IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT DURBAN TEACHERS CENTRE
In the matter between
SADTU OBO CHETTY VIMLA Applicant
and
DEPARTMENT OF EDUCATION: KZN 1st Respondent
NAPTOSA O B O PANDAY SALESH 2nd Respondent
ARBITRATOR : AS Dorasamy
HEARD : VARIOUS DATES/ LAST DATE 18 JULY 2024
DATE OF AWARD : 7 AUGUST 2024
SUMMARY : Labour Relations Act 66 of 1995 – Section 186(2) (a) – alleged unfair
conduct related to promotion
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration on various dates and on the 18 July 2024 the evidence was completed at the Durban Teacher’s Centre offices in Durban. This matter was under the auspices of the Education Labour Relations Council (ELRC). Mr J Reddy an attorney represented Ms Vimla Chetty (applicant), Mr Indran Pillay represented the Department of Education KZN (1st respondent) and the second respondent was represented by Ms Ishara Dhanook of NAPTOSA. The parties were to submit written closing arguments by the 30 July 2024. The party’s submissions and the applicable provisions of the applicable circulars relating to promotions were considered when I arrived at my decision.
THE ISSUE IN DISPUTE
2 I am required to determine whether the 1ST respondent committed any unfair labour practice in not promoting the applicant to the post in question being HRM NO. 5/2022, Post Number 342 Principal Parsee Rustomjee Primary School and dependent thereon the appropriate relief that may be determined.
THE BACKGROUND TO THE DISPUTE
3.1 The applicant applied for the post, was short-listed and interviewed for the post but was not appointed.
3.2. Mr Salesh Panday was appointed to the post. The applicant prays that the appointment be set aside and that she be appointed to the post.
The respondents oppose the relief sought by the applicant.
3.3. All documents referred to had been made available to the parties at arbitration. The markings of the documents were standardised with the parties at the arbitration.
APPLICANT’S (EMPLOYEE) OPENING STATEMENT
4. The applicant applied for the post and was short listed and interviewed by the Interview Committee and believes that she met the requirements, and the appointee was not the best candidate.
FIRST RESPONDENT’S OPENING STATEMENT
5. The first respondent will prove that the appointee is a suitable candidate and that the appointment of the second respondent should be confirmed.
SECOND RESPONDENT’S OPENING STATEMENT
6. The second respondent believes that the appointee received the recommendation by the School Governing Body and the promotion document has a supersession provision and the SGB had done its motivation that the second respondent’s appointment be confirmed and that the case be dismissed.
SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
Ms VIMLA CHETTY
Ms Chetty testified to the following effect:
7. She is the applicant in the matter.
Under cross-examination by the First Respondent, she stated that
8. She is teaching for 32 years and is a Head of Department Maths and Science and acted as a Deputy Principal.
9. The SADTU and NAPTOSA representatives were present. In the interviews nothing was raised about her. Then following the interviews, she did not receive any communication from the Department. The second respondent was appointed to the post. Her grievance was dismissed. She consulted with her union, and they asked her to lodge a dispute.
10. The information she received at the conciliation was that supersession (page 13) was used and the letter from the SGB was given to the HOD. The Department made the appointment with the supersession letter. She looked at it and felt unfairly treated and decided to challenge it.
11. She was provided with the minutes of the Ratification meeting (page 11). The process was unfair and discriminated against her.
12. She seeks appointment to the post.
Cross examination by the Second Respondent (Employer)
13. Clause 16 of the promotion document deals with supersession and changing the rank order. The SGB can change the order of candidates.
14. In the Letter of motivation, the SGB stated the reasons that she was not suitable for the post. She had no experience in primary school.
15. She lodged a grievance on the grounds that she was the number one candidate> Prior to the appointment she did not know that she was the number one candidate> Her union was present at the interview process. They did not lodge a grievance as her union was happy with the process. If they did not lodge a grievance it was a fair process.
16. Mr Panday was ranked second and there was no need to motivate for the others lower than him. The motivation letter justified why candidate 2 was a preferred candidate.
17. The Resource person Mr P Naidoo is an SEM and was a colleague in her previous school. They taught for twenty years together.
18 When she was interviewed, Mr P Naidoo knew her as more than just a SEM. Her current level is level 2 Deputy Head. She cannot say she is not a better candidate. Mr Naidoo influence the committee and pushed the committee in her favour.
19. She was shortlisted and treated fairly. In the HER 11 she was the highest scoring candidate. She was one of the three names submitted to the HOD. There is a collective agreement about promotions.
20. The HOD makes an appointment and he or she can appoint any of the three. The SGB makes the recommendation.
21. Mr Panday is one level higher than her. She has no primary school experience. The best interest of the child is the most important factor to consider.
NIRENDRAN NAIDOO
The salient aspects of his testimony are recorded below.
22. He was co-opted into the interview process by the SGB and was a scoring member because of his experience and was approached by Mr Houston the chairperson of the SGB.
23. There was no consensus and after the interview’s issues arose.
24. He was not at the ratification meeting. Further he was not part of the formulation of the supersession letter
Under cross examination he stated as follows:
25. Mr P Naidoo and the way he intervened was not within the guidelines.
26. He scored Mr Panday higher.
MR NICHOLAS PHILANI QWABE
The salient aspects of his testimony are recorded below.
27. He was a member of the SGB and was invited to the interview process in the principal’s appointment. There were 4 persons in the interview committee and his main function was to score the candidates.
28. He left the meeting because they were wasting his time. He was absent from the ratification meeting. The supersession letter was not sent to him.
Under cross examination by the first respondent, he stated as follows:
29. He knows nothing about Department procedures.
30. The SGB submits three names in order of preference and the Department makes the appointment. The HOD can appoint any of the candidates.
Under cross examination by the second respondent, he states as follows:
31. He was not involved in drafting the questions.
MEGASHREE JANKEY
The salient aspects of her testimony are recorded below.
32. She was the SADTU observer for the process.
33. Mr Naidoo raised questions on the scoring because there were inconsistencies. She was concerned because candidate 2 (SADTU) and 3’s scores were not in line. Candidate 3 did not answer according to her.
34. Mr Naidoo raised concerns, but the IC did not alter the scores.
35. She signed the HER 11 recommended candidates in order of preference. She had no idea of the supersession letter. She attended the ratification meeting but did not participate in it. The Department asked for a report.
Under cross examination by the first respondent, she stated as follows:
36. She teaches at Wentworth and knows Mr P Naidoo. She is a site steward at her school.
The HOD makes the appointment.
EVIDENCE ON BEHALF OF THE SECOND RESPONDENT (APPOINTEE) MR SALESH PANDAY
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
SALESH PANDAY
37. He is currently the principal of the school and prior to that he was the deputy principal of the school.
38. He taught all grades from grade 4 to matric and taught at primary and high schools. He was Deputy Principal in April 2019 (three years). He was acting principal at the school.
Under cross examination by the applicant’s representative, he stated as follows:
39. He belongs to NAPTOSA and his union was present at the interviews.
40. His substantive post is Deputy Principal at the school before the interviews
EVIDENCE ON BEHALF OF THE FIRST RESPONDENT
INDRAN PILLAY
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
41. He is the Deputy Director Umlazi district and is involved in promotion disputes. The SGB makes a recommendation. In this case the applicant and second respondent’s names were submitted to the HOD.
Under cross examination by the applicant’s representative, he stated as follows:
42. The SGB submits to the HOD a list of recommended candidates and the HOD signs the appointment schedule.
43. In this case there was a change in the ranking order and they checked it before it was sent to the Head Office.
PAPIAH NAIDOO (PATRICK).
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
44. He was the Resource Person in this matter and his role is outlined in the promotion manual.
45. The applicant is known to him as they taught at Ganges Secondary School for about 15 years ago.
46. He did not score the candidates but was present.
47. The interviews were held and at the end the HER 11 was signed by all parties with no objections.
48. In terms of the HRM procedures, put the candidates in the order of the scores. He did not attend
the ratification process.
49. He did not interfere with the scoring.
50. Thereafter the Interview committee member Mr Houston felt that the highest scoring person was not
the right person.
51. The SGB delayed the process and had the documents. On page 16, drop scores from 12 to 10, Ms
Chetty had one point more than Mr Panday. He did not see a need to recuse himself. He asked the
SGB to do a letter in respect of supersession.
Under cross examination by the first respondent, he stated as follows:
52. He collected the original documents and took it to the Department (room 314).
53. He was invited by the SGB and he was present as circuit manager and Resource Person
54. He had no personal interest in the matter.
CLOSING ARGUMENTS
55. The parties submitted written closing arguments that were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.
ANALYSIS OF EVIDENCE AND ARGUMENT
THE RELEVANT LEGAL PRINCIPLES
56. In Noonan v Safety and Sectorial Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity of competing for a post then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
57. It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
58. The following are recorded for completeness:
Promotion: Procedural Fairness
• Do not be overtly technical in respect of procedural irregularities
• We do not go digging to try and find points to frustrate the appointment of suitably qualified educators.
Promotion: Substantive Fairness
• Very difficult to prove
• Applicant must prove she was the best of ALL the candidates who applied for the post taking into account all these factors:
• Qualifications and experience as per CV’s
• Performance during interviews
• Subjective impressions made during interviews
Case Study
Thandile v ELRC (JR 1089/16) [2021] ZALC JHB 226 (11August 2021)
Allegation: Interview panel was not properly constituted
Court held
• This was immaterial
• Applicant did not complain about it at the time while knowing it was not properly constituted
59. Section 6 of the Employment of Educators Act 76 of 1998
Powers of the Employer
6 (1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator-
(a)…………..or
(b) in the service of the Department of Education shall be made by the Head of Department.
60. The Interview Committee appointed by the DOE made a recommendation that Mr Salesh Panday via a supersession letter be appointed to the post. This was done. The supersession provision is contained in the promotion manual. The appointee, Mr Panday was the acting principal of the school and held a higher substantive post than the applicant. The appointment was not arbitrary or motivated by an unacceptable reason. The decision can be rationally justified, and therefore I do not believe that there are any justifiable reasons to interfere with the decision to appoint Mr Panday as the principal of Parsee Rustomjee Primary School..
APPLICATION OF THE LAW TO THE FACTS
61. The promotion process of the respondent the Department of Education is regulated by HRM
Circular NO.5 of 2022/ 35 of 2021, documents and collective agreements. The stakeholders in the
education sector continuously appraises the procedure manuals and where necessary amendments are effected.
62. The following are of importance to direct parties in this sector that careful consideration must
be given to the following principles that guide/ direct the promotion/ appointment process.
Should a better understanding evolve then this would lead to a more expeditious filling of
advertised posts and effective teaching and learning situation. It is a clear from the number of
disputes attended to by the ELRC that the education sector is saddled with promotion disputes
that have the net result that the vacant posts remain in limbo until the matters are settled either
by agreement or by awards.
63. The following are recorded in the promotion manuals.
2. GENERAL PRINCIPLES
This procedure manual is developed within the framework of the Personnel Administrative
Measures (PAM) and replaces all other previous practices and procedure manuals. In this
regard the following general principles must be noted:
2.1.1 The obligations of the State as the Employer in terms of sections 195 and 197 of the
Constitution of the Republic of South Africa which includes the following factors: –
a) the ability of the candidate; and
b) the need to redress the imbalances of the past in order to achieve broad representation.
2.1.2. the obligations………………………..
2.1.3. the obligation to achieve equality in the workplace in accordance with the provisions of
the Employment Equity Act (EEA) of 1998, as amended
64. Section 16 CHANGING OF RANK ORDER OF RECOMMENDED CANDIDATES OF INTERVIEW
COMMITTEE BY SCHOOL GOVERNING BODY.
65. The first respondent complied with the provisions of this section.
66. The parties are bound by the collective agreement, and this includes individual educators employed
by the KwaZulu Natal Education department.
AWARD
67. The application is dismissed. The appointment of Mr Salesh Panday as principal of Parsee Rustomjee Primary School is hereby confirmed..
DATED AT DURBAN ON THIS THE 7TH DAY OF AUGUST 2024.
A S DORASAMY (ARBITRATOR)