In the matter between

HEBREW GODDEN Applicant

and

DOE-WC First Respondent

P.E LINKS Second Respondent

ARBITRATION AWARD

ARBITRATOR: A.Singh-Bhoopchand

HEARD: 7 August 2019; 8 October 2019; 22 January 2020 2 March 2020; 26 October 2020; 27 October 2020; 28 October 2020

DATE OF AWARD: 01 December 2020
DETAILS OF HEARING AND REPRESENTATION

1. This matter concerning an alleged unfair labour practice relating to promotion commenced on 7 August 2019 and continued on 8 October 2019 , 22 January 2020 and 2 March 2020 at the Metro East Education District Offices in Kuilsriver , Cape Town. The hearing was eventually concluded on the Zoom Virtual Video Conferencing platform on the 26 , 27 & 28 October 2020. Mr Godden (applicant), represented himself and the first respondent was represented by Mr F. Scholtz, a labour relations official within the Labour Relations Directorate of the Western Cape Education Department (WCED). The second respondent was present through most of the process and he represented himself.

2. Two bundles of documents were handed in as evidence.

3. Proceedings were digitally recorded.

ISSUE IN DISPUTE

4. I must decide whether the respondent committed an unfair labour practice in relation to the applicant in the filling of the Principal Post No. 285 , and if so the appropriate relief.

BACKGROUND TO THE DISPUTE

5. The applicant is currently an educator at Fisantekraal High School. He applied for the vacant Principal Post No 285 at the Scottsdene High School as advertised in the respondent’s Vacancy List 1/2018. He was shortlisted and interviewed for the post and he was nominated as the second candidate on the School Governing Body (SGB) list of recommended candidates. However, he was unsuccessful in his application. Mr P.E. Links, the second respondent herein and the first nominee in the SGB’s list of recommended candidates, was appointed to the post. Mr Links was allocated a score of 77.41% by the SGB , while the applicant was allocated a score of 55.52%. Mr Links was the acting principal of Scottsdene High School.

6. No internal grievance was lodged by the applicant. He lodged a dispute with the ELRC on 7 January 2019,in which he alleges that an SGB member that served on the interview panel is or was employed and remunerated by the SGB . Subsequently, after having had sight of the minutes of the various meetings pertaining to the filling of the post and to the scores allocated during both the shortlisting and the interview phase , he also claims that the discrepancies in the scores indicate that the interview committee was biased in favour of the appointee. He also takes issue with Mr Muller , a co-opted member of the panel.

7. He submits that he was the best candidate for the post based on his qualifications, his experience and his performance during the interview process.

8. The respondent stands by its appointment and contends that the process was fair.

SUMMARY OF EVIDENCE

In the interests of brevity, I provide only a brief summary of the evidence.

Applicant’s Case
9. Hebrew Godden: He testified that he first became aware of flaws in the process of the filling of the post when a colleague Mr Burger alerted him . Mr Burger is an educator at Scottsdene High and he was an applicant to an HOD post at the school. The same interview panel participated in the filling of both the principal’s post and the HOD post. Mr Burger informed him that he had lodged a grievance against the filling of both posts because the interview panel had been improperly constituted. He said that Mr Van Rooyen who had been part of the panel as a parent member of the SGB was in fact an employee of the school. This is unprocedural and it is for this reason that the department agreed to repeat the process for the filling of the HOD post. The same should apply for the filling of the principal’s post.

10. There are also several factors that point to the fact that the interview panel showed bias in favour of Mr Links, who being the acting principal at the school was well known to them. There are several discrepancies in Mr Links CV . Some of the information provided in the CV is not borne out by the certificates that he attached . Furthermore, the scores allocated to Mr Links during the shortlisting do not correlate with the content of his CV. Mr Links was given full marks for many of the criteria whereas he was not, even though he met the criteria and even surpassed the minimum criteria in every way. The CV is the only document available to the panel and the marks are supposed to be based soley on the content of the CV. Mr Links qualifications are misrepresented on his CV . His CV states that he has Higher Diploma in Education (HDE for Grade 10, 11 & 12) while his certificate states that he has an HDE (grade 7, 8 & 9). He ought to have been disqualified as he is not qualified to teach grade 10, 11 & 12.

11. His own CV far outweighs that of Mr Links. Had the process been conducted by an independent panel, the outcome would have been different.

12. It was a requirement during the interview process that all candidates do a power point presentation. It was brought to his attention by Mr Burger that Mr Links did not manage to do the power point presentation. Yet he was allocated full marks for the presentation.

13. There is a trend in the scoring that Mr Links was consistently allocated high scores, and full marks in some instances. By comparison , his scores were low, even though he performed well. It is apparent that the SGB had already made up their mind that they wanted Mr Links to be appointed to the post. The SGB is required to write a motivation for the nominated candidates. The motivation that was written for himself by Mr Muller on behalf of the SGB contained untruths which he believes were there simply to discredit him .

14. Reuben Burger: He confirmed the evidence of the applicant in so far as they relate to him . He had lodged a grievance against both the HOD post and the principal’s post as he believed that the unfairness related to both posts. He was informed by the department that he could not lodge a grievance against the principal’s post as he was not an applicant to that post.

15. Mr van Rooyen was on the SGB but he was also employed by the school as a night security guard.

16. He also testified that he has never seen Mr Links do a power point presentation. He does not believe that Mr Links is familiar or proficient with the computer as someone else always does the computer work for him. He also said that Mr Links does not do the time- tables at school and that it is Mr Barnes that does the time tables.

17. Philman Joseph: He is an SGB member . He also served on the interview panel. He confirmed that Mr Links was not able to do the power point presentation. Mr Lubbe, the department representative gave Mr Links permission to do the presentation on his lap top. All the panelists could not see the presentation, but they just used their discretion to allocate the score.

18. He is of the view that the applicant’s CV is better than that of Mr Links. Mr Links does not do the time -table at school yet he was allocated a high score for this. In many instances Mr Links was allocated full marks. He believes that this happened because Mr Links was known to the panel. He personally reduced some of the scores allocated to Mr Links that he was tasked to moderate. He also believes that the outcome of the process would have been different if there was a different SGB. Most of the SGB members are just passengers. The chairperson speaks and decides everything on their behalf. He believes that the applicant was deliberately given low scores so that he would not be nominated and appointed. The SGB members are all familiar with Mr Links so they had a natural bias towards him. Overall, he believes that the applicant was a better candidate.

19. Cornelia Lakay: She is an educator at Scotsdene High and she was the educator representative on the SGB. She was present at the meeting that decided on the interview panel. Mr Links decided on the panel. She asked Mr Links if she could be on the panel and his response was that she could not because she had applied for a post on the same bulletin (the HOD post)

20. With regard to Mr van Rooyen, she testified that she was aware that he worked at the school , but at that time she was not aware that he could not be on the panel because of this. When she became aware of this , she lodged a grievance and the outcome of the grievance was that the process for the filling of the HOD post had to be repeated.

21. She was present at the meeting where the outcome of the psychological assessments was discussed. Mr Muller who was a co-opted member of the panel was also present and he participated in the discussion. He influenced the members and answered questions. He ought not to have done so. She left the meeting for a few minutes and when she returned, the decision had been made. The purpose of the meeting was to make a decision. She has since resigned from the SGB as Mr Links called the shots. She is of the view that the parent composition of the SGB was not competent to choose a principal. She believes that they were influenced. The results of the psychological assessments show that Mr Links was not competent for the post.

Respondent’s Case
22. Francois Muller: He is currently not an employee of the department. He previously served as a deputy principal at the Scotsdene High School . Mr Links was his direct supervisor. In relation to the filling of the principal post, he said that he was approached by the chairperson of the SGB, Mrs I Petersen, and informed that there was a proposal that he be a co-opted member of the interview panel and to act as a secretary. He would have no voting rights, but he would be allowed to have input if necessary. He was responsible for the minutes of the meetings. He was involved in the process from the outset, from shortlisting.

23. Mr Lubbe was the department resources person and he was responsible for training the SGB with the process for the filling of the post.

24. Mr Links was not involved in the selection of the interview panel- he was involved only in the selection of the panel for the HOD post and he left when the panel for the principal post was being selected. He also said that Van Rooyen was never employed by the school or the SGB. He had volunteered to perform the security function when the contract of the security service provider had ended . He was paid a stipend.

25. Candidates were required to do a power point presentation during the interview. Mr Links encountered a technical problem which was not due to any fault on his part. Mr Lubbe then asked Links to do the presentation on his lap- top which was turned towards the panel so that they could see the presentation and allocate marks. It was not the purpose of the power point presentation to test the candidate’s computer skills . It was about content. The interview itself carried more weight that the presentation.

26. The SGB followed a fair process. After the panel members scored the candidates individually, he and Mr Lubbe then checked to see if the totals were calculated correctly. From there on the numerical order was decided. Thereafter there was a short discussion. Consensus was not necessary as there was a vast difference in the scores. The fact that Links was already employed at the school did not give him any advantage. The panel was informed by Mr Lubbe that the decision must be based on performance. When the SGB submitted the nomination documents to the department they were informed that the motivation was too short, and they were asked to elaborate. Hence a more detailed motivation of the candidates was submitted. He had phoned the referees to verify the references submitted by the nominees and he had complied the motivation for the nominees that was submitted to the department.

27. During cross examination he testified that candidates were required to bring certified copies of their certificates with them during the interview. It was then pointed out to him that the interviews had taken place on 29 May 2018 and the nomination was made on 2 June 2018, while a certificate submitted by Mr Links is dated 21 June 2018. His response was that as Links is an educator at the school , his CV is at the school. Links was advised to bring his certificates as soon as possible and in the meantime the outcome was based on his performance. He could not explain why the motivation that he drafted for the applicant contained incorrect information

28. Francois Lubbe: He is the circuit manager for the Metro East Circuit 4 district and Scotsdene High is one of the schools that falls under his jurisdiction. As part of his job description he is responsible for recruitment and selection processes. He personally oversees the processes for the filling of post level 3 & 4 and he delegates this function for the filling of the lower level posts. His role is to provide guidance during the process, and this is what he did in respect of this process.

29. He confirmed that Muller was a co-opted member of the panel for the purposes of taking minutes. Co-option of a member for this purpose is not unique to Scotsdene High-it happens at other schools as well. When an SGB is appointed they are trained provincially. His job is to make sure that the SGB is made aware of the training and to ensure that they attend. He can confirm that the SGB had been trained.

30. He confirmed that Links had technical difficulties during his power point presentation through no fault of his . In order not to delay the process , he suggested that Links do the presentation on his lap top. The panel members moved closer together so that they could see.

31. The CBA assessment reports do not play much of a role in the outcome. Overall, a fair process was followed. The scores are supposed to be reflective of the candidates performance. It is within the ambit of the SGB to do the scoring -it is not for him to agree or disagree. The process is not always perfect

32. During cross examination , he testified that the process for the filling of the HOD post was repeated because of several issues and was not necessarily confined to the issue with van Rooyen.

33. Irsha Petersen: She was the chairperson of the SGB at the time of the process for the filling of the post. She confirmed that the SGB had been trained on the process. She testified that Links was present when the panel for the filling of the HOD post was chosen , but that he left when the panel for the principal post was chosen. Muller was co-opted because he had the most experience with procedure. She took the decision to co-opt him and the decision was supported by the entire SGB.

34. Van Rooyen was not employed by the SGB- he was merely assisting with security and he was given an “incentive”

35. Both the applicant and Links performed well. However, overall, Links performed better. The marks are an accurate reflection. Links encountered a technical problem during his presentation , but all panel members were able to see his presentation when he did it on his lap- top computer, There is much gangsterism and violence in the area where the school is located. Links seemed better equipped to handle this. Links gave an excellent interview. The fact that Links was known to the panel did not give him an advantage. He is performing very well at the school and this is confirmation that they made the correct choice. She conceded that during the shortlisting process, Links was allocated a good score even though information relating to specific criteria was not in his CV. This happened because the panel members knew that he was experienced in those areas.

36. Van Rooyen was not employed by the SGB as he did not have an employment contract . The SGB is aware that all employees are required to have an employment contract.

ANALYSIS
The Applicable legal principles

37. Unfair labour practice is defined in section 186(2)(a) of the LRA as any unfair conduct relating to promotion , demotion ,training or the provision of benefits. An employee who alleges that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of an unfair labour practice, but also that it was unfair . An employee who refers a promotion dispute must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must prove that the decision not to appoint him was unfair. Mere unfairness or a perception of unfairness does not establish unfair conduct. What is fair depends on the circumstances of a particular case and essentially involves a value judgment.

38. The conduct of the employer may be substantively and/or procedurally unfair. Substantive unfairness relates to the reason for not promoting the employee, whereas procedural unfairness relates to an unfair process applied by an employer during the course of the recruitment and selection process. As soon as a promotion has been made by the employer, the employer becomes responsible for any unfair conduct of the school governing body committed during the process leading up to the promotion.

39. Where an applicant in a promotion dispute , is unable to prove that he was the best candidate that applied for the job , then in order for the employee to prove an unfair labour practice relating to promotion , he or she should at least demonstrate that there was conduct that denied him an 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. There is no general right to promotion . What employees do have is a right to be fairly considered for promotion when a vacancy arises.

40. The decision to promote or not to promote falls within the managerial prerogative of the employer . In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is so badly flawed , an arbitrator should not readily interfere with the exercise of the discretion.

Applying the Law to the Facts

41. The applicant essentially alleges unfairness in the process. What prompted his referral in the first place is when he learnt that the process for the filling of HOD post was redone, allegedly because Mr van Rooyen who was a parent component of the SGB and a panel member of the interview panel , was also employed and renumerated by the school. If this is so , then it would be in contravention of Section 23(3) of the South African Schools Act 81 of 1996. What emerged from the evidence is that van Rooyen performed the function of a night security on a voluntary basis when the contract of the security guard ended. He received a stipend for this function, but he did not have an employment contract. Whilst it is trite that one does not necessarily require an employment contract in order to be employed, this does not necessarily mean that van Rooyen was employed. I do not have sufficient evidence before me to make a finding in this regard. The applicant is of the view that since reference was made to this issue in the letter indicating that the process in the HOD post was to be repeated , then by the same token this would be sufficient grounds for the process in the principal’s post, which was conducted by the same panel, to be repeated. The evidence was , however, that there were other issues as well that led to the process of the HOD post being repeated. Indeed , even if I were to accept that van Rooyen was employed by the school , this on its own would not in my view be sufficient reason to render the entire process flawed.

42. The applicant is also of the view that the fact that Burger, who was an applicant to the HOD post, mentioned post 285 of 1/2018 (the principal’s post) when he lodged his grievance against the filling of the HOD post, means that a grievance had been lodged against the principal post. I disagree. It is trite that a grievance can only be lodged by the affected party. Since Burger was not an applicant to the principal’s post , he could not lodge a grievance against the filling of that post. Effectively , no grievance was lodged against the filling of the principal’s post.

43. The next point of contention is Mr Links presence when the interview panel was chosen. The minutes reflect that Links was present for during the meeting in which the panel for both the HOD and the principals post was chosen. It is not disputed that Links was present and contributed to the choosing of the HOD interview panel. Respondent’s version is that Links left the meeting when the panel for the principal’s post was to be discussed. The minutes do not reflect that he left the meeting at any stage. However , respondent’s witnesses testified that he did leave when the panel for the principal’s post was discussed. As it turns out the same panel was chosen to conduct both processes. At the very least then, Links did indirectly participate in the choosing of the panel. A more pertinent issue would be whether the chosen panel was partial towards Mr Links and whether Links had influence over the panel. I shall return to this issue later .

44. Another point of contention is the involvement of Mr Muller, a co-opted, non-voting member. The first point of contention is how he was co-opted. Applicant argues that Muller was co-opted by the interview committee and not by the SGB, contrary to the provision in the SA Schools Act. He also suggests that Links and Muller were well known to each other having worked together in the past, that Muller was there simply to favour Links. It is common cause that Muller’s function was purely administrative and that he was not to participate in the process itself. However, he did draft the motivation which accompanied the recommendation to the department. This ought to have been done by an elected member of the SGB. As it turns out the motivation drafted by Muller for the applicant turned out to contain incorrect information. Muller could not explain how he came to acquire such information . This is questionable.

45. I turn now to the interviews and the scoring of the candidates. The applicant claims that Links did not do the power point presentation and that despite this, he was allocated full marks by certain members of the panel. The evidence supports respondent’s version that there was indeed a technical glitch and that it was for this reason that Links was unable to connect to the overhead screen. However, he was able to do a presentation. The high score allocated for the power point presentation is more relevant in the context of the overall scores that were allocated to Links for many of the questions during the interviews. The applicant presented evidence of the scoring during the shortlisting process in an attempt to show that there was a general trend of partiality towards Links. This is indeed borne out by the evidence. During the shortlisting process Links was allocated high marks for certain criteria relating to experience even though his curriculum vitae was lacking in those areas. In comparison, the applicant exeeds the minimum educational qualifications .

46. Promotions and appointments are never based soley on the results of interviews and neither are they based on the contents of the curriculum vitae. If they are soley based on the results of the interviews, a weak candidate who is eloquent may get the job, whereas if they are based only on the curriculum vitae, a candidate who might not fit into the organization might get the job. The interviews process also provides the fertile opportunity for individuals with a personal leaning towards a particular candidate to exercise their bias. Furthermore , there has to some benefit to an individual who takes the trouble and the time to improve and enhance his education. Ultimately it is the learners that would benefit from a better equipped educator. The decision to appoint a particular candidate , must therefore be a decision that is based on both the results of the interviews as well as the contents of the curriculum vitae. The applicant has an impressive academic record, and he has the required experience in terms of the criteria that was used for shortlisting. The psychological assessment report indicates that the applicant was a better fit for the post. Yet this does not appear to have played any part in the decision. It is evident that the SGB placed reliance only on the scores attained during the interview process.

47. The bias in the allocation of scores during the shortlisting process appears to have been carried through to the interview process. One panel member allocated full marks to Links for every question. The chairperson of the SGB also awarded high marks to Links . In contrast, both these panel members awarded low scores to the applicant. On the other hand Mr Joseph who appears to have been neutral, awarded a high score to the applicant and a much lower score to Links. These discrepancies cannot be explained. There is no record of the answers that the candidates gave to each question in order to establish whether the scores can be justified. This itself is problematic. There must be proper minute keeping.

48. Considering all the facts and circumstances, I am satisfied that applicant has demonstrated on a balance of probabilities that the respondent has treated him unfairly as regards promotion and has committed an unfair labour practice relating to promotion as intended in section 186(2) of the Labour Relations Act.

Remedy
49. Applicant has not proved that he is the best of all the candidates who applied for the post. I therefore cannot appoint him to the post . An arbitrator’s powers in granting relief in unfair labour practice disputes are wide. Section 193(4) of the LRA provides that an arbitrator may determine any unfair labour practice dispute on terms that the arbitrator deems reasonable, which may include (but is not limited to) to ordering reinstatement , re-employment or compensation. Section 138(9) of the LRA , provides that an arbitrator may make any appropriate arbitration award including , but not limited to an award that gives effect to the provisions and primary objectives of the LRA , which includes one that is in the form of a declaratory order.

50. In instances where there were fatal flaws in the process, as in this one, arbitrators often order a repeat of the process to ensure that the applicant and the other candidates all have a fair opportunity to compete for the process . A period of more than two years has elapsed since the process took place. It is very likely that many of the candidates that applied for the post have now gone on to other posts and may no longer wish to compete for the post. I am therefore of the view that ordering a repeat of the process from shortlisting is not ideal. Applicant was one of the two nominated candidates. I am therefore satisfied that he stands a realistic chance of being appointed if the process is conducted fairly. I am of the view that repeating the process from advertising would be the most appropriate order .

51. It would be senseless to order a repeat of the process without setting aside the appointment of second respondent. The labour court has held that arbitrators do have the power in promotion disputes to set aside that promotion/appointment of successful candidates.

In the premises, I make the following award:

AWARD
1. First respondent committed an unfair labour practice relating to promotion as contemplated in section 186(2)(a) of the LRA.
2. The appointment of the second respondent is set aside. This order is not retrospective, and the second respondent is entitled to his remuneration and benefits as principal of the school until the date of this award.
3. First respondent is directed to re-advertise the position of principal at Scotsdene High School
4. I make no order as to costs

A.Singh -Bhoopchand
ELRC Arbitrator