17 January 2023 – ELRC593-21/22EC

In the matter between

Nontuthuzelo Margarete Soka Applicant

and

Eastern Cape Department of Education First Respondent

Siphokazi Ngceba Second Respondent

Appearances: For the applicant: Mr Mziwamadoda Nondima (Nondima Attorneys);
For the first respondent: Mr Lwando Jevu;
For the second respondent: Mr Paul Papiso (SADTU)

Arbitrator: Mxolisi Alex Nozigqwaba
Heard: 24 October 2022 and 25 November 2022
Delivered: 12 December 2022
Summary: Labour Relations Act 66 of 1995, as amended, section 186(2)(a)-
Alleged unfair labour practice relating to promotion

DETAILS OF HEARING AND REPRESENTATION
1. This arbitration was held at Dr W.B. Rubusane District Offices in Mdantsane on 24 October 2022 and 25 November 2022. Ms Nontuthuzelo Margarete Soka (applicant) was in attendance in all sessions and was represented by Mr Mziwamadoda Nondima, an attorney from Nondima Attorneys. Eastern Department of Education (1st respondent) was represented by its labour relations officer, Mr Lwando Jevu. The appointed incumbent in the contested position, Ms Siphokazi Ngceba (2nd respondent), was represented by a SADTU official, Ms Paul.Papiso.
2. At completion of the proceedings parties agreed to submit written heads of arguments by not later than 02 December 2022, and they both submitted as agreed. I have considered these heads in penning this award.
ISSUE TO BE DECIDED
3. I have to determine whether an unfair labour practice relating to promotion was committed when the 1st respondent overlooked and did not shortlist the applicant but ultimately appointed the 2nd respondent in the deputy principal post at Fundisa Special School. If unfair labour practice is proven I will issue an appropriate relief.
BACKGROUND TO THE ISSUE
4. This is a promotion dispute involving Fundisa Special School deputy principal position (post level 3) advertised in the 1st respondent’s Open Post Bulletin Vol 2 of 2020, with gross salary of between R415 245.00 and R935 135.00. Fundisa Special School is in King Williams Town under Dr W.B. Rubusane District. The requirements for the position as stated in the Bulletin are: Xhosa, all learning areas, management and inclusive education.

5. After the post was advertised the applicant (educator post level 1 earning gross monthly salary of R31 397.94 at material time and currently), the 2nd respondent (also educator post level 1 at material time) and other candidates applied for the post. The 2nd respondent was ultimately appointed to the position with effect from 13 May 2021.
6. The applicant’s challenge to the post is that she was deliberately not shortlisted even though she met the post key requirements. The applicant is therefore saying the 1st respondent’s action of deliberately ignoring her for shortlisting and ultimately appointing the applicant was both substantive and procedurally unfair and the relief she is seeking is that the appointment of the 2nd respondent be set aside and the process be recommenced at shortlisting, or alternatively be awarded compensation, or any appropriate relief allowed by section 193(4) of the Labour Relations Act 66 of 1995 (LRA).
7. The 1st and 2nd respondents disputes that an unfair labour practice was committed.

SURVEY OF THE EVIDENCE AND ARGUMENTS
8. The matter was first set down to be heard on 29 August 2022, and on that date postponement was granted at the respondent’s instance as it was not ready for the arbitration. The applicant sought master and short lists, interview minutes and shortlisted candidates’ qualifications from the 1st respondent and it was agreed that such documents would be made available in the next session, which was on 24 October 2022. On that 24th October session the 1st respondent indicated that it could not get the documents sought as the recruitment file for the challenged position had apparently could not be found. The respondent then applied for postponement in order to do a further search for the sought documents. The applicant took issue with the fact that the 1st respondent did not communicate the predicament of not getting documents prior the 24 October 2022 session in order to avoid applicant incurring legal costs for the day. Parties could have agreed that the matter be postponed without having to go to the hearing venue. The applicant applied for wasted costs (legal fees) she incurred that day, which could have been avoided had the 1st respondent acted with circumspect and communicated its predicament prior. Nothing substantial was advanced by the 1st respondent in arguing against the sought cost order, except that the challenge it faced was real.
9. On 25 November 2022 the 1st respondent indicated that the recruitment file could not be found as it got lost in the process of moving its registry office, where the documents were kept.
10. The applicant testified that she started teaching in 1986, some three years before she completed her basic teaching qualification, which she got in 1996 from Griffith Mxenge College of Education. She thereafter taught in high school, and in 2001 she obtained Further Diploma in Education specializing in management from University of Pretoria. In 2007 she got her Advanced Certificate in Education from University of Fort Hare. In 2009 she obtained Bachelor of Education Honors, specializing in Educational Psychology for Special Needs Learners, from North-West University. Then in 2012, after having been appointed in Fundisa Special School as post level 1 educator, she enrolled for and obtained Bachelor of Arts Honors, specializing in Augmentative and Alternative Communication, from University of Pretoria. The applicant’s case is that her B-Ed Honors Degree and B-Arts degrees are what made her cut out to teach learners with special needs at Fundisa Special School.
11. The applicant had previously applied for HOD position at Fundisa Special School and got shortlisted but did not get the position. She got shocked when she was not shortlisted for the deputy principal post, while she met the post’s requirements. She had expected to be shortlisted and be given opportunity to contest her candidature as she possessed the requirements mentioned in the advert, which were inclusive education and management. She lodged a formal grievance which was dealt with in a wishy washy way up until she got an advice from provincial labour relations office that she should just file a dispute with the ELRC.
12. It was put to her at cross examination that she was correctly not shortlisted as she had been trained to teach at secondary school level according to her qualifications. Her reply was that she was taken at Fundisa on the strength of her inclusive education qualification. She has taught at the school for a long time and had also been given an opportunity to attend interviews for HOD position at the school. She stressed the fact that she met the requirements mentioned in the advert, which were inclusive education and management.
13. Mr Zolile Cecil Mqobongo (SGB chairperson at material time) testified that when he and the panel set for shortlisting they worked with eleven applications for candidates appearing in the master list they had been given by District Office official. He recalls that the applicant was not mentioned in the master list and her application was not part of the master list. He is not aware of what happened to her application as he and his panel did not sift the applications in order to come out with a master list. That exercise had apparently been done at the District level, wherein candidates would be checked if they meet requirements before being put in the master list. The only candidates from Fundisa Special School whose names appeared in the master list were Ms Mamo and the 2nd respondent. They worked with those eleven names and ultimately came out with five shortlisted candidates, who were to be interviewed and the 2nd respondent made it to the shortlist. Inasmuch as he has never seen the applicant’s application he is aware of the fact that applications of unsuccessful candidates who never made it to the shortlist are to be destroyed upon expiry of six months after completion of appointment process.
14. Ms Yolisa Rawana (SGB teacher component representative at material times) testified that she was part of the panel which set for shortlisting in the deputy principal position under contest. The list with eleven candidates was brought with eleven application forms by the resource person from the District Office. Her evidence was mostly corroboratory of Mr Mqobongo’s account.
15. No evidence was led for the 2nd respondent except copies of her qualifications, which are: Junior Primary Teachers Diploma obtained from Butterworth College of Education in 1998 and B Tech in Education Management obtained from Technikon Pretoria.
16. It is argued for the applicant that she met all the requirements for the position as she has special needs and management qualification. She also has vast teaching experience in special needs environment as she started to teach at Fundisa in 2009. When she applied for the position her expectation was that she would be sort listed. She understands that she had no right to be promoted. She referred to Noon v Safety Security Sectoral Bargaining Council where Labour Court held that an employee does not have a right to promotion, but does have a right to be given fair opportunity to compete for the position. Conduct by the employer that denies an employee of that opportunity does amount to unfair labour practice. Should the Council find in her favour the relief sought is for the recruitment process be ordered to start afresh or compensation or any appropriate relief. The quantum of compensation, if such relief would be ordered, should that awarded for procedural unfairness and should be fair and equitable but not in excess of 12 months’ remuneration. Noon v Safety Security Sectoral Bargaining Council was again referred to at paragraph [47] where the Labour Court held that in determining the what would be appropriate compensation in given circumstances regard must be given to the extent of the breach of the rules of fairness, and in that case nine months was ruled to be fair and equitable compensation.
17. For the 1st respondent it was argued that the applicant’s teaching qualification was for teaching at secondary school level and not at special school at primary school level. She was correctly excluded from the master list as she did not meet the basic requirement of teaching at primary level. Her exclusion from the master list was therefore procedurally and substantively fair. Shortlisting the applicant would have been done contrary to recruitment policy. The applicant’s referral therefore stands to be dismissed as there was no unfair labour practice committed against her.
ANALYSIS OF EVIDENCE AND ARGUMENTS
18. The applicant was not shortlisted to the deputy principal position even though she taught at the special school with the contested post from 2009. She had previously been shortlisted for HOD position in the same school. Again, she possess qualifications which are very much relevant to her teaching duties at a special needs school. No evidence was led to prove that the special needs aligned qualifications she has are not relevant in the special need curriculum environment of the school. She also has a qualification in management, which the incumbent also has. The applicant met the requirements mentioned in the advert, which are management and inclusive education. The 1st respondent’s witnesses only testified that the applicant’s application was not with the eleven applications they received from the resource person from District office. The 1st respondent’s witnesses did not mention anything about whether the applicant was eligible to be in the master and short list.
19. The 1st respondent, after being given opportunity to get hold of the recruitment file, indicated that the file has been lost. It was therefore not possible to see who had made it to the master and the short list and what their qualifications were. From this inability to provide these critical documents an adverse inference can be drawn to the effect that there was really no justifiable reason for the applicant not to be included in the master and short list.
20. In light of the aforementioned I find that the applicant was subjected to an unfair labour practice when she was not included in the long and the short list
21. The unfair labour practice the applicant was subjected to, has to do with procedural flaw as she was not subjected to a fair process of being given an opportunity to contest her candidature. With regard to substantive fairness part nothing was proven to the effect that the applicant would have been far better a candidate than the incumbent. It was also not argued and proven that the incumbent did not qualify to be considered for the position.
22. The applicant having demonstrated and proven the unfairness in her non-inclusion to the master and the shortlist, with qualifications and experience she has, I am inclined to believe that she does stand realistic chances of being considered for appointment should the process be repeated and be done in a fair manner. I therefore find that repeating the process from compilation of master list and shortlisting, where the applicant was unfairly excluded, is the competent and appropriate relief in the circumstances. I have not been appraised of any apparent negative impact that may arise and be endured by the school and learners should this kind of relief be granted.
23. On the issue of wasted costs for 24 October 2022, I find that the 1st respondent should be ordered to pay the applicant’s costs for the wasted day of 24 October 2022. Postponement on 29 August 2022 had been granted to allow the 1st respondent an opportunity to get hold of the recruitment documents. It did not get the said documents but waited until the next set down date and communicated its predicament and applied for further postponement. The applicant had incurred legal costs for that day, something that would have been avoided had the 1st respondent acted timeously before the set down date. The 1st respondent is to be ordered to pay the applicant’s legal costs for 24 October 2022 arbitration sessions as per current tariff in ELRC Rules, which is R7 000.00.
AWARD
24. I therefore make the following award:
24.1. The 1st respondent committed an unfair labour practice as provided in section 186(2) of the LRA in that it acted in a procedurally unfair manner when it did not shortlist the applicant.
24.2. The 1st respondent is ordered to reverse the appointment of the 2nd respondent by not later than 31 January 2023 and restart the process from compilation of master and shortlists, and ensure that the process is carried through in accordance with Employment of Educators Act 76 of 1998 and PAM. No person who was involved in the initial flawed process should be part of this new process.
24.3. The 1st respondent is further ordered to pay the applicant’s legal costs amounting to R7 000.00 by not later than 20 January 2023.