IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA DIGITAL ZOOM CONFERENCE

Case No: ELRC260-23/24FS

In the matter between

MS KOTSOANE Applicant

and

FREE STATE DEPARTMENT OF EDUCATION Respondent

MG SELUKU Second Respondent

PANELLIST: Pieter Greyling
Award: 11 November 2024

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was conducted on 28 March 2024, 13 June 2024 and finalized-on 20 August 2024. The proceedings were conducted on a virtual platform. The Applicant was represented by an attorney, Mr T Rahlao. The First Respondent was represented by Mr V Gubuza, Deputy Director: Industrial Relations. The Second Respondent, Mr M.G. Seluku represented himself and only attended the proceedings of 13 June 2024. He offered no explanation or information as to his absence, especially from the proceedings of 20 August 2024. Attempts by the Commissioner to make telephonic contact with the Second Respondent were unsuccessful and the proceedings therefore continued in his absence.

ISSUE TO BE DECIDED

2. It is to be decided whether the refusal of the First Respondent to appoint the Applicant to the vacant position of deputy principal at the Nkgopoleng Secondary School, constitutes an unfair labour practice relating to promotion as envisaged in terms of Section 186(2)(a) of the Labour Relations Act (LRA).
3. The Applicant presented a bundle of documents (Bundle A), consisting of 104 pages to be used during the proceedings. The Respondent presented a bundle of documents (Bundle R), consisting of eight-pages. Reference to documents, where necessary will be made as follows e.g. A1, R3, R3-R8 etc.

BACKGROUND TO THE DISPUTE

4. The Applicant has been an educator since 1997 and at the time of the dispute occupied the position of a departmental head. The Applicant, in the latter part of 2021, applied for the position of deputy principal at the Nkgopoleng Secondary School. He was invited for an interview in February 2022 and was recommended by the School Governing Body (SGB) to the District Director as the preferred appointee. The Respondent however refused to make an appointment and abandoned the recruitment process. On 21 February 2023, the First Respondent appointed the Second Respondent through a horizontal transfer to the position of deputy principal at the particular school. The Applicant wants to be placed in the position that he would been if he was successfully appointed.

EVIDENCE AND ARGUMENT BY THE PARTIES
Evidence in behalf of the Applicant

5. The Applicant, Mr M.S. Kotsoane testified on his own behalf. The following can be highlighted from his testimony:

5.1 The Applicant explained and set out his qualifications as reflected in his curriculum vitae. He further pointed out that he became a departmental head in 2006. In October 2021 the position of deputy principal at the Nkgopoleng Secondary School was advertised and he submitted his application for that position. The Applicant and four other candidates were shortlisted for interviews. The interviews were conducted on 11 February 2022. The Second Respondent was not a candidate and was also not invited to the interviews.

5.2 The Applicant was informed that the SGB came to the conclusion that he was the best candidate and recommended that he be appointed as the first choice. The Applicant made contact with the District Director, Dr Chuta after he became aware of the fact that he was recommended for the post but that no appointment was forthcoming. Dr Chuta invited him to his office. The director showed him the documentation regarding the interviews and confirmed that he came out as the top candidate and that he was recommended for appointment by the SGB. He was further informed by the director that the appointment was not going to be made as there were flaws in the recruitment and appointment process and that he will have to first appoint an independent panel to investigate the process and make recommendations.

5.3 The post remained vacant and the Applicant filed a grievance, which resulted in a further meeting with no satisfactory outcome. The Applicant further stated that during January 2020 a meeting was held with all grade 12 teachers at the Kahobotjha Sakubusha Secondary School. The District Director, Dr Chuta addressed the teachers. The Applicant could not attend the meeting due to other commitments. In his absence, Dr Chuta made a remark to the other teachers that as long as he is the district director, the Applicant will never be appointed to the position of a deputy principal. This information was conveyed to him by a Mr Hlongwane, who will be called to testify to this fact.

5.4 The Applicant further confirmed that he was informed by his union that he was recommended as the best candidate. He received no response in respect of his grievance. He further stated that the individual who was appointed in February 2023, the Second Respondent, never applied for the position but was merely transferred.

5.5 Under cross-examination, the Applicant confirmed that he was informed by Dr Chuta that a complaint was received about the recruitment process followed and that his union also informed him of its concerns.

6. The second witness for the Applicant was Ms P.P Ramaesela. The following can be highlighted from her testimony:

6.1 The witness explained that she was a member of the SGB at Nkgopoleng Secondary School and that she was a member of the panel that conducted the interviews. She confirmed that the Applicant emerged from the interviews as the candidate with the highest score.

6.2 The panel recommended that the Applicant be appointed. The necessary documentation was completed, which contained the recommendation forwarded to the regional director. She further confirmed that an objection from the trade union, SADTU was received regarding the recruitment process. A meeting was arranged between officials of the First Respondent and the SGB and the trade union with the purpose of discussing the objection, but the union did not attend the meeting.

6.3 The witness further confirmed under cross-examination, that she vacated her position as a member of the SGB in January 2022 as her daughter has completed her matric at the end of 2021.

Evidence in behalf of the First Respondent

7. The First Respondent called the Director of the Fezile Dabi District, Dr V.N. Chuta to testify. The following can be highlighted from his testimony:

7.1 The witness explained that the school governing bodies of the various schools in the district were trained in conducting interviews and the implementation of the appointment processes. All schools within the district reports to the district office. All requests or applications for appointments, when it arrives at the district office, are subjected to a quality control process to ensure that the recommended candidates comply with the post requirements and whether processes followed are in compliance with regulations and the provisions of collective agreements. In this particular instance, a complaint was received on 14 February 2022 from the trade union, SADTU (Bundle R, p2). The union declared a dispute regarding the selection and recruitment process followed and pointed out a number of procedural defects. It was submitted that members who were not part of the appointed interview panel sat in on the proceedings and participated in the proceedings. These individuals were introduced as observers but they participated in the proceedings. It was further submitted that the post profile that was used as a criterion, was never consulted with the relevant stakeholders such as the staff members. It was further pointed out that the trade union PSA also participated in the process, which is contrary to the collective agreement\s as the PSA is not a party to the agreement. The union therefore submitted that the process should be nullified.

7.2 The witness further stated that all candidates considered must comply with established criteria to the last letter. A dispute resolution committee was appointed to consider these allegations. Upon investigation it became apparent that all five the candidates shortlisted for interviews, did not meet the criteria in its totality. On this basis it was decided to abort the process. Subsequently, a neutral panel of three school principals were appointed to deal with the selection and appointment process. They shortlisted only one person who met the criteria. This individual however during the interviews scored below 50%. This individual was therefore not appointed. There was a recommendation that the post be re-advertised.

7.3 The witness stated that he invited the Applicant to his office to explain to him the situation. He also showed the criteria used and the Applicant then realised why he was not appointed. The witness stated that the Applicant was fully conversant with what happened when he left the office. Given the vacancy and the fact that there was a problem at a different school where employees were not pulling together as a team, it was then believed that it would be appropriate to transfer two employees from that particular school and in one respect to transfer the Second Respondent to the position of deputy principal at Nkgopoleng Secondary School. It was a horizontal transfer as the Second Respondent was already at post level III. The witness further confirmed that such a transfer cannot be done by the director without the approval of the school governing bodies. In this particular instance, the school governing body of the mentioned school confirmed the acceptance of the transfer on 01 February 2023. The Second Respondent was then informed on 10 February 2023 that he has been transferred with effect 13 February 2023.

7.4 The witness further denied that he made any allegations at any stage at any meeting regarding the person of the Applicant. He further stated that he holds no grudges against the Applicant. It was further stated that the Respondent, in the appointment processes, is not bound by the recommendation of the SGB.

SUBMISSIONS BY THE PARTIES

8. Both parties made written submissions, which were submitted by 27 August 2024. The arguments and submissions were considered in the analysis.

ANALYSIS OF EVIDENCE AND ARGUMENTS

9. In general terms, promotion can be described as the movement or advance to a higher rank or position. To be successful in an unfair labour practice/promotion dispute, the onus rests with the employee to prove that he/she is the better candidate for the position in question (see: Buffalo City Public FET College v CCMA and others (P 372/12) [2016] ZALCPE 18). In essence, the employee must show the existence of the conduct or decision complained off. If the employee fails in this regard, it is the end of the matter. It is however also expected of the employer to disclose evidence before the tribunal to show that it acted fairly and in good faith during the promotion exercise (see: IMATU obo Visagie v Mogale City Municipality (JR 86/15) [2017] ZALCJHB 432 and Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT).
10. In Noonan v SSSBC and others [2012] 33 I LJ 2597 (LAC) it was held that there is no right to a promotion, only a right to be given a fair opportunity to compete for the post. Any conduct that denies the employee in question an opportunity to compete for the post, constitutes an unfair labour practice. In City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC), the Court held that the overall test in respect of unfair promotion is one of fairness. In deciding whether an employer acted fairly in filling or refusing to promote an employee, it is important to consider whether:
    10.1 The failure to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer;
    10.2 The employer’s decision was arbitrary, or capricious, unfair or the employer failed to apply its mind to the promotion of the particular employee;
    10.3 The employer’s decision not to promote was motivated by bad faith or was discriminatory;
    10.4 There were insubstantial reasons for the employer’s decision not to promote;
    10.5 The employer’s decision not to promote was based upon a wrong principle.
11. In Aries v CCMA and others (2006) 27 ILJ 2324 (LC), the court held that there are limited grounds on which a commissioner or a court may interfere with the discretion exercised by an employer. The managerial prerogative, being the exercise of a discretion, should not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.
12. In NEHAWU obo Manyama and another v Manenge NO and others [2014] ZALCJHB 124 (handed down in 8 April 2014), the Court held that three principles must be considered in determining whether or not the employer acted unfairly towards the employee in relation to promotion. The principles are the following:
    (a) that the failure by the employer or institution to appoint in person to fill a position because of budgetary constraints is not irrational, arbitrary or capricious;
    (b) always defer to the employer’s managerial prerogative; and
    (c) absence of employment equity plan does not preclude and employer factor in employment equity considerations into its selection, shortlisting and appointment policies.
13. The Applicant in a referral dated 25 July 2022 which was apparently filed on 01 August 2022 with the CCMA reflected the dispute as follows:
    “Employer practice unfair labour practice. He told me as long as he is the director I will never be appointed as principal or deputy. I did apply for these positions and in more than one occasion I was the best candidate I was never appointed” (sic) (Bundle A, p52).
14. Subsequently, a second referral was completed, addressed to the ELRC, dated 08 December 2022. The dispute is described as follows:
    “I applied for three positions where I was the best candidate but was never appointed. Employer told me that as long as he is the director I will never be appointed as principal or director employer is practising unfair labour practice.” (sic) (Bundle A, p60).
15. The vacancies to which the Applicant apparently referred, were the appointments made at the Pele Ya Pele Secondary School in April 2021, the Nkgopoleng Secondary School in April 2022 and the Edenville Intermediary School in April 2021. (Bundle A, p76). The Applicant’s case in this matter regarding unfair promotion was based on two grounds. In the first instance, the argument that the District Director, Dr Chuta ensured that he was not appointed. This argument was based on information that he received from a colleague that in January 2020 at a meeting of teachers the district director stated that as long as he is the District Director, the Applicant would never occupy a position of deputy principal or principal at a school, or words to that effect.
16. The Applicant confirmed that he was not in attendance at the meeting where this statement was made but that he would call two witnesses who were in attendance to confirm that these words were in actual fact uttered. The evidence was therefore allowed on the basis that the two witnesses be recalled to confirm the allegation. These two witnesses were however never called to testify. The Applicant’s evidence in this regard therefore amounts to hearsay and is therefore inadmissible. The Applicant did not present any argument as to why this evidence should be admitted in terms of the exceptions to the hearsay rule as set out in Section (3)(1) of the Law of Evidence Amendment Act (45 of 1988).
17. The essence of the Applicant’s case is that he applied for the position of deputy principal at the Nkgopoleng Secondary School in October 2021. He was invited for an interview and according to information that he received from his trade union he received the highest score and was recommended by the SGB to be appointed in that position. It however became apparent that the Department failed to make an appointment and aborted the process. The Applicant made contact with the district director Dr Chuta who invited him to his office to explain to the applicant what happened.
18. It is the Department’s case that the recruitment and selection process was flawed and that none of the candidates, who include the Applicant, met all the criteria for the post and should therefore not have been shortlisted. The process was therefore aborted. A new panel consisting of three school principals were appointed to do the selection and interview process. Only one of the candidates fully met the set criteria. However, this candidate scored below 50% during the interviews and it was therefore decided not to appoint this particular individual. The position therefore remains vacant.
19. This evidence was available to the Applicant at the time that he completed the referrals reflected above. The Applicant was fully aware of the fact that, after the process was aborted, the appointed selection and interview panel, consisting of three school principals did not shortlist any of the five candidates who were previously shortlisted by the SGB. The reasons for not filling the vacant post were explained to the Applicant by Dr Chuta after the Applicant enquired about the fact that he was not appointed. The Applicant did not challenge the complaints of the trade union objecting to the selection and interview process conducted by the SGB. The Applicant did not present any evidence to challenge the version of the Respondent that he did not have the minimum qualifications for the position. As reflected above, the onus rests with the Applicant to present evidence as to why he believes he has the minimum qualifications for the position and that he is the best candidate for the post. The employer is then to place present evidence that it acted fairly and in good faith during the promotion exercise. The Applicant only presented an argument that he is being blocked by the district director from being appointed in the position. Even when the district director testified, the Applicant failed to present factual evidence that he is the better candidate. He also did not present any evidence indicating that the decision to abort the initial process was unfair and that there was no justification for such an action. At the end of the day, the First Respondent declined to make an appointment as even the only shortlisted candidates did not make the grade.
20. Almost twelve months later, the vacancy was filled by the horizontal transfer of the Second Respondent to the position at Nkgopoleng Secondary School. The transfer occurred at the request of the Second Respondent and was approved by the Department to resolve a relationship problem that existed at the Second Respondent’s previous school. The actual transfer of the Second Respondent to the post of deputy principal took place in February 2023, 10 months after the First Respondent decided not to make an appointment due to the lack in qualifications or ability of the candidates. This transfer was affected with the consent of the school governing body, which consent was confirmed on 12 February 2023. The actual transfer was dealt with in terms of the regulatory framework as provided for in the Employment of Educators Act, 76 of 1998. It must also be noted that at this point in time, the Applicant had already referred a dispute. The actual appointment of the Second Respondent was therefore not an issue and did not form part of the Applicant’s dispute.
21. To conclude, the basis for the Applicant’s allegation that he was unfairly treated in the selection and appointment process relating to Nkgopoleng Secondary School was that his appointment was blocked by the District Director based on the argument that the particular Director in 2020 stated that the Applicant will never be appointed as a deputy principal or principal when the director has a say. This allegation was never substantiated. The Applicant further failed to prove any act of interference by this director in the appointment process The Applicant also failed to respond, given the allegation, that he did not qualify and was therefore not shortlisted by the independent panel. This conclusion was never challenged on the merits.

AWARD

22. The Applicant, MS Kotsoane, failed to show that the refusal of the Respondent, the Free State Department of Education, to appoint the Applicant to the position of Deputy Principal at the Ngkopoleng Secondary School constitutes an unfair labour practice relating to promotion as envisaged in terms of Section 186(2 (a) of the Labour Relations Act.
23. The matter is therefore dismissed.
24. I make no order as to costs.

Signature:

Panelist: PIETER GREYLING
Sector: Education Department of North West