Date of Award: 14 March 2023
Panelist : Vuyiso Ngcengeni
Province : Northern Cape
Employee : Morolong Johlen Sharon
Employer : Department of Education – Northern Cape
Issue : Unfair Labour Practice – Promotion
Venue : Virtual

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was scheduled before me on 13th July 2022 and again on 23rd February 2023 under the auspices of the Education Labour Relations Council (the Council). On both occasions, the matter was held virtually. The matter was set down in terms of s186 (2)(a) of the Labour Relations Act of 1996 as amended (LRA).

2. The Employee was present and she was represented by Adv Nathan Williams. The Employer was represented by Mr Caweni Dombo.

3. I ordered the parties to submit their closing arguments by no later than 3rd March 2023. On 6th March 2023, having not received closing arguments from the Employer, I enquired from the Council and the Council assured me that the Employer has not submitted closing arguments. I thus proceeded with the award.

4. The employee submitted one bundle which is the only bundle submitted. The bundle has 77 pages and they include the advert of multiple posts, with the contested post of Head of Department on salary level 2 at Vaal Oranje Primary School being one of them, letters of correspondence between the Employee representative and the Employer from January 2022, the Employee’s appointment letter to the post, dated 17th January 2023

ISSUE TO BE DETERMINED
5. I am called upon to determine whether the failure by the Employer to appoint the Employee to the post of Head of Department at the Vaal Oranje Primary School constitutes an unfair labour practice. The Employee holds the following views: –

5.1 That the Employer ought to have appointed her with effect from 1st January 2022 and its failure to do so amounts to an unfair labour practice as she had met all the post requirements at the time, just as she did again in 2022 when she was subsequently appointed to the same post on 1st January 2023. She believes that she was the best candidate and should have been ranked number one and therefore appointed to the post.

6. The Employee wants to be awarded 12 months compensation as a relief.

BACKGROUND TO THE DISPUTE
7. The Employee was employed by the Employer on 1st January 1998 and at the time when the arbitration sat on 13th July 2022, she was occupying a post level 1 post at the Vaal Oranje Primary School (the School), the same school at which this disputed post is based. She earned R 32 840.32.00 per month.

8. The Post was advertised on 14th June 2021, with the closing date being 5th July 2021 (p 2 of the bundle).

9. The Employee applied for the post, she was shortlisted and interviewed. She was the third recommended candidate for appointment to the post with effect from 1st January 2022.

10. As the schools opened in January 2022, she learned that no one had been appointed to the post, and she then sent a letter to the Employer ( Head of Department) on 14th January 2022, enquiring about the post (page 26). There was no response from the Employer.

11. She again sent another letter on 24th of January 2022 (p 27) and again on 1st February 2022.

12. On 3rd February 2022, the Employer responded with a letter dated 25th January 2022 (p 31) stating that the first recommended candidate had already been appointed to another post, and that the number two ranked candidate and the Employee who was ranked number three did not meet the profile of the post as advertised and therefore the Employer had decided to re-advertise the post.

13. The Employee responded to the Employer and implored upon it that since the number one ranked candidate was no longer in the running for the post, and the number two ranked candidate did not meet the requirements of the post, she was therefore the only candidate left and she should be appointed and there was no need for re-advertisement of the post (p 36).

14. On 22nd February 2022, she referred the dispute to the Council. The matter was then set down for arbitration for 13th July 2022, and again for 23rd February 2023.

15. On 4th August 2022, the same post was advertised and the closing date was 26th of same. She again applied for the post, was shortlisted, interviewed and was then recommended for appointment.

16. On January 2023, the Employer appointed the Employee to the post.

17. The Employer elected not to call any witness / witnesses in this matter, thus leaving the Employee’s testimony as not being disputed under oath.

SURVEY OF EVIDENCE AND SUBMISSIONS
Employee’s case
The Employee testified under oath as follows:-
18. She had been a teacher since 1st January 1998, which is now 26 years. When she applied for the post, she knew that she was going to do a good job and she did not understand why she was not appointed thereto.

19. She had the necessary skills and qualifications for the post, and she had been sharing the skills with her colleagues at the time that she was acting on the same post. She was doing more than what was expected from her.

20. In 2021 when she applied for the post, she met the requirements and she disputes that she did not meet them. At the time, she had been a foundation phase teacher for 24 years and all her certificates are for the foundation phase. She acted on the same post for the last six months of 2021.

21. Between her first application in 2021, and the one of 2022, nothing had changed, except that in 2022, she had gained one more year of experience to 25 years. The required number of years of experience is 3 years.

22. What happened in 2021 makes her very emotional, and in 2022, she had to face everything again, at the time when she was in depression and her human dignity was tarnished. She is emotional and is depressed, everyday when she had to be at school.

23. In 2021, she gave her best in the interviews and did not understand why the Employer said she did not fit the profile, yet in 2022, she fit it. She felt traumatised and she had to consult a Doctor in that regard and had also incurred legal costs as the SGB and School Management Team (SMT) did not fight for her.

24. She knows that she is a good teacher and she did fit the profile from the beginning. It was unfair for the Employer not to appoint her in 2021, to start on January 2022.

25. She seeks 12 months compensation and hopes that the Employer never do the same to any other person again.

26. Cross examination – She denies that in her application in 2022, she did put on her Diploma, whereas she did not put it in 2021. She submitted the same CV and qualifications in 2022 as she did in 2021.

27. The most important subjects are the junior primary subjects and the requisite three years’ experience in teaching Life Orientation, which she had, but over and above, she had 24 years as a primary school teacher. It was unfair for her not to be appointed.

28. The Employee argued that based on her credibility, reliability and probabilities of the testimony, there can be no doubt that she has proven her case of an alleged unfair labour practice. In contrast, the Employer did not produce any documentary evidence, did not have any witness testify and did not submit any substantiated version of the reasons for the HOD’s decision to not appoint the Employee in 2021.

29. It is apparent from the reasons of the Employer that the Employee was not promoted or for that matter deemed worthy of consideration in the future as she was not “foundation phased qualified”, as incorrectly claimed by the Head Of Department. Notwithstanding that this was grossly unacceptable misunderstanding of her qualifications as will be demonstrated below, it was unreasonable for the Employer to insist on these qualifications as this was not set out as a criterion in the advert. In a similar vein, her subsequent appointment to the post pursuant to an identical advert and with the same qualifications as she had at the time of the first advert, smacks of irrationality. It was invidious of the Employer to rely on a consideration which did not exist.

30. The arbitrariness of the refusal to consider and promote the Employee is borne out by its reference and reliance on a criterion which it maintains are contained in the advert. As pointed out “supra” this criterion was not in the advert. A simple consideration of the advert which is drafted in plain language would and ought to have revealed the absence of this criterion from the advert. To advance, as a reason for the rejection of the Employee, that the requirement of the criterion was set out in the advert, when “common sense”, reveals that it was not recorded, is demonstrative of the arbitrariness of the decision of the Employer. Indeed, such reliance, given that it is underpinned by a gross distortion of the true contents of the advert, falls within the realm of being capricious is unfair to the Employee as in effect, she was denied and appeared to be denied in perpetuity from opportunity to be promoted based on a criterion which, on the face of it, was manufactured by the Employer “post facto”.

31. The subsequent promotion of the Employee is demonstrative of the fact that she had the appropriate and requisite qualifications in response to the first advert. Had the Employer properly applied its mind to the application and CV and indeed the advert itself, it ought to have appreciated that she had the requisite qualifications for the advertised post and promoted her.

32. The Irrationality of the actions of the Employer is aptly demonstrated by the subsequent promotion of the Employee on the same factual matrix available to the Employer when Applicant was rejected.

33. There was no rational reason for the Employer to allow this vacancy and prejudice to occur whilst the Employee was the most suitable and available candidate as borne out by her subsequent promotion. In all the circumstances, interference by the panellist regarding the refusal of the Employer to promote the Employee is not only justifiable but necessary.

ANALYSIS OF EVIDENCE AND ARGUMENTS

34. The issues listed under the background section above are very important in this matter and they are actually common cause facts.

35. Adding to the common cause facts is the fact that the Employee’s testimony is undisputed. The Employer elected not to call any witness to the hearing, and therefore even the one version put to the Employee which is that in her application in 2021, she did not include her Diploma, and in 2022, she included it, that version, despite not being submitted as evidence, it was rebutted by the Employee and the Employer took the matter no further.

36. I should also hasten to say that the Employer did not even place on record, during his opening statement as well as during cross examination, that the Employee had failed to submit her Diploma in 2021 and only did so in 2022.

37. The Employee’s version therefore comes out triumphant in this regard and that is that she submitted the same or similar application and copies of qualifications in 2022 as she did in 2021, with the only difference being the one additional year of experience gained.

38. It needs to be borne in mind that the reason given by the Employer for not appointing the Employee was that she did not meet the profile. It would therefore follow that the Employer needed to substantiate the reason aforementioned and the reality is that it did not even attempt to do so.

39. The Employer has placed no evidence to illustrate the discrepancy or discrepancies between the Employee’s profile and the profile of the post as the basis for the rejection of her appointment in January 2022.

1. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others8 8 [2013] 34 ILJ 1156 (LC), it was held that –

“the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.”

40. As matters stand, there was no substantial reasons for not appointing the Employee in January 2022. It therefore stands to reason that the Employee ought to have been appointed in January 2021 as nothing stood on her way, except that the Employer dragged the process for 12 months and decided to appoint her in 2023, having gone through the same or similar process again, as she did in 2021.

41. In light of the above, where there is no reasons at all submitted for the Employer’s failure to appoint the Employee, such a decision becomes arbitrary, and unfair to the Employee as there are insubstantial reasons for the Employer’s decision not to appoint her with effect from January 2022.

42. In the premises, it is my finding that the decision of the Employer not to appoint the Employee to the post of Head of Department at the school, which is on level 2 constitutes an unfair labour practice.

43. Although the Employee seeks 12 months compensation, I have considered the fact that she is still employed and that she has been employed throughout 2022, also, had she been promoted on January 2022, she would have received a few percentages on top of her salary notch. I therefore believe that compensation of three months is just and equitable, calculated as follows: R 32 840.32.00 per month x 3 = R 98 520.96 (Ninety eight thousand, five hundred and twenty rand ninety six cents).

AWARD

44. The failure by the Employer to promote the Employee to the post of Head of Department at Vaal Oranje Primary School is unfair.

45. The Employer is ordered to pay compensation to the Employee of R 98 520.96 (Ninety eight thousand, five hundred and twenty rand ninety six cents).

Vuyiso Ngcengeni
Panelist / Commissioner