Panellist: Khuduga Tlale
Date of award: 06 August 2024

In the matter between:

Shuping Stephen Finger Applicant

And

Department of Education – Free State 1st Respondent

Christopher Grobler 2nd Respondent

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between Shuping Stephen Finger (“the Applicant”) and Department of Education – Free State (“the 1st Respondent”) and Mr. Christopher Grobler (“the 2nd Respondent”) was held on 24 July 2024, and concluded on 25 July 2024 at the 1st Respondent offices in Bloemfontein. The Applicant was represented by Mr. R Kretschmer, an attorney. Mr. Solomon Moloi, Labour Relations Officer, represented the 1st Respondent, and Mr. Tata Mokwayi, an attorney, represented the 2nd Respondent.

2. These proceedings were conducted in English, and were digitally, and manually recorded. The parties agreed to submit written heads of argument on Wednesday, 31 July 2024. They both submitted.

Issues to be decided

3. The issue in dispute is whether an unfair labour practice was committed against the Applicant when he was not promoted to the position of Deputy Principal at Navalsig Secondary School at the Motheo District.

Background to the dispute

4. The 1st Respondent advertised the position of a Deputy-Principal of Navalsig Secondary School in vacancy list 2/2019 with post reference number 180020/302 on 07 October 2019, with the closing date being the 7th of November 2019. The Applicant occupied the position of an Educator PL1 when he applied for the said position with teaching experience of 24 years. The Applicant was shortlisted, and interviewed for the said position. After the interviews, the Applicant was ranked number 1. The School Governing Body (“SGB”) recommended him as the first suitable candidate to be promoted, and their recommendation was sent to the 1st Respondent for approval.

5. On 30 October 2020, a meeting was held between the SGB, and the District Director, Mr. D Moloi (“Director”), to discuss the delay in the appointment of the Applicant. The Director informed the SGB members that there was a discrepancy in the selection processes, and he requested two weeks to clarify the discrepancy. On 17 November 2020, the Director informed the SGB in writing that he had found that the shortlisting criterion of a minimum experience of 15 years was unfair, and sought to exclude other potential candidates. The Director recommended that the selection process should be re-done by an independent panel to promote fairness.

6. The SGB did not agree with the recommendation of the Director. On 16 March 2021, the Director informed the SGB in writing that the decision was taken to withdraw the advertised position of a Deputy-Principal, and not to fill the said position. The Applicant earned R25 740, 44, per month. The position was re-advertised on vacancy list 1/2021 under the same reference number on 25 October 2021 with the closing date of the 30th of November 2021. The Applicant, and the 2nd Respondent applied for the said position. The Applicant was not shortlisted, and the 2nd Respondent was shortlisted, interviewed, and promoted in April 2022. The Applicant is only disputing the first recruitment, and selection process that was withdrawn on 16 March 2021. The Applicant resigned from the services of the 1st Respondent with effect from 09 July 2024.

7. The 2nd Respondent was joined as a party to the proceedings. The 2nd Respondent party excused themselves from the proceedings after hearing that the Applicant resigned, and he sought compensation. They indicated that the outcome of these proceedings would not substantially affect him. The Applicant referred an unfair labour practice dispute relating to promotion to the Education Labour Relations Council (“ELRC”) alleging that his non-promotion was procedurally, and substantively unfair. He sought compensation. The dispute was not resolved at conciliation, and it was referred for an arbitration.

8. The parties submitted a bundle of documents, and it were marked bundle “A”, “B”, and “R”.

Survey of Evidence

Applicant

First Witness: Mr. Shuping Stephen Finger

9. The witness testified under oath that he was the Applicant in this matter. He stated that he received a telephone call from the Director inviting him to his office. Upon his arrival at his office, he went with the Director to another school by the name of Bainsvlei Combined. The Director went there to address the learners. They went to Langenhoven Park Spur, and on their arrival the Director informed him that he was recommended for the said position, but he was not going to be promoted.

10. He was further informed that Navalsig staff members were not satisfied with his recommendation to be the Deputy-Principal. The Director further informed him that he was not going to corporate with his office if promoted as the Deputy-Principal. The Director asked him how he was feeling, and he replied by saying he was not satisfied. The Director informed him that he wanted to transfer him to another school, and he would consider his promotion at another school. He was given an opportunity to think about the transfer from Navalsig School to another school, and they parted ways.

11. The Director went to Navalsig School to address the staff about the withdrawal of the advertisement. The Director further introduced Mr. Motlhabane as the school administrator. He wrote a letter to the Director requesting reasons for the withdrawal of the advertised position. The Director replied by saying he gave the SGB the reasons. He went to the SGB, and they gave him the Director’s letter as per “B60-61”. The Director acted arbitrarily in this matter. The Director deliberately said that he was not going to approve his promotion, and he met the post requirements. All the parties involved during the recruitment, and selection processes were satisfied.

12. He was not promoted because the position was withdrawn. The authority to withdraw the advertised position lies with the Head of Department, but in this matter it was withdrawn by the Director. The Director had no authority to withdraw the advertised position on 16 March 2021. The delegation of powers were signed on 06 December 2021. The Director’s decision to withdraw the advertised position was personal, nothing else.

13. Under cross-examination, he confirmed that the Director informed him verbally that he was not going to promote him. The Director informed him that he got a complaint from the school about his promotion, and he was not going to corporate with his office. He was an Educator PL1 when he applied for the said position. He stated that the managerial level was from an educator PL2 at the school level. The shortlisting criterion was as per “B44”, and one of the criterion was managerial experience. He was the subject head at the school, and he was between PL1, and PL2 positions. He was part of the school management team.

14. The selection processes must be fair to all the candidates. He stated that the managerial experience was not the reason for the withdrawal of the advertised position, but 15 years’ experience. The powers to appoint were delegated to the Director from 06 December 2021 as per “R97”, but he took the decision to withdraw the post on 16 March 2021. The filling of the Deputy-Principal post prior to the 6th of December 2021 was vested with the Head of Department. He stated that the shortlisting criteria was fair. The advertisement required the candidate with a minimum of 5 years’ experience.

Second Witness: Mr. Setshaba Joseph Marumo

15. The witness testified under oath that he was the member of the SGB at Navalsig Secondary School. It was the responsibility of the SGB to appoint selection panel members. He was involved in a shortlisting, and interviews processes of the post in dispute. They shortlisted three (3) candidates, and the Applicant was the recommended candidate. There were no discrepancies during the selection processes. They had a meeting with the Director about the filling of the disputed position. The Director said that he does not agree with their criteria, and he had a problem with the recommended candidate. They did not agree with the recommendation of the Director to promote the 2nd candidate. The Director further informed them that he wanted to transfer the Applicant. They asked him to talk to him about it. There was no agreement reached during the meeting with the Director.

16. They wrote a letter to the Chief-Director, Mr. Mokhobo about this position, and they had a meeting with him. The MEC wanted to talk to them about this position. The Director visited the school to address the staff members. The Director stated that the position of a Deputy-Principal was going to be re-advertised. The MEC visited the school, and they informed him about the non-appointment. The MEC said that he was willing to protect his employees until the highest court. The new SGB members were elected, and they agreed with the 1st Respondent to re-advertise the position. The Director said that he had a problem with the recommended candidate.

17. Under cross-examination, he stated that the Director was the accounting officer at the district level. It was his responsibility to advice if there was a breach of policy. Document “R80” was the letter addressed to the chairperson of the SGB, and the SGB responded to this letter. They had a meeting with the Director about this position, but there was no agreement reached. The Director wanted the SGB to agree with the promotion of the 2nd candidate.

18. The Director was concerned that the school was not where it was supposed to be. They took the challenges of the school when they developed this criteria as per “B44”. They also wanted to improve the school that was the reason they wanted 15 years’ experience. The Applicant was the subject head, and his responsibility was the same as with an educator PL2.

19. Under re-examination, he stated that they always add more experience during the shortlisting processes. Their 15 years’ experience was justified. The Director had a problem with the recommended candidate, not the criteria. All the shortlisted candidates met the criteria.

Third Witness: Mr. Kagiso Bahurutshi Motshelamadi

20. The witness testified under oath that the 1st Respondent employed him as a Chief Education Specialist: Management & Governance at Motheo District. It was the responsibility of the circuit managers during the selection processes of the Deputy-Principals’ post. He was involved during the interviews process of this position. All the parties were satisfied with the interviews processes. He supported the recommendation of the Applicant as per “B40”. The shortlisting processes was followed as per “B47”. He stated that the Director could have the authority to withdraw the advertised position if the powers to do so were delegated to him. Document “R97” was the delegations of powers dated 06 December 2021.

21. Under cross-examination, he stated that the parties had to indicate whether, or not they were satisfied with the interview process. If the powers were delegated, the Director might withdraw the advertised position. He had no knowledge of the withdrawal letter from the Director, but he was aware that the position was not filled. There was nothing wrong with the criteria after considering the needs of the school.

Fourth Witness: Mr. Motseki Izekiel Motlatla

22. The witness testified under oath that he was the chairperson of the SGB at Navalsig Secondary School. He stated that the shortlisting panel members required a candidates with 15 years’ experience, and other requirements. The advertisement wanted a candidates with the minimum of 5 years’ experience. They set a high standard because the school was in line with the likes of the Grey College. The SGB recommended the promotion of the Applicant. They had a several meetings with the Director relating to this position. The Director wanted to change their recommendation, but they refused.

23. Under cross-examination, he confirmed that he was part of the selection processes. Document “R80” was the letter addressed to the SGB Chairperson. The Director did not inform them about the withdrawal of the advertisement. The Director wanted them to have an agreement to promote the 2nd candidate, but they refused. They only learnt in the year 2021 that the post was withdrawn. Document “R98” was the delegation of powers.

24. Under re-examination, he stated that document “R97” was the signed delegation of powers on 06 December 2021. The letter from the Director was signed on 17 November 2020 as per “B61”. The Director had no delegation of powers on 17 November 2020.

1st Respondent

First Witness: Mr. December Selemo Moloi

25. The witness testified under oath that the 1st Respondent employ him as the Director: Motheo District. He had a knowledge of the position in dispute. The selection processes must be properly followed. The shortlisting, and the interviews were conducted at the school level. There was an issue with the shortlisting criteria. He had a delegated powers for the appointment of an educator PL1 to PL3, since the year 2014. The updated delegation of powers were signed in the year 2021. The requirements for the position was 5 years’ experience, but the shortlisting panel required 15 years, which according to him was excessive.

26. This criteria was not fair to other candidates. The other shortlisting criteria was a managerial experience without stating the years of experience. The management at the school level was from an educator PL2 to PL4. The shortlisting panel members shortlisted the Applicant who had no managerial experience. The SGB recommended the Applicant for promotion, but he did not approve it. He engaged the SGB, and he communicated his decision to them. The SGB did not agree with him, and his decision was correct. The position was re-advertised, and the Applicant re-applied.

27. The Applicant without managerial experience was shortlisted, interviewed, and recommended for appointment. Document “R80” was his decision he communicated to the SGB. Document “B97” was the updated delegation of powers signed on 06 December 2021. He had the authority to appoint an educator PL1 to PL3 in March 2021. He denied the allegation to say he informed the Applicant that he wanted to transfer him, and he would promote him at another school.

28. Under cross-examination, he stated that the reason for the withdrawal of the position was due to the shortlisting flaws. The set criterion of 15 years’ experience was not fair. The candidate who was not an educator PL2, was shortlisted, interviewed, and recommended for promotion. The withdrawal was to make the process fair. He engaged the selection panel members, but they did not want to change their decision. They could have recommended numbers 2, or 3. Document “B60” was his decision to withdraw the position dated 16 March 2021. He was highlighting the discrepancy as per “B61”.

29. When he assumed duty as the Director he was provided with the delegation of powers in the year 2014. He did not see the need to provide these proceedings with the old delegations. The delegation of powers are there at the website. The shortlisting panel set the criteria in order to shortlist 3-5 candidates. The panel members set a criteria of 15 years’ experience, and managerial experience without stating number of years. The managerial experience must come from the position of an educator PL2, but they shortlisted an educator PL1. The criteria must be fair to all the candidates. According to him, the criteria of 5 years’ experience was going to be reasonable. He requested the SGB to review their decision, but they refused. He had no bad intention against the Applicant.

30. The Applicant challenged the first recruitment, and selection process after not been successful in the second process. He acted within the framework of the law, and regulations. The SGB was only recommending, not appointing. An educator would get managerial experience when he/she was appointed as an educator PL2. The school management team consists of an HOD (PL2), Deputy-Principal (PL3), and Principal (PL4). The subject head was not appointed by the 1st Respondent, it was an internal measure.

31. Under clarity questions, he stated that he had a copy of the delegation of powers dated the year 2014, but they provided the latest delegations. He confirmed that the old delegations of powers were not part of the bundle of documents submitted to the proceedings. The exact reason for the withdrawal of the position was the set criteria. The SGB recommended a candidate without managerial experience, and they required candidates with 15 years’ experience. It was not fair, and it was prejudicial to other candidates, and the issue was the fairness of the process. He engaged the SGB about the managerial experience. He denied the allegation to say he only engaged the SGB about the 15 years’ experience.

32. He gave them an opportunity to review their decision, but they failed to do so. He confirmed that document “B61” was not talking about managerial experience. He denied the allegation to say he had a meeting with the Applicant. He denied the allegation to say he went with the Applicant to Bainsvlei Combined School, and Langenhoven Park Spur. He denied the allegation to say he indicated that the Applicant was a problematic person, and he was not going to corporate with his office. He denied the allegation to say he ever intended to transfer the Applicant. It was not wrong to shortlist an educator PL1 to the position of an educator PL3, provided it was in compliance with the set criteria. He maintained that the SGB failed to review their decision.

Second Witness: Mr. Michael Tshabalala

33. The witness testified under oath that the 1st Respondent employ him as the Deputy-Director: Human Resources at Motheo District. The Director asked the SGB questions relating to this position. The Director requested him to go through the selection processes of this position, and provide an advice. He found out that there were discrepancies in the selection processes. He was aware that the Director withdrew the position. Document “R98” was the delegations of powers, and the Director took a decision within his delegated authority. It was the obligation of the 1st Respondent to make sure that the selection process was properly followed.

34. Under cross-examination, he stated that the Applicant was not supposed to be shortlisted, let alone promoted. The Applicant had no managerial experience. The criteria must be fair to all the candidates. There was an attempt for an independent panel to re-do the process. He maintained that there was a delegation of powers prior to the ones signed on 06 December 2021. The copy of the delegations of powers was available. The roles of the trade unions during the selection processes was to make sure that the process was fair to all the candidates.

35. Under clarity questions, he stated that he was transferred to Motheo District on 01 July 2021, and he was not present when the decision to withdraw the position was taken. He confirmed that the former Deputy-Director: Human Resources supported the promotion of the Applicant. He had no knowledge what transpired between the SGB, and the Director in relation to this position.

Survey of Arguments

Applicant

36. The Applicant representative referred me to Department of Rural Development and Agricultural Reform v GPSSBC (2020) ZALCPE 2 (LAC) where the Court emphasized that an arbitrator must show deference to the employer’s decision and may interfere only if the employer acted irrational, capriciously, arbitrarily, or in bad faith. It has been shown in the evidence led as well as in the argument that the 1st Respondent had acted irrationally, arbitrarily, and in bad faith by refusing to promote the Applicant as the recommended candidate, and instead withdrew the post. In Minister of Safety & Security v SSSBC (2010) 4 BLLR 428 (LC) the Court held that the non-promotion of a police captain to the rank of superintendent was held by the arbitrator to have constituted an unfair labour practice, and his promotion was ordered.

37. The Applicant referred this dispute with the assistance of his trade union, and the trade union official was not a legally trained person. The 2nd Respondent was represented by a legal practitioner. The trade union withdrew their representative a few days prior to the 10th of July 2024. The Applicant informed all the parties that he would be seeking a postponement to obtain legal representation. It would be unfair, unjust, and unreasonable to order the Applicant to pay the costs of the postponement.

1st Respondent

38. The 1st Respondent representative submitted that the Director had the delegations of powers, and he acted within his powers to withdraw the post. The advertisement clearly stated that the department reserves the right to withdraw and/or not fill any post on the vacancy list. Paragraph 8 of the ELRC Collective Agreement 1 of 2019 states that the department must make its final decision subject to satisfying itself that procedures and requirements determined by the minister were followed. The Applicant did not meet the shortlisted criteria. It was clear that the shortlisting panel deviated from their own set criteria.

39. It is clear that the Applicant was treated differently from other candidates. The shortlisting panel members compromised fairness by prejudicing other candidates who did not meet one criterion, but they shortlisted the Applicant. Based on legal prescripts which govern human resources, it would be a total disgrace for the 1st Respondent to act against its own prescribed procedures. The application for costs order of the 10th of July 2024 must be dismissed.

2nd Respondent

40. The 2nd Respondent representative submitted that the Applicant was assisted by the South African Democratic Teachers’ Union (“SADTU”) to refer this dispute. The 2nd Respondent was joined in the proceeding, and the Applicant resigned from the employment of the 1st Respondent in June 2024. It was submitted that the Applicant must be mulcted in costs for the following reasons; the Applicant and his trade union should have informed the parties that he resigned, and his relief sought was compensation, not a promotion anymore. The Applicant, and his trade union were not prepared to proceed with the hearing on 10 July 2024, and the Applicant referral had no merits.

41. The Applicant participation in the second recruitment process, he acquiesced his right to challenge the first recruitment process. The Applicant referral should not have seen the light of the day after he was unsuccessful. He ought to have interdicted the second recruitment process pending the conclusion of his dispute. His failure to have done so, and ultimate participation in the second recruitment process demonstrated an acquiescence on his part.

42. It is a trite law that an application for postponement must be made timeously, that is, as soon as a justifiable reason for the postponement becomes known to the Applicant. The Applicant was aware that the 2nd Respondent was going to be represented by legal practitioner on 25 June 2024, but he only communicated his intention to be represented by a legal practitioner on 08 July 2024 due to the non-availability of his legal practitioner. The Applicant applied for the postponement of the proceeding on 10 July 2024.

43. The party responsible for a matter not proceeding should be liable for the wasted costs. Wasted costs are the additional costs resulting from a postponement, or previously incurred costs that have become useless as a result of the postponement. The hearing could not proceed on 10 July 2024 due the Applicant. The costs incurred by the 2nd Respondent were in his personal capacity, and ultimately amounted to wasted costs. The Applicant, and his trade union must be mulcted for these wasted costs occasioned by the late application for the postponement. The 2nd Respondent representative referred me to Soka v Eastern Cape Department of Education and another (2022) JOL 58721 (ELRC) and argued that this case was his authority that the Applicant, and his trade union must be held liable for the postponement of the hearing on 10 and 11 July 2024.

Analysis of evidence and arguments

44. Section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“the Act”), states that an unfair labour practice is any unfair act or omission that arises between an employer and an employee involving-

• 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 benefits to an employee.

45. The dispute before me relates to an alleged unfair conduct by the 1st Respondent relating to promotion. In a case of promotion, the onus is on the Applicant to prove that he was a suitable, and better candidate for the position in question. In short, the Applicant has to demonstrate that the failure to promote him, was unfair. On the other hand, the 1st Respondent, is in the same token, obliged to defend challenges on the substantive, and procedural fairness, if it wishes to avoid a negative outcome.

46. Promotion is an area of managerial prerogative unless the Applicant can prove bad faith, or improper motives. It is not the commissioner’s function, or responsibility to choose the best candidate for promotion for the 1st Respondent, but simply to ensure that in selecting candidates for promotion, the 1st Respondent does not act unfairly. All that the 1st Respondent was required to do in these proceedings was to show that it had a rational basis for its decision.

47. The employee who complained that the employer’s decision or conduct in not promoting him constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision, or conduct is proved, the enquiry into whether the conduct was unfair can then follow.

Whether the Director had delegated powers?

48. It is the Applicant’s version that the Director had no delegations of powers to withdraw the disputed position on 16 March 2021. Section 6(1)(b) of the Employment of Educators Act no 76 of 1998 (as amended) (“the EEA”), states that subject to the provisions of this section, the appointment of any person, or the promotion of any educator in the service of a provincial Department of Basic Education shall be made by the Head of Department. Section 6(1)(f) and (g) of the EEA further states that despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list, and if the Head of Department declines a recommendation, he or she must consider all the applications submitted for the post, apply the requirements in paragraph (b)(i) to (iv); and despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post.

49. The question that need to be asked is whether the Director had the delegation of powers to appoint, or re-advertise this disputed position? It is the 1st Respondent version that the Director had the delegations of powers to appoint or re-advertise the disputed position as per “R96-R132” The delegation of powers submitted during the proceedings were signed on 06 December 2021. The Director took a decision to withdraw the disputed position on 16 March 2021 as per “B60”. The 1st Respondent maintained that there were delegations of powers signed in the year 2014, but they failed to submit them during the proceedings. I, therefore, conclude that the Director had no delegations of powers to withdraw the disputed position.

Whether the Applicant proved the unfairness?

50. The parties to the ELRC entered into a collective agreement number 3 of 2016 relating to promotion on 23 August 2016 (“the agreement”). Section 23(1)(a) and (b) of the Act state that a collective agreement binds the parties to the collective agreement, and each party to the collective agreement and the members of every other party to the collective agreement, in so far as the provisions are applicable between them.

51. Paragraph 2 of the agreement states that to the extent that these guidelines concern issues that cannot be regarded as the law, but purely as policy issues, that is the official policy of the ELRC and panellists are expected to follow that policy. Paragraph 29 of the agreement states that it is only the conduct of an employer that can constitute an unfair labour practice. School Governing Bodies are not the employers of educators employed in terms of the Employment of Educator Act. Before a decision to appoint has been taken by the Head of Department as employer, based on the recommendation of the School Governing Body, the employer cannot be held responsible for any unfair conduct by a School Governing Body or interview committee committed during the recruitment and selection process.

52. The person who took a decision to withdraw the advertised position was not the Head of Department as the employer, or even not the delegated authority to do so. Paragraph 30 of the agreement further states that the referral of a promotion dispute before the Head of Department as employer has taken a final decision to appoint, is premature, and should be dismissed. Only once a final decision has been made not to appoint an aggrieved employee, can the employee refer an unfair labour practice relating to promotion. In this matter, the Head of Department as the employer did not take any decision not to promote the Applicant as recommended by the SGB.

Conclusion

53. In these circumstances, I find the Applicant failed to discharge the onus to prove that he suffered an unfair labour practice against the 1st Respondent.

Costs

54. The 2nd Respondent representative made an application for costs for the postponement of the hearing on 10 and 11 July 2024 against the Applicant party. The Applicant wanted to balance comparative ability when he requested a postponement in order for him to be legally represented just like the 2nd Respondent. The dispute resolution process is about fairness, and it will be in the interest of fairness not to award costs against the Applicant party.

Award

55. The ELRC has no jurisdiction to hear and determine this matter as there is no issue of an unfair labour practice relating to promotion.

56. The application is dismissed.

57. There is no order as to costs.

Signature: 
Commissioner: Khuduga Tlale
Sector: Education