Panelist: Jonathan Gruss Case No.: ELRC 525-24/25 EC Date of Award: 7 June 2025

In the ARBITRATION between:

Adrianne Lizanne Monica Armstrong (Applicant)

and

Department of Education – Eastern Cape & Others
(Respondents)

Applicant’s representative: Mr George- SADTU

First Respondent’s representative: Mr Kralo

Second Respondent representative: Mr Adams – NATPOSA

Summary: Section 186(2)(a) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to promotion (failure to shortlist).

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 30 April 2025 and at the offices of NAPTOSA on 28 May 2025. The proceedings were electronically recorded. The applicant, Adrianne Lizanne Monica Armstrong was represented by Mr George from SADTU. The first respondent, Department of Education: Eastern Cape was represented by Mr Kralo an ER Practitioner. The second respondent (incumbent), Ms Sheronay Jannene George was represented by Mr Adams from NAPTOSA. The parties by agreement submitted written closing arguments on 6 June 2025.

ISSUE TO BE DECIDED

2. I am required to determine whether the first respondent, committed an unfair labour practice relating to promotion as contemplated in terms of Section 186(2)(a) of the LRA when they failed to short list the applicant and promoted the incumbent in the post of Deputy Principal at Missionvale Primary School. I must thereafter determine the appropriate relief.

BACKGROUND

3. 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:

3.1 The applicant commenced employment with the respondent in April 1996.
3.2 The Deputy Principal’s post (post number 554) at Missionvale Primary School in Gqeberha was advertised in Volume 2/2024 with closing date 31 May 2024.
3.3 The applicant was not shortlisted and therefore not interviewed for the position.
3.4 The applicant when applying for the position was a post level 2 Departmental Head: Intermediate phase and earned R485 868.00 per annum.
3.5 The incumbent commenced employment with the respondent in 2018 as a post level 1 educator at Fernwood Primary School in Bethelsdorp, Gqeberha. The incumbent was appointed to the advertised post of Deputy Principal at Missionvale Primary School on 1 September 2024.
3.6 42 candidates’ applications were received for the advertised post. The SGB had to list certain additional criteria to shortlist 5 candidates In terms of the advertisement the school catered for grades R-7 learning area for the post was management & administration and all subjects.
3.7 The applicant fell out in the 3rd round of shortlisting in that the panel could not see in her application or in her CV, SASAMS school based IT system training.

4. The applicant claims that the respondent committed an unfair labour practice relating to promotion in not shortlisting her to be interviewed. She claims further that she was told by the Principal Ms Jacobs in a meeting between her and Ms Slater when they asked for training on SASAMS that they cannot receive training in that some of the information is confidential and it remains the duty of administration staff. She was sent on 30 January 2024 on a one (1) day training on SASAMS. She did not make reference to the SASAMS training in her application form or in her CV as she was not issued a certificate and she only had an attendance register for attending the training mentioned and it was a one (1) day training. She was also told by the Principal that they must not include the SASAMS training and had the Principal not told her this, she would have included the SASAMS training and the attendance register in her application form. She seeks that the appointment of the incumbent be set-aside and the post be re-advertised.

SURVEY OF EVIDENCE AND ARGUMENT

5. 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

6. The applicant testified under oath to the following effect.

6.1 She has been in a post level 2 departmental head post for the past 6 years. She also serves on the school management team (SMT) that is also a leadership role. She is responsible for grades 4 and 5. She also monitors sports and has to check assessments and manages the distribution of textbooks. She helps the principal in the absence of the deputy principal who was off sick for a long time.

6.2 She had worked on SASAMS before going on the one (1) day training. She has loaded marks on the SASAMS. She did not include her SASAMS training as well as other administrative duties. In November 2023 there was a staff meeting held with post level 2 and post level 1 educators, herself and the other departmental head asked whether they could receive SASAMS training. The response by the principal, Ms Jacobs was that as it relates to SASAMS there is confidentiality involved as to the learners. The following year, January 2024 she availed herself to go on a one (1) day SASAMS training. There was no certificate issued, she did however take a picture of the attendance register and the minutes of the training. They made copies to show the principal that they were actually there.

6.3 On the application form with reference to paragraph 17.4 (Pg. 45 of Bundle) that section only makes provision for formal diplomas of which the duration is three (3) months and more.

6.4 At the time there was a crisis with admin staff who were not at work, they had to update the SASAMS system with learner’s marks. Ms Jacobs when referring to confidentiality as relates to SASAMS training indicated as an example of an educator that got into SASAMS and increased the marks of a learner. She does not have a close working relationship with the principal. They all take turns to load marks on SASAMS. There are no post level 1 educators on the SMT.

6.5 Under cross-examination by the respondent the applicant was requested with reference to paragraph 18 of the application form (Pg. 8 and 9 of bundle) to explain why she did not include the SASAMS training, that section deals with short courses wherein the form specifically requires attachment of attendance certificates (where available). The applicant’s response was that she did not have a certificate of attendance of the training. It was suggested to the applicant that there was nothing stopping her from attaching that attendance register and the minutes of the training, to which the applicant responded that she viewed that, at the time as not relevant. The applicant was then asked whether she still viewed that as not relevant, the applicant conceded that she learned a hard lesson in not submitting an attendance register for the short-course. When asked whether she still felt that the respondent treated her unfairly, the applicant indicated that she had nothing against the respondent, her problem was with the panel of the school. She confirmed that she is aware that the panel can come up with new criteria. The applicant indicated in making a rhetorical statement how do you skip a post level 2 educator and interview a post level 1 educator.

RESPONDENT’S EVIDENCE

7. The respondents elected not to call any witnesses and closed their case and submit written closing arguments.

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:
10. 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.
11. 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.
12. 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).
13. 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).”
14. 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.)
15. The applicant was not promoted in that she was not short listed and interviewed for the position. Her case can only that she was not afforded a fair opportunity to compete for the post.
16. It should be noted that we have a post level 2 departmental head applying for the post of deputy principal post level 3. It is common cause that the applicant was not shortlisted and fell out on the third round in that the panel had added additional criteria indicating that knowledge of SASAMS will be an added advantage. The reason why the applicant was not interviewed is that she made no reference to having knowledge of and by failing to include a reference to this, under short courses in her application form, she failed to demonstrate any knowledge of SASAMS. This is unfortunate. Although the applicant was allegedly told in 2023 that she could not receive SASAMS training, during January 2024 she availed herself to receive SASAMS training. The failure of the applicant to include in her application form that she had knowledge of SASAMS and had received training, in my view, can only be that when she completed her application form she was tardy in the completion thereof. The fact that she requested SASAMS training in 2023 and that she received the said training in January 2024, shows that she must have known how important that training was when competing for advancement to the positions of deputy principal and eventually principal. She failed to sell herself as it relates to the completion of her application form and her CV that she as a candidate deserves to be interviewed and thereby shortlisted. There were 42 candidates who applied for the advertised position and the panel had to reduce that list to 5 for interview purposes. The additional criteria for the third round was that knowledge of SASAMS would be an added advantage, the candidate should be able to handle conflict and should be able to market the school out there.
17. The respondent, more specifically the shortlisting and interview panel, cannot be faulted in not shortlisting the applicant. I must comment in passing that the excuse that I did not have an attendance certificate does not suffice in that she had an attendance register furthermore she could and should have requested an attendance certificate for said training. She knew how important this training was as relates to her advancement of her career and that is why she requested training.
18. The applicant’s real concern as displayed when cross-examined, is to how can one skip a post level 2 educator and interview a post level 1 educator. To put it differently, how can you overlook a post level 2 departmental head for post level 1 educator? From my experience in arbitrating numerous promotion dispute, this is one of the main contributing reasons why aggrieved candidates referred promotion disputes. This especially, where a post level 1 candidate is promoted above that of departmental head post level 2, or deputy principal post level 2 or higher or that of Principal, post level 3. The regulations regulating promotions as well as the collective agreement does not prohibit candidates skipping two post levels. This unfortunately is what the National Department of Basic Education, or even various Provincial Education Departments and organised labour have agreed on.
19. The applicant in their closing arguments has taken issue with the fact that the SGB had not been trained in SASAMS who then influences the selection panel in using the additional criteria such as “knowledge of SASAMS will be an added advantage”? The additional criteria is there to reduce the amount of candidates to 5 candidates to be interviewed.
20. I therefore make the following award.

AWARD

17. The respondent, the Department of Education: Eastern Cape, did not perpetrate an unfair labour practice relating to promotion when they appointed the incumbent, Sheronay Jannene George as Deputy Principal at Missionvale Primary School and in the process did not shortlist the applicant, Adrianne Lizanne Monica Armstrong and not invite her to be interviewed.
18. The applicant is not entitled to any relief.

Name: Jonathan Gruss
(ELRC) Arbitrator