Panellist/s: Jonathan Gruss
Date of Award: 12 March 2024

In the ARBITRATION between:

SAOU obo George Louw, John William Heenen and Nolan Barnard (Applicants)

and

Department of Education – Eastern Cape & Others
(Respondents)

Applicant’s representative: Ms van Wyk – SAOU

Email venitavw@saou.co.za

Respondent’s representative: Ms A Slabbert

Email ansie68lro@gmail.com

Incumbent’s representative: Mr A Adams

Email antona@naptosa.org.za

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the respondent’s district office in Gqeberha on 29 February 2024. The proceedings were electronically recorded. The applicants, George Louw, John William Heenen and Nolan Barnard was represented by Ms van Wyk, an official from SAOU, a registered trade union. The respondent, Department of Education: Eastern Cape was represented by Ms Slabbert, a Labour Relations Officer. The incumbent third party, Ms Alvira Brown appeared in person and was represented by Mr A Adams, an official from NOPTOSA , a registered trade union. The SGB of Sanctor High School was represented by Mr Felix, the chairperson of the SGB. The parties agreed to submit written closing arguments on 8 March 2024.

CONSOLIDATION

2. At the commencement of the arbitration, I was informed that ELRC 516-23/24EC a promotion dispute relates to the same post, namely the Deputy Principal’s post at Sanctor High School and that matter needed to be consolidated with the current matter. A promotion dispute was referred to the ELRC wherein John William Heenen and Nolan Barnard also challenges the appointment of Ms Alvira Brown. The parties were in agreement that both matters needed to be consolidated for reasons set out above. Accordingly I issued an oral ruling consolidating ELRC516-23/24EC with ELRC 534-23/24EC and that both matters would be dealt with under case number ELRC534-23/24EC.

ISSUE TO BE DECIDED

3. I am required to determine whether or not, the respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA when promoting the incumbent, Ms Alvira Brown in the post of Deputy Principal at Sanctor High School instead of the applicants, George Louw, John William Heenen and Nolan Barnard. I am required to determine whether the applicants were afforded a fair opportunity to complete for the advertised post.

BACKGROUND

4. In terms of narrowing of the issues at the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:

4.1 George Louw commenced employment with the respondent in 1995 and currently is a post level 1 Educator at Sanctor High School. He earned R342066 per annum or R28505.50 per month.
4.2 John Williams Heenen initially commenced employment with the respondent in 2007, he resigned in 2016 and was re-appointed in 2018. Mr Heenen is a post level 2 Educator, Departmental Head at Sanctor High School. He earned R394032 per annum or R32836.00 per month.
4.3 Nolan Barnard commenced employment in 1994 and is also currently a post level 2 Educator, Departmental Head at Sanctor High School. He earned R39776 per annum or R33148.00 per month
4.4 The incumbent, Alvira Brown prior to her appointment as a Deputy Principal was a post level 1 Educator also at Sanctor High School.

4.5 The applicants and the incumbent, Alvira Brown were shortlisted and interviewed for the advertised post. According to the interview panel the incumbent was ranked number 1 with a score of 100, Mr Barnard was ranked number 2 with a score of 87, Mr Williams was ranked number 3 with a score of 85, Mr Heenen was ranked number 4 with a score of 83 and Mr Louw was ranked number 5 with a score of 76. The SGB when ratifying the interview panel’s ranking recommended the incumbent to be appointed. The SGB’S recommendation followed the ranking of the interview panel based on scoring.

5. The applicants claim that all candidates were told according to the invitation that they were to present a power point presentation of approximately 7 minutes. The applicants claim that they made use of a power point presentation whereas the incumbent did not present a power point presentation rendering the process defective and unfair. The applicants seek for the appointment of the incumbent to be set aside and that the interviews be redone.

SURVEY OF EVIDENCE AND ARGUMENT

6. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter. The digital recording of the proceedings will reflect the complete testimony of the witness.

APPLICANTS EVIDENCE

7. Mohammed Felix testified under oath to the following effect.

7.1 He is the chairperson of the SGB and formed part of the panel that interviewed the candidates that comprised of the applicants and the incumbent. During discussion as the panel, he suggested that that the candidates when interviewed considering that the post was a deputy principal’s post should make use of power point presentation.
7.2 During their discussion they looked at the computer literacy levels of candidates. When the incumbent was interviewed her USB memory stick that contained her power point presentation did not function in that the laptop they were using for the power point presentations did not recognise the USB memory stick. Candidates were informed in the invitation that in the case of load shedding they were expected to have printed copies of their presentation for the panel and the incumbent handed in print copy of her power point presentation.
7.3 He gave each candidate a separate score as to the power point presentations made. He gave candidate 1 (Barnard) a mark of 4 based on the power point presentation, candidate 2 (Brown the incumbent) a mark of 3 based on the presentation. He gave candidate 3 (Heenen)a mark of 4 based on the presentation and candidate 4 (Louw) a mark of 5 based on the presentation. He gave candidate 5 (Williams) a mark of 4 based on the presentation. The other panel members did not give the candidates a score based on the presentations made. The presentation mark he gave to each candidate was not included in the final score tallies and therefore his evaluation of how he rated each candidates power point presentation had no bearing on the total scores given to each candidate. It also had no bearing on the recommendations made by the SGB to the respondent as to their order of preference.

ANALYSIS OF EVIDENCE AND ARGUMENT

8. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable.

9. The principles which determine promotion disputes are summarised by Commissioner Rycroft in Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA) at 1517 where he is reported as follows:
“The principles which must determine this dispute are, in my view, the following:
1. In the area of appointments and promotions, in the absence of gross unreasonableness which leads the Court or the CCMA to draw an inference of mala fides, the CCMA or Court should be hesitant to interfere with the exercise of management’s discretion.
2. In drafting the unfair labour practice provision, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. The Commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates.
3. The relative inferiority of a successful candidate is only relevant if it suggests that the superior candidate was overlooked for some unacceptable reason, such as those listed in section 6 of the EEA (Employment Equity Act 55 of 1998).
4. The division of the unfair labour practice jurisdiction between the Labour Court and the CCMA indicates that the legislature did not intend Commissioners to concern themselves when deciding disputes relating to promotion with the reasons why the employer declined to promote the applicant employee, but rather with the process which led to the decision not to promote the employee when selecting a candidate for promotion are relevant only insofar as they shed light on the fairness of the process.”

See also Cullen and Distell (Pty) Ltd [2001] 8 BALR 834 (CCMA).”
10. As was said in Public Servants Association obo Dalton & Another v Department of Public Works [1998] 9 BALR 1177 (CCMA) at 118 F–G, an employee will only be considered for promotion by the CCMA, or for that matter by an arbitrator, if he or she shows both unfair conduct on the part of the employer as well as that he or she would have been promoted, but for that unfair conduct. There must be a causal connection between the unfair conduct proved and the failure to promote the employee ( – see also Garbers, Contemporary Labour Law, Vol 9, No 3 of October 1999 at p30 and the cases cited there.)

11. One has to look at the matter SA Police Service v SSSBC, Robertson NO & Noonan case no P426/08, Cheadle AJ at [14] held:

“(a) There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
(b) Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
(c) The employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
(d) As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.”

12. On Appeal in, Noonan v Safety & Security Sectoral Bargaining Council and others [2012] 9 BLLR 876 (LAC), the LAC indicated that there must be a causal connection between the consequences of the procedural irregularity (omission) and its unfair effect on the promotion process.

13. The applicants argued and took issue with the utilization of the power point presentation and the fact that only one union, SADTU was present as an observer and CTU/ATU were not present. The fact that a union elects not to attend an interview, this does not invalidate the process. All candidates were afforded an opportunity to provide a power point presentation, whether the presentation is a slide show or a print copy of the power point presentation makes no difference, the presentation is there to assist candidates in selling themselves. The applicants have failed to demonstrate that they were not afforded a fair opportunity to complete for the post. Furthermore, in order to justify any interference by an arbirtator in the appointment of the incumbent, the applicants’ will have to show that but for any procedural irregularity they would have been appointed or the incumbent would not have been appointed. The interview panel is made up of parents and educator, one can expect a difference in the allocation of marks between parents who are panel members and educators who are panel member. Mr Felix who is the chairperson of the SGB is also an educator, a deputy principal at a different school.

14. I therefore make the following award.

AWARD

15. The respondent, the Department of Education: Eastern Cape did not perpetrate an unfair Labour practice relating to promotion when they did not appoint the applicants, George Louw, John William Heenen and Nolan Barnard or when they appointed the incumbent, Alvira Brown.

16. The Applicants are not entitled to any relief.

Name: Jonathan Gruss
(ELRC) Arbitrator