Arbitrator: Clint Enslin
Date of Award: 9 March 2024
In the matter between
NAPTOSA obo Ngalonkulu, Nomaxabiso
(Applicant)
And
Department of Education – Eastern Cape First Respondent
Lulama Pendu Second Respondent
(Respondents)
Union/Applicant’s representative:
Advocate Gavin Saayman
Telephone: saaymangavin@gmail.com
Telefax:
E-mail:
Respondent’s representative: First Respondent – Ms Asanda Tsani / Second Respondent – Mr Odwa Mpiyane
Respondent’s address:
Telephone:
Telefax:
E-mail: Asanda.tsani@ecdoe.gov.za
Details of hearing and representation
1. The arbitration hearing into an alleged unfair labour practice dispute (promotion), referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), was held at the First Respondent’s offices in Gqeberha, on 16 January and 19 February 2024.
2. The Applicant, Ms Nomaxabiso Ngalonkulu was present and represented by Advocate Gavin Saayman, an official of NAPTOSA. The First Respondent, Department of Education – Eastern Cape, was represented by Ms Asanda Tsani, a Labour Relations Officer of the First Respondent. The Second Respondent, Ms Lulama Pendu was represented by Mr Odwa Mpiyane, a SADTU official.
3. The arbitration was digitally recorded.
4. Written heads of argument were filed.
Issue to be decided
5. The issue to be decided is whether or not the failure, by the First Respondent, to sift in, shortlist and interview the Applicant for the position she applied for, being the post of HOD (Foundation Phase) at Kinkelbos Primary, amounted to an unfair labour practice; and
6. if so, to determine the appropriate relief.
Background to the matter
7. The Applicant referred an alleged unfair labour practice dispute pertaining to promotion.
8. The Applicant sought that the successful candidate’s appointment be set aside and that the post be advertised.
9. The following fact were common cause:
9.1 The Applicant was employed on 1 April 2002.
9.2 At the time of the application, the Applicant was employed by the First Respondent as a post level 1 educator.
9.3 The Applicant applied for the position of HOD Foundation Phase at Kinkelbos Primary School.
9.4 The abovementioned vacant position was advertised under post number 552 of volume 2 of 2023.
9.5 The Applicant was not shortlisted nor interviewed by the First Respondent.
9.6 There were 4 applications for the post, however, only 1 was shortlisted and interviewed.
9.7 Only the 1 candidate shortlisted and interviewed was recommended to the HOD.
9.8 Neither the SGB nor the First Respondent consulted the HOD in relation to shortlisting only one candidate.
9.9 There is no letter from the HOD confirming the he was consulted in relation the shortlisting, interviewing and recommendation of only one candidate.
9.10 The Applicant would have received a higher salary if she had been successful.
9.11 The post was advertised at notch R394 032 per annum and the Applicant’s current salary notch is R390 303 per annum.
9.12 The First Respondent appointed the Second Respondent to the position on 21 August 2023.
10. The following facts were in dispute:
10.1 Whether the Applicant met the minimum requirements of the post.
10.2 Whether the Applicant was given a fair chance to compete for the post.
11. The Applicant submitted a bundle of documents which was marked as “A” and the First Respondent also submitted a bundle of documents which was marked “R”. Parties agreed that the documents were what they purported to be.
Survey of evidence
12. This is a summary and does not reflect all of the evidence and arguments heard and considered in reaching a decision.
Applicant’s evidence
Ms Nomaxabiso Ngalonkulu
13. Ms Ngalonkulu, testified that the pages 1 to 4 of R were the sifting minutes. She had applied for the HOD post per the bulletin. The post is contained at the third last line of page 52 of R. The sifting minutes were related to this post. Page 1 of the minutes included the legal framework which would guide the criteria. This included the application form, certified copies of all documents, certified academic record of qualifications and certified copy of SACE membership. Page 2 included the duties and responsibilities of a Departmental Head (HOD). Page 3 set out the criteria for the HOD post which was three years’ experience as a teacher and completion of ED01 not serious about section 19 and 21. She did not see any other criteria except for the two listed.
14. According to the table, contained on page 3 of R, four people applied for the HOD (foundation phase) position at Kinkelbos Primary, per volume 2 of 2023/553 (the post in question) and only one was sifted in. The reason listed for the other three being sifted out was that they did not qualify for foundation phase. Page 60 of R was her application form for the HOD post. It confirmed that the said form combined the information in the standard application form with the standard CV information. She had attached her CV to the form. Pages 42 to 50 of R was her CV, which she had attached. Per pages 42 and 43, her qualification was a Senior Primary Teachers Diploma (“SPTD”) and it was a three year qualification. She also held an Advanced Certificate in Education, specialising in education management (‘ACE”). Her employment history, on page 43 of R, included foundation phase teaching from 2013 to 2020. 2018 to 2020 was teaching foundation phase at Kinkelbos Primary School. She had applied for a position to teach foundation phase at the school, which was advertised, and she was appointed. She had also been trained internally on CAPS – foundation phase.
15. Bundle A was an extract from the PAM document. She had a three year qualification as well as a one year Advanced Certificate, which amounted in total to a four year qualification (REQV 14+). She also had a SACE Certificate, per page 47 of R, which she had included in her application. Page 2 of A, at (b), dealt with “School Based Educator: Manager”. The first point under this heading dealt specifically with a Departmental Head. It confirmed that the educational qualifications required were a recognised three or four year qualification, which includes professional teacher education. The statutory requirements are, registration with SACE as a professional educator. The required competencies and skills (functional field) were advanced knowledge of teaching as provided for in the professional qualification. Her experience in teaching foundation phase gave her the basic knowledge. The CAPS training was advanced. She had also been teaching for nearly 21 years when she applied for the position in question and as such she was advanced. She had the three years’ experience as a teacher and she had completed the form as required by the criteria on page 3 of R. She confirmed that her SPTD qualification was to teach grades 4 to 6, whilst foundation phase was grades R to 3.
16. She was teaching intermediate phase at Kinkelbos Primary before she applied for the post in question, she had, however, taught foundation phase for approximately 8 years. She did not have a qualification for teaching foundation phase. She did not have foundation phase subjects as per page 52 of R. According to her CAPS training she was qualified to teach foundation phase. During the 8 years she taught foundation phase she was assessed through QMS and no issues were found.
Respondent’s evidence
17. Both Respondent’s opted not to call any witnesses.
Analysis
18. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
19. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any 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 provisions of benefits to an employee”. (Own underlining)
20. The Applicant challenged the alleged unfairness of her non-shortlisting or interviewing for the post of HOD (Foundation Phase) at Kinkelbos Primary School based on two grounds. Firstly, that she met the minimum requirements of the post. Secondly, that she was denied the opportunity to compete fairly for the post.
Did the Applicant meet the minimum requirements for the post?
21. The Applicant has a 3 year qualification as well as an extra year ACE Certificate. Her 3 year’ qualification is, however, an SPTD. She does not possess a foundation phase qualification. The position in question is for phonation phase. The Applicant also conceded that she does not have any foundation phase subjects as part of her qualification.
22. Whilst the Applicant has a 3 years’ experience as a teacher and filled out the application form, as contained under the heading “criteria” on page 3 of R, this is, in my view, the basic criteria for application to all the HOD posts advertised in the specific bulletin. (There was more than one post advertised.) The advert itself elaborates requirements for each position specifically. The position in question speaks to foundation phase subject. As stated the applicant, on her own version, does not possess any foundation phase subjects in her qualification.
23. PAM chapter B at B.5.3.2 reads: The employing department must handle the process of eliminating applications of those candidates who do not comply with the requirements for the post(s) as stated in the advertisement. There can accordingly be no doubt that the First Respondent has the power to eliminate the applications which do not meet the requirements of the post as stated in the advert. Although, I do not believe it to be disputed that the Applicant had experience in teaching foundation phase or that she underwent CAPS training for same, the fact is that she does not possess a foundation phase qualification and her qualifications do not contain any foundation phase subjects. In short, she, in my view, does not comply with the requirements of the advert and as such, the First Respondent was correct to eliminate/sift out her application. This is exactly what is prescribed in PAM chapter B at B.5.3.2.
24. The Applicant further takes issue with the fact that only one candidate was sifted in, short listed and interviewed and that neither the SGB or the Respondent did not consult and get permission from the HOD before doing so. It is common cause that neither the SGB nor the First Respondent obtained such permission from the HOD. Given my conclusion above, that the Applicant did not meet the requirements of the advertised position, it is my view that the aforementioned issue does not assist her. The failure to obtain the permission of the HOD does not take away from the finding that the Applicant did not qualify for the position in the first place. Put differently, even if the appointment of the Second Respondent was to be set aside as a result of the failure to obtain the permission of the HOD, it would not assist the Applicant because she still would not qualify for the position. There is therefore, in my view, no point in doing so.
Was the Applicant denied an opportunity to compete for the post fairly?
25. I do not intent repeating what I have stated above. In summary, the Applicant was denied the opportunity to compete for the post because she did not meet the requirements. I believe this to be a fair reason for her exclusion.
26. In light of the above, I am of the view that the Applicant has failed to prove, on a balance of probabilities, that the First Respondent committed an unfair labour practice against her by not sifting her in, shortlisting and interviewing her for the position she applied for, being HOD foundation phase at Kinkelbos Primary school.
Award
27. The Applicant, Ms Nomaxabiso Ngalonkula, was not subjected to any unfair labour practice by the First Respondent, the Department of Education – Eastern Cape.
28. The Applicant, Ms Nomaxabiso Ngalonkula, is not entitled to any relief.
Signature:
ELRC Arbitrator: Clint Enslin