IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT THE FREE STATE EDUCATION DEPARTMENT (BLOEMFONTEIN)

Case No ELRC55-21/22FS

In the matter between

SAOU obo LULAMILE TAU Applicant

and

DEPARTMENT OF EDUCATION: FREE STATE 1st Respondent

EX DIDI 2nd Respondent

ARBITRATOR: Monde Boyce

HEARD: 20 January 2022 & 22 February 2022

CLOSING ARGUMENTS: 28 February 2022

DATE OF AWARD: 07 March 2022

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This matter was initially set down for arbitration on 27 September 2021 and was heard virtually. The matter was then partly heard and postponed to 20 January 2022. There was a request from the parties that, due to logistical challenges for witnesses who had to testify, the matter proceed face-to-face on the abovementioned date. The matter duly proceeded face-to-face at the Free State Education departmental offices in Bloemfontein. The matter could however not be finalized and sat again on 22 February 2022. Miss Human, an official from the trade union SAOU, appeared for the applicant, Lulamile Tau while Mr Gubuza, the Deputy Director: Labour Relations, appeared for the first respondent (employer).

[2] An interpreter was also arrangement and was available on 20 January 2022 and on 22 February 2022. Both parties submitted bundles of documents. The proceedings were digitally recorded, and typed notes were taken.

[3] Parties had, in keeping with the Council Rules, held a pre-arbitration meeting and concluded minutes which they duly signed. There however was an issue about documents that the employer had not made available. These documents included the minutes of the shortlisting and interviewing panel. While other documents requested by the applicant were made available, the minutes of the shortlisting and interviewing panel were only made during the sitting of 20 January 2022, and while the applicant alleged that the document purporting to be minutes was not the minutes. The employer representative confirmed that the document was the only reflection of the shortlisting and interviewing panel and that there were no other minutes. On close perusal of the document, I was satisfied that it contained sufficient information that reflected every step of the process followed by the shortlisting and interviewing panel and I thus ruled that it be accepted into evidence.

THE ISSUE TO BE DECIDED:

[4] I am required to decide whether the respondent’s decision not to appoint the applicant to a position of Principal at Pholoho Comprehensive School was unfair and thus constituted unfair labour practice in terms of Section 186 (2) (a) of the Labour Relations Act 66, 1995 as amended (LRA).

THE BACKGROUND TO THE DISPUTE:

[5] The applicant is currently employed as the Learning Support Advisor in the Motheo District. The position is equivalent to that of Deputy Principal and fall under the Education Development Support (EDS). He earns a salary of R436 000.00 per annum. On 09 October 2019, a position of Principal was advertised at Pholoho Comprehensive School. He was shortlisted and interviewed for the position along with other candidates who had applied. Four candidates, himself included, were found by the panel to be appointable and his name along that of three other candidates was sent to the district for consideration for appointment by the Head of Department (HOD). It is common cause that the recommendation to the HOD listed the applicant as No. 1 on the list of appointable candidates. The 2nd respondent, Miss Didi, was however appointed to the position. Dissatisfied with this decision, the applicant referred a dispute to the Council on 21 April 2021 for conciliation, but the dispute could not be resolved at conciliation. The applicant referred the dispute for arbitration and seeks to be appointed to the principal’s post or for the shortlisting and interviewing process to be started afresh.

SURVEY OF EVIDENCE AND ARGUMENT:

The Applicant’s Evidence

[6] The applicant, Mr Lulamile Meshack Tau, testified that pages 1-5 of the Employee’s Bundle A contain information on the information related to the post for the position of principal that was advertised. He submitted all the required documents and was subsequently shortlisted and interviewed for the position. He met the requirements for the post. In so far as his education qualifications, he possesses a Higher Certificate in Management and Development from the University of the Free State Business School which he obtained in November 2019. He also holds a Post Graduate Diploma in Education specializing in special needs and support services in 2002. He also holds an Honours Degree in Psycho Pedagogics which he obtained 1997. He further holds a Bachelor of Education specializing in school guidance education and SeTswana in 1996.

[7] At the time he applied for the principal’s position, he had twenty-two (22) years’ experience as an educator. He was an ordinary teacher four years and was a Head of Department at schools for twelve years. He was later appointed to the District as the Learner Support Service department. He was in charge of budgets and procurement for Special Skills and Classes for special schools. He had two teachers that worked under him in his section. He was promoted in 2013 to his current position as a Senior Education Specialist. He, in 2017, was appointed to take charge of a programme in the district where he, among other things, managed a budget of R22, 000.000.00 and managed this programme for nine (09) months before going back to his old post.

[8] He believed he is the strongest candidate who should have been appointed to the principal’s position at the school because she had exposure at various schools and as an SES is at middle management position. He believes he possesses the necessary qualifications for appointment to the position.

[9] Mr Gaboutloeloe Moloke was called as the employee’s witness. He testified that he was part of the shortlisting panel for the appointment of the principal. He is currently the chairperson of Phoholo School Governing Body (SGB). He chaired the shortlisting panel. The members of the panel were taken through a workshop to prepare them for the shortlisting process and what expatiations were to avoid unfairness in the process.

[10] He recognizes the criteria contained on page 4 of the employer’s bundle and it is criteria they developed to reduce the number of candidates. The panel went through the CVs to determine if candidates met the criteria. They then considered another second criteria, which was that members needed to have 7 years’ experience at a special school. They then felt that they had manageable number of candidates to interview and decided not to apply the third criteria, which was that a candidate must have qualifications in management and that the last criteria being that candidates must have qualifications/short courses in special needs. The department was represented. The 2nd respondent was to automatically go to the interview because she was acting in the position at the school for more than twelve (12) months. He was not part of the interview panel. He was later informed that the employee was the best candidate. The employee was further recommended by the SGB. He was recommended because he scored highest in the interview and based on how he answered the questions.

[11] He recognized the document contained on page 15 of the employer’s bundle. This document is a letter from the HOD and related to the filling of the post at Phoholo Special School. During the interview, the facilitator informed him that there was going to be a dispute in relation to the letter. He had explained that the panel did not use criteria No.3 that the HOD relied on in the letter. An SGB meeting was called to prepare a response of the SGB. The secretary of the interview panel was mandated to write the letter on behalf of the SGB and had explained in the letter that the panel did not use criteria No.3. There was however a delay in submission of the letter to the HOD and it was not submitted within the 14 days set out. Because the quality of the print was bad, he decided to send another clearer copy to the HOD.

The Respondent’s Evidence

[12] Mr December Moloi was called as the employer’s only witness. He testified that he is currently employed as the District Director of the Motheo Education District and Pholoho School is one of the schools under his district. His responsibility is that of ensuring quality assurance of all the documents coming from the district to ensure that such documents are compliant before being sent to the appointing authority. When it comes to the appointment of principals, the authority to appoint vests with the HOD.

[13] The shortlisting panel had sent a list of shortlisted candidates and the human resources department had to quality assure the list and hand over to him the recommendation. On looking at the submission, his team picked up that the panel had picked up the applicant who did not meet criteria No.3 because he did not have the management qualification required. He was satisfied that the Human Resources team was correct in stating that the applicant did not possess the said qualification as per criteria No 3. He had then forwarded a submission to the HOD. The SGB recommends candidates to be appointed to the HOD who has the authority to appoint. The HOD can appoint any of the candidates recommended. Any candidate who scores beyond 50% is appointable irrespective of his/her ranking on the list. Four candidates had been recommended and the candidate who was appointed was appointable.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[14] Important to mention from the onset is that Courts have now settled the law on what an arbitrator ought to consider in dealing with promotion disputes. The Courts have held that candidates who are shortlisted, interviewed and subsequently become successful in making the list of appointable candidates have no automatic entitlement to appointment to such positions, and this notwithstanding the fact that a candidate may have scored highest in an interview and ranked first on the list of appointable candidates. The ultimate important consideration is only that of whether an employer acted fairly and whether its decision was not informed by ill-considerations or grossly unreasonable. This view was conformed in a number of judgments including that of City of Cape Town v SAMWU obo Sylvester and others where the Court, making reference to Aries v CCMA and others , held that: “the overall test is one of fairness” and went on to list a number of factors that bear relevance on whether the employer acted fairly in failing or refusing to promote an employee.

[15] Also, in dealing with the question of unfairness and when a decision by the employer may be deemed unfair, the Labour Appeal Court in Apollo Tyres SA (Pty) Ltd v CCMA & Others , held as follows:

“[53] … unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.

[16] The above cases all confirm or restate a principle set earlier by the Industrial Court in Medscheme v Goliath where the Court held as follows:

“Inevitably, in evaluating various potential candidates for a certain position, the management of an organisation 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. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion”

[17] In the present case, the applicant challenged his non-appointment on two grounds: firstly that he was found to be the best suitable candidate by the SGB, hence e was ranked number 1 on the list of appointable candidates and, secondly, that the HOD erred or acted unfairly in relying on a criteria that the shortlisting and interviewing panel did not consider, which criteria was criteria No.3. This criteria, as set out in the evidence led, was that candidates needed to possess a qualification in management. Having heard evidence, it is my finding that the applicant’s challenge in this regard, and his overall claim for that matter, is without merit for the reasons I will be setting out below.

[18] In the first place, it is not in dispute that the SGB recommends candidates and that it is the prerogative of senior management to appoint candidates. In the case of the Free State Province, the power to appoint principals vests with the HOD, with the District Director delegated to appoint deputy principals. Once a list of candidates has been drawn up by the interviewing panel, the SGB sends a list of recommended candidates to the district office. By the applicant’s own concession during cross-questioning, all candidates that were on the list sent to the district office were appointable. The effect of this concession is that the applicant agreed that the HOD could appoint any of the four candidates recommended for appointment.

[19] The applicant went on to make a number of concessions during cross examination, amongst which was that he had not completed a management qualification at the time he was interviewed and recommended for appointment. A further concession he made was that a candidate may achieve a higher score but not meet the criteria. Furthermore, on a question posed on whether he agreed that the HOD did not err or was not wrong in holding that he did not meet the criteria and that he should not have been shortlisted, the applicant conceded that the HOD was not wrong. Having made these concessions it became unclear to me why he believed that the employer still had a case to answer.

[20] Mindful of the fact that the position advertised was that of a principal and that the principal’s primary responsibility is that of overall management of the school, I posed a question to the chairperson of the interviewing panel and the chairperson of the SGB, Mr Moloke on why he believed that criteria No. 3 should not have held equal importance as the other criteria, and in particular criteria No.1 and No.2, Mr Moloke did not give a plausible answer save to state that they already had a manageable number of candidates to recommend for appointment and that they did not deem it necessary to consider criteria No.3 and No.4. This answer, to me, pointed to a serious omission on the part of the panel. As I stated above, the position of principal is that of overall management of the school, and it is therefore puzzling that the panel chose to ignore this important consideration. The HOD’s view to the effect that the applicant should not have been shortlisted or recommended for appointment is not misplaced. The incumbent, that is the 2nd respondent, not only met the criteria but she had been an acting principal for over twelve months at the time the position was advertised. Again, I cannot find that the HOD had erred in appointing the 2nd respondent to the position of principal. In that regard, the attack and the claim of unfairness on the decision made by the HOD not to appoint the applicant falls to be dismissed.

[21] I deem it important to mention an important aspect of the evidence led by the District Director, Mr Moloi. During his testimony, he explained the reason why the district human resources team embarks on a process of verifying the recommendations made by the SGB before submissions are made to the HOD. His explanation was that the district does so to maintain the integrity of the appointment process and to ensure that that information relating to the recommended candidates is properly verified so that the HOD can make an informed decision. I find this to be an important consideration given that it is generally accepted that the success of any school and achievement of good results is heavily reliant on how principals manage schools.

[22] I further deem it necessary to mention that in receiving the recommendations by the SGB and the submissions by the district office, the HOD’s responsibility as the appointing authority is not that of rubber-stamping the recommendations by the SGB. He/she is still required to apply his mind to the recommendations and decide, in the best interests of the Education Department and the welfare of and potential performance of the schools, whether candidates appointed in such crucial positions of principals are indeed suitable and have what it takes to advance the interests of the department. On this basis, I find again that the HOD’s reasons for rejecting the applicant for appointment and for appointing the 2nd respondent was not misplaced. I can therefore not find that the HOD exercised his discretion in any grossly unfair manner but, on the contrary, exercised his discretion on the basis of sound and reasonable considerations.

[22] Regarding the question of onus, it was the applicant who bore the onus to support his unfair labour practice claim. The Labour Court in Pamplin v Western Cape Education Department held that:

“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.”

[23] Having considered evidence in its totality, it is my finding that the applicant has failed to discharge the onus and failed to make a compelling case for interference with the decision taken by the employer. His application thus falls to be dismissed and he is not entitled to the relief he seeks.

[24] I therefore, in the premises, make the following award:

AWARD

[25] The respondent’s failure to appoint the applicant for the position of Principal at Pholoho Comprehensive School did not constitute an unfair labour practice.

[26] The application is accordingly dismissed, and the Council is directed to close the file.

Monde Boyce
Panelist: ELRC