15 August 2025 -ELRC349-24/25WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD ON THE MS TEAMS VIRTUAL PLATFORM
Case Number ELRC349-24/25WC

In the matter between:

Suid Afrikaanse Onderwys Unie (SAOU) on behalf of A. Leon-Gonzales and Z. Adamson
Applicants
and

The Department of Education – Western Cape
First Respondent

S. Pillay and M. Solomons
Second Respondents

M. Mohamed
Third respondent

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

This matter was set down for arbitration on 4 December 2025 and after numerous sittings was finalised on 23 July 2025. Written closing arguments were received on 1 August 2025. The applicants were represented by Mr. Havenga of the Suid Afrikaans Onderwys Unie (SAOU). The first respondent was represented by Mr. Seelamo and Ms. Blanckner. The second respondents were represented by Ms. Newman, Ms. Mthwazi and Ms. Harris of NAPTOSA. The third respondent was represented by Ms. Havenga and Mr. Baard of SAOU.

THE ISSUE IN DISPUTE

I must decide whether the respondent in not appointing/promoting the applicants into the advertised positions perpetrated an unfair labour practice as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA). These positions are chief education specialists – occupational therapy in the case of Leon-Gonzalez and physiotherapy in the case of Adamson.

THE BACKGROUND TO THE DISPUTE

The matter was set down as ELRC349-24/25WC, ELRC368-24/25WC, ELRC353-24/25WC and ELRC354-24/25WC. ELRC353-24/25WC and ELRC354-24/25WC were withdrawn.
ELRC349-24/25WC and ELRC368-24/25WC were consolidated under case number ELRC349-24/25WC with Ms. A. Leon-Gonzalez(Leon-Gonzalez) and Ms. Z. Adamson(Adamson) as applicants and the Department of Education, Western Cape as first respondent, S. Pillay (Pillay) and M. Solomons as second respondents and M. Mohamed (Mohamed) as third respondent.
The arbitration proceedings took place over several days.
In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.

SUMMARY OF EVIDENCE AND ARGUMENT

Documentary bundles submitted were not objected to by any party.
Adine Devona Leon-Gonzalez (Leon-Gonzalez) and Zarina damson(Adamson) testified under oath for the applicants. Eloise de Goede (de Goede), an employee of the respondent and full-time shop steward of SAOU also testified under oath for the applicants. Linn Louise le Grange (Le Grange), the head learner support, Winelands testified under oath for the respondent. The other respondents did not call any witnesses.
It is common cause that cases ELRC349-24/25WC and ELRC368-24/25WC are consolidated under case number ELRC349-24/25 WC. It is common cause that both applicants are employees of the respondent and that they previously acted in LSPID (Learners with Severe and Profound Intellectual Disability) positions.
The parties agree that the applicants applied for the relevant posts viz. Adamson for 257 and 256 and Leon-Gonzales for 267 and 250
It is common cause that the applicants were acting in the position at the time of the interviews and that neither was appointed in the roles applied for. It is common cause that the applicants are suitably qualified for the posts.
It is agreed that they lodged grievances regarding the interview process, and their grievances were not resolved.
It is in dispute that the scores were amended or changed after the actual interview prior to recommendations without relevant cause.
It is in dispute that the interview panel did not include a suitably qualified and or relevant practicing LSPID practitioner. It is in dispute that the interview questions for the applicants were not in line with the post advertisement.
It is disputed that the interview panel failed to take into account direct experience and training. It is in dispute that not all of the applicants were requested to complete the same tasks or assessment i.e. all applicants that applied for the posts. The relevance is contested by the respondent.
It is in dispute that the procedures were not consistently and fairly applied to all the applicants for the posts.
A common bundle of documents with amendments by the first respondent was submitted.

Evidence for the applicants

The testimony of Leon-Gonzalez was that this dispute arose as a consequence of unfair labour practices during the selection process for the post viz.248 the details of which are at page 21 of the respondent bundle. These are details of a post which the parties agree is similar to the post the applicant applied for in so far as the duties and requirements are concerned.
Leon-Gonzales does have the requirements for the post. At the time she applied for the position in October 2023 she was an occupational therapist post level 1 and she was shortlisted.
Until then she had been employed on a contract basis since May 2021 and permanently from September 2021.
She is currently not in the post of chief education therapist in which she had been acting, and which has since been filled by someone else after it had been advertised.
There were similarities between this role and that applied for e.g. working as a member of a transversal team which comprised many different disciplines working towards a common goal.
Interviews that had been scheduled for 30 January 2024 had been conducted on 5 February 2024. They had been postponed to 5 February 2024 due to an error which had occurred on 30 January 2024 during the initial interviews. While preparing for her interview on 30 January 2024 Leon-Gonzales had had to endure uncomfortable circumstances while waiting and preparing for the interview at the Cape Learning and Training institute in Kuils River. It was hot in the room and there were disturbances and interruptions from persons moving in and out to use a microwave oven and to fetch things from the fridge.
There was also a man working on a laptop present in the room and in which Leon-Gonzalez was the only applicant. Upon request by Leon-Gonzalez the supervising lady reluctantly turned on the air conditioner and eventually asked people not to be coming in and out of the room. When she entered the main room for the interviews, she was immediately greeted by the panel chairperson, Le Grange, who apologised for the time delay of an hour. The applicant was then told there was only time for the preparation and that the second part of the interview would take place only the next week. This had thrown her off completely.
The interview panel was not suitably qualified as every member did not work directly with LSPID teams. They did not have sufficient knowledge requisite for sitting on the panel for the post as advertised which was specific to the LSPID team. There was also no representative from the Department of Basic Education (DBE) on the panel.
The rank of district therapist education specialist held by panelist Ebrahim and that held by Y. Adonis was not suitable for being on the panel as they would not have the knowledge and experience to know what the team did.
The rank of another panelist, Storm, had nothing to do with what the team did. The same applied to the chief education specialist, which had nothing to do with what the team did.
After the applicant had dealt with her practical according to how she had prepared, the panel took her word document and told her they would be in touch. The applicant had found this off-putting.
The main difference between PL1 and PL3 positions, such as the post in dispute, is in the supervisory duties. When it was put to Leon-Gonzales, that the questions put to her related to the position she said she could not remember the questions relating to the practical assessment.
She had expected the questions to relate to the advertisement. The questions were not in line with the duties of the post in dispute, which had more duties than supervisory duties. While acting in the position she was already fulfilling all the duties of the post.
She did not expect to deal with questions related to the people management aspect of the PL3 position as it was not in the advertisement.
The duties in the post she currently occupies, i.e. education therapist, are the same as those in the disputed post. It was only the supervisory aspect that was different.
The interview panel was not suitably qualified to conduct the interviews and none of the panelists knew the specifics of what the LSPID team was doing.
There was also no representative from the Department of Basic Education, the Department under which the LSPID team resides. The panel was not sufficiently representative of LSPID.
At the second part of the interview held on 5 February 2024 she felt the questions were not specific to the field of LSPID but rather to a special school setting.
It lasted 30 minutes and she felt she had not had enough time to give clear answers and to express herself like they wanted.
Rather than splitting the interview into two days they should rather have postponed the entire interview. Splitting it into two days had just increased her anxiety.
The process had been flawed for the above reasons. It was further flawed by her having been told that there would be a practical and interview process but there was no practical.
She had expected a practical aspect as only LSPID used a specific data collection system on which there should have been questions posed. There should also have been questions on baseline interaction with children in the LSPID system.
The panel members were not suitably qualified to deal with the interview in relation to LSPID. Had they been they would have understood better the framework within which she had given her answers. They were not knowledgeable in SID (Severe Intellectual Disability) nor LSPID.
She conceded that LSPID had very specific mandates they had to reach every quarter as per the Standard Operating Procedures (SOP) in LSPID.
The questions were not strictly related to the nature of the role i.e. not specific to LSPID. An example was the fourth question on page 22 of the respondent bundle. LSPID does not work in a multi-disciplinary team but in a transversal team.
There should have been an LSPID person on the panel. She did not agree that the questions put at the interview were related to the post and the additional ones were managerial.
The questions were of a general nature and not specific to the duties and tasks required of the post advertised as LSPID in the advertisement.
She tried to answer the questions within the LSPID frame of reference of an LSPID therapist.
She did not inform the panel at the interview that the questions were irrelevant as it was only on reflection on the process afterwards that she considered them irrelevant.
Adamson confirmed that she had applied online for the post of chief education therapist. She had applied for posts 258 and 256.
Adamson confirmed that the LSPID works in a transversal as opposed to a multi-disciplinary team. She testified that in a transversal team its members need to go slightly more out of their disciplines collaborating with others to achieve a shared objective.
The questions for the practical were very basic in terms of the position applied for which was quite specialised. They would be relevant questions in a multi-disciplinary team.
Questions relating to a multi-disciplinary team were irrelevant as the way in which the team functions is transversal. The advertisement was worded transversal and not multi-disciplinary.
This would have led her to reduce her answer which she did by not bringing in collaboration as per a transversal team but just as a multi-disciplinary team and spoke with reference to the learner and goals. With regard to a transversal team she would mention occupational therapy and the learner.
The panel members were chief education specialists and education specialists and from human resources.
None of them worked in LSPID. The post was for a chief education specialist. She felt there was no one on the panel representing physiotherapists. Because she was in the field of physiotherapy for a long time the panel might not understand her when she goes into detail regarding certain aspects.
The fact that there was no LSPID representative on the panel was already a bias. The relevance of not having an LSPID component on the panel means her answers might be seen as irrelevant.
LSPID was relatively new in education. The main function of the Specialist Leader of Education (SLES) heads in the district was to work in schools in LSPID. The learners with SPID (Severe to Profound Intellectual Disability) were located in special care centres and so the SLES heads did not have that background and did not know the learner with SPID. She had answered the questions as they were asked. The questions were not relevant as the panel did not have the LSPID context. The work the applicants did while acting is exactly the same as the post applied for except for the questions relating to the Quality Management System (QMS). The responsibilities and roles were the same. Although the panel was intimidating it did not affect her answers in that sense at all.
Adamson conceded that she and the incumbent, Mohamed, had been acting in the post and had been shortlisted as a consequence and therefore both had the same frame of reference when applying for the post.
Mohamed had been the best candidate and had scored higher than her. She conceded too that a well-trained therapist without LSPID experience would be able to adapt to LSPID with time.
Pillay had also acted in the post and had been appointed, and the process was not unfair to her. It was nonetheless unfair to Adamson.
De Goede was the SAOU observer at the interview process. She was part of the discussion the panel had when taking a decision as a consequence of the error that had arisen in the process, when two of the candidates had seen the interview questions beforehand.
It was decided in discussion with the input of one, Mr. Larnie, the chief education specialist for the district and coordinator, that the candidates would return on 5 February 2025 to do the interview part of the process only.
De Goede had consulted with her manager who agreed that that was the best way to deal with the problem.
Initially ten minutes had been allocated for the assessment presentation and twenty minutes for the interview. The panel decided marks of the individual panellists would be discussed and consensus reached. If the discrepancies in the marks were too big they would be discussed and an average reached.
Her view of the decision taken by the panel was that it was the best decision for that moment. The process was fair as all candidates were treated the same.

Evidence for the respondents

Le Grange disagreed with the applicants that the interview panel was not suitable and testified that the interview panel on Page10 of the respondent bundle was a very good put together panel
Consequent upon the error on 30 January 2025 the questions were revised by the panel, and all candidates were given the new questions.
Many of the candidates were acting in the positions. All agreed to come the next day and were given another day to prepare for the interviews.
According to the cut off scores neither of the applicants had performed well enough to be appointed. They had not prepared well enough to answer the questions as did candidates who had not been acting but had prepared well.
The documents the panel had used to prepare the questions included the advertisement, the standard operating procedure (SOP), the PAM (Personnel Administrative Measures) documents on promotion posts regarding what the expectation of management is.
She interacted with the panel to establish the assignment and the questions. The agenda and recruitment and selection processes were given by the recruitment and selection department as guidance.
At the end of the session the marks were determined and based on that the decision was made as to who would be appointed in which positions. She also managed the proceedings of the day.
They used the grant output, the grant framework, the LSPID practice note, and the standard operating procedure (SOP).
All the head SLES’ of the province attended a week of training where these documents were discussed and workshopped with them in detail to look at the grant output, to look at what the SOP is including doing the learning program and training of SAMMI including working out learning programs that was used to discuss some of the information that was given looking at the different therapy services that were in the system and how it could be used together as a transversal or a multidisciplinary team.
These were documents that le Grange had not seen for the first time. She had interrogated them during her training with the DB) of the LSPID team. She had also been going through those documents to work on when hearing that LSPID teams are coming to the office and she had to be the manager. So they were scrutinised even before they got to that.
Patricia Arendse is the program manager for the province on therapy services. Shannon Smith is the current acting LSPID coordinator for the province.
Once the questions were decided and put together the panel looked at the weighting. with the assignment they were given an assignment grid not only content was considered but body language and confidence were looked at the content and its accuracy and if they had interpreted the question as needed.
Page 10 of the respondent bundle of documents is the minutes of the interviews for the 8 physiotherapy posts. The process with Ms. Daniels and the taking of the LSPID team into senior positions has been part of the process of the WCED since the time they were in the acting chief education therapy posts
As part of a team that met regularly with Ms. Daniels as SLES they were part of the process of the introduction of how the LSPID team will become part of the districts
Le Grange, de Klerk, Storm and Rustin have been trained on the LSPID program by head office as any entry level LSPID person would have been which is already a year later since they have had the training. They have had interactions with LSPID teams. Le Grange is therefore comfortable with the learning program and the different specialities within learning support.
Both posts are therapy posts and with the inclusion of Ebrahim, Arendse and Adonis on the panel, all of whom are therapists it was a very well put together panel.
With reference to 4.5 at page 16 of the respondent bundle of documents Le Grange testified that that an error had occurred at the process on 30 January 2025 when the first candidates were accidentally given the questions for the interviews Mr. Larmie, the Chief Education Specialist for the District was contacted and informed and he informed Ms. Heather van Ster, the Chief Director of districts. It was advised that the process be stopped immediately so that the rest of the candidates were able to do the assignment with the interviews cancelled and done on the next day with new questions being put to all candidates. The new questions were compiled by the panel who again looked at all the documents to ensure that no candidate was disadvantaged by the error that had occurred. The arrangement did not impact the candidates as all of them agreed to return the next day for the interviews and in fact were given an additional day to prepare for the interviews.
Both of the applicants did not perform well enough to be appointed according to the cut-off score of 60. Looking at the facts the applicants were not well prepared to answer the questions. The applicants also did not have to make the cut-off score for the shortlisting as they had been acting in the position for 12 months and therefore were shortlisted. In that case Le Grange could presume that they would be able to answer the questions easily having worked in care centres in schools, some of which have PID classes. The scoring shows that some of the candidates who had not acted in the position performed well in the interviews because they prepared for the interview. The fact that the answers were not done in the way the questions were asked shows a lack of preparation.
With reference to page 2 of the respondent’s bundle of document Le Grange testified that she would categorise their overall performance as basic and sometimes competent with short to the point answers not elaborating enough for the panel to be able to score them high marks. To say they were proficient or excellent in their answers regarding the interview questions as at pages 2 and 3 of the respondent bundle and with specific reference to the allegations of the applicants that questions 4 and 5 were not in line with the advertisement when considering how the questions were compiled with reference to the documents reflected in the advertisement and the PAM document regarding the expectation of management in promotions posts, the questions were appropriate.
Even the issue of the applicants raised in their grievances and pertaining to the relevance of the QMS, there had been training on this given to all therapists. It was relevant as the incumbents in the post had to have the ability to fulfil the role of the district therapist if required and which both applicants had attended. Simple answers were required but the applicants were not able to do so.
When looking at the integrity of the panel that day le Grange had no doubt at all.
Upon a court order that LSPID learners of school going age should be transitioned from special care centres to schools, the therapists at school level were asked to act in positions where they can manage, advise and give assistance to a learning program as the learners who were severely profoundly intellectually disabled at that point in time did not have a structured learning program.
So, the therapists were asked to come into an LSPID program to assist the care centres on a learning program, and then later on, when of school going age to be placed in a special school where they can have a learning program. So, at that stage a different position was created in the DBE. At management level therapists were made principals of care centres, managing care givers.
Regarding the duties in the posts, the job description of the posts at page 1 of the respondent bundle of documents is very broad.
They must be able to advise the school therapist, a PL1 post, on how to use the learning program now that PID learners are included at a special school. To share with them that they are now in a position to do direct therapy with the child.
Regarding the chief education therapist post at page 21 of the respondent bundle of documents, the managerial role is as mentioned before in relation to the other post. An incumbent in these positions does not have direct subordinates but is in an advisory post to advise care givers at schools.
Much time went into the process. Overall, there had to be one person per discipline of which there were 5 in 8 districts bringing the number of posts to 40. To redo the process would take the integrity of the team away.
Le Grange was away from her post to manage a team of 40 people for a week to do this process. For the team to do 40 posts again over a week would be wasteful expenditure. With the expertise of the team, it would not be necessary to redo the process. None of the questions was out of the range of what was expected of the applicants to answer. If the applicants had prepared well enough, they would have made the cut-off score. The process was done according to the rules of the respondent. It had the right people doing the interview and compiling the questions.
When there was an error the right people were consulted. They handled the process to the best of their abilities, looked at the scores and the people who answered the questions and assignment according to the prescripts that were given them.
The applicants were not disadvantaged but on the contrary were advantaged by being automatically shortlisted for having acted for more than twelve months. They were appointed acting in the post for 3 years.
In the last two years Le Grange has not worked directly with learners. The last time she did was in 2007. The term LSPID arose in the last 7 years with a Court Order. There had been different names over the years regarding learners with intellectual disabilities. It was actually CSPID and then became LSPID. The learner profile has not changed while the name has.
In the last 18 years Le Grange has for instance, not performed baseline assessments with learners with PID. She has not done learning programs for learners with PID but has for other learners e.g. for ECD learners and a wide range especially 0 to foundation phase.
She has not compiled a learning program in LSPID but has worked with it for the past 1.5 years. Since being head of SLES in 2021 Le Grange had been involved in LSPID and had been involved in LSPID when the training was done in DBE but she was already aware of it and not just since June 2021. The training by DBE was in February 2023 in Gauteng for one week.
The processes for the applicants were conducted in the same way except for the fact for the occupational therapist there was a situation where the answer sheet of the question was with the assignment resulting in the process being stopped. All candidates completed the assignment and had to return the next day to complete the interviews.
New questions were compiled and the next morning discussed with the team for responses and the fairness of the questions and to notify that they are allocated to the conditional framework, the SOP and the practice notes, so that the questions are in line therewith. It was the same panel that had compiled the initial questions for both posts.
The panel comprised 4 heads of SLES that had run inclusive education in the province. All of them, besides managing different services for particular learners were also trained by the DBE on learner support at which stage they were already involved In the LSPID teams. As this was a promotional post the needs of a promotional post were also looked at and the needs of the learners with severe and profound intellectual disability.
The questions that were asked can be pin-pointed to the main documents of LSPID which the conditional grant, the practice note, the workplan of the LSPID team and the level of the post as a managerial or advisory position in which there are 4 duties that a manager must complete. These documents were used to compile the questions.
Regarding the allegation that the panel was extremely qualified but lacked the experience of working in the LSPID field, specifically physically performing the duties in the LSPID role may be true but the panel works daily with all types of inclusive education in schools, special schools, dealing with learning programs, with placement of learners with developing individual plans for learners in the teams they work with, managing the teams. Even so, Mses Arendse, Adonis and Ebrahim work with learners and with teams who work with learners.
SID is severe intellectual disabilities. These are learners who have been evaluated by a psychologist and looking at the variety of intellectual disability i.e. a learner with an IQ below 50. They work on a different learning program.
A SID class teacher must have a teaching qualification, whereas in LSPID there are caregivers, some of whom only have a matric. In the past few years the LSPID team has worked really hard to do training for caregivers in the special care centres so that they can give those learners the required needs of special education that they need. When it comes to training the two cannot be swopped because in the current situation with the special care centres the people working in those centres cannot work in a SID class because they don’t have a teacher’s qualification.
Currently there are multi-disciplinary teams in the district as a circuit-based support team. Each one has a different discipline within which they work. It comprises psychology, therapy, learning support and social work. They have different sets of goals but also combined goals. The transversal team works more or less the same because they work together but in a transversal team there are different disciplines in that there are different therapy services. There is also a learning support advisor and a psychologist but with transversal they use the different learning programs to combine their services within that, and the multi-disciplinary team has conversations to address a learners’ needs. In that way a transversal team combines their services and their knowledge of the learner to be able to discuss what the needs of that learner are.
The positions applied for are a bit of both. Each one has his own goals within the learning program and combine their services in the learning program and have their individual aims as well. But when it comes to the role that they applied for to be in districts it becomes multi-disciplinary because in the districts they need to work with the circuit-based support teams, the inclusive teams. So it is transversal with a multi disciplinary component in the districts.
Regarding page 12 of the applicant bundle of documents the duties of the physiotherapist a bit of both comes in in the advertisement where it says – will function as part of a district support team because the transversal team is how the LSPID is currently working and the district based support team with public ordinary schools, early childhood centres in the province works in a multi disciplinary way. That is why she would say it is both.
Regarding page 25 of the respondent bundle of documents, while the question makes reference to a transversal team, the answer to question 1 already makes reference to a multi disciplinary team. Le Grange did not agree that the applicant would have been misled to answer in terms of a transversal mindset instead of a multi disciplinary one.
The advertisement makes reference only to the transversal team the use of which word is a technicality. It mentions duties as part of a transversal team. What is used by the panel to listen for it describes exactly what a transversal team does.
Regarding page 27 of the respondent bundle of documents, which question 3 makes immediate reference to a multi disciplinary team with the experience that both the applicants must have cannot be confusing as they are different disciplines that work together and the rest of the question that says how do you collaborate with other professionals which is a part of the team that they are in to ensure a comprehensive approach to the care and development of LSPID.
There are more collaborative parts between multi disciplinary and transversal. The post applied for is not an LSPID post that will work independently as they did before. They will now be part of a multi disciplinary team on a district level because these are in fact district posts. They are not DBE posts, they are not school posts, they are not independent posts. They will be appointed at a district office. The collaboration with other professionals will be in a multi disciplinary way within their transversal speciality of working together.
None of the panel was involved in drafting the advertisement. The director of inclusive education, Ms. Daniels, now retired, would have drafted the advertisement. At page 28 of the respondent bundle of documents, Le Grange did not find it odd that the word transversal was not used at all in the question.
At page 23 of the respondent bundle of documents is the assignment that was set to give the candidates an opportunity to showcase themselves in a setting where they can think about the answer. They are experienced so they should be able to showcase their knowledge of severe and profound intellectual disabilities
Regarding the contention of the applicants that the questions were not relevant to the post Le Grange did not agree because both applicants worked with learners with severe and profound intellectual disabilities for a very long time so were able to answer who the learner is. They are also supposed to know why the court order was issued – so that the learner must be integrated into the school settings. Many don’t know what the SPID is and the fourth one is to discuss their role within the discipline and how they will work in a multi disciplinary team within the explanation of why the word multi disciplinary was used.
The scoring of the applicants at page 24 of the respondent bundle the applicant made a good analysis and the planning of the speech was okay. For content the knowledge was very good. The understanding of the role of the occupational therapist in the team was very good and with the presentation she scored a 2. But if you look at the others the candidate did not do badly in the assignment.
Leon-Gonzales did not misunderstand the assignment. The mark allocation of 16/25 was good. The fact that she got almost a 5 in the content knowledge and understanding the role was good
The score for Adamson suggests that the applicants understood the assignment in Le Grange’s opinion.
The applicants were given 30 minutes to prepare for the assignment. After a 1-minute opportunity to look at the questions, the interview went for 20 minutes but she was uncertain.
Regarding QMS she was not sure if it is stated in the advert because four documents were used. QMS however, was relevant . The position they were acting in is chief education specialist at PL3 within the district system.
Even for any PL1 post one has to be evaluated on your performance. As your manager cannot develop you further if you don’t understand what the quality management system looks like.
Both applicants attended the QMS session offered by the respondent before the interview and QMS is a normal part of the process.
The candidates were not expected to know the details of QMS but to understand not be able to say you have 2 sessions within the year where you agree on the work and where you discussed the workplan. The chief education therapist is also a level higher than a therapist at a school
The post is a senior position, and one must be able to supervise, to see challenges, to address challenges and the system that the respondent uses is QMS on which both applicants had training.
The LSPID team is stationed at the office and will work in the special care centres, in special schools where learners with PID have been included.
Upon receipt by the respondent of the grievance the meeting was held at Metro South with a mediator and SAOU present. That was the involvement of le Grange up till now.
Le Grange did not agree with the contention that the questions were more in line with a learning support advisor than a LSPID therapist and does not know why a learning support advisor was mentioned in the grievance. The role of the discipline stays the same. A learning support advisor is a teacher. An occupational therapist and physiotherapist do their duties withing a transversal or multi-disciplinary team.
None of the applicants is giving therapy on a one-on-one basis all the time. They work in a school setting with a learning program and whatever goes working in a care centre or school. So, she cannot see how the questions were directed at a learning support advisor. It is a therapy discipline but is provided in a school setting They do not do one on one therapy with learners but work on a program that they have to have their speciality field on to give input on a learning program. A caregiver uses a learning program to support the learners. It is not teaching but using your therapy skill in a learning program that the caregiver or teacher needs to go and teach. But it was not directed into a teaching. It is a school setting indeed.
The questions were fair, and the applicants had an advantage over other candidates through having acted in the position. Looking at the answers the questions should have been easy to respond to.
To redo the process calls into question the integrity of the team that did the process.
The process was very long. It involved a lot of manpower it would not be fair to restart the process when two of the candidates of more than 40 that were interviewed is fair. And it is not fair to candidates who prepared well some of whom had not acted in the positions but did extremely well in answering the questions. Even others who had acted did very well and got the posts.
The post they were acting in and the advertised post is the same post.
The words transversal and multi disciplinary has so much commonality that it would be common sense to answer the questions and regarding QMS both answered that fairly well.
An interview is not an examination that you study in a parrot fashion to give back in a parrot fashion. When you prepare for an interview the preparation on paper is only the text. It comes with experience.
A person cannot get a position if they don’t answer well enough. The applicants obviously did not get the posts because if one looks at their scores their scores were not enough.
The questions were fair and in line with the advertisement. There were 10 candidates for each of those posts.
Out of those 2 sets there were sometimes 8 or 7 or 6 depending on the district that got the posts answering the same questions.
The scoring sheets are the facts and here were people who answered well enough, and they got the posts
The LSPID is a specialisation field within the education system when they were trained by the DBE in Pretoria. Those are the guidelines for these positions as set out by DBE and why they were used in collaboration with the advertisement to see what the in-depth details are thereof and what the role of a chief education therapist must be.

ANALYSIS OF EVIDENCE AND ARGUMENT

It must be stated at the outset of this analysis that this matter is the consolidation of two cases and the reason therefore being the applicants’ alleged flaws in the interview process.
The applicants allege that the respondent had perpetrated an unfair labour practice when it had failed to promote them..
I am mindful of the fact that this challenge of unfair labour practice pertains most directly to an attack on the respondent’s not adhering to the parameters of the rules established in these promotions. Hence the nature of the allegations i.e. the non-alignment of questions to the advertisement and the competence of the panel to deal with the interviews for a position such as is in dispute.
In other words, if it is found that the panel failed to dispose of its mandate by virtue of its not being competently composed, or did not execute competently on its mandate then the applicants will have succeeded with their allegation of an unfair labour practice having been perpetrated by the respondent.
It is noted that the applicants did not have to go through a shortlisting process for the interviews as they had acted in the post in question.
It seems from the evidence of Leon-Gonzalez that she contends that the post as advertised was specific to the LSPID teams. Thus, the main contention of the applicants that the interview panel was not suitably qualified for this eventuality, its allegedly not being sufficiently representative.
It appears further therefore that the applicants had expected questions asked as if to persons that had done the actual job or acted therein. The testimony of Leon-Gonzales was that she had in fact answered the questions from the manner in which she had done the work for the past 3 years and whilst acting in the position. She had answered specific to what she was doing.
This approach suggests the expectation of an advantage to persons having acted in the position. If in fact this were so it would have the effect of rendering the process unfair as it would immediately disadvantage unfairly those candidates who had never acted in the position or participated directly in the field of LSPID as had the applicants.
The advertisement itself references the LSPID practice note and the SOP which I find was the fair guide for all candidates, including the applicants, interviewed for these positions together with the interview panel, in so far as LSPID was concerned.
I am satisfied that questions should be of such nature as they would be for applicants firstly knowledgeable in their own specific fields and secondly in the field of LSPID. Once appointed into the position, such person would have to be knowledgeable in his/her field and then be able to sometimes interact with other disciplines in a transversal arrangement where collaboration across the various therapy disciplines would be relevant. In the latter circumstance those appointed and who had not had experience through direct interaction in the field of LSPID could grow into the job with time as alluded to by Adamson in her testimony.
So, while it is clear that much has been made of this distinction between multi-disciplinary and transversal, I find that questions asked of the job applicants pertaining to their specific fields are relevant and justified.
This cannot be conduct said to constitute an unfair labour practice. Importantly questions of such a nature would be expected to be easily answered by the applicants, who are qualified in their respective fields of occupational therapy and physiotherapy.
The manner in which the questions were asked was fair to all of the candidates including the applicants as they aligned directly with the advertisement.
The questions must be answered to a simple interpretation thereof and in a manner such as would pertain in a discussion or presentation. I therefore agree with le Grange’s comment that interviews must not be prepared for in a parroted manner with an expectation to answer questions in a parrot fashion. They must also not be answered in a cryptic manner in which the panel members are left to deduce parts of the answer themselves.
The contention of Leon-Gonzales is that she had answered the questions according to a framework in LSPID as the post as advertised was specific to LSPID does not mean that the panel had not considered it from that perspective.
It means, especially with the context testified to by le Grange, that the panel, armed with background knowledge obtained through training in the field of LSPID and with the knowledge thereof gained through the practice note and SOP relating to the field of LSPID was adequately equipped to deal with it.
Furthermore, and given that the nature of this post which distinguishes it in the main from a PL1 post is the fact that it is a management or supervisory post. So, for Leon-Gonzales not to have expected that there would be questions regarding people management is strange. In my view questions of this nature would of necessity have to be asked in an interview for such a position.
I do not believe and find that there would be any need to state this in an advertisement for reasons of it almost being obvious given that it is a managerial post. Any applicant for such a position would have had to know that it is a managerial position and would have had to prepare for questions pertaining to the management or supervision of people. For one not to have done so would be detrimental to oneself.
In fact, the record shows that at some point in her answers under cross examination that it dawned on Leon-Gonzales almost as a revelation that she does play a supervisory role while acting in the position. This in relation to her interaction with caregivers and training them.
Furthermore, and in respect of the decision taken to postpone the interviews to 5 February 2024 does not appear to have been done in bad faith and was done in the presence of the applicant’s union representative as an observer who had also clarified the correctness of the solution with her office.
Leon-Gonzales conceding to her inability to deal with questions of people management must count against her. Her contention that this was not contained in the advertisement is also misplaced. Anybody applying for this post would establish through their own research that the post in dispute is a post with management elements and therefore that questions pertaining to people management would invariably be asked at an interview for the post.
The PL3 position being a managerial position would in fact call for panel members in managerial roles to sit on the panel as was the case.
To use as a reason for alleging unfairness that the interview process was split into two in the manner that it was as this had been off putting is unacceptable as she had had an opportunity to object thereto and to voice her misgivings at the interview process.
At the time of preparation for the interview on 30 January 2025 she could not have known that the interviews would be split as they were. That could not have affected her preparation for the assignment.
Furthermore, as will be seen below, the process to remedy the problem was transparent and done democratically.
Furthermore, knowledge of working in a transversal team for the purpose of being on an interview panel interviewing candidates to work in a transversal team in the field of LSPID can even be gained theoretically to satisfy such purpose. In casu this would most likely have been the case in respect of anyone who had not gained actual experience in the field of LSPID through having worked in it.
This would apply to such panel members and more pertinently to other applicants who had not been exposed to work in the field of LSPID.
This opens the possibility for applicants who had not acted in the position but had prepared well, to fare better than those who had acted.
I am satisfied that the questions posed to the applicants were not unfair to them. I am satisfied to hold as I do that the questions were formulated in such a manner that all participating job applicants were fairly treated. It could in fact be argued that in this respect the applicants were advantaged having had the experience from serving in the post in an acting capacity. The applicants appear to have wanted even more of an advantage in a panel that would have understood without more, their answers within the context of someone who had acted in the position, which would have been unfair on those who had not had the opportunity to act in the position.
Regarding the arrangements that were made to conduct the interviews on another day, it is appropriate that the interviews were not conducted the same day the error occurred. It is obvious that as a matter of fairness to all candidates the situation demanded that the same questions could not be used.
It is appropriate therefore that new questions had to be drawn up so as not potentially to advantage those candidates who had been given the questions in error.
The question as to whether it was appropriate to split the process into two days as was done should be considered regarding the allegation that Leon-Gonzales had been put off by what had happened.
The testimony of Le Grange is that all the candidates had agreed to this solution. Even if the applicant had then subsequently had misgivings about this arrangement they could still have voiced such misgivings and objected to the arrangements. There is no evidence that they had done so. Further to this there is also no evidence of being capricious or invidious or having acted in bad faith on the part of the respondent in arriving at and executing on this solution.
I am satisfied that it is clear that the issue to be dealt with here is the manner in which the respondent had dealt with the situation. Objectively speaking it is clear that the matter had been dealt with in such a manner that it must be concluded was objectively fair to all candidates in the circumstances. There is no indication of the respondent having been capricious, invidious, or acting with mala fides or arbitrarily in solving the problem.
Regarding the issue of multi disciplinary team and transversal team the testimony of le Grange suggests that for both situations the applicants are well qualified to deal with them. I am satisfied that the applicants through what they do, manifest an ability to adapt from the one to the other situation in having to field questions in that regard. There is no need to have worked in LSPID to be able to be successful in an application for such positions as are in dispute.
The testimony was on numerous occasions that the advantage given the applicants is in having acted in the position and therefore having been exposed therein was to not have to qualify for shortlisting.
I am also satisfied that while it is probable that the acting would have advantaged them in the interviews they would have been required actively to showcase their abilities in the interview. The scores show that they probably had failed to do so or to do so adequately. There is no evidence at this arbitration that they had done so. The scores are also devoid of anything on the part of the panel resembling capricious, arbitrary, invidious or other unfair conduct.
The distinction the applicants relied on between transversal and multi-disciplinary is premised on a false perception viz. that they had worked in a transversal arrangement in LSPID and therefore that the panel had no idea, its members not having experience gained from having worked in LSPID. It is a false perception as one does have to work in a transversal arrangement to understand it. It is a false perception also because there is very little difference between the two as testified by le Grange and suggested by the testimony of Adamson herself. It cannot be a determining factor. In fact as Le Grange testified even though the applicants expected to answer within a transversal arrangement, their knowledge would have assisted them anyway in dealing with both work systems and in fact did.
The contention for the applicants in their closing arguments that the panel was the same for everyone regardless of the nature of the post applied for being quite risky in that the panel should be comprised of expertise and experience in the field of each post applied for, is without merit. I am of this view given that numerous members of the interview panel were persons some of whom were overall in charge of therapists across the board, probably the very reason for their qualifying to be on the panel. Such persons would be very appropriate members of such a panel.
I am therefore satisfied that there is no attack on the conduct of the respondent from the perspective of its having been capricious, arbitrary, or acting with malice.
The continuous reference of the applicants to there not being a panel member with a background in LSPID is also rejected. The terms of reference for the panel, as testified by Le Grange and numerously mentioned above, were the 4 documents raised in the advertisement, including the LSPID practice note and the SOP. I am satisfied that this suffices for the purposes of background knowledge in LSPID for the panel together with the training they received from the DBE prior to the interviews.
In turning once again to the advertisement and its contents I emphasized that this would be the advertisement on which all candidates including the applicants and interview panel were supposed to rely in preparation for the interviews.
It is therefore logical to assume that the documents referred to therein and relied upon by the respondent and the panel establishes the parameter for the interview questions.
In fairness therefore to all candidates the questions would have had to be drawn from the aforesaid sources and experience of all candidates in certain respects. While these respects do not include experience in LSPID the experience of the applicants in LSPID could logically have been used in their favour in the context of the interview.
I agree with le Grange that the nature of an interview is an opportunity for candidates to showcase their abilities. Again, it is within this context that the applicants could have shown the panel their expertise derived from their experience in the field of LSPID in order for the panel to decide in their favour.
The scores being the facts that le Grange alluded to as the acid test so to speak of how the applicants had performed, is acceptable. That the panel had not acted within the parameters set through an interpretation of the advertisement and the use of the documents alluded to therein had not been proved by the applicants.
The respondent has in fact proved that it acted within the parameters set through an interpretation of the advertisement and the use of the documents alluded to therein, which is a sufficient standard set for purposes of conducting the interviews in respect of the posts in dispute in this matter.
The prerogative of the employer to set the parameters is without question and not objectively contradicted by the applicants. The employer prerogative had been exercised fairly in that the questions were in line with the advertisement and the interview panel a competent one and with all candidates treated the same. The evidence shows that the applicants had not succeeded in bringing to the panel at the interviews their actual advantage over other candidates gained in the LSPID field through their having acted in the positions for a long time.
The evidence shows that they had probably not done any or adequate showcasing but had instead expected the panel to read into their answers that which they ought themselves to have specifically mentioned to the panel during the interview or during the practical presentation.
I furthermore agree with the testimony of le Grange in respect of the question pertaining to QMS having been posed by the panel.
I find too, in respect of the issue of transversal within the context of the advertisement itself is referred to in such a way that it can be construed only in a manner that suggests the circumstances in which the candidate is likely to work. It does not propose an experience of having actually worked in such an arrangement.
It cannot be an aspect to which much significance would attach for the purpose of qualifying for the position. It is however the space where the opportunity for showcasing knowledge thereof would be advantageous to a candidate with such experience such as the applicants.
It is to be noted that it was the testimony of Leon-Gonzales that the time was too short for her to express herself in the manner that the panel had wanted. This appears to be a concession that she had in fact not expressed herself properly in order to satisfy the interview. Further in this regard it was the testimony of Le Grange that Leon-Gonzales had not done badly in the interview and that Adamson had attained an even better score.
Furthermore, it is probable that Adamson’s consideration of the panel being intimidating would have adversely affected her performance at an interview, especially in a situation like a practical presentation where showcasing one’s abilities is very important. Adamson’s contention that it had not is at least questionable.
Regarding Leon-Gonzales’ contention that there was no practical, once again the evidence shows that Leon-Gonzales had had her own expectations of what a practical should have been like. Her expectation included presentation on the computer data system which was used only in the field of LSPID and baseline assessment of children in the field of LSPID. Yet her own testimony was of her having prepared on 30 January 2025 for such practical and having delivered thereon on that day for 10 minutes.
She appears to believe that to deal with that she would have had to be directed to do so through a specific question in that regard. This is one of those things that she could have introduced in a practical presentation of her own accord in order to impress the panel. That is an example of where she could and should have used her advantage through having acted in the post.
Having considered all the evidence presented at this arbitration, I find that the conduct of not appointing the applicants into the positions in dispute does not constitute an unfair labour practice as contemplated in section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended.