Panelist: Mothusi Maje
Case No.: ELRC40-23-24NC
Date of Award: 08 September 2024
In the ARBITRATION between:
Gaynore Poggenpoel
(Union / Applicant)
And
1st Respondent, Northern Cape Department of Education and 2nd Respondent, Christy Mathews
(Respondent)
Applicant’s representative: Adv. Nathan Williams (Legal Representative)
Applicant’s address:
Telephone:
Email poggepoelgaynore@gmail.com
Respondent’s representative: Ferdinand Bitterbosch (Labour Relations)
Respondent’s address: Department of Education: Northern Cape
Telephone:
Email: Fdbitterbosch@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. This is an award of the arbitration that was held on the 24 August 2023 on Microsoft team’s link. It became part-heard and continued on 20 October 2023, 24 January 2024, 25 January 2024, 22 May 2024, 15 August 2024 and 16 August 2024. Appearing on behalf of the Applicant who was also present was Advocate Nathan Williams, her Legal Representative.
2. Ferdinand Bitterbosch appeared on behalf of the 1st Respondent, Northern Cape Department of Education as its Labour Relations Officer in Labour Relations. The second Respondent, Christy Mathews was also present and represented by P. Mogopodi from SADTU (South African Democratic Teachers Union), a Union representative.
ISSUE TO BE DECIDED
3. The issue to be decided was whether the 1st Respondent committed an Unfair Labour Practice related to promotion.
BACKGROUND TO THE DISPUTE
4. The Applicant referred an unfair labour practice dispute as contemplated under section 191(1) of the Labour Relations Act, Act 66 of 1995 (as amended) (the “LRA”) as read with section 186(2) (a) of same. 2. The dispute of the Applicant pertains to the unfair conduct of the First Respondent relating to promotion, for the position of Departmental Head, Post Level (PL) 2.
5. The Second Respondent was joined to the dispute as he was the successful candidate who had been appointed by the First Respondent in the promotion forming the subject matter of the dispute.
6. The issues in dispute are as follows:
SUBSTANTIVE FAIRNESS:
7. Whether the Applicant is/ was the most suitable qualified candidate on the basis of the criteria set out in the advertisement of the post, the criteria of VC 1 of 2022, the shortlisting criteria as well as the interview criteria.
8. Whether the Second Respondent met the minimum requirements for the post.
9. Whether the basis for the Second Respondent’s inclusion in the selection and recruitment process was fair, rational and/or justified.
10. Based on a comparative assessment between the Applicant and Second Respondent, whether the Applicant should have been appointed to the promotion post.
11. Whether the substantive reasons for the decision of the HOD to not appoint the Applicant, are unfair, arbitrary, and/or irrational and/or arose from a failure to apply her mind and/or stem from bad faith.
PROCEDURAL FAIRNESS
12. Whether the First Respondent complied with the rules of VC 1 of 2022. Whether the First Respondent complied with the requirement of ensuring the availability and integrity of the NCK documentation and minutes of meetings of the selection and recruitment process.
13. Whether the recommendation procedures under the auspices of the SGB were complied with. Whether the appointment procedures under the auspices of the HOD were complied with. It is the Applicant’s case that the actions of the Head of Department in not appointing the Applicant and appointing the Second Respondent amount to acts of unfair labour practice in respect of a promotion.
COMMON CAUSE ISSUES.
14. On or about August 2022 the First Respondent caused a vacancy to be advertised for the position of Departmental Head, Post Level (PL) 2, post number: 202208/317, at Phillips Town High School, Pixley ka Seme, Northern Cape.
15. The rules which govern the promotional post in dispute are found in Vacancy Circular 1 of 2022 (VC 1 of 2022), published on 6 August 20222.
16. The Applicant duly applied for the promotional post. The Applicant was successfully sifted, as per the NCK documentary evidence and the management plan scheduled in Annexure A of VC 1 of 2022.
17. 10. It is further not disputed that in terms of section 6.6 of VC 1 of 2022, states that “the shortlisting and interview scores will be combined to determine the most suitable candidate for the post.
18. It is common cause that the Applicant was the top scoring candidate in the shortlisting and interview stages and was duly recommended by the Interview Committee as the most suitably qualified candidate for the promotion position of Departmental Head at PL 2.
19. Bundle A, Page 1. 2, Bundle A, Pages 2 – 25, Bundle A, Page 9, Bundle A, Pages 125 and 126. The SGB considered the recommendations of the Interview Committee and made its own recommendations to the Head of Department (HOD), recommending the appointment of the Applicant as the first choice candidate, in order of score totals and in order of preference.
20. On 19 December 2022, the SGB received a letter, dated 7 December 2022, with the subject “Decline Recommendation of Department Head, Post Number: 202208/317”, from the HOD.
21. The HOD declined the appointment of the Applicant and instead appointed the Second Respondent. It is common cause that the SGB submitted an appeal letter to the HOD on 19 December 2022. The effective date of appointment for the Second Respondent in the promotion post was 1 January 2023. It is common cause that the Applicant acted in the position of Departmental Head at PL 2 at Phillips Town High School for the periods of 1 January 2021 to 30 June 2021.
22. The Applicant again acted in the position of Departmental Head at PL2 at Phillips Town High School from 1 January 2022 to 31 December 2022.
23. The Applicant approached the Education Labour Relations Council (ELRC) alleging that her non-appointment was procedurally and substantively unfair and seeking to be promoted and or alternatively or be compensated for twelve months.
24. There were bundles of documents that were also submitted by the parties. The applicant’s bundle was marked bundle A and the respondent’s bundle was marked Bundle B of documents.
25. Because the proceedings were manually and electronically recorded, the summary of the evidence will appear in the analysis that will follow herein under.
SURVEY OF EVIDENCE AND ARGUMENT
APPLICANT
Gaynore Poggenpoel testified as follows:
26. In order to support her case, the applicant led the evidence and testified that she commenced employment with the First Respondent in the capacity of a temporary replacement fixed-term employee, during the maternity leave of a permanent teacher at Phillips Town High School for 4 months since April 2018.
27. She was appointed in a permanent capacity on 1 January 2019 as a PL1 educator at Phillips Town High School. The subjects and phases she taught at Phillips Town High School during 2018 as a substitute and from her permanent appointment in 2019, to the time the post was advertised in August 2022, included most the following:
28. Business Studies at FET Phase (grades 10 to 12); Economic and Management Sciences (EMS) at Senior Phase (grades 7 to 9); and Economics at FET Phase (grades 10 to 12).
29. The Applicant testified she acted in the promotional post for a total period of 18 months, namely from 1 January 2021 to 30 June 2021 and from 1 January 2022 to 31 December 2022.
30. The Applicant further testified that she acted in the capacity of Principal at Phillips Town High School on two occasions in 2022, as confirmed in her NCK1 form 9. The Applicant was awarded a certificate for ‘Best Teacher’ in 2021, Included in the subjects and phases she taught in 2021 in Business Studies at FET Phase, EMS at Senior Phase and Economics at FET Phase.
31. The Applicant completed a 3 year Diploma in Human Resource Management. Further, she completed a Post Graduate Certificate in Education (PGCE) in Senior and FET Phase, which certificate was awarded ‘Cum Laude’.
32. The minimum requirements in respect of ‘Educational Qualifications’ as follows: “Educational Qualifications: All applicants must have at least a recognized three year qualification (REQV13), includes a professional teacher education or an M+3 year qualification plus a professional teaching qualification).
33. The Applicant testified that she had an M+3 year qualification (HR Diploma) and a professional teaching qualification (PGCE), and she met the Educational Qualifications for the post. The Applicant submitted an officially stamped UNISA document which confirmed that the PGCE has equivalent educational status to the Bachelor of Education Degree (BED). A Postgraduate Certificate in Education in Senior Phase and Further Education and Training (PGCE) REQV14 was obtained by the Applicant.
34. A further minimum requirement, which is provided in bold in the original document to emphasize its importance, in clause 7.6 specified the following condition for appointment for Departmental Head post recommended candidates must have passed at least two of the advertised Subjects as part of the qualification, in the event the post has more than two Subjects.
35. If the post only has one Subject then the recommended candidates must have passed that Subject as part of the qualification. The three advertised subjects were Business Studies (FET), EMS (Senior Phase) and Economics (FET).
36. The Applicant’s evidence was that PGCE has two of the three advertised subjects at the correct phases, namely EMS at Senior Phase (SP) and Business Studies at FET16.
37. The Applicant testified that not only did she pass two of the three advertised subjects, she received distinctions as well as majored / specialized in the EMS (SP) and Business Studies (FET).
38. The applicant further testified that the subject codes found in her qualification match with the codes provided in the UNISA document in Bundle A, page 144 and 145.
39. A further explanation of the relevant subjects identified above, with an accompanying web link with the following information: “Teaching Economic and Management Sciences (SP Subject Didactics) LADEMSJ to prepare teachers with the necessary knowledge, skills, attitudes and values so that they will be able to equip learners with the knowledge and comprehension of economic and management skills that will enable them to play a vital role in the process of transforming the country’s economic, social, political, technological, physical and demographic environment.
40. The FET Subject didactics business studies – SDBEC0S is to gain insight into the complex nature of didactics theory; the distinctive nature of Business Studies (emphasis added); teaching strategies; methods and media for teaching Business Studies; the lesson plan; evaluation and some issues in modern classroom.”
41. The applicant made reference to Bundle A, page 36 and further testified on 19 and 20 October 2023 that she majored/specialized in EMS (SP) and Business Studies (FET).
42. During her 10 week practical training which was conducted while she was a replacement teacher for a staff member on maternity leave in 2018, while being paid as a substitute on a fixed-term contract as an educator.
43. The Applicant testified that the School Governing Body confirmed that she has been teaching all three advertised subjects, EMS (SP), Business Studies (FET) and Economics (FET), since 2018 and to the time post was advertised, to the learners at Phillips Town High School in their respective grades/phases.
44. The Applicant testified that she therefore applied for the promotional post in August 2022, and she was rightfully shortlisted as the top candidate in terms of qualifications and experience relevant to the post.
45. The shortlisting score sheets of the panel confirms the educational criteria relevant to the post and the respective scores awarded to her.
46. The Second Respondent did not meet the minimum requirements of the post, the First Respondent’s own ‘Sifting Procedure’ in Schedule 1, states the following:
47. “Annexure A 1. The sifting procedure shall be applicable to all posts. The sifting and shortlisting process shall be according to two sequential phases i.e. one phase following the other.
48. Phase 1 of the sifting process shall be the starting point to determine the number of candidates that meet the basic requirements.
49. Phase 2 of the shortlisting process shall be embarked upon with all the candidates that achieved a (yes) in all the requirements.
50. The Second Respondent ought not to qualify as a competitor and should not have been shortlisted as he does not have a minimum of two of the advertised subjects at the specific phases in his qualification, let alone be appointed.
51. The Applicant testified that the appointment of the Second Respondent is irregular, unfair and irrational and the shortlisting score sheets of the panel confirms the experience criteria relevant to the post and the scores awarded to the Applicant.
52. The Applicant testified that the experience relevant to the post is explained as “experience in the teaching of the subjects in the 21 Bundle A, Pages 71 to 75. 18 grades and phases as advertised”.
53. The Applicant further testified that based on her experience in teaching at least two of the advertised subjects, she was awarded a score of 1, multiplied by the weighting of 2, amounted to a score of 2 per panel member, multiplied by 5 scoring panel members, totals 10.
54. The Applicant testified that the Second Respondent has never in his teaching career taught any of the 3 advertised subjects. The Second Respondent should not have been shortlisted as he does not have any experience in teaching any of the advertised subjects at the specific Senior and FET phases.
55. The Applicant testified that she should have been appointed as the most suitable candidate which can be objectively confirmed based on the “integrity” of the first Respondent’s NCK documentary evidence subpoenaed by the Applicant.
56. The Applicant further testified that she does not accept reasoning of the HOD not to appoint her. In the letter to the SGB dated 7 December 2022, the HOD stated that the Applicant was not appointed because “your preferred candidate Ms. G. R. Poggenpoel does not match the post profile as she has a Diploma in HR.
57. As a result, there can be no doubt that the decision by the HOD not to appoint her and to appoint the Second Respondent is and was an unfair labour practice.
58. The SGB appeal letter challenges the rationale of the HOD’s decision as follows: “Dear Ms. Marais We thank you for your prompt response letter dated 7 December 2022 received by us on 19 December 2022. However, please be advised that, at an Urgent Special Meeting of the SGB, we would like to appeal your decision based on the following:
59. Your letter states that Mrs. Poggenpoel holds a Diploma in HR. This is correct but she also holds a PGCE Qualification in Senior and FET Phase with her majors amongst others being Business Studies and EMS and Economics as a module).
60. Ms. Poggenpoel is currently doing her Honours (attached) and your letter states that Ms. Poggenpoel does not match the post profile. We attach a copy of her PGCE stating the subjects she majored in – which include two of the 21 subjects of the advertised post (Business Studies and EMS). This is not the case with the Second Respondent.
61. The Second Respondent did not pass the first stage of the Short Listing Process. (Schedule 1; SGB Sifting Procedure; Annexure A). The SGB allowed him to pass only because he has had DH Acting “exposure” and because there were so few applications (Only 3).
62. Mrs. Poggenpoel has been teaching these subjects from 2019/2018 to date. Her academic results for these subjects has improved every year resulting in Business Studies being the best performing content subject by far at our school. EMS is also performing at over 98% for GET.
63. Mrs. Poggenpoel has been acting in this position and occasionally as Principal since 2021 and performed her duties diligently. She is also serving in the Executive Committee of the SGB.
64. The appointment of Mr. Matthews will also cause our 2023 Allocation to be ‘In Access’ (sic). We would like to emphasize and reiterate that it is the believe (sic) of the SGB that Ms. Poggenpoel is by far the best candidate for the post, and we urge you to reconsider your decision and provide us with a more favourable outcome at your soonest convenience.”
65. The Applicant testified that based on the objective evidence available, it was clear the HOD did not respond to the SGB’s appeal letter dated and stamped on 19 December 2022, despite the appeal letter, the Second Respondent was appointed to the post with effect from 1 January 2023.
66. The Applicant further testified that the conduct of the Second Respondent towards her since his appointment has been questionable, as the Applicant has had to report to him.
67. The Applicant further testified that the Second Respondent actions caused her to be excluded from a work travel group (lift club) that resulted in economic hardship, huge inconvenience and a great frustration.
68. The Applicant further testified that since her filing of a grievance and a dispute at the ELRC, the Second Respondent has adopted an adversarial stance towards her, which has and continues to cause unnecessary tensions.
UNDER CROSS EXAMINATION
69. Her evidence was that she was appointed on 01 January 2019 at Phillipstown High School and currently on Post Level 1. Her total number of years in education is 4 years and eight months. She knows the recruitment rules in her 4 years in education. Sifting, interview rules and processes are also known to her.
70. The HOD stated that she did not meet the post profile because of the Diploma in Human Resources but she was the most suitable candidate and not the Second Respondent. On page GP 45 is her acting appointment in the position and she acted for 8 months in the Department. The acting allowance was paid but there was no legitimate expectation created for the Applicant to be appointed.
71. Acting in a position is not a guarantee of a promotional appointment. The SGB wrote a letter of appeal to the HOD. She has a post graduate certificate in Education which was obtained in 1 year. She does not know who sent the letter to the HOD. A diploma in Human Resources qualifies a candidate to be an educator even a Diploma in Plumbing qualifies a candidate to be an educator.
RESPONDENT’S EVIDENCE.
Onke Kambi testified as follows:
72. Onke Kambi testified that he is a Deputy Director: Human Resource Management & Development on behalf of the First Respondent.
73. His evidence was that the Applicant did not meeting the minimum requirements of the post and was not the most suitable candidate for the post. The Second Respondent met the minimum requirements for the post and was also the most suitable candidate.
74. A verification process was conducted which concluded that the Applicant should not have been shortlisted. The Second Respondent was the most suitable candidate. The witness testified that a verification was conducted which found that the Applicant should not have been shortlisted and that the Second Respondent was the most suitable candidate.
75. This verification found that the Applicant’s qualifications found in Bundle A, page 36, did not meet the minimum requirements of having at least two of the advertised subjects in her qualifications. The witness further testified that the Applicant did not major or specialize in any of the advertised subjects. The Second Respondent did major or specialize in all of the advertised subjects in his qualifications.
76. The witness testified that the attendance registers serve as proof of the verification. The witness further testify that the specific minimum requirements for the post is provided in the VC 1 of 2022. The witness further testified in his evidence that the ‘verification outcome’ did not form part of the documentary evidence either written verification outcome or ‘findings.
77. It was his further evidence that the Applicant should have been disqualified. The witness testified that Second Respondent’s NCK1 in Bundle A, page 85, which stated that he majored/specialized in Accounting and Mathematics in his B.Ed.
78. The page marked GP 23 is the applicant’s bundle of documents and page 1 on the Applicant’s bundle of documents is the advertisement. The core subjects are advertised as business studies, economic and management sciences. No minimum requirements. No minimum requirements makes a candidate fit for appointment.
79. Majoring is additional and a candidate and the Second Respondent does not have to major in all the subjects. The NCK1 is the application form for the Second Respondent, Christy Mathews. Majoring written on the transcripts and specialization are the same.
80. The page marked 104 is the indication of accounting failed but it was re-wrote and the 53 percent was obtained. Page 36 is the PGCE qualification. Teaching practice 1 is for further Education and Training and teaching practice 2 is senior and a distinction was obtained. The Applicant did not major in economic studies subject.
81. Economic and management sciences are not in the Second Respondent’s curriculum vitae. There is proof of verification, documents and attendance registers are available. Sifting and verification was done with the Union and the rules do not prescribe how verification must be done.
UNDER CROSS EXAMINATION
82. It was his evidence that there were verifications and meetings conducted as it was the administrative function in the Human Resources Department. There were no rules or prescription for the meeting to be conducted. Bundle B on page 56 until 61 is the verification process. GP 18 until 22 is the Applicant’s bundle and the rules on paragraph 8 are for sifting and regulations.
83. The NCK1 and the minutes were submitted but there were no subpoenas for verification meeting minutes. The document marked GP 18 is the rules of sifting at paragraph 8.1 and the Human Resources has a prerogative to conduct the verification.
84. Page GP25 is the letter from the University of the Free State for the Second Respondent. On page GP26 is the letter from the HOD and comments with a rational decision. Bundle B on page 26 is the Regent Business College letter The Second Respondent fulfilled all requirements for the position with a Post Graduate Diploma in Business Management.
85. There was no advertisement on subject didactics and specialization is not a requirement. The Second Respondent met the requirements of the position and matched the profile of the post, but not the Applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
86. The Labour Relations Act No 66 of 19951 requires employers to treat employees fairly when they apply for promotions. The statutory provision, in terms of which this tribunal may arbitrate promotion disputes, is to be found in section 186(2)(a) of the LRA, which defines unfair labour practices with regard to promotion as follows:
87. “‘Unfair Labour Practice’ means any unfair act or omission that arises between and employer and an employee involving …unfair conduct by the employer relating to the promotion… of an employee”.
88. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee.
89. Fairness to both means the absence of bias in favour of either. In deciding whether conduct relating to a promotion was unfair, an arbitrator is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion.
90. Therefore, in order to show unfairness relating to promotion, an employee needs to show that the employer, in not appointing him or her and appointing another candidate, acted in a manner which would ordinarily allow a Court of law to interfere with the decisions of a functionary by proving for example that the employer had acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud.
91. An employee who alleges that he or she 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 the labour practice, if it is disputed, but also that it is unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct.
92. According to Professor Du Toit, ‘unfair’ implies failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intention.
93. In order to determine whether a fair procedure was followed in promoting a certain candidate as opposed to another. Although these procedures need to be followed, they are merely procedural guidelines and not mandatory and need only be substantially complied with and not strictly.
94. An employee who wants to persuade a court or employment tribunal that there was unfair conduct relating to promotion and that the employer’s decision should be interfered with, has an onerous task.
95. This is so because an employee has no right to promotion but only to be fairly considered for promotion. In addition, there is a presumption of regularity, expressed by the Latin maxim omnia praesumuntur rite esse acta in terms of which it is presumed, in the absence of evidence to the contrary, that all the necessary procedural formalities pertaining to an official act have been complied with.
96. An arbitrator should exercise deference to an employer’s discretion in selecting candidates for promotion. The function of an arbitrator is not to second-guess the commercial or business efficacy of the employer’s ultimate decision.
97. Nor is it an arbitrator’s function to determine whether the best decision was taken. The test should rather be whether the ultimate decision arrived at by the employer was a reasonable decision in the sense that it was operationally and commercially justifiable on rational grounds.
98. The Commissioner should be careful not to intervene too readily in disputes regarding promotion, especially to senior management positions, and should regard this an area where managerial prerogative should be respected unless bad faith or improper motives such as discrimination are present.
99. The legislature did not intend to require arbitrating commissioners to assume the role of employment agencies. A commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates.
100. Arbitrators must bear in mind that they are not qualified as employment agencies and do not have practical experience as managers in a corporate environment or in the civil service. Accordingly, arbitrators are loath to prescribe to employers how they should go about in selecting a candidate for promotion.
101. There may be reasons for preferring one employee to another apart from formal qualifications and experience. The employer may attach more weight to one reason than another, may take into account subjective considerations such as performance at an interview and life skills.
102. “Inevitably, in evaluating various potential candidates for a certain position, the management of an organization must exercise a discretion and form an impression of those candidates. Unavoidably this process is not a mechanical or a mathematical one where a given result automatically and objectively flows from the available pieces of information. It is quite possible that the assessment made of the candidates and the resultant appointment will not always be the correct one.
103. It is important to consider the dispute as defined in case law as a guiding principal. In In Department of Justice v CCMA and Others [2004] 4 BLLR 297 (LAC) the Court held that:
“An employee who complains that the employer’s decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such a decision or conduct. If the decision or conduct is not established, that is the end of the matter. If that decision or conduct is proved, the enquiry into whether the conduct was unfair then can follow.”
104. The first issue I am called to determine is whether the Second Respondent is unqualified, not competent, and not experienced. Generally, the first step after the closing date of the advertised post is called “sifting”.
105. The duty of sifting is vested with the district office of the Department of Education. The purpose of sifting is to determine that applications that do not meet the requirements of the post must be identified and if found, they are put aside. Also, what is important to consider during sifting is that the trade unions are invited to observe the sifted applications to verify if there is any error in the sifting.
106. In the present case, Onke Kambi, who was the First Respondent’s only witness testified that sifting took place and according to the completion; after verifying, all applications were sent to the school. There is no evidence before me that there were errors that were discovered resulting from sifting. The only argument by the Applicant was that there was no proof of sifting minutes but only the attendance registers. In this case, it is the Applicant’s case to prove that the employer committed an alleged unfair labour practice and not the employer to prove otherwise. Onke Kambi further testified that it was the prerogative of the First Respondent internal process of the Human Resources to conduct sifting.
107. In the unreported decision of the Labour Court v Western Cape Department of Education and Others (2018) (LC) the Labour Court said that the employer is also obliged in the case of unfair labour practice to defend attacks on the substantive and procedural fairness of its decisions in the event it wishes to avoid a negative outcome.
108. In other words, the court said that there is an obligation on the part of the employer to place the evidence of the fairness of the process followed and the rationale for the appointment or non-appointment, to satisfy a tribunal that the appointment or non-appointment was rational and fair.
109. There is however nothing unusual or contentious about a Head of Department relying on the assistance and advice of qualified and experienced officials within the Department. It cannot be expected of the HOD to be involved in every single aspect of the Department’s affairs. As long as the HOD makes an informed and independent decision based on the facts and information before him or her, there can be no basis for complaint in this regard.
110. In terms of section 6 (3) (b) (v) of the Employment of Equity Act no (as amended) (EEA), the governing body ought to ensure that in considering the applications that the principles of equity, redress, and representivity are complied with and the governing body or the council adhere to procedures that will ensure the recommendation is not obtained through undue influence on the members of the SGB.
111. For an employee to succeed in a dispute of promotion, such an employee must demonstrate that the employer had exercised its discretion Capriciously, for insubstantial reasons, based upon any wrong principle, or biased manner, whether the employer did not comply with applicable procedural requirements relating to promotion.
112. In Noonan v Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 2596 (LAC), the Labour Appeal Court held that there is no right to promotion, but only a right to be given a fair opportunity to compete for a post. I disagree with the Applicant that a Diploma in Human Resources and the Diploma in Plumbing are required to become an educator in South Africa. I observed the applicant after this evidence was led that she had a very condescending behavior during the arbitration hearing.
113. One of the prerogatives for the employer to consider when making appointments is the operational decision to advance service delivery, putting the interests of learners first in the best interest of the running of the school.
114. I find that there was insufficient evidence from the Applicant to substantiate that the Respondent through the HOD committed an alleged unfair labour practice.
AWARD
115. The decision of first Respondent to appoint second Respondent to the aforementioned position is hereby confirmed.
116. Applicant’s dispute referral is dismissed.
ELRC Panelist: Mothusi Maje
08 September 2024