In the matter between:

SAUVSE obo I S STEYN Applicant

and

DEPARTMENT OF EDUCATION NORTHERN CAPE Respondent

___________________________________________________________

ARBITRATION AWARD
___________________________________________________________

DETAILS OF HEARING AND REPRESENTATION:

1. The Applicant referred an alleged unfair labour practice as contemplated by Section 186(2)(a) of the Labour Relations Act, Act 66 of 1995 (as amended)(hereinafter referred to as the LRA) to the ELRC following the Respondent’s failure to promote the Applicant to a senior lecturer position for which she applied during November 2004. The conciliation/arbitration hearing was scheduled under the auspices of the ELRC on 7 April 2005, in Springbok but as the parties could not reach an agreement during the conciliation, a certificate of a failed conciliation was issued, whereafter the arbitration commenced. The Applicant was represented by Mr J H Koekemoer, the director of the South African Union for Vocational and Specialised Education (SAUVSE) while the Respondent was represented by Mr O Mogathle.

BACKGROUND TO THE ISSUES:

2. The Applicant is employed as a lecturer (Post level 1) at the Namaqualand Further Education and Training Institute in Springbok. On 14 June 2004 the Respondent advertised certain promotional posts, inter alia a senior lecturer (Post level 2) position at the Namaqualand Campus in Springbok. The Applicant applied, was short-listed and invited to attend an interview on 24 November 2004. The Applicant was, however, not successful and a Mr D Boyce was appointed to the advertised position as from 1 January 2005. The Applicant was never informed in writing that her application was unsuccessful but after she learnt on 9 January 2005 that Mr Boyce was the successful candidate, she immediately registered a grievance with the Respondent on 10 January 2005. As the matter was not resolved, the Applicant referred the alleged unfair labour practice dispute to the ELRC on 25 February 2005.

3. In the E1 referral form submitted by the Applicant to the ELRC, the Applicant summarised the facts of the dispute as follows:

“(1) Mrs I S Steyn and Mr D Boyce both went for an interview on 24 November 2004 regarding the filling of an advertised lecturer’s post no 200406/22.
(2) Mr D Boyce was nominated for the post by the interview committee.
(3) Mrs I S Steyn was very upset about this because, according to her, Mr Boyce’s qualifications is not in line with the requirements for the advertised post.
(4) According to paragraph 2.2(a)(vii) of the Personnel Administration Measurements (PAM) preference should in all cases be given to appropriately qualified applicants for any educator post.”

4. As Special Features the Applicant indicated the following in the E1 referral form:

“(1) Mrs I S Steyn’s qualifications as well as her experience are by far better than Mr D Boyce’s qualifications and experience.
(2) Mrs I S Steyn’s grievances were not attended to as prescribed by Chapter H of the PAM.”

5. The Applicant furthermore indicated in the referral form that the relief sought was …”The nomination of Mrs I S Steyn for the senior lecturer’s post instead of Mr D Boyce.”

6. The Respondent submitted that Mr Boyce was indeed “suitably qualified” for the position and that no unfair labour practice was committed by the Respondent. Proper interviews were held with the short-listed candidates and on the recommendation of the Council of the Namaqualand Campus, the Respondent’s HOD appointed Mr Boyce to the advertised position.

ISSUES TO BE DECIDED:

7. The issue I have to decide is whether the Respondent indeed committed an unfair labour practice as contemplated by Section 186(2)(a) of the LRA by not promoting the Applicant to the position of senior lecturer. The Applicant indicated that the short-listing and interview process was fair and that no irregularities occurred but contended that as she was the better qualified candidate, she should have been appointed.

8. The onus of proving the facts on which the Applicant’s allegation of an unfair labour practice rests, is on the Applicant and is discharged on a balance of probabilities. The Applicant therefore started with the adducing of evidence.

THE APPLICANT’S CASE:

ISABEL SUZANNE STEYN:

9. Mrs Steyn testified that she was currently employed by the Northern Cape Department of Education at the Namaqualand Further Education and Training Institute in Springbok as a lecturer. During June/July 2004 she applied for a promotional post, post number COL200406/22, which was a senior lecturer post (Post level 2) at the Namaqualand Campus.

10. According to Mrs Steyn she qualified for the position as she had a professional educational qualification obtained through UNISA and she was also qualified in business management (marketing) as well as accounting. She was in possession of a B.Admin degree and had previously lectured in these fields at both College and Secondary School Level. She obtain a Financial Accounting Degree through UNISA during 1983, whereafter she obtained an educational diploma (cum laude) with accounting and business management during 1988. During 2000 she obtained a three-year diploma in Hotel Management and Tourism and she also studied marketing up to third year level.

11. Mrs Steyn also testified that she had a post-graduate diploma in the management of HIV and AIDS in the workplace, obtained through the University of Stellenbosch, Medunsa as well as the African Aids Centre and is currently enrolled for a M.Phil at the University of Stellenbosch. She has already completed her ICDL (International Computer Driving Licence in Africa) and is also qualified as an examiner in this field.

12. During 1984 she was employed at the Phalaborwa Technical College and during 1986 she managed a Satellite College in Riviersonderend for the Worcester College. From 1991 to 1995 she was employed at the Namaqualand Campus where she initiated business studies. During 2003 she was appointed at the Namaqualand Campus on Post Level 1 in the field of entrepreneurship. This inter alia entailed labour relations, marketing, accounting, computers and life skills.

13. According to Mrs Steyn she was convinced that she would be appointed in the position she applied for as she knew what qualifications the other candidates had. Bearing in mind her experience and qualifications, she was by far the most suitable and best qualified candidate for the position. Four candidates were short-listed of which two did not possess the necessary educational qualification required by the position she applied for. Mrs Steyn was not sure what the qualifications of the fourth candidate was.

14. Mrs Steyn testified that on 10 January 2004 she was informed by a colleague that Mr Boyce was the successful candidate and appointed as senior lecturer. Mrs Steyn was shocked when she learnt this as she had given her best over a number of years and continually studied to improve her qualifications. She testified that she worked for twelve years at a private Catholic School, being responsible for all managerial functions and she indicated that she was extremely competent as far as organisational skills were concerned. She was also a good leader and a good manager.

15. As far as the interviewing process was concerned, Mrs Steyn testified that the interview was pleasant, that she could answer all questions posed by the panel and that she was convinced that she would be the successful candidate. After she received the minutes of the interviews, she learnt that Mr Boyce were awarded 47 points while she was only awarded 44.5 points. She referred to page 20 of a bundle prepared by the Applicant and testified that she should have been awarded higher marks by the panel than the marks allocated to her. Mrs Steyn concluded her evidence in chief by indicating that she was disappointed that Mr Boyce was appointed as he only had a three-year diploma in marketing without any formal educational qualification.

16. During cross-examination Mrs Steyn reiterated that according to her knowledge, Mr Boyce only had a three-year marketing diploma without any formal educational qualification. According to the Applicant, Mr Boyce therefore did not qualify for appointment to the position in terms of the advertisement. As far as what “appropriately qualified” would mean, Mrs Steyn indicated that according to her this relates to a diploma/degree in the specific field as well as an educational qualification, which could either be a degree or a diploma. On a question whether Mr Boyce was trained as an educator, Mrs Steyn indicated that according to her training as an educator presupposes a formal qualification. Despite the fact that a person might have appropriate experience, formal training (a diploma or degree) was still required.

17. According to Mrs Steyn, she was of the opinion that Mr Boyce should not have been appointed in the specific position. According to her the position was also advertised during 2002 but as Mr Boyce did not have the necessary qualifications, the position was not filled. For Mr Boyce to be appointed in the specific position, he needed some sort of formal training as an educator, which he lacked. Nothing new materialised during cross-examination and no further evidence was adduced on behalf of the Applicant.

THE RESPONDENT’S CASE:

18. The Respondent elected not to adduce any evidence and closed his case.

SURVEY OF EVIDENCE AND ARGUMENT:

19. It is common cause that the Applicant applied for a promotional post during June/July 2004, which advertisement read as follows:

“NAMAKWALAND CAMPUS
22. POSNOMMER / POST NUMBER COL200406/22
SENIOR LECTURER PL2
Onderrigmedium / Language of Instruction : Afrikaans
Administratiewe en organisasievermoëns. Bemarkingsbestuur en/of Finansiëlebestuur agtergrond.
N4-N6 Verkoopsbestuur, Arbeidsverhoudinge, Bemarkingsnavorsing en/of Finansiële Rekeningkunde,
Gerekenariseerde Finansiële Stelsels, Kosteberekeninge en vertroud met Pastel Accounting.”

20. It is also common cause that the Applicant was short-listed, invited for an interview but that Mr Boyce was recommended by the interviewing panel and that he was eventually appointed by the Respondent’s HOD as from 1 January 2005. This, the Applicant alleged, constitutes an unfair labour practice pertaining to the Respondent’s failure to promote her.

21. Before I deal with the merits of the Applicant’s application, I am of the opinion that there are two important aspects, which need to be addressed. The first relates to the difference between appointments and promotions. In Department of Justice vs CCMA & Others (2004) 4 BLLR 297 (LAC) the court indicated that the CCMA (or a Bargaining Council) has jurisdiction to arbitrate disputes referred by employees concerning the filling of posts advertised by their own employers which would constitute a promotion for those employees. This means that in situations where employers advertise posts externally, disappointed applicants may refer unfair labour practice disputes for arbitration in terms of Section 191(5)(a)(iv) of the LRA if they are employed by the employer that advertised the post. Disappointed ”outsiders” can refer disputes to the Labour Court only if they allege that they are victims of unfair discrimination as described in Section 6 of the Employment Equity Act or if they allege that they have been victimised in the sense outlined in Section 5 of the LRA. (See Employment Law, June 2004, volume 20, page 5) It therefore follows that this dispute relates to promotion and can be arbitrated by the ELRC.

22. The second important aspect which needs consideration is the fact that the Applicant wants to be appointed as a senior lecturer in the position currently filled by Mr Boyce The relief claimed by the Applicant directly affects Mr Boyce as the Applicant requires me to make a finding that she was a more suitable candidate than Mr Boyce, which will necessarily imply that Mr Boyce was not suitable for promotion and to be appointed in Post no COL200406/22.

23. In PSA vs Department of Justice and Others (2004) 2 BLLR 118 (LAC) the Labour Appeal Court specifically dealt with the non-joinder of two successful applicants after two unsuccessful applicants referred an alleged unfair labour practice concerning their non-promotion to the CCMA. The matter eventually ended up in the Labour Appeal Court where Zondo, JP inter alia said the following on 123 D:

”The question which arises is whether, where a tribunal that exercises public power such as the CCMA, is called upon to arbitrate a dispute such as this one where it may or will have to make a finding that someone who has been appointed to a position is unsuitable for such a position, it is proper or competent for it to proceed and arbitrate such a dispute without such person being joined in the arbitration proceedings or at least being afforded an opportunity to be heard first.”

24. On 125 B the learned Judge President continues and says:

“With regard to the issue of non-joinder it is trite that a third party should be joined in proceedings if he is shown to have a direct and substantial interest in a matter and has not consented or undertaken to be bound by any judgment that may be given in the matter. It is not necessary to refer to many authorities in this regard. It is sufficient to refer to the case of Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A).

Fagan AJA took the opportunity in the Amalgamated Engineering Union case to reveal various authorities on the issue of joinder or parties. I draw attention to the two principals that Fagan AJ refers to at 651, namely:

(1) That a judgment cannot be pleaded as res judicata against someone who was not a party to the suit in which it was given; and
(2) That the Court should not make an order that may prejudice the rights of parties not before it.”

25. The learned Judge President continues on page 126 (I) and says the following:

“In the present matter the successful candidates and Messrs Duminy and Nortier (the unsuccessful candidates) were competitors in the race for appointment to the two posts. The Minister appointed the two candidates. Messrs Duminy and Nortier maintained that the Minister’s decision not to appoint them but to appoint the two candidates was wrong and should not have happened. They said it constituted an unfair labour practice against them. Obviously the two successful candidates would most probably maintain that they were the right persons to have been appointed.

26. On page 127 B-C the learned Judge president said the following:

“This created a state of affairs in which it could be said that the employer was faced with contradictory claims as to who should have been appointed. The unsuccessful candidates, Messrs Duminy and Nortier, then took their grievance or complaint to arbitration. That arbitration was, to say the least, about who should have been appointed to the two posts and who should not have been appointed. To my mind this demonstrates quite clearly that the successful candidates had a direct and substantial interest in the arbitration proceedings. As the two successful candidates had a direct and substantial interest in the arbitration proceedings, they should have been joined.

If the appointees had been party to the arbitration proceedings, they would have been bound by the commissioner’s award as long as it stood. In that case, it might not have been difficult for the Minister and the Department to remove them from those positions following the findings that they were not suitable for them. However, since they were not party to the arbitration proceedings, they were not bound by the arbitration award.”

25. Neither the Applicant nor the Respondent applied for the joinder of Mr Boyce at any stage during the arbitration. I am, however, of the opinion that the same principles concerning joinder as was alluded to by the learned Zondo JP in the PSA matter (supra) would also be applicable in the present dispute. It would most definitely be unfair to make a finding to the effect that Mr Boyce was not suitable to be promoted and to instruct the Respondent to promote the Applicant without giving Mr Boyce the opportunity to present his case to me and it would also be a violation of the audi alterem partem rule. Mr Boyce has a direct and substantial interest in the outcome of this arbitration and should have been joined.

26. John Grogan in Employment Law (June 2004, Volume 20) on page 3 and further, discusses inter alia the PSA matter (supra) and says the following on page 10:

“Even if the CCMA lacked power to formally join Mr A and Ms B in the arbitration proceedings, the Court held that, given the damaging findings against them, they were entitled in fairness to be heard. This was because the audi alterem partem principle require the statutory body to afford persons an opportunity to be heard before taking decisions prejudicial to them. That no relief had been sought against the successful candidates, did not alter this principle, nor did it mean that they should not have been joined. But the main point made by the second judgment is worth noting : if the disappointed applicants for appointment or promotion challenge their employer’s decision, the successful candidate should be joined even if no specific relief is sought against him or her. This is especially true where, as is often the case in such matters, the complainant relies on a claim that the successful candidate was “unsuitable” or perhaps “less suitable” than the complainant.”

27. It is therefore clear that the relief claimed by the Applicant, should she be successful in this matter, cannot be given to her and this stage and I am therefore not going to make any ruling concerning the merits of this dispute. I am of the opinion that the Applicant should commence these proceedings afresh and have all interested parties joined if she still wishes to pursue this matter.

AWARD:

1. The Applicant’s application is dismissed.

2. The Applicant can commence the proceedings afresh and have Mr Boyce joined as a party.

3. No ruling on the merits is made.

4. No order as to cost is made.

COMMISSIONER: …………………………………..
C J WESSELS
13 May 2005

EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD

CASE NUMBER PSES 642-04/05 NC
APPLICANT I S STEYN
RESPONDENT DEPARTMENT OF EDUCATION NC
NATURE APPOINTMENT
ARBITRATOR C J WESSELS
DATE OF ARBITRATION 7 APRIL 2005
VENUE SPRINGBOK

REPRESENTATION:

APPLICANT MR J H KOEKEMOER (SAUVSE)
RESPONDENT MR O MOGATHLE

AWARD:

1 The Applicant’s application is dismissed.
2 The Applicant can commence the proceedings afresh and have Mr Boyce joined as a party.
3 No ruling on the merits is made.
4 No order as to cost is made.

DATE OF AWARD 13 MAY 2005