Panelist/s: JOHN SIAVHE
Case No.: ELRC28-24/25NC
Date of Award: 11 NOVEMBER 2024

In the ARBITRATION between:

Deidre Deelie
(Union / Applicant)

Department of Education Northern Cape
(First Respondent)

Noleen Nadine Willie
(Second Respondent)

DETAILS OF HEARING AND REPRESENTATION
[1] This arbitration award follows unfair labour practice dispute relating to promotion between Deidre Deelie (the applicant) and Department of Education, Northern Cape (the first respondent) and Noleen Nadine Willie (the second respondent). It was heard on 26 and 27 of August 2024, the 2nd of September, and was only finalised on 21 October 2024. Parties were to submit written closing arguments on 28 October 2024.

[2] JJ Lofty Eaton, from Lofty-Eaton attorneys appeared for the Applicant whereas LL Tunani-Jara represented the first Respondent and Noleen Nadine Willie, the second Respondent presented her case,
[3] Both the Applicant and the first Respondent entered bundles of documents which I marked EE and ER, respectively.
[4] The hearing was held in English and it was digitally and manually recorded.

ISSUES TO BE DECIDED
[5] I am required to decide whether or not the first Respondent’s decision not to promote the Applicant in the promotional, Departmental head position at Danielskuil Combined School constitutes unfair labour practice as envisaged in the Labour Relations Act 66 of 1995, as amended. In the circumstances I find in the affirmative, I must make an appropriate remedy.

BACKGROUND TO THE ISSUES TO BE DECIDED
[6] The Applicant is an employee of the 1st Respondent stationed at Danielskuil Combined School. She is CS1 educator.

[7] The 1st Respondent first advertised HoD post at the school in 2022, and the School Governing Body recommended the Applicant as their preferred candidate to occupy the position. The 1st Respondent did not appoint, the vacancy was instead re-advertised.

[8] The SGB disputed the non-appointment of their recommended candidate who happened to be the Applicant. The 1st Respondent’s explanation for failure to appoint the Applicant was that she did not meet the post profile that was decided on by the SGB. They were advised that if they strongly feel that she should be appointed they have to attend to the post profile .

[9] The Applicant re-applied when the position was re-advertised. The 2nd Respondent, too, applied . Both were shortlisted and called for interviews. The SGB again recommended the Applicant as the preferred candidate. The 1st Respondent has instead appointed the 2nd Respondent, the Applicant has since lodged unfair labour practice dispute, relating to promotion arguing that it is unfair conduct by the 1st Respondent to disregard the recommendations of the SGB. She prayed for a promotion.

SUMMARY OF EVIDENCE AND ARGUMENT
The testimony led by all the witnesses is fully captured on the record of proceedings and what appears in this award is only but a summary of the evidence relevant to the issues in dispute and for determination

THE APPLICANT’S CASE

The Applicant testified was the only witness of the Applicant party, summary of her testimony under oath follows here under:
[10] She was first employed by the 1st Respondent in 2006. She first applied for the HoD promotion post at the same school in 2021. She acted in the advertised position for three years. She again applied in 2022 as the position did not appoint despite the SGB recommendations that she was their preferred candidate.
[11] She was again shortlisted and called for interviews with the incumbent, the 2nd Respondent. The SGB again recommended her as their preferred candidate to be appointed to occupy the advertised position. According to her she matched the post profile. She qualified in Afrikaans and English in her Post-graduate certificate from UNISA.

[12] She based her arguments on the provisions of section 3 of Employment of Educators Act 76 of 1998, as amended, which provide as follows:
“3(a) appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of a school”
[13] She however admits that the first Respondent reserves the right to decline any recommendations where it finds that the procedure is substantively and or procedurally flawed. According to her the HOD acted unfairly by deviating from the SGB recommendation as there proof that the procedure was substantively and procedurally flawed.

[14] She seeks to be promoted to Head of Department Level 2.
[15] She conceded under cross-examination by the 1st Respondent, that she did not do languages but communication. She again conceded that she saw the HOD’s letter in 2022, but the SGB did not explain it to her.
[16] Noleen Nadine Willie, the 2nd Respondent had no questions for the Applicant.

THE 1st RESPONDENT’S CASE
The 1st Respondent called two witnesses, Mesdames, Lulama Tutani-Jara, (Lulama) and Mary Van Wyk (Mary) both of whom testified under oath, summary of their testimonies follows hereunder: –
[17] She had delivered the HOD’s letter explaining why he did not appoint the Applicant as they recommended. She told them that the Applicant did not have mayor education subjects in her degree, she instead has social sciences. She does not have Afrikaans. She further told SGB that the Applicant have Language Proficiency post graduate certificate, which simply means that she could teach in Afrikaans and English, not that she has them as mayor subjects. The SGB was advised that they were to blame because it was the school that decides on the post profile.

[18] Lulama compared the Applicant’s qualifications in the bundle with the 2nd Respondent’s, who has Afrikaans, English and Social sciences as the mayor subjects in her Bachelor of Education qualification. According to her there was nothing unfair when the HOD deviated from the recommendations of the SGB. The 2nd Respondent matched the post profile.

[19] Mary’s testimony corroborated Lulamas’. Post profile comes from the school, her office conducted sifting and shortlisting and took everything back to the school to conduct interviews. She is aware of the HOD’s letter of 2022 in terms of which he declined to appoint as recommended the SGB.
[20] Both witnesses maintained during cross-examination that the HOD did not commit any unfair labour practice when he deviated from the SGB recommendations.

THE 2nd RESPONDENT’S CASE
Noleen Nadine Willie, the only witness of the 2nd Respondent testified under oath, summary of her testimony follows hereunder:
[21] She is the incumbent in the position disputed by the Applicant. Departmental head promotional post 202307/333. She met the requirements for the position unlike the Applicant. She has school subject in her Bachelor of Education qualification, Afrikaans, English and Social Science. The is nothing untoward that could have influenced the HOD deviate from the SGB recommendations, she did not even know that she was not recommended as the first I their list of preference.

[22] He is the Chief Personnel Officer for circuit 3 which consist of a group of schools. He is the custodian of post establishment of those schools. He is in recruitment section and also does vetting of candidates.

ANALYSIS OF EVIDENCE AND ARGUMENT
[23] In terms of section 186(2) of the Labour Relations Act (LRA), an employer commits an unfair labour practice if it commits any unfair conduct in relation to inter alia promotion.

[24] The applicant bears the onus to prove, on the balance of probabilities, that the employer has committed an unfair labour practice. In order to discharge this onus, over and above proving that he or she has the minimum requirements for the post the employee must prove that the decision not to appoint him or her was unfair. The employee discharges this onus by not only proving that she was the best candidate but also was denied a promotion based on arbitrary grounds.

[25] It is trite that there is no general right to promotion, employees do however have a right to be fairly considered when a vacancy arises. It is common cause that the applicant was acting in the vacancy and was considered, she was shortlisted for interviews together with the second respondent.

[26] In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held, with reference to the Aries v CCMA & others (2006) 27 ILJ 2324 (LC) that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion., further that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following:
• whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer; or
• whether the employer’s decision was arbitrary, or capricious, or unfair; or
• whether the employer failed to apply its mind to the promotion of the employee; or
• whether the employer’s decision not to promote was motivated by bad faith;
• whether the employer’s decision not to promote was discriminatory;
• whether there were insubstantial reasons for the employer’s decision not to promote;
• whether the employer’s decision not to promote was based upon a wrong principle;
• whether the employer’s decision not to promote was taken in a biased manner.
[27] After considering the evidence that this position was first advertised in 2021, and the HOD declined to appoint the Applicant as the recommended candidate in their list of preference, with the reason that she does not have Afrikaans HT in her qualification, to which she conceded during cross-examination, is not irrelevant, is not invidious, it was not motivated by bad faith, neither was it discriminatory, nor was it based on a wrong principle, nor was it taken on biased manner. Lulama even went to talk to the SGB, advising them that post profile is determined by the school, such that they had opportunity to adjust it if they so wished to fit their preferred or recommended candidate, the Applicant.

[28] In the totality of the circumstances, it is my finding that the Departmental head position is a specialisation position that requires someone that specialised or majored in the subjects. It is unlike if there was no one that applied for the position that majored in the subjects that the HOD could have decided otherwise. I therefore find that the Applicant, Deidre Deelie, failed to discharge her onus, on the balance of probabilities, that the HOD conducted himself unfairly by deviating from the recommendations of the SGB when he appointed the incumbent, Noleen Nadine Willie in the Departmental head post 202307/333 at Danielskuil Combined School effective from January 2024.

[29] For the reasons given above, I award as follows:

AWARD

[30] The 1st Respondent did not commit an unfair labour practice towards the Applicant by not promoting her to the position of a Departmental head (PL2) number: 202307/333.
[32]. The case against the 1st Respondents is dismissed.

Signed and dated at Pretoria.

ELRC Panellist of North West