the papers that both the Applicant and the 2nd Respondent are on REQV14 levels, with both holding qualifications in foundation phase education, the Applicant submits that the Applicant does not hold a management or computer literacy qualification.
70. The 2nd Respondent did not dispute that she does not hold qualifications in management or computer literacy, she submitted that by virtue of having been a departmental head and acting deputy principal she had management experience, she was also trained in computer literacy and is competent to use a computer.
71. Swart submitted that it was not a post requirement to have a qualification in management or computer literacy, but it was experience and ability which counted.
72. The advert found on page 6 of the Applicant’s bundle states under learning areas “Management & Administration, English HL, Afrikaans FAL, Maths & Computer literate”, I would have agreed with the proposition of the Applicant that a qualification would be required if one needed to teach in the subject, but as has been established this post was for a deputy principal who would have as subjects foundation phase subjects such as Maths, English HL and Afrikaans FAL, management and computer literacy do not feature here.
73. I therefore accept the version of Swart that management, administration and computer literacy were abilities and strengths the candidates should have.
74. The Applicant does indeed hold a management qualification and just as the 2nd Respondent is/was a departmental head, the 2nd Respondent in addition acted as a deputy principal as per her and Swart’s evidence, the Applicant submitted that she disputes that the 2nd Respondent had acted but presented no evidence to rebut the claims.
75. The Applicant also made a submission that to be computer literate one needed to hold some sort of qualification, this is simply not the case as one can be computer literate without formal training, in addition the qualification which the Applicant holds was obtained in 1997 with it being reasonable to submit here that much has changed in computing in the almost thirty years which have passed since that qualification, the Applicant did submit that she had kept up with the changes, but submitted no further qualification.
76. I must note here that in the EDP01 form the Applicant submits that her computer qualification was in the Microsoft Office suite of applications, but the qualification was in Word-perfect a different system.
77. It is the 2nd Respondent’s undisputed evidence that she teaches English HL, Afrikaans FAL and Maths at foundation phase level, these being the core of the subjects required by the advert. The Applicant submitted that she was qualified in the subjects but taught Xhosa HL, English FAL and Maths, she does not mention having taught Afrikaans in any form at any time, and her EDP01 lists her language competency in Afrikaans as developing, this placing doubt thereon if it would have been in the best interest of the students that she be appointed or recommended.
78. Both the Applicant and 2nd Respondent have similar years of experience and are both sufficiently qualified to be placed at REQV 14, however the 2nd Respondent was the better candidate when considering post and its requirements.
79. It is therefore my finding that that the 2nd Respondent had met the requirements of the post, that the Applicant had been given a fair opportunity to compete for the post but did not establish either during the selection process or during this arbitration that she was the best candidate for appointment as such there is no substantive unfairness, there is further no evidence pointing thereto that the Applicant was procedurally prejudiced due to non-compliance with PAM as she was afforded a fair opportunity to compete for the post.
80. In the premises I make the following award.

AWARD

81. The Applicant has failed to establish that the 1st Respondent committed an unfair labour practice in relation to promotion as contemplated by Section 186(2)(a) of the LRA, as such she is not entitled to any relief.
82. There is no order as to costs.

Panellist: Andre Swart