IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC616-24/25EC
Panelist:  Pumeza Ndabambi

In the matter between

SAOU obo JO-ANN MARTIN Applicant

and

EASTERN CAPE DEPARTMENT OF EDUCATION 1st Respondent

L. BAMBI 2nd Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 03 March 2025

SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice in terms of section 186(2)(a) – unfair conduct relating to promotion.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a)(v) of the Labour Relations Act 66, 1995, (the LRA). The arbitration was heard on 10 February 2025, at the 1st Respondent’s premises in Humansdorp. The Applicant, Ms Jo-Ann Martin, was represented by Ms Venita van Wyk, an official of SAOU, the First Respondent, the Eastern Cape Department of Education, was represented by Ms Bethelina Ngcukana, the Labour Relations Officer and the Second Respondent, Mr L. Bambi was represented by Mr Anton Adams, an official of NAPTOSA.
2. The parties agreed to submit written closing arguments by no later than 17 February 2025 and both parties complied.
3. The proceedings were electronically recorded

BACKGROUND TO THE ISSUES

4. The Applicant applied for a position of a Departmental Head at Hankey Secondary School in Sarah Baartman District. The post number is 825, Bulletin – Volume 1/2024. The Applicant was shortlisted and invited for interviews. She was not successful in her application. The Applicant upon receiving the outcome after the interviews, referred a dispute to the ELRC of an unfair labour practice relating to promotion, in which she is challenging the following:
   a. On procedure the dispute is:
   i. The role played by the Principal in the interview process.
   ii. The SGB ratification meeting changed the recommendation of the interview panel.
   iii. The submission made to the employer not as per ratification meeting outcome.
   b. Substantively, there is no dispute.
5. The Applicant prays for compensation.

SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s Version

6. The version of the Applicant was led through the evidence of 1 witness (the Applicant) and a bundle of documents;
7. Ms Jo-Ann Martin (the Applicant) testified that she applied for a Departmental Head: Business Studies, Economics and Accounting post. She specialises in Economics and currently teaches at Jeffreys Bay Comprehensive School from 2018. She arrived early on the day of the interviews and when the first candidate was inside the Principal came out and was on the phone giving directions to someone to the venue of the interviews. The Applicant was the second candidate to be interviewed and was asked 5 questions and is confident that she answered satisfactorily.
8. The Principal then asked for the Applicant’s documents for verification, after which the Applicant left. On her way she received many calls from the Principal and was asked about documents. The Applicant then saw the other candidates’ score sheets amongst her documents. She had to meet the Principal at some Engen Garage and hand over the score sheets which the Principal collected, thanked her and left.
9. The reason the Applicant lodged a grievance was about the phone call the Principal received because she thought of favoritism. He was not allowed to take such phone calls as she also had to find the venue on her own. The Applicant was also told by a previous Educator what was happening at the school and that she was supposed to get the position as she was supposed to be ranked first. She felt, based on those stories, that she should have got the position. She also heard from a husband of one of the SGB members in the Educator component that she should have received the position.
10. The Applicant also got a screenshot from the SGB Whatsapp group where she was discussed in the ratification meeting that she might be a relative of one member in the Educator component. The Principal apparently knew how she was related. She is not related to the person. The relations are that the person’s husband’s mother’s sister is married to the Applicant’s father’s brother and in her view they are not family.
11. Under cross-examination the Applicant confirmed that she overheard the Principal talking to another person giving directions and assumed it was another candidate trying to find the venue. In her opinion that was not correct, the candidate should have used GPS or call the venue. The Principal did not call a name but the Applicant assumed it was another candidate on the call.
12. The Applicant further confirmed that from the stories she heard, she should have been ranked No. 1 instead of No. 3. The Applicant further believes that the fact that she saw the score sheets which were left with her documents constitutes fraud because the score sheets are confidential information and she would not like the fact that her score sheet left the room but confirmed that the Principal was verifying her documents and accidentally left the score sheets in her documents.

Respondent’s Version

13. The 1st and 2nd Respondents decided not to lead oral evidence other than what is contained in the documentary evidence.

ANALYSIS OF EVIDENCE AND ARGUMENT

14. Section 185 of the LRA provides that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices. This section gives effect to section 23 of the Constitution of the Republic of South Africa. The dispute referred is an unfair labour practice relating to promotion and the employee bears the onus of proof.
15. The Applicant challenged procedure and argued that she was recommended but the 2nd Respondent was appointed. The resource person would have been the best person to inform the arbitration what actually transpired in the process but the 1st Respondent opted not to call him. The Applicant believes that ratification is the highest power in the recruitment process as the District Director of Sarah Baartman was engaged by the Applicant’s representative and informed them that he did not change the ranking but that the information handed to him was misrepresented. The Applicant believes that the interview process was not fair and transparent. The process was therefore manipulated.
16. PAM document at B3.2 regulates the minimum requirements for appointment for institution-based and office-based educators. At B3.2.(b) the minimum requirements for a Departmental Head are:

a. A recognised three or four-year qualification, which includes professional teacher education;
b. Registration with SACE as a professional educator;
c. Advanced Knowledge of teaching as provided for in the professional qualification;
d. 3 years of actual teaching experience; and
e. Generic competencies.

17. With regards to all candidates, it is common cause that they all met the minimum criteria for the Departmental Head post, hence they were shortlisted and interviewed.
18. PAM document at B5 outlines the following steps for recruitment and selection:
    a. Vacancy identified
    b. Advertisement
    c. Sifting by the department
    d. Shortlisting by Interview Committee
    e. Interviews by Interview Committee
    f. Ratification; and
    g. Recommendation by SGB
    h. Appointment by HoD
19. In this matter all the stages outlined above were followed. It therefore shows that the Applicant was afforded a fair opportunity, equally with the other candidates, to compete for the post. The fact that one candidate called the Principal for directions does not raise any unfairness particularly because the Applicant in her own evidence overheard the call and that it was about directions to the venue and nothing else. It can therefore not raise an apprehension of bias if nothing else was discussed. There was therefore no manipulation of the process based on the phone call.
20. The last issue to be dealt with is the fact that the Applicant is unhappy with the score sheets being accidentally left in her documents. She said it was an accident and that was rectified by the Principal calling her and collecting the documents before she could see them. This can only be attributed to human error and there is therefore no fraud committed, as alleged by the Applicant and there is no misrepresentation in this regard.
21. In Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng, Case No 02/15349 [2006] JOL 17802 (W) it was held that:
    “The question then arose whether the multitude of the applicable laws and regulations which prescribed the procedure to be followed in the appointment of new teachers were peremptory or merely directory. In either event, the first question arose whether exact compliance was required or whether substantial compliance was sufficient. Accepting for present purposes, that the prescribed procedure was peremptory, strict compliance was not necessary. All that was called for was substantial compliance.

Held, further, that the procedure that the school had followed fully achieved the purposes of the legislation of ensuring that there was a fair and transparent procedure in place for appointing teachers to fill vacancies.”

22. In this matter it was shown that the process was followed as specified in PAM and that there was compliance in that regard. The issues raised by the Applicant did not taint the procedure outlined in the provisions above. There is no evidence led by the Applicant that the District Director mentioned something about the misrepresented documents or that he did not change the scores, that only came in the closing arguments. The Applicant was free to call the District Director as a witness to testify to the correctness or incorrectness of the score sheets, which were also presented to the Applicant and were not challenged as to the correctness thereof. In line with the sentiments in the Observatory Girls matter substantial compliance with PAM was achieved in the recruitment process leading to the appointment of the Second Respondent. There was further no prejudice on any of the candidates as the process complied with the required procedures.
23. In Ndlovu v CCMA & others [2000] 12 BLLR 1462 (LC), the Court held at par 1462:
    “It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience,ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.

The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing qualities of the two candidates. Provided a decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise”.

24. From the case cited above there is no evidence that the decision to appoint the Second Respondent was not rational. Even in the ranking there were no issues that the Applicant attacked. The Applicant heard from some members of the SGB,known to her that she was discussed in the ratification meeting. Such people were never called as witness to confirm the correctness or truthfulness of the Applicants’ version in this regard. It therefore remains hearsay evidence as the documentary evidence presented shows otherwise.
25. In Noonan v SSSBC and others [2012] 56 ILJ (LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity to compete for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
26. It is also trite that where an employee fails to prove that s/he was the best of all the candidates who applied for the job, then in order for the employee to prove an unfair labour practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest and misled the interview panel or employer.
27. There is therefore no evidence to show that there was any fraud or manipulation of the process, as alleged by the Applicant. I find, therefore, that the decision to appoint the 2nd Respondent was rational, fair and reasonable and does not need to be interfered with. I therefore find that the Applicant failed to discharge the onus to prove that she is the best of all candidates that were interviewed for the position, and that the failure to promote her was unfair or that the process followed was unfair.
28. In the circumstances, I make the following award:

AWARD

29. The conduct of the 1st Respondent, Department of Education: Eastern Cape, in not promoting the Applicant, Ms Jo-Ann Martin, does not constitute an unfair labour practice. The Applicant, Ms Jo-Ann Martin, is not entitled to any relief.

PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL