IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN CAPE TOWN

Case No: ELRC692-24/25WC

In the matter between

And

W.Barends Applicant

Department of Education Western Cape 1st Respondent

Terrence De Vries 2nd Respondent

Arbitrator: A.Singh-Bhoopchand
Heard: 24 January 2025
Date of award: 04 February 2025

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing concerning an alleged unfair labour practice relating to promotion took place virtually on 24 January 2024. The First Respondent was represented by Ms Lauren Randall, a labour relations official within the Labour Relations Directorate of the Respondent. The applicant, Mr Willie Barend presented his own case. The 2nd Respondent was present but chose not to actively participate in the process.
2. One bundle of documents was handed in as evidence.
3. Proceedings were digitally recorded.

ISSUE IN DISPUTE

4. I must decide whether the First Respondent committed an unfair labour practice in the filling of the HOD post at the Paulus Joubert Secondary School.

BACKGROUND

5. The Applicant is employed as an educator at the Paulus Joubert Secondary School . He earns a salary of R35 000,00 per month. He applied for the advertised HOD post , post number 553 , at the school. He was shortlisted, interviewed and recommended by the School Governing Body as the number one candidate of the two recommended candidates. The HOD appointed the second recommended candidate, the 2nd Respondent herein, Mr Terrence De Vries. In his position as an HOD, Mr DeVries earns a salary of R36 163 ,00 per month.
6. The reason advanced by the First Respondent for the Applicant’s non-appointment is that he did not meet the requirements for the post in that he did not have the qualifications as stipulated in the advertisement for the post. The job advertisement reads as follows:

DEPARTMENTAL HEAD
Paulus Joubert Secondary
Phase and Grade
Grades 7-9-Senior Phase
Grades 10-12-FET Phase
SUBJECTS
Senior Phase-Technology
FET Phase-Computer Applications Technology
FET Phase-Computer Studies
FET Phase-Tourism
Recommendations
-Applicants must be suitably qualified and prepared to teach the stated subjects from Grade 8-12

• Relevant Experience
  -Utilising Technology /ICT in the classroom

Other
Suitable candidates must be able to teach any of the above subjects

Survey of Evidence and Submissions

7. The Applicant’s version is that he ought to have been appointed to the post as he is suitably qualified; meets all the requirements for the post and he was recommended by the SGB as the preferred candidate. He is currently teaching Technology, Coding and Robotics, Woodwork, Afrikaans (first and second language), English , History , Geography , Creative Arts and Tourism. He started teaching in 1993 . He has been teaching technology since the year 2000. He acted as an HOD for two years.
8. Although he does not have a Tertiary Qualification in any of the subjects stipulated in the advertisement , he has attended numerous training sessions and “up skilling “ courses presented by the WCED and other courses offered by the private sector. He can teach the subjects itemized in the advertisement- he has taught tourism for five years and achieved a 100% pass rate in grade 12. The second respondent has not taught tourism, and he has a tertiary qualification in only one of the subjects.
9. Mr Theunis Abrahams who was the chairperson of the SGB testified that as far as he could recall , the Applicant met all the requirements for the post.

Respondent’s Case

10. The Respondent called one witness, Ms Prudence Michaels. She is the Assistant Director , Recruitment and Selection. She testified that the Department has the final say and may appoint any of the recommended candidates. In considering the two recommended candidates, they looked at the requirements for the post as outlined in the advertisement . They found that the applicant does not have a tertiary qualification in any of the listed subjects. The second respondent has a tertiary qualification in one of the subjects. They looked through Applicant’s academic transcript and noted that he has a qualification in Afrikaans and Geography. The advertisement stipulates under the heading “Other” that the candidate must be able to teach any of the subjects listed. They interpret the word “any” to mean one. The SGB erred in recommending the Applicant as the number 1 candidate. They informed the SGB of their intention to appoint the second respondent and requested a response from them within five days. The SGB did not respond. Had the SGB provided any additional information or motivation, they would have considered same.

Analysis
The Applicable Legal Framework

11. The Constitution of the Republic guarantees everyone the right to fair labour practices, which right is further given effect through the provisions of section 186(2) of the LABOUR Relations Act (LRA) and the Employment Equity Act. Despite the guarantees , it has been held that the LRA does not create a right or entitlement to be promoted unless there is some agreement or law assuring the employee that right.
12. The obligation in terms of Section 186(2) of the LRA is to act fairly towards the employee in the selection and promotion process but taking into account that it is the prerogative of the employer to make appointments. The exercise of that prerogative is nonetheless not immune from scrutiny , as instances of gross unreasonableness in its exercise may lead to drawing of inferences of bad faith. To that end , it is trite that central to disputes pertaining to the appointments or promotion of employees is the principle that the courts and commissioners alike should be reluctant , in the absence of good cause , to interfere with the managerial prerogative of employers in making such decisions. Any form of interference should be with objective of dispensing fairness to both parties.
13. The onus to establish that conduct complained of constitutes an unfair labour practice within the meaning of section 186(2) of the LRA rests on the employee. The employee must therefore be able to lay the evidentiary foundation for his or her claim of an unfair labour practice . Mere dissatisfaction with the outcome of a recruitment or selection process is not sufficient to sustain that claim . The mere fact that the employee has the required experience, ability and technical qualifications for the post is, however, not sufficient , nor is it sufficient for the employee to merely assert that he or she scored higher in the interview process, or some other criterion linked to the selection process. There is still the burden on him /her to demonstrate that the decision to appoint someone else to the post in preference to him or her was unfair. Provided the decision by the employer to appoint one in preference to the other was rational , no question of unfairness can arise.
14. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and Others it was also emphasized 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 motivated 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 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 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.
15. In addition to the above general principles relating to unfair labour practice disputes, regard must also be had to specific legislation pertaining to the employment of educators. In terms of section 6(1) of the Employment of Educators Act, the ultimate decision to make appointment is that of the Head of Department (HOD), after receipt and consideration of the recommendations of the SGB. The HOD is the statutorily mandated official who takes decisions on behalf of the Department.
16. The HOD as employer must place significant weight on the recommendation of the SGB who has interviewed the candidates. Of note is that the Supreme Court of Appeal held further in this case that the employer is not bound by the recommendations of the SGB and may deviate from their recommendation where there is a sound reason for doing so. The employer is expected nevertheless to act reasonably in making an appointment . His decision cannot however be interfered with by a court or arbitrator purely because there may be another , perhaps better decision which could have resulted by attributing more weight to some factor or factors and less to others . If the decision arrived at by the Head of Department is reasonable then it must stand.

Applying the Law to the Facts

17. The main issue in dispute is whether the Applicant ought to have been appointed because he was recommended as the number one candidate by the SGB. Given that the HOD is not bound by the decision of the SGB , the focus of the enquiry is the reasonableness of the decision not to appoint the Applicant. It is understandable that the Applicant is aggrieved since he has been teaching many of the subjects itemized in the advertisement and has participated in Continuous Professional Development. Nevertheless, it is not unreasonable for the HOD , to base his decision on qualifications. In terms of WCED policy a strong emphasis is placed on professional qualifications . In terms of the evidence “qualification “ means a tertiary qualification . As I understand the evidence , Continuous Professional Development is meant to supplement existing qualifications and cannot be regarded as a qualification by itself. It is not disputed that the Applicant does not have a tertiary qualification in any of the subjects listed in the advertisement. The advertisement does stipulate the need for qualifications. The Second Respondent does have a qualification in at least one area. The decision not to appoint the Applicant is not arbitrary or motivated by bias or capriciousness.
18. The Applicant was accorded a fair opportunity to compete for the post. He has no entitlement to a promotion. I must add that there is no obligation to appoint the highest scoring candidate. Mere unhappiness on the of the Applicant is insufficient to found a claim of unfairness .

AWARD
The Applicant’s, W Barend’s, claim of an unfair labour practice is dismissed.

A.Singh-Bhoopchand
Senior ELRC Panelist