Panellist: Themba Manganyi
Date of Hearing: 08 February 2023
Date of Arguments: 08 February 2023
Date of Award: 25 February 2023

In the Arbitration Hearing between

MR MELVIN MERAFE Applicant

and

NORTHERN CAPE DEPARTMENT OF EDUCATION 1ST Respondent

MR MICHAEL LUDICK 2ND Respondent

Applicant’s representative:
Ms Shaneal Feltman from Engelsman Magabane Incorporated

Respondents’ representative:
Mr Louis Matlejoane from Matlejoane Attorneys

Details of hearing and representation

1. The Applicant, Mr Melvin Merafe, referred an alleged unfair labour practice dispute – promotion (section 186(2)(a) of the Labour Relation Act 66 of 1995 (“the LRA”), as amended) to the Education Labour Relations Council (“the Council”) on 22 November 2021. The matter was arbitrated on 08 February 2023 via Zoom virtual platform.

2. Ms Shaneal Feltman (“Feltman”), an Attorney from Engelsman Magabane Incorporated, represented the Applicant and Mr Louis Matlejoane (“Matlejoane”), an Attorney from Matlejoane Attorneys, represented both the Respondents, Northern Cape Department of Education and Mr Michael Ludick.

3. It was common cause between the parties that the dispute at hand was a dispute of law and as such, no oral evidence was to be led in these proceedings. The parties agreed in their pre-arbitration meeting minutes that the dispute can be dispensed of through written heads of arguments. They accordingly submitted their statements of case and written heads of arguments into the record. Thus, this dispute is determined in terms of Part 7 Clause 18 of the Constitution of the Council.

Issue/s to be decided

4. I am required to determine whether the 1st Respondent subjected the Applicant to an unfair labour practice by not promoting him to the post of a Principal at Kimberley Technical School. In the event that I find in favour of the Applicant, I would be required to determine the appropriate remedy.

Background

5. The 1st Respondent advertised a post of a Principal at Kimberley Technical School. The Applicant, the 2nd Respondent and other candidates applied for the position. The Applicant held a position of a Deputy Principal at Kimberley Technical College and the 2nd Respondent held a position of Head of Department (“HOD”) at the same college. After all the recruitment process, the School Governing Body (“the SGB”) recommended three names out of all the candidates that were shortlisted and ultimately interviewed. In their sequence, it was Mr Michael Ludick (the 1st Respondent), Mr A. T. Riet and Mr Melvin Merafe (the Applicant). The HoD appointed the 2nd Respondent.

6. Displeased about the turn of events, the Applicant referred an alleged unfair labour practice dispute to the Council. As a relief, the Applicant sought to be appointed as the Principal or the selection or interview process to be started afresh or be compensated one years’ salary that he would have gotten as a Principal or any other appropriate relief.

Preliminary issue/s

7. Matlejoane submitted on behalf of the 1st Respondent that the Applicant failed to cite the HoD and Member of the Executive Council (“the MEC”) as required by section 2(1) of the State Liability Act no 20 of 1957 (“the SLA”) and section 3(1)(b) of the Employment of Educators Act 76 of 1988 (“the EEA”). On this basis, he prayed for the matter to be dismissed.

8. Matlejoane further submitted that the Applicant’s referral must be dismissed on the basis that the Applicant failed to make out a case of unfair labour practice – promotion against the 1st Respondent in his statement of case as required by paragraph 20.1 of the ELRC Constitution.

Ruling

9. Section 1 of the SLA prescribes that any claim against the State which would, if that claim had arisen against a person, be the ground of an action in any competent court, shall be cognizable by such court… (my emphasis).

10. Section 2(1) of the SLA goes on further to say that in any action or other proceedings instituted by virtue of the provisions of section 1, the executive authority of the department concerned must be cited as nominal defendant or respondent (my emphasis).

11. In my view, the provisions of the sections of the SLA above relate to court proceedings and not arbitration proceedings in terms of the LRA. Section 138(1) of the LRA provides that the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities. I therefore find that citing only the Department as the 1st Respondent and the incumbent as the 2nd Respondent suffices in these proceedings. This being said, I will then proceed to determine the dispute as referred by the Applicant.

12. On the second preliminary issue, Matlejoane based his argument on the Council’s Constitution of 16 March 2016. The Council’s Constitution that is currently operational came into effect on 26 May 2021. It is my considered view that the Applicant party complied with the provisions of Part 7 Clause 18 of the Constitution and I will therefore determine the dispute accordingly. As to whether the Applicant made out a case to advance his claim that the 1st Respondent subjected him to an unfair labour practice by not appointing him to the position will be for me to determine through the weighing of arguments as presented by the parties.

Survey of arguments

13. As already stated in par. 3 supra, parties exchanged their statement of case and heads of arguments and same were submitted to the Council. The statements of case and the heads of arguments are a matter of record and as such, I propose not to restate them in this award. However, it should not be misconstrued that I did not consider them in the writing of this award. I have also considered the jurisprudence and the statutes that the parties relied on to advance their respective case. I will then proceed directly to the analysis of the arguments.

Analysis of arguments

14. It is a requirement in terms of section 138(7) of the LRA that a commissioner must issue an award with his brief reasons. Therefore, I will only deal with the salient points that informed my reasoning in this award.

15. Section 185 of the LRA stipulates that every employee has the right not be unfairly dismissed or subjected to unfair labour practice. Section 186(2)(a) of the LRA defines an unfair labour practice as any unfair act or omission that arises between an employer and an employee involving 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 provision of benefits to an employee.

16. The legal questions that the Applicant raised in his statement of case were the following:
10.1. Whether the 1st Respondent has acted unfairly towards the Applicant?
10.2. Whether the 1st Respondent has violated any provisions of the law that regulates the education system?
10.3. Whether the entire process followed by the 1st Respondent was flawed?
10.4. Whether the 1st Respondent violated the Constitution, the Employment of Educators Act no 76 of 1998, the Personnel Administrative Measures (“the PAM”) and the LRA?

17. The processes that must be followed during the recruitment and selection of educators are contained in the Employment of Educators Act, the PAM and Resolution 5 of 1998. Over and above these regulatory frameworks, the process is also included in the circular for the advertisement (NCDoE vacancy circular 1 of 2021).

18. The parties agreed that the dispute that I needed to determine was a dispute of law and not of facts. Therefore, the agreement between the parties was that there would be no oral evidence that would be led in this dispute. However, the Applicant in his heads of arguments raised disputes of facts that were never canvassed in his statement of case. I find it opportunistic for the Applicant to raise the issue of the SGB biasness in his heads of arguments. Clearly, the issues that the Applicant raises therein are disputes of facts and they ought to be tested through cross-examination. As a result, I am not going to entertain what the Applicant raised out of the parties’ pre-arbitration minutes and the statements of case.

19. It is common cause that the composition of the interview panel did not consist of 50% plus one of the parent component and that the shortlisting panel comprised of 50% plus one of the parent component. To advance his case in this regard, the Applicant incorrectly stated section 9 of the South African Schools Act 84 of 1996 (“the Act”). However, he relied on the prescripts of section 23(9) of the Act which reads thus: ‘the number of parent members must comprise one more than the combined total of other members of the governing body who have voting rights’. Section 23 of the Act deals with the membership of the governing body. There was no controversy about the composition of the SGB. I therefore conclude that the SGB composition was aligned to the prescripts of section 23 of the Act.

20. On the other hand, the composition of the shortlisting and interview panel is regulated by the PAM determined by the Minister in terms of the EEA and the Regulations made in terms of the EEA. The NCDoE vacancy circular 1 of 2021 paragraph 9.2.1 (which is a mirror reflection of the PAM) stipulates that the SGB constituted in terms of the Act shall establish an Interview Committee from its members at the educational institutions where there are advertised vacancies. It goes on further to state in paragraph 9.2.2 on how the Interview Committee should be comprised. What is distinct herein is that the SGB and Interview Committee are two different formations and they serve different functions in the recruitment process. There is nowhere in the regulatory frameworks for the recruitment process where it is stated that the Interview Committee must comprise of 50% plus one of the parent component. Consequently, I do not find any anomaly in the composition of the Interview Committee in this regard. I am in total agreement with the 1st Respondent’s submission that the SGB in its minutes were incorrect to also state that the Interview Committee was not properly constituted.

21. It is common cause that the SGB Chairperson was part of the shortlisting process, but was not part of the interview process. It is further common cause that the Secretary was part of the shortlisting process, but was not part of the interview process. Paragraph 9.2.3 of the NCDoE vacancy circular 1 of 2021 (read with B.5.4.3 of the PAM) stipulates that each Interview Committee shall appoint a Chairperson (who must be a member of the SGB and a Secretary from amongst its members. There is nowhere in the PAM or any other regulatory framework where it is dictated that the Chairperson and Secretary of the Shortlisting and Interview Committees must be the same people. The Applicant did not provide me with any authority to substantiate his claim that it was peremptory that the Chairperson and the Secretary of the Shortlisting and Interview Committees must not be substituted. It is my considered view that if the drafters of these regulations intended that there must be no substitutions of the Chairperson and the Secretary of the Shortlisting and Interview Committees, they would have been explicit about that requirement. I therefore find that the process in this regard was not flawed.

22. It is common cause that the union representative of SAOU was from the same institution and that the union representative was a also a staff member at the same institution. Chapter B.5.4.3.4 of the PAM stipulates that there must be 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. Paragraph 6.12 of the NCDoE vacancy circular 1 of 2021 defines the roles of observers very succinctly. It states that observers shall not be directly involved in the process of shortlisting and interviews, but will note that approved procedures and practices are adhered to in a fair, consistent and uniform manner. The Applicant did not argue that the observer that was from the same institution interfered with the approved procedures and practices. There was no argument that was advanced that the observer in question muddied the process in any way to disfavour the Applicant. Consequently, I find that there was no procedural unfairness towards the Applicant.

23. Lastly, it is my considered view that in appointing the 2nd Respondent, the 1st Respondent took into cognizance the provisions of paragraph 7.3 of the NCDoE vacancy circular 1 of 2021, that is, the principles of equity, redress and representivity. I do not find that there was any violation of any statute regulating the employment of educators. Subsequently, I find that the Applicant did not succeed to make out a case of unfair labour practice as contemplated in section 186(2)(a) of the LRA.

Award

24. I find that the 1st Respondent did not subject the Applicant to any unfair labour practice as alleged.

25. The Applicant is not entitled to any relief.

Arbitrator: Themba Manganyi