In the Arbitration between:

NAPTOSA obo Khairunnisa Gaffoor
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE First Respondent
Mogammed Shahim Hendricks Second Respondent
(Respondent)

Union / Applicant’s representative: Ms. Cailyn Harris (NAPTOSA) & Ms Gaffoor
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First Respondent’s representative: Ms. Zuziwe Ngqokombe with Ms. Randall (day 1 & 2) and Ms. Flanders (day 3)
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Second Respondent’s representative: Mr. Tassiem (NAPTOSA) & Mr. Hendricks
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PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. An arbitration hearing was convened under the auspices of the Education Labour Relations Council over the period 23, 29 and 30 September 2021 by way of the virtual platform, Zoom. The applicant, Ms. Khairunnisa Gaffoor was represented by Ms. Cailyn Harris, an official of NAPTOSA. Ms. Zuziwe Ngqokombe represented the respondent, the Department of Education – Western Cape, as first respondent and the incumbent employee, Mr. Hendricks, the second respondent was represented by Mr. Tassiem of NAPTOSA. The proceedings were digitally recorded.

THE ISSUE IN DISPUTE
2. I must determine whether the first respondent committed an Unfair Labour Practice in respect of the applicant’s non-appointment to an advertised vacant post which the second respondent had been appointed into.

BACKGROUND TO THE ISSUE
3. A pre-arbitration meeting was concluded between the parties and the minutes set the tone for the issues that are in dispute and the issues that are common cause. It is common cause that the applicant was employed as a Post Level 1 Educator at Rylands Primary School since 1981. She acted in the Departmental Head post for 2.5 years and she indicated that she had applied for an advertised vacancy of Head of Department as she believed that she had met all the criteria as outlined in the advert for post 181 of vacancy list 1/2020. The applicant was shortlisted as one of the preferred candidates by the SGB of Rylands Primary School and was ranked at number one ahead of the incumbent, Mr. Hendricks who was ranked as preferred candidate number two. Mr. Hendricks was subsequently appointed into the position ahead of the applicant, Ms. Gaffoor despite the SGB sending a motivation letter for her to be appointed.

4. Ms. Gaffoor initially sought that the appointment of Mr. Hendricks be set aside and that the appointment be made as per the SGB recommendation. At the end of the arbitration proceedings she changed her view and sought compensation for what she believed was an unfair labour practice perpetrated by the Department of Education Western Cape.

SUMMARY OF THE EVIDENCE & ARGUMENTS:
5. Both parties presented bundles of documents in support of their versions. The applicant testified and also called the chairman of the SGB, Mr. Alimullah Mohamed to testify. The WCED called one witness, while the second respondent did not testify or call any witnesses.
6. I am required by the LRA to provide brief reasons to substantiate my findings and determinations in this dispute. As such despite considering all the submissions presented, I will only deal with what I believe is relevant and what will relate to the core issues in dispute.

THE APPLICANT’S CASE
7. The applicant bore the burden of proof and as such commenced with presenting her version. The applicant, Khairunnisa Gaffoor (Gaffoor) testified under oath that she has been an educator at the school for about 36 years. She has been acting in the position of Head of Department for 2,5 years. She mentors colleagues, guides junior teachers in their planning, does classroom visits, analyzed term performances, compiled duty rosters and a code of conduct for student teachers. She oversaw budgeting and that text books were available for each class. She indicated that she has taught over the foundation, intermediate and senior phases and has evolved her career over the ever-changing systems from Outcome Based to the CAPS System. She has taught all subjects except technology.

8. Gaffoor testified that she has a Bachelor of Arts Degree majoring in History and Education conferred on her in 1993 along with a Higher Diploma in Education conferred on her in 1997. She referred to her statement of results issued under the auspices of UNISA and explained that she had always wanted to teach intermediate phase. She stated that during the previous governmental regime, she was not allowed to attend Hewat or Wesley Training Colleges due to her being an Indian. However, she was allowed to teach at primary school without the necessary qualification.

9. Gaffoor stated that when she applied for the advertised post, she believed that she had all the attributes required to be appointed. The advert had not indicated any qualifications but had stated that the incumbent needed experience in grades 4 to 7. She confirmed that she was shortlisted and had received a call from the SGB secretary to inform her that she was one of three nominees. During December 2020, she contacted the Department and spoked to Jill Walker about the filling of the post considering that she, Gaffoor, was one of the nominated candidates. Ms. Walker told her that she was not supposed to know this and that the recruitment process was now flawed. Gaffoor stated that she requested to speak to a senior official but was told that Harry Wyngaard was too busy to speak to her.

10. Gaffoor testified that she was called in March 2021 by jill Walker who asked for her transcripts of the qualifications. These were not immediately available and she had to apply for them from UNISA. When she presented them some two weeks later, she was required to do fingerprint verification. She did not receive any feedback after having submitted her transcripts. She stated that she felt that when she was requested to undergo fingerprint verification by virtue of an SMS from Jill Walker, this led to an expectation that she would be appointed into the post.

11. On 2 May 2021, she was called to the office by the principal and the SGB representative and was told that the WCED had indicated that she was not suitably qualified and that the second candidate was going to be appointed. She felt this was unfair as she had taught all the relevant subjects and she had met all the criteria in the advert. When she went for fingerprinting, she thought that she was getting the post. The school sent in a motivational letter but she had not received any correspondence from WCED.

12. During cross examination, Gaffoor confirmed that according to her transcripts, she was qualified to teach Senior and FET phases only. She however felt that her experience qualified her to teach Intermediate Phase but this was never considered. She confirmed that she has been teaching in intermediate phase without necessary qualifications. She confirmed that the advert was accompanied by a preface which she did not read. She also confirmed that the preface indicated that applicants not qualified in a specific phase/learning area/subject(s) as per the advertised post, would not be appointed/promoted into such post. She further indicated that she understood this but then stated that there was not a preface attached to the advert.

13. Gaffoor stated that she was not up to date with Departmental circulars and as such was not aware of the circular relating to bursaries for upskilling of educators. She was however aware that the Department did offer bursaries for upskilling. She confirmed that the post she had been acting in was a part of management at the school. When it was put to her that, as part of management, she thus should have been aware of the circulars she stated that it was lockdown in 2020. Gaffoor confirmed that the core criteria of the advert are qualifications and experience and that she had thought that she was going to be appointed because she went for fingerprinting twice. She confirmed that she had been paid an acting allowance by the WCED for the period of the vacancy from 2020 to 2021. She confirmed that this was the same vacancy for which she applied.

14. Mr. Tassiem was also afforded the opportunity of cross examination. Gaffoor confirmed that she was disqualified from appointment as the motivation submitted to the WCED was irrelevant as she was not “suitably qualified” in the first instance. She agreed that she could have upskilled herself in line with the bursaries provided for upskilling but that she was not aware of this document and further agreed that it was fair of the WECD to provide such opportunities.

15. The proceedings were adjourned for the day due to the unavailability of the applicant’s next witness. The arbitration resumed on 30 September 2021 with the applicant’s witness, Alimullah Mohamed testifying under oath. Mr. Mohamed testified under oath that he is the current Chairperson of the SGB and has been actively involved in recruitment and shortlisting of staff at the school over a number of years. He stated that when the SGB shortlisted its candidates, the main criteria was being experienced in the grades and a 3 or 4-year qualification with acting in the HOD position being considered an advantage. He believed that Gaffoor met the requirements and was also aware that the WCED had declined her appointment by virtue of the letter sent to the school and the SGB.

16. Mohamed stated that the SGB sent a motivation letter because they felt that Gaffoor was the most suited candidate as the other candidates did not display the same level of experience. He confirmed that the WCED had sent a response in the form of an email indicating that the SGB should provide reasons why the 2nd and 3rd nominees should not be considered given that Gaffoor did not have the suitable qualification. Mohamed stated that the SGB did not send in a response as it was clear that the WCED had made its decision and the SGB did not want to prejudice any future applications that Mr. Hendricks would make.

17. Mohamed stated that the Department had submitted C.V.’s of applicants which he believed had been sifted through before being sent to the school. He was aware that the applications were done online and the Department sent them to the school to be downloaded in a printable form.

18. During cross examination. Mohamed confirmed that when the Department indicated that Gaffoor was not suitable, a meeting was convened with the whole SGB where the non-awareness of the qualification requirement was discussed. He confirmed that only Gaffoor’s experience and acting in the HOD position was addressed in the motivation letter sent to the WCED. The letter did not address Hendricks’ qualification but he confirmed that Hendricks qualifies to teach in the intermediate phase and that there was no reason not to appoint Hendricks. It was just that the SGB found Gaffoor more suitable. He stated that in his personal view, teaching experience is more important than formal qualifications. He accepted that Gaffoor does not have the necessary qualification and that the Department is wanting to place suitably qualified educators in the positions where they are required.

19. Mohamed confirmed to Mr. Tassiem that the SGB nominated three candidates and accepted that if the first candidate was not suitable or could not be appointed for whatever reason, the next candidate in order of preference would be appointed. He also confirmed that Gaffoor had been given an opportunity to upskill herself and that she was not suitably qualified for appointment to the post. He confirmed that the email from WCED had specified a particular brief relating as to why Hendricks should not be appointed and that the SGB had not responded to this brief. He also confirmed that the SGB had accepted Hendricks’ appointment.

RESPONDENT’S CASE:
20. The respondent called its only witness, Mr. Harry Wyngaard (Wyngaard), Deputy Director Recruitment & Selection and qualification evaluation. Mr. Wyngaard testified under oath that he had done the evaluation of Gaffoor’s qualifications and had ascertained that she was only qualified to teach Senior and FET phases. He explained that in order to be “suitably” qualified, one has to have a qualification to teach in a specific phase. He explained that the Department encouraged teachers to increase their Continued Professional Development by promoting and providing bursaries to get their qualifications in a circular that is sent out every second year. This is to assist teachers to get qualifications to be able to teach across the various phases.

21. Wyngaard stated that every advert has a preface attached to it and this defines the necessary criteria. When applying online, an applicant is prompted to go to the preface before completing the application. The applicant must be suitably qualified. In the case of Gaffoor, she was not suitably qualified. Wyngaard stated that when the SGB did not respond to the brief of why Hendricks should not be appointed, the Department had stated that it would go ahead with the appointment as it had a responsibility towards various stakeholders. Wyngaard explained what was taken into account when an application was considered. This was an integrated process which involved Personnel Administrative Measure (PAM), MRTECH and all policies and criteria available to the Department. He stated that the Department of Higher Education had also been consulted and that they too had agreed with the evaluation. Wyngaard stated that it was not unfair to appoint Hendricks as he had the suitable qualification and this was in line with the Department’s mandate of seeking the right teacher for the right position in order to advance the quality of education provided to learners.

22. During cross examination by the applicant’s representative, Wyngaard confirmed which tools were used to evaluate Gaffoor’s qualification and also confirmed that she had a degree to teach at FET level. In response to Tassiem, he confirmed that Gaffoor’s acquired skills and knowledge over 38 years would not substitute the required qualification. He also stated that it was not necessary for the WCED to consider the motivation to appoint Gaffoor as this was not in line with the brief submitted to the school asking why the 2nd and 3rd candidates could not be appointed. He stated that the WCED had not treated Gaffoor unfairly.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS:
23. The matter before me relates a promotion dispute where the applicant believes that she was suitably qualified to be appointed to a vacant post that she had applied for and was unsuccessful on the basis of her formal qualifications. In terms of the Labour Relations Act 66 of 1995, as amended this could constitute an unfair labour practice as set out in section 186(2)(a) if proven. The applicant bears the burden of proof.

24. On the documentary evidence and oral testimony presented to me by all the witnesses, it is evident that the applicant, Ms. Gaffoor does not have the formal qualifications to be appointed into the position that she applied for. She openly admitted this during her evidence in chief and under cross examination. This is despite the fact that Ms. Gaffoor has a number of years of experience in teaching and also has the qualification to teach at the FET phase. She however does not have the relevant qualification to teach at the intermediate phase which is the phase in which the vacancy arose.

25. Mr. Mohamed testified that the applicant was the preferred candidate and also gave his personal opinion regarding a preference for experience over a formal qualification. While I understand the sentiments of Mr. Wyngaard that the WCED has a principle of “the right teacher for the right position”, and that Ms. Gaffoor does not have the “relevant qualification” to teach in the phase, I cannot ignore that Ms. Gaffoor has acted in the position of HOD. What is significant is that she claims to have acted for a period of 2,5 years which was not disputed. During her testimony it came to the fore that she has been paid by the WCED for acting in the position for the best part of the period that the position was vacant from 2020 to just before it was filled by Mr. Hendricks’ appointment into the post. This is approximately 15 months or so that she was acting in the position with authority from the WCED given that she was paid an acting allowance.

26. It thus cannot be said that the WCED did not know that she did not have the relevant qualification. When it paid her to act in the position, it should have done so from an informed position which it clearly did not do. The fact that the WCED allowed her to act in the position without having the relevant qualifications for the phase is also in direct and stark contrast to the statement of “the right teacher for the right position” as testified to by Mr. Wyngaard. This is also in contrast to the argument presented that in order to qualify for appointment, she should have been in possession of the phase qualification.

27. Despite the above, Ms. Gaffoor has not helped her own cause. As an employee acting in a management position for 2,5 years as claimed, she testified that she is not up to date with the Departmental circulars and was also not aware of the opportunity presented to her to increase her professional skills by way of the bursary opportunities offered by the Department of Education. This shows a profound shortcoming on her part and had she taken the given opportunities, there would be no dispute as she would have been appointed into the position as the preferred candidate of the school and its SGB. Had she read the preface of the advert, she more than likely would not have applied for the position knowing that she did not have the relevant qualifications as outlined in the preface.

28. In Mogale City Local Municipality v IMATU obo Visagie and others (JR85/15) [2017] ZALCJHB 432 it was emphasised by the court that candidates who do not possess the qualifications set out in an advert as being a requirement for the position, cannot expect to be appointed or promoted merely on the grounds of having experience.

29. This however does not mean that Ms. Gaffoor was not prejudiced by the WCED’s decision to rely mainly on formal qualifications to not appoint her into the vacancy. Recognition for prior learning has been at the forefront of redressing the educational imbalances of the past. It is my view that more consideration should have been given to the motivational letter submitted on her behalf by the school’s SGB under the given circumstances.

30. In Pamplin v Western Cape Educational Department (C 1034/2015) [2018] ZALCCT the court emphasised that while the onus is on the employee to demonstrate that the failure to promote him/her is unfair, the employer on the other hand is obliged to defend challenges on both substantive and procedural fairness if it wishes to avoid a negative outcome

31. From a substantive perspective Ms. Gaffoor would in all likelihood not have been appointed on the basis of not having the formal qualification which the WCED deems as critical to its recruitment process given its outlook of “the right teacher for the right post” and which is outlined in the case listed above. However, I am of the view that the WCED acted procedurally unfairly towards Ms. Gaffoor by allowing her to act in the position, paying her an acting allowance and then claiming she does not meet the criteria of having the relevant qualifications.

32. Ms Gaffoor has indicated that she does not wish for Mr. Hendricks’ appointment to be overturned and that she would prefer compensation should her Unfair Labour Practice claim succeed. In my view she has succeeded with the procedural aspect of her claim. Under the given circumstances a solatium for the procedural aspect would be an appropriate outcome.

33. Thus, in consideration of all of the above, I make the following award:

AWARD:
34. The applicant has discharged the burden of proving that the WCED acted procedurally unfair towards her. The applicant Ms. Gaffoor is to receive compensation to the value of R25000.00 (Twenty-five thousand Rand) as a solatium for the procedural unfairness displayed towards her. Payment of this amount is to be made by no later than 25 October 2021.

L M Taylor
Commissioner