Case Number: ELRC 700-23/24 NW
Commissioner: Annelie Bevan
Date of Award: 25 September 2024

In the matter between

TG FOUT

(Union/Applicant)

and

NORTH WEST PROVINCE, DEPARTMENT OF EDUCATION & THAPELO ERIC PODILE

(First and Second Respondents)

Details of hearing and representation

1. The ELRC scheduled the arbitration for an unfair labour practice dispute relating to promotion between TG Fout, the Applicant and the Department of Education, North West Province, the First Respondent and T Podile, the Second Respondent, for 09h00 on 13 September 2024 on the online platform Zoom.
2. The First and Second Respondents were present and represented by T Matshaba, a labour relations official of the First Respondent. The Applicant was present and represented himself.
3. The arbitration was electronically recorded, and I made typed notes.
4. The parties agreed to submit written closing arguments by the 20 September 2024.

The issue to be decided

5. I must decide whether the First Respondent’s decision not to appoint the Applicant for the post advertised under number RSM DH22 at Gataote Primary School constitutes a procedurally and substantively unfair labour practice relating to promotion in terms of section 186(2) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA) and, if so, the appropriate relief.
6. The Applicant seeks to be promoted to this post on 1 September 2023 (when the Second Respondent took up this post) and receive backpay from the same date.
7. The parties agreed that if the award favours the Applicant, the First Respondent’s Persal system can calculate the quantum of backpay due to the Applicant.

Background to the matter

8. The Applicant referred an unfair labour practice dispute relating to promotion to the Council, coupled with an application for condonation. On the 19 February 2024, the Council ruled condoning the late referral of the Applicant’s dispute. The dispute was conciliated on the 7 March 2024 but remained unresolved.
9. The Council scheduled the arbitration on the18 April 2024, when the Second Respondent was formally joined to the proceedings and the issues in dispute were limited. The dispute was postponed to the 18 July 2024, when the matter was part-heard. After the Applicant’s evidence was led, cross-examined and re-examined, he requested an opportunity to obtain evidence from Thuto Neo Primary School to prove that the Second Respondent did not have the required years of experience. The matter was adjourned to allow the Applicant to obtain the documents and to make arrangements for his witness to testify. Unfortunately, when the matter reconvened, he indicated that his witness was no longer able to testify in the arbitration, and I allowed him to take the stand again to testify on the documents obtained. The arbitration was concluded on the 13 September 2024.
10. On the 18 April 2024, the parties agreed (the Second Respondent later confirmed his agreement with the pre-arbitration minutes) on record that the following issues are common cause:
10.1 The Applicant is currently a PL1 educator at Gataote Primary School. He will provide a salary advice indicating what he earned monthly during August 2023.
10.2 The First Respondent advertised post number RSM DH22 (at Gataote Primary School) on the 12 April 2023. Its closing date was the 15 June 2023.
10.3 The Applicant applied for the post, was short-listed and interviewed for the post.
10.4 The First Respondent appointed the Second Respondent to the post on the 1 September 2023. This is also the date the Second Respondent assumed duty in this post.
11. On the 18 April 2024, the parties agreed that the following issues are in dispute:
11.1 Whether the successful candidate complied with the minimum requirements of experience;
11.2 Whether the Applicant would have been the successful candidate if the successful candidate’s experience was correctly evaluated.
12. The parties submitted the following bundles of documents: The Applicant submitted bundles “A1” and “A2” and an additional bundle. The Respondent submitted bundle “R” as well as Circular 26 of 2003 and the Erratum to Circular 26 of 2003.

Evidence and submissions of the parties

The Applicant’s case:
13. The Applicant testified under oath in evidence in chief that:
13.1 According to Circular 26 of 2003, the post requirements were a subject in mathematics (as this was the school’s curricular need) and a qualification to teach at the primary school level; this was an additional criterion in terms of the minutes of the interview process (Bundle A2 page 6).
13.2 The Second Respondent does not have a subject in mathematics and does not have a qualification to teach primary school learners, only a qualification for the intermediate and senior phases. The Second Respondent has life orientation and languages (Bundle R, page 8).
13.3 The Applicant complied with both criteria, as he has mathematics as a subject and is qualified to teach primary school learners in the intermediate phase.
13.4 As the Applicant complied with both additional criteria, he should have been appointed.
13.5 The Second Respondent should have had at least three years of working experience. However, the Second Respondent only started teaching in January 2022 and did not comply with the experience requirement.
13.6 The Applicant started his teaching career in 2016 and has held many organisational leadership positions throughout the years, such as sports organiser, teacher representative on the Learner Representative Council, teacher representative on the school governing body, soccer and athletics coach, serving under the South African Democratic Teacher Union, etc.
13.7 The attendance registers from Thuto Neo Primary School showed that the Second Respondent signed the register from Monday to Friday, 7h00 to 16h00, from 15 January 2020 to 18 March 2020 and from 8 June 2020 to 31 July 2020 (The Applicant’s additional bundle). This can, however, not be true as the Second Respondent’s CV does not indicate any extracurricular activities for this period. There is also a duplication of dates between pages 8 and 9, which indicates that the registers were recently created. The handwriting throughout looks the same. Furthermore, as it was COVID, the Second Respondent could not have been working for six months as the schools were closed now and then due to COVID-19. The Second Respondent did not meet the experience requirement.

Cross-examination:

13.8 He explained he referred the dispute as the Second Respondent did not meet the subject requirement, the additional criteria, or the experience required. In Circular 26 of 2003, paragraphs 4.2.1 (3 years experience), 6.7.2 (the circular needs of the school), and 6.7.3 (the subject or post requirements). According to the Applicant, the subject requirement was mathematics.
13.9 He agreed that in terms of Circular 26 of 2003, the requirements were a matric certificate, a recognised three-year qualification that must include appropriate training as an educator and a minimum of three years of experience. He claimed, however, that the panel had set additional criteria.
13.10 He stated that he and the Second Respondent worked together at Gataote Primary School. Before that the Second Respondent worked at Mammutla Primary School, from allegedly July 2020 until his promotion to the disputed post on the 1 September 2023, according to his CV (Bundle R, page 10).
13.11 The Second Respondent allegedly did his practical teaching at Thuto Neo Primary School. He is unsure how long the Second Respondent’s practical teaching was, but usually, it stretches over three weeks to one month. According to him, the Second Respondent did not start working at Thuto Neo Primary School in January 2020. He confirmed, however, that the school’s log book (signed by the principal) indicated that the Second Respondent joined the school on 13 January 2020 when the school re-opened (Bundle R, page 25). He claimed, however, that it is not sufficient proof that the Second Respondent started at the school then, as anyone could have written this. He claimed that the Second Respondent’s supervisor at Thuto Neo Primary School told him that the Second Respondent only joined the school in June 2020.
13.12 The panel was looking for a teacher for the intermediate phase, Grades R to 6 (Bundle A, page 6), and the Second Respondent’s qualification is in the senior and FET phase (Bundle R, page 15). Furthermore, the Second Respondent is not qualified to teach mathematics. When taken to the Erratum, he agreed that mathematics was no longer a requirement for the post, as there were no subject requirements like in the first Circular.
13.13 The Applicant maintained that the panel appointed the Second Respondent despite not meeting the additional requirement of being qualified to teach Grades R to 6.
13.14 He also maintained that the Second Respondent’s experience is incorrect, as set out in his CV. He did not dispute that the First Respondent is entitled to take into consideration experience gained outside of the First Respondent.
13.15 He conceded that he was rated number 3 of all the candidates in the interview. He maintained, however, that if, for any reason, the Second Respondent could not take up the post, he should have been promoted to the post and not the candidate who came out second in the interviews.
13.16 He indicated that he did not question the authenticity of the attendance registers with the Thuto Neo Primary School employees, who gave him copies of the registers.
13.17 According to him, any extra hours worked or extracurricular activities should be recorded in your CV, and the Second Respondent did not do that for the extra hours worked at Thuto Neo Primary School. Therefore, he doubted that the Second Respondent worked there, as he claimed.
13.18 He admitted that he was only speculating that someone completed the attendance register on behalf of all the teachers and signed for everyone.
13.19 He denied that a teacher volunteer’s experience could be counted as experience for the advertisement’s requirement, as volunteers do not teach learners but only assist the teacher and perform administrative duties.

The Respondent’s case:

14. The Second Respondent testified under oath:
14.1 He volunteered at Thuto Neo Primary School for seven months, from January 2020 until July 2020. During this period, he helped teachers with lesson planning and classroom cleaning and taught certain subjects under supervision. He gained experience in dealing with learners, writing lesson plans, typing lesson plans, liaising with parents, helping with sports arrangements, and disciplining learners.
14.2 He confirmed that he met the post’s requirements: three years of teaching experience. Also, he qualified to teach languages for the General Education Training (GET) band, as per the Erratum of Circular 26 of 2023. His postgraduate certificate is for the senior and Further Education Training (FET) band, but the senior part falls under GET, namely intermediate and senior, which would be Grade 7 in the primary school.
14.3 He confirmed that he signed the attendance registers presented by the Applicant for Thuto Neo Primary School by placing his signature and the times.
14.4 He confirmed that no attendance registers were signed for part of March and April as the school was closed due to the lockdown.
14.5
Cross-examination:

14.6 He confirmed volunteering at Thuto Neo Primary School from 13 January 2020 to 31 July 2020. His supervisor was Mr Sebela. Under his supervision, he taught English and Geography to Grade 7 learners, gave class work, and marked it.
14.7 He confirmed that the extra duties or hours he worked at the school were not recorded in his CV as he volunteered his help and was not directed to do them. He conceded that the Applicant is more experienced than he is.
14.8 He confirmed that when he applied for the disputed post, he was a qualified teacher with experience, having worked at Mammutla Primary School. He qualified to apply for the post as advertised in the Erratum, and the closing date was 15 June 2023.
14.9 He explained that his CV contains an error. He started at Mammutla Primary School on 1 August 2020, although the preparation to hire him started in July 2020. Thus, he finished at Thuto Neo Primary School in July 2020 and started at Mammutla Primary School on 1 August 2020.

15. I thank the parties for the closing arguments submitted and considered.

Analysis
16. I intend to offer brief reasons in my analysis as per Section 138 (7) of the LRA as amended, which states, “Within 14 days of the conclusion of the arbitration proceedings – the commissioner must issue an arbitration award with brief reasons”.
17. In terms of section 186 (2)(a) of the LRA, an unfair labour practice is defined as “any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee.” The Applicant referred an unfair labour practice dispute relating to promotion to the Council.
18. Whether the First Respondent has committed an unfair labour practice is an objective, factual enquiry.
19. The onus to establish that the conduct complained of constitutes an unfair labour practice within the meaning of section 186(2) of the LRA rests on the Applicant (City of Cape Town v SA Municipal Workers Union obo Sylvester and Others (2013) 34 ILJ 1156 (LC)). Therefore, the employee must lay the evidentiary foundation on a balance of probabilities for their claim of an unfair labour practice. Mere dissatisfaction with a process’s outcome is insufficient to sustain that claim.
20. Generally, employers have broad discretion in determining whom they appoint. As the commission stated in Cullen v Distell (Pty) Ltd [2001] 8 BALR 834 (CCMA) – “…the legislature did not intend to require arbitrating commissioners to assume the role of employment agencies. A commissioner’s function is not to ensure that the employer chooses the best or most worthy candidate for promotion, but to ensure that employers do not act unfairly towards candidates when selecting employees for promotion.”

21. Where an employee alleges that the employer’s failure to promote or appoint him amounts to an unfair labour practice, the employee must first establish a decision not to promote them (Department of Justice v Commission for Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 248 (LAC) at 73). Without a decision not to promote, there can be no further inquiry about fairness.
22. In this case, the First Respondent admitted that the Applicant was not appointed. Thus, the decision not to promote was established.
23. The Labour Appeal Court held in Noonan v Safety and Security Sectoral Bargaining Council and others [2012] 33 ILJ 2597 (LAC) that an employee has no right to promotion but only to be given a fair opportunity to compete for a post.
24. The Applicant was granted an opportunity to compete for the post and was rated the third-best candidate. The Second Respondent was recommended for appointment and appointed.
25. The obligation in terms of section 186(2) of the LRA is to act fairly towards the employee in the selection and promotion process but taking into account that it is the prerogative of the employer to make appointments (Justice v CCMA & others (2004) 25 ILJ 248 (LAC)). The exercise of that prerogative is not immune from scrutiny, as instances of gross unreasonableness in its exercise may draw inferences of bad faith. To that end, it is trite that central to disputes about appointments or promotion of employees is the principle that those courts and commissioners alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions (George v Liberty Life Association of Africa Ltd (1996) 17 ILJ 871 (LC). Any form of interference should be to dispense fairness to both parties.

26. In Arries v CCMA & others (2006) 27 ILJ 2324 (LC), the Labour Court stated that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion exercised by a party competent to exercise that discretion. The reason for this is clearly that the managerial prerogative ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. Therefore, an employee can only succeed in having the exercise of an employer’s discretion interfered with if it is demonstrated that the discretion was exercised capriciously or for insubstantial reasons or based upon any wrong principle or in a biased manner.
27. The Labour Appeal Court had found in the matter of Ncane v Lyster NO and others (DA27/15) [2017] ZALAC 1 (10 January 2017) that in the context of promotion, the employer must abide by the law and the objective standards and criteria that it has set for promotion. It distinguished between procedural fairness and substantive fairness. The employer must ensure an eligible employee has a fair opportunity to compete for the post. Procedural fairness aims to achieve a fair substantive result, and the failure to follow a fair procedure may result in a decision also being substantively unfair. But the Court also acknowledged that assessing suitability for promotion is not a mechanical process and that subjectivity is involved. In this case, it was finally found that the National Instruction was followed and, therefore, procedurally, the process was fair.
28. In Sun International Management Pty Ltd v CCMA and Others (LC) (unreported case no JR 939/14, 18-11-2016) (Lagrange J), the Court held that in promotion disputes, it is not enough to merely show that there was a breach of protocol or procedures in the recruitment process. It is also necessary for a complainant to show that the violation of the procedure had unfairly prejudiced him.
Procedural unfairness
29. The Applicant’s case is that the Second Respondent did not meet the minimum experience requirement and should, therefore, not have been shortlisted and interviewed, whereas the Applicant has seven years of experience.
30. Circular 26 of 2023 clearly states that the requirement for appointment into the post is three years’ experience. As no one can predict exactly when the appointment will be made, common sense dicates that you need to meet the requirements of the post by the closing date stipulated in the advertisement. In this case, the closing date was 15 June 2023.

31. When the Second Respondent applied for the post, he had experience as a teacher from 1 August 2020 to 15 June 2023 (two years and ten months) and seven months as a teacher assistant before that. It was never disputed that experience as a teacher assistant does not count as experience for purposes of applying for the post in question. The Applicant tried to make out a case that the Second Respondent did not work at Thuto Neo Primary School and, therefore, did not meet the requirement of a minimum of three years of experience. However, the balance of probabilities favours the Second Respondent in this regard, as the attendance registers obtained by the Applicant from Thuto Neo Primary School, the log book from the school and the Second Respondent’s testimony indicated the opposite. It is clear that the Second Respondent indeed reported for duty on 13 January 2020 and remained at the school until July 2020. He, therefore, met the requirement of three years of experience.
32. The Applicant, therefore, failed to prove on a balance of probabilities that the Second Respondent did not meet the experience requirements
33. The Applicant testified that the school in question was looking to appoint a teacher in the primary and intermediary bands and that the Applicant qualified for this, but the Second Respondent did not. The Second Respondent’s evidence was that his qualification allows him to teach the intermediary phase, which includes Grade 7, and that he qualifies with that requirement.
34. The Respondent’s evidence that an Erratum was issued that took away the requirement of mathematics was not disputed.
35. On a balance of probabilities, the Applicant failed to prove that the Second Respondent failed to meet the post requirements. Thus, the dispute referral was not procedurally unfair.

Substantive fairness:
36. No evidence was presented to convince me on a balance of probabilities that the First Respondent did not exercise its discretion properly when appointing the Second Respondent. No evidence was presented to convince me that the First Respondent acted capriciously or for insubstantial reasons or based upon any wrong principle or in a biased manner. To that end, it is trite that central to disputes about appointments or promotion of employees is the principle that those courts and commissioners alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions. There is no good cause to interfere with the First Respondent’s managerial prerogative in these circumstances.
37. There is no doubt in my mind that the Applicant was a very capable candidate and that he was disappointed with the outcome of the promotion. However, mere dissatisfaction with a process’s outcome is insufficient for a commissioner to interfere with the First Respondent’s prerogative. How the panel scored the candidates was not questioned; therefore, I have no basis to agree with the Applicant.
38. Therefore, the Applicant did not discharge the onus on a balance of probabilities to prove that the First Respondent committed an unfair labour practice relating to promotion when it did not promote the Applicant to post RSM DH22 at Gataote Primary School.

Relief
39. As no unfair labour practice was committed, relief becomes a moot point.

Award
40. I find that the decision of the First Respondent, the North West Department of Education, not to promote the Applicant, TG Fout, to the post advertised under number RSM DH22 at Gataote Primary School does not constitute a procedurally and substantively unfair labour practice relating to promotion in terms of section 186(2) of the LRA.
41. The Council is advised to close the file.

Signature:

Panelist: ANNELIE BEVAN