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18 March 2025 -ELRC570-24/25WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA DIGITAL ZOOM CONFERENCE

Case No: ELRC570-24/25WC

In the matter between

NAPTOSA obo Luzaan Jade Fillis Applicant

and

Education Department of Western Cape First Respondent

MG Hanable Second Respondent

PANELLIST: Dr. GC. van der Berg.
Award: Finalized on 17 March 2025

ARBITRATION AWARD

    Details of hearing and representation
  1. The arbitration hearing took place via digital video conference (ZOOM) on 04 December 2024 and 20 February 2025 at 09:00. The proceedings were both digitally and manually recorded. The applicant, Luzaan Jade Fillis, was represented by Robin Newman, an official of NAPTOSA. The first respondent, Western Cape Department of Education, was represented by Frederick Scholtz, Labour Relations Officer. The second respondent, MG Hanabe, was represented by NS Lamami. The dispute was scheduled for arbitration in terms of section 186(2)(a) of the Labour relations Act 66 of 1995 as amended (“the LRA”) as an unfair labour practice regarding appointment and promotion. Issue to be decided.
  2. The arbitration proceeding concerned the alleged unfair labour practice by the respondent as it relates to the unlawful promotion/appointment of the second respondent to the advertised position of Principal according to the vacancy list 1 of 2023, at post level 4 at Murraysburg Primary School. The successful candidate, M. G. Hanabe, was joined as second respondent to the dispute. The applicant was nominated by the Panel of the SGB and on the shortlist but was not appointed because the second respondent was appointed as the best candidate for the position. According to the applicant he was the preferred candidate and met the requirements of the post. He must be appointed in the post as Principal.
  3. I am required to determine whether the first respondent committed an unfair labour practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA as:
    a. Whether the appointment of the successful candidate by the Education Department of Western Cape was unfair as the applicant was supposed to be appointed in the position of Principal.
    b. Whether the process was procedurally and substantively defected because of irregularities during the selection process.
  4. In terms of appropriate relief if I find that the first respondent committed an ULP:
    c. Whether the appointment of the second respondent must be set aside, or the dispute be dismissed.
    d. Alternatively, the process to be redone by the Education Department of Western Cape and SGB. Background to the Dispute
  5. The applicant is employed in a post level 3 position as Senior Educational Specialist. Both the applicant and the second respondent applied for the position of Principal at Murraysburg Primary School as advertised in Vacancy list 1 of 2023 (post number 60). The applicant and the second respondent were on the shortlist with other applicants and interviewed for the post. The applicant was nominated as the first preferred candidate by the School Governing Body (SGB) and the first respondent appointed M G Hanabe with effect from 01 October 2024.
  6. The dispute arose on 11 September 2024 and was referred to the ELRC on 25 September 2024 and set down for conciliation on 23 October 2024, where the dispute was not settled, and a certificate of non-resolution was issued, and the pre-arbitration conference was done and an agreement signed. The arbitration hearing was set down for 04 December 2024 and all parties were present. After the applicant testified and was cross examined by both representatives of the first and second respondents the arbitration process was postponed as a part heard arbitration because the witnesses of the first respondent were not available to testify. It was then set down for 20 February 2025 when the arbitration was concluded.
  7. The parties did present opening statements and the representative of the second respondent, and the representative of the applicant presented written closing statements on 28 February 2025 as agreed on 20 February 2025. The first respondent only submitted closing statements on 03 March 2025. All parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered. Survey of evidence and argument Documentary evidence.
  8. Both parties submitted bundles of documents. The bundle of the applicant was marked as “A” pages 1-68 and the bundle of the respondents as “R” pages 1-84. All parties did not dispute the authenticity of the content of the bundles. The representative of the applicant raised a point in Limine regarding the submission of CBA Scores and did not receive it. The representative of the first respondent stated that the CBA scores is confidential information regarding the other candidates. He did not receive instruction to make it available. The representative of the successful candidate stated that the CBA scores is not part of the criteria.
  9. The decision was taken that the representative of the first respondent must enquire whether the CBA scores can be made available and if positive to submit it to the representative of the applicant.
    Applicant’s evidence and arguments
    The applicant, Luzaan Jade Fillis, Senior Education Specialist-Subject Advisor, after having been sworn in, testified as follows:
  10. He is employed in the position as Senior Education Specialist since 2022 and he applied for the principal post 60 and went through the recruitment and selection process. He submitted complete documentation to the Department of Education on 09 September 2024. The appointment was made, and it was confirmed by Human Resources that the post is finalised, and the successful candidate was appointed as from 01 October 2024. He engaged with them telephonically and he explained in detail that he was the preferred candidate by the SGB and the final committee. He was explained that his qualification was not suitable to be appointed in the post as principal. The second nominee was appointed as principal in the advertised post.
  11. He lodged a grievance, and he was not happy with the outcome of the grievance as the decision not to appoint him was unfair and his union appeal and then the dispute was referred as a formal dispute to the ELRC. He was referred to the applicant’s bundle “A” to pages 15 and 16 and he stated that this is his grievance form completed by himself. Page 15 read as follows: “the appointment process was unfair. I became aware that my qualification was questioned, possibly after the interview process on route to the appointment process. According to the department I am Senior/FET qualified which influenced the appointment process. According to the R&S I was nominated as first nomination (See attached). He proposed a thorough in dept investigation of the entire recruitment and selection process, and review of the appointment process.” The grievance was completed and signed on 21 August 2024. He claimed that the appointment process was unfair.
  12. The document on pages 17 to 22 of bundle “A” was the response and engagement between NAPTOSA and the Department of Education. On page 20 appears an email on 11 September 2024 from Abigail Blankner to Robyn Newman regarding the grievance of the applicant. It states: “Please be advised that the reason your member was not considered for appointment is based on the fact that the requirement, per advertisement attached, is that a candidate/nominee be qualified in the Intermediate and/or Senior Phase: Mr Fillis is in possession of a Bachelor of Education: Language & Life Orientation (FET Phase) and a Bachelor of Education Honours: Curriculum Studies; he has 6 years teaching experience as per his CV and should in fact not have been shortlisted”.
  13. On pages 26 to 32 of bundle “A” appears the vacancy list plus on page 27 the appointment letter of the applicant as he was employed since July 2014 as a teacher at the Murraysburg Primary School. On page 28 is the vacancy list and on page 29 is the invitation to attend the interview for the vacant position of Departmental Head in 2017. On page 30 appears his appointment letter as Departmental Head at the same school. On page 32 the applicant was appointed from 01 January 2022 in the post of Senior Education Specialist: Inter/Sen Phase Subject Advisor: English (Grade 4 -7) post no 215: West Coast Education District Office. He was employed for a period of nine (9) years and six (6) months in education and he even resigned from the Education Department in December 2021 and started in 2022 again in the promotion post in the SGS Subject Advisor Post.
  14. On pages 62 to 70 appears the Operational Rules for the Recruitment and Selection of Educators-Annexure A. On his CV he has more than seven (7) years’ experience from 2014. He was appointed on 01 July 2014 as a Level 1 Educator in English & Life Orientation. He got promoted at the same school in 2017 as Departmental Head and he functioned as Deputy Principal up to December 2020. He is still Departmental Head relevant to his position. Since 01 January 2022 he was appointed as Education Specialist. His qualifications can be seen on his personal CV, and he completed his Honours degree at the Northwest University on 30 November 2020. He confirmed his years of experience before his present post as eight (8).
  15. On page 2 of bundle “R” appears the Route Form and on page 3 a document from the Head of Education about the filling of advertised post of Principal: Murraysburg Primary School Post Number 60. It states in 2.2 that the requirements for appointment to the post are a professional qualification equal to REQV 13 (M+3) and 7 years teaching experience. It further states in 2.8 that it is to be noted that although the post has been advertised with Administration and Management, the requirement is that the candidate/nominee be qualified in the Intermediate and/or Senior Phase. It further state in 2.9 that the first nominee, Mr LJ Fillis, has 6 years teaching experience, according to his CV, and should not have been shortlisted. He occupies a post of Senior Education Specialist at West Coast Education District Office. Mr Fillis is in possession of a Bachelor of Education: Language and Life Orientation (FET Phase) and a Bachelor of Education Honours: Curriculum Studies and is therefore not suitable qualified to teach in the Intermediate and/or Senior Phase as per the advert. The applicant believes that he is suitable qualified.
  16. On page 23 to 25 of “A” and page 76 of “R” appears the qualifications of the applicant. On page 24 appears his teaching phase confirmation and on page 25 his Honours Degree in Education which he obtained in 2021. His qualification to teach is the bachelor’s in education: English and Life Orientation and a Postgraduate in Curriculum Study. The PAM document appears on pages 33 to 36 of bundle “A”. The post structure indicates that the principal is on a post level 04 and the specialist on level 03 and the departmental head on a level 02. On page 37 appears the job description of the principal position. It states as follows: “3.4 Teaching: 3.4.1 To engage in class teaching as per the workload of the relevant post level and the needs of the school; 3.4.2 To be a class teacher if required; 3.4.3 To assess and to record the attainment of learners taught.”
  17. The teaching time of the principal at a primary school is between 10 and 92% depending on the post level. The applicant believes that he is suitable to teach grade 4 to 7 learners as he met the requirements as stated in the job description and additional KPA’s of the specialist position. He was never asked to sent documentation to verify his qualifications. The decision not to appoint him in the position as principal was not fair as he was teaching Grade 4 to 7 since 2014. On page 36 of bundle “R” appears the minutes of the shortlisting meeting for the post of principal P4: Post no 60 of vacancy list 1 of 2023 and on page 39 it states that the list of reasons put forward to applicants why their applications were disqualified reads as follows: (2) 7 years teaching experience; (4) Did not achieve the minimum required 60%. In the complete list of nineteen applicants the applicant received a percentage of 84.11% and he met the cut off score and he scored the best.
  18. The applicant was invited for an interview and on page 17 of bundle “R” in 9.4 appears the candidates scores as follows on the power point presentation scores: Applicant = 35, Mr G Hanabe =34 and the questions score were 104 for the applicant and 94 for the appointed candidate. The total score was 80% against 72,31% in favour of the applicant. He was the best candidate as the SGB unanimously declared that Mr Fillis (candidate 1) is suitable for nomination and is therefore recommended. On page 14 of bundle “R” the resource person of the WCED was A Appies and he had reasonable knowledge to guide the SGB whether a candidate is suitable qualified or not. This person must have the necessary knowledge to steer the entire process. The applicant is of the opinion that his qualifications and experience permitted him to qualify for the principal post. He was unfairly treated by the WCED, and he was supposed to be appointed.
  19. Under cross-examination by the representative of the first respondent he confirmed that the advertisement for the position of principal was drafted by the SGB. The phase and grade of the position was administration and management, and the applicants must be suitably qualified and prepared to teach Grade 4 -7. He applied for the position as principal, and he disagreed that he was found not to be suitably qualified. On page 10 of bundle “R” appears the evaluation of qualifications as done for the current incumbent. It states that he has a Diploma in Education Senior Primary; Advanced Certificate in Education (Intermediate Phase) as well as REQV 14 and he is professionally qualified for the advertised position. He stated that the Intermediate Phase is the expert part for grade 4-6 at the Primary Phase. The successful candidate’s qualifications appear on pages 56 to 58 of bundle “R” The applicant agreed that it was possible for the successful candidate to be appointed as principal.
  20. It was put to the applicant that his qualifications were questioned and on page 60 of bundle “R” it was read that the applicant has a Bachelor of Education (Language and Life Orientation); B ED Hons 1 curriculum studies, REQV 14 should be adjusted to REQV 15 and advert: Management and Administration and must be suitably qualified to teach Grade 4-7. It then states that the applicant is not qualified for the advertised post. The aforementioned was done by the WCED. The applicant again confirmed that he is suitably qualified to teach Grade 4 – 7 at a primary school. He was told that his qualifications enable the applicant to teach Grade 4-6 and not on the intermediate phase. It was put to the applicant that the WCED will testify that it is important that the principal must be able to teach at Intermediate Phase. The stance of the Department of Education is that suitable qualified people must be appointed, and the applicant agreed with it.
  21. The HOD has delegated authority to appoint any person in a suitable post and the SGB recommended candidates 1 to 3 and the Department of Education can appoint any of the three (3) candidates on the list. The HOD used his discretion to appoint candidate no 2 instead of number 1 in a fair manner and the applicant did not respond to this statement. He explained why he used the word irrational as a decision was made without accurate information and proof. He agreed that the SGB did not have the final say about the appointment. Pages 3-8 of bundle “R” represent the official submission for the second candidate to be appointed in the post. The applicant agreed that it is correct to appoint a person whose qualifications is found to be suitable. It was put to the applicant that in the past people were promoted in promotional posts who did not have suitable qualifications and now it is changed and the applicant agreed with the statement.
  22. Page 43 of bundle “R” shows the listing document for the applicant, and he stated that it is not correct. He stated that he was indeed shortlisted by the SGB. The checklist of the incumbent appears on page 44 and states that he is qualified to teach grade 4-7 and shortlisted by the SGB.
  23. Under cross-examination by the representative of the second respondent the applicant confirmed that three (3) names were forwarded to the WCED, and the policy of the Department dictates that three (3) names should be forwarded to them. The WCED could appoint anyone of the three (3) names. The applicant said that he is not sure whether experience count if a candidate does not have the qualifications for a phase. The applicant stated that suitable qualified means that the candidate meet the requirements and partially qualified that the candidate does not meet the requirements.
  24. Under re-examination the applicant stated that the decision to appoint was not done in a fair manner according to the Route Form as he has more than eight years teaching experience and he is suitable qualified. He presented in writing that the WCED was not correct regarding his qualifications. He stated that the minimum criteria were Management and Administration and with his qualifications he can teach at Grade 4-7 in Languages and Life Orientation.
    First witness of the applicant, Tina Murray, Senior Admin Clerk-HR, after having been sworn in, testified as follows:
  25. The witness stated that she at the time of the process in May 2023 was part of the panel of the SGB when post 60 for the principal position was advertised in Bulletin 1 of 2023. She became aware of the appointment at the end of August 2024, and the new appointee to start on 01 October 2024 through the Circuit Manager. The appointment was sent to the Acting Principal to inform the staff. The SGB was not informed that the preferred candidate was changed with the second candidate.
  26. On page 17 of bundle “R” appears the minutes of the interview meeting and point 2.9 states: “The SGB unanimously declared that Mr Fillis (candidate 1) is suitable for nomination and is therefore nominated”. Mr Fillis was therefore recommended to HOD for appointment. On 06 September 2024, the SGB met with the Circuit Manager, and they asked more about the change from candidate 1 to candidate 2 who was appointed. WCED said that it was not necessary to inform the SGB about their decision. On page 40 the scores of the shortlisting candidates were read as candidate 1 = 84.11%, candidate no 2 = 71.03% candidate 3 = 72.90% and candidate 4 =70.09 and they were invited for the interview. The witness regarded the scoresheet as a fair reflection if the scores of the four candidates. On page 29 and 30 appears the interview score sheets of the panel and the results are as follows: “1. Fillis = 80%; 2. Hanabe = 72.31%; 3. Moosa = 60.77%; 4. Williams 58.38%”. The top scoring candidate in the interviews was Mr Fillis including his CV and other tests and it is true and accurate reflection of the interviews.
  27. The SGB was not informed about any issues with the shortlisting process. On page 43 is the shortlisting and the panel went through the CVs of each candidate. Mr Fillis CV was scored by the witness and one other person on the panel. Mr Fillis CV appears on pages 64 to 74 and his years of employment was calculated. The breakdown of qualifications on education level 1 till June 2017 plus HOD from 01 July 2017 up to 31 December 2021 boils down to four years and six months experience plus the previous four years up to 2017. His experience is eight years, and he met the seven (7) years minimum requirement. Page 77 indicates that Mr Fillis is suitably qualified to teach on senior and/or intermediate phase. On pages 2 to 4 appears a letter from the WCED indicating in 2.8 and 2.9 as follows: “It is to be noted that although the post has been advertised with Administration and Management, the requirement is that the candidate/nominee be qualified in the intermediate and/or Senior Phase. The first nominee, Mr LJ Fillis, has 6 years teaching experience, according to his CV, and should not have been shortlisted. He occupies a post of Senior Education Specialist at West Coast education District Office. Mr Fillis is in possession of a Bachelor of Education: Language and Life Orientation (FET Phase) and a Bachelor of Education Honours: Curriculum Studies and therefore not suitably qualified to teach in the intermediate and/or Senior Phase as per the advert.” This was not a true and accurate reflection according to the first witness of the applicant. The witness stated that the decision to deviate and appoint the second candidate by the HOD was unfair and unreasonable.
  28. Under cross-examination she confirmed that at first, she was not aware of the reason for the second candidate to be appointed but she saw the reason in the bundle, and she was aware of the HOD description to use it to consider appointing any suitable candidate. The HOD had the final decision to appoint any suitable candidate, but it must be reasonable. On page 10 of bundle “R” it states that MG Hanabe is professionally qualified for the advertised post. The qualifications of Mr MG Hanabe appear on page 56-57 of bundle “R”, and he has a three-year diploma and an advanced certificate in the intermediate phase. His has the suitable qualifications for the advertised position. It is also summarised on page 10 as Diploma in Education Senior Primary; Advanced Certificate in Education (Intermediate Phase). On page 44 of bundle “R” appear the shortlisting results of the successful candidate and he was correctly qualified as his name appears on the shortlisting.
  29. The qualifications of Mr Fillis appear on page 60, and it indicates that he is not suitably qualified to teach Grade 4 to 7, and he is not qualified for recommendation to be appointed in the post. His qualifications are indicated as Bachelor of Education (Language and Life Orientation); B ED Hons 1 Curriculum Studies. The witness stated that the advert was supposed to be compiled by the SGB, and they did not object to the process. According to the WCED, Mr Fillis was not suitable qualified to be appointed but the witness differs from them. She agreed that the SGB recommended three (3) names to HOD, and the Circuit Manager was the resource person for this process.
  30. Under re-examination she was referred again to page 4 of the bundle and point 2.9. and it states that Mr Fillis has 6 years of teaching experience, and the witness responded that it is not correct as it is 8 years of teaching experience. It states on page 5 that the recommendation in paragraph 7.1 that Mr LJ Fillis is not appointed to the post of Principal at Murraysburg Primary School is supported. Mr Hanabe is the most suitable candidate to teach on the Intermediate Phase.
  31. Under further cross-examination by the representative of the second respondent the witness was asked what the word recommendation mean. She responded that it is a suitably qualified and suitably experienced candidate and the SGB recommended Mr Fillis to be appointed. The SGB accepted the shortlisting and the criteria for shortlisting. It was put to her that Mr Fillis is only qualified to teach Grade 7 and above. The witness disagreed and said that he can indeed teach Grades 4 to 7 as he is qualified to teach the intermediate phase. She agreed that three candidates were recommended to the HOD, and he has a choice to appoint any of the three candidates. Respondent’s evidence and argument
    The first respondent called one witness to testify.
    The first witness, Debre Schafers, Deputy Director-Recruitment and Selection, after having
    been sworn in, testified as follows:
  32. She stated that the Circuit Manager in consultation with the SGB prepared the advertisement of the principal post. The principal is responsible for administration and management as well at teaching of at least at intermediate and/or Senior Phase. It was expected to have subjects in administration and management and similar experience. The successful candidate must be suitable qualified to teach in Grades 4 to 7. The successful candidate must be suitably qualified to be able to teach in foundation, intermediate and/or senior phase.
  33. On page 43 appears the shortlisting of Mr Fillis and the inherent requirements are indicated, and it was found when his qualifications were evaluated that he is senior phase qualified and not intermediate phase. The evaluation of his qualifications is on page 60 and the purpose of the evaluation is to determine whether a candidate can be appointed. It was again read that the qualifications of Mr Fillis appear on page 60, and it indicates that he is not suitably qualified to teach Grade 4 to 7, and he is not qualified for recommendation to be appointed in the post. His qualifications are indicated as Bachelor of Education (Language and Life Orientation); B ED Hons 1 Curriculum Studies. Mr Fillis is qualified to teach English and Life Orientation at senior phase only.
  34. She further stated that Mr Hanabe, the second candidate can teach on intermediate and senior phase from grades 4-6 and Grade 7. The WCED decided that Mr Hanabe meet the requirements of the post, and he was more suitable than the first candidate, Mr Fillis. As Mr Fillis was the first-choice candidate after the process of shortlisting, evaluation of interviews and evaluation of qualifications of all three candidates, the recommendation was sent to the HOD and then the second candidate was the most suitably qualified and appointed. Then the Circuit Manager was informed that no two candidate was preferred before the first candidate.
  35. Documents on pages 3 to 7 indicate who approved the recommendations for the WCED and eventually it was sent to the SG for a final decision. On page 4 in point 2.10 it states: “That the second nominated candidate, Mr MG Hanabe has 8 years teaching experience, He occupies a post of Department Head of Groenheuwel Primary School. Mr Hanabe is in possession of a Diploma in Education (Senior Primary) and an Advanced Certificate in Education (intermediate Phase). He is therefore suitably qualified to teach in the intermediate and/or senior phase as per the advert”. The recommendation on page 5 states that the appointment of Mr MG Hanabe to the post of Principal of Murraysburg Primary School (Beaufort West) is supported. The final decision to appoint the second candidate to the post of Principal was impartial as it is better to have a principal who can teach in two phases. The power to appoint a principal is in the hands of the HOD.
  36. She stated that the draft submission plus letter is sent on route to various stakeholders. The final decision is not in the hands of the SGB, and they only made the final recommendation on the three (3) candidates. The evaluation of experience is considered depending on the shortlisting criteria and it must be suitably and professional qualifications.
  37. Under cross-examination she confirmed that the applicant’s CV appears on pages 64 to 74 in the applicant’s bundle. His education history is on page 64 and the time period in years’ experience is more than eight years. The witness agreed to that as well that the applicant is suitably qualified to teach in the senior phase. On page 3 of bundle “R” point 2.8 is read: “It is to be noted that although the post has been advertised with Administration and Management, the requirement is that the candidate/nominee be qualified in the intermediate and/or Senior Phase”. She explained that there is no teaching periods stipulated and any suitability in one phase also mean in the other phase meaning both intermediate and senior phase. The applicant has 6 years and the successful candidate 8 years suitably experience according to the WCED. She believed it is not a fair and accurate assessment of the qualifications and experience of the applicant as the stakeholders did not decide on accurate information.
  38. She however indicated that both candidates were suitably qualified, but Mr Hanabe was more suitably qualified than Mr Fillis. She motivated her discission by referring to 2.10 on page 4 and added that an appointment must be made in the interest of the learners of a school. Mr Hanabe can teach grades 4-7 and Mr Fillis only Grade 7. She confirmed the decision to appoint the second candidate is a fair and accurate decision.
  39. Under re-examination she was asked about the major factor in the decision to appoint the second candidate and she responded the be suitably qualified and teach grades 4 to 7.
    The second respondent, Mpolelo Hanabe, Principal at Murraysburg Primary School, after
    having been sworn in, testified as follows:
  40. The second respondent stated that on 06 August 2024 he received news about his appointment on post 60 as Principal and since his arrival at the school everything was fine. He was aware that he was the second recommended candidate for the post, and he did not expect to be appointed. During the interviews he was asked ten questions by the panel of which eight of the ten questions were in Afrikaans and two in English. He could answer all the questions. His qualifications were correct as recommended as he can teach intermediate and Senior Phase.
  41. No cross-examination question was asked by the representative of the applicant and therefore no re-examination.
    Closing arguments
  42. The representative of the second respondent and the representative of the applicant sent written closing arguments by 28 February 2025, as agreed on 20 February 2024 and the first respondent on 03 March 2025. All parties’ submissions and arguments were perused and incorporated in the decisions made in the award. Analysis of evidence and argument
  43. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter. In this arbitration I am firstly going to refer to the Employment of Educators Act 76 of 1998. Secondly, I am also going to refer to the Personnel Administration Measures (PAM) document. Section 36 (4) (a) & (b) of the Act empowers the Head of Department (HOD) to delegate any function conferred on the said head to any person in the employment of the Department and to also authorize such a person to perform the function conferred on the HOD. The power and authority to approve recommendations from the interviewing panels were never delegated. The PAM sets out the procedure to be followed when filling educators’ posts.
  44. It is common cause that the post in casu is post 60 the principal post at Murraysburg Primary School, which was advertised in vacancy list 1 of 2023. Three candidates were shortlisted for interviews and after the selection process was followed, the SGB nominated the applicant who scored 80% as their first nominated and Mr MG Hanabe who scored 72,31% as their second nominee. Both applicants then underwent a Competency Based Assessment (CBA). Since the Act provides that the employer of educators is the first respondent and the Act sets out the process to be followed when recruiting same, it should be accepted that the SGB is a panel constituted to advise the first respondent. The only thing that such a panel is tasked with is to recommend to the first respondent candidates for appointment in any post. It therefore only “suggests” a candidate for appointment to the first respondent. It is trite that it is the prerogative of the employer to determine suitability and such prerogative falls outside of the ambit of the applicant, its members or even the SGB itself.
  45. Promotion is the process where an employee is evaluated to a position that carries greater authority and greater status than the current position that the employee is employed. Employers are expected to appoint the best, strongest candidate and unless the applicant proves that he was the best of all the candidates who applied for the position, no substantive unfairness has been proved.
  46. The applicant, LJ Fillis, is employed in a post level 3 position as a Senior Educational Specialist. He applied for the principal post as advertised according to the vacancy list 1 of 2023, at post level 4 at Murraysburg Primary School. He was shortlisted and interviewed for the post. He was the first candidate and recommended by the SGB to HOD as the applicant to be appointed. However, he was not appointed and consequently, he lodged a dispute against the said appointment process. The second respondent is MG Hanabe, who was appointed by the HOD as the second recommended candidate in the principal post.
  47. I am required to determine whether the first respondent committed an unfair labour practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA as:
    e. Whether the appointment of the successful candidate by the Education Department of Western Cape was unfair as the applicant was supposed to be appointed in the position of Principal.
    f. Whether the process was procedurally and substantively defected because of irregularities during the selection process.
  48. In terms of appropriate relief if I find that the first respondent committed an ULP:
    g. Whether the appointment of the second respondent must be set aside, or the dispute be dismissed.
    h. Alternatively, the process to be redone by the Education Department of Western Cape and SGB.
  49. It is the submission of the first respondent that the following criteria was discussed and unanimously accepted by the SGB of Murraysburg Primary School: (1) Phase and Grade: Administration and Management; (2) Subjects: Administration and Management; (3) Recommendations: -Utilising technology / ICT in the classroom; -experience in a promotion post (acting or permanent); (4) Other: Applicants must be suitably qualified and prepared to teach Grade 4 to 7, Hostel Management Experience, Computer Literate (MS Word, Excel, PowerPoint & Outlook; (5) Minimum Percentage and the number of candidates that must be shortlisted: Candidates must obtain a minimum score of 70% and a relaxed score of 60% during the shortlisting process. The criteria to be used for shortlisting will be the cut-off score and the top 5 applicants who meet the minimum of 60% will be invited for an interview.
  50. It is further submitted by the representative of the first respondent that according to the applicant’s CV, he has six (6) years teaching experience and in possession of a Bachelor of Education: Languages and Life Orientation (FET Phase) as well as a Bachelor of Education Honours: Curriculum Studies. Against the background the WCED would like to submit that the applicant is not suitably qualified to teach in the Intermediate Phase as per the advertisement as seen at page 9 of the WCED bundle of evidence. On 05 August 2025, Mr B Walters, Head of Education, exercised his discretion in terms of Chapter 3, Subsection 6 (f) of the Employment of Educators Act, 76 of 1998, that despite the order of preference as submitted by the SGB, he may appoint any suitable candidate on the list.
  51. The HOD also took into consideration the provisions of the Employment Equity Act based on suitability, formal qualifications, prior learning, relevant experience and capacity to acquire within a reasonable time, the ability to do the Job. It must be stated that Mr Hanabe is in possession of a three-year Diploma in Education (Senior Phase) and an Advance Certificate in Education (Intermediate Phase), and he met the inherent requirements of the post, it was therefore decided to appoint him as Principal with effect from 01 October 2024. The Head of Education according to the first respondent has indeed used his discretion in a reasonable and rational manner when he appointed Mr Hanabe in the post that at the end of the day his decision was objectively viable.
  52. Ms Schafers, a witness of the first respondent testified that all applicants for the post must have a professional qualification and suitably qualified to teach in the phase as stipulated in the advertisement. She explained that the candidates must be able to teach in the Intermediate Phase (Grade 4 to 6) and Senior Phase (Grade 7). According to the applicant’s educational qualifications, he is not qualified to teach in the Intermediate Phase. The second respondent according to the witness can teach in both phases. The HOD’s decision for appointing Mr Hanabe over the applicant was in the interest of learners. The HOD came to this conclusion by looking at the various processes that were followed to fill the post i.e. the advertisement of the post, the shortlisting process, the interviews and the requirements of the Personnel Administrative Measures (PAM).
  53. It is the further submission of the representative of the first respondent that subsequently NAPTOSA obo of the applicant averse that procedural irregularities were at the order of the day in that the Head of Education’s decision for appointing Mr Hanabe as Principal of the school was irrational. The WCED does not agree with this averment based on that it is important to consider what irrational mean. An irrational decision is according to the WCED that goes against or counter or logic. Whilst rational decisions are carefully considered, irrational decisions are based on intuitive judgement. Irrational decisions are usually made in haste, and the outcomes are not properly considered. In exercise this decision, the HOD considered which of the two candidates should be appointed considering all the information presented to the WCED about the candidates and the applicable legislation. Having a candidate like Mr Hanabe with the relevant educational qualifications and who can teach both the intermediate and senior phase, it is justifiable and fair why the HOD took a decision to appoint this person as the principal of the above school.
  54. It is also submitted by the representative of the first respondent that the appointment of the second respondent. Mr Hanabe was fair and contributes to qualify reaching of every child in every classroom at Murraysburg Primary School. The appointed candidate has the qualifications for the job, prior learning, relevant experience and capacity to acquire within a reasonable time the ability to do the job. The HOD and not the SGB has the final say in appointing suitably qualified educators to teaching positions. The HOD cannot ignore the fact that the SGB has nominated a particular candidate as their first choice, and whilst the HOD should legalise that significant weight should be placed on the fact that the SGB has nominated a candidate as their first choice when the SGB and not the HOD has interviewed the candidate, the legislative has given the HOD the right to appoint the second or third nominee instead of the first nominee. Provided that the HOD does so for compelling, rational and fair reasons, and provided that he does not appoint an incompetent person or a person who is significantly weaker the best candidate, the HOD is entitled to appoint the second nominee if that candidate is suitably qualified.
  55. It is the submission by the representative of the second respondent that the SGB sole responsibility is to conduct all the shortlisting’s and the interview processes of their respective schools. After that they must provide the WCED with at least a list of candidates and the recommendation. The HOD has the final say of who is the most suitably qualified candidate for the position. The powers vested in the SG should be respected as he takes well informed decisions. Based on the evidence tabled by the WCED, they always consider the interest of the school, as they want to provide quality education to the learners in all schools of the Western Cape. Therefore, the decision taken by the WCED to appoint Mr Hanabe was an informed decision and being taken by the person who has the responsibility of having the final say on the appointments. According to the evidence tabled by the WCED, Mr Hanabe was appointed on the basis that he was the most suitable qualified candidate for the position.
  56. It is the testimony of the applicant that he is employed in the position as Senior Education Specialist since 2022 and he applied for the principal post 60 and went through the recruitment and selection process. He submitted complete documentation to the Department of Education on 09 September 2024. The appointment was made, and it was confirmed by Human Resources that the post is finalised, and the successful candidate was appointed as from 01 October 2024. He engaged with them telephonically and he explained in detail that he was the preferred candidate by the SGB and the final committee. He was explained that his qualification was not suitable to be appointed in the post as principal. The second nominee were appointed as principal in the advertised post.
  57. He lodged a grievance, and he was not happy with the outcome of the grievance as the decision not to appoint him was unfair and his union appeal and then the dispute was referred as a formal dispute to the ELRC. The grievance process was completed and signed on 21 August 2024. He claimed that the appointment process was unfair.
  58. On page 20 appears an email on 11 September 2024 from Abigail Blankner to Robyn Newman regarding the grievance of the applicant. It states: “Please be advised that the reason your member was not considered for appointment is based on the fact that the requirement, per advertisement attached, is that a candidate/nominee be qualified in the Intermediate and/or Senior Phase: Mr Fillis is in possession of a Bachelor of Education: Language & Life Orientation (FET Phase) and a Bachelor of Education Honours: Curriculum Studies; he has 6 years teaching experience as per his CV and should in fact not have been shortlisted”.
  59. On his CV he has more than seven (7) years’ experience from 2014. He was appointed on 01 July 2014 as a Level 1 Educator in English & Life Orientation. He got promoted at the same school in 2017 as Departmental Head and he functioned as Deputy Principal up to December 2020. He is still Departmental Head relevant to his position. Since 01 January 2022 he was appointed as Education Specialist. His qualifications can be seen on his personal CV, and he completed his Honours degree at the Northwest University on 30 November 2020. He confirmed his years of experience before his present post as eight (8).
  60. A document from the Head of Education about the filling of advertised post of Principal: Murraysburg Primary School Post Number 60. It states in 2.2 that the requirements for appointment to the post are a professional qualification equal to REQV 13 (M+3) and 7 years teaching experience. It further states in 2.8 that it is to be noted that although the post has been advertised with Administration and Management, the requirement is that the candidate/nominee be qualified in the Intermediate and/or Senior Phase. It further state in 2.9 that the first nominee, Mr LJ Fillis, has 6 years teaching experience, according to his CV, and should not have been shortlisted. He occupies a post of Senior Education Specialist at West Coast Education District Office. Mr Fillis is in possession of a Bachelor of Education: Language and Life Orientation (FET Phase) and a Bachelor of Education Honours: Curriculum Studies and is therefore not suitable qualified to teach in the Intermediate and/or Senior Phase as per the advert. The applicant believes that he is suitable qualified.
  61. On page 36 of bundle “R” appears the minutes of the shortlisting meeting for the post of principal P4: Post no 60 of vacancy list 1 of 2023 and on page 39 it states that the list of reasons put forward to applicants why their applications were disqualified reads as follows: (2) 7 years teaching experience; (4) Did not achieve the minimum required 60%. In the complete list of nineteen applicants the applicant received a percentage of 84.11% and he met the cut off score and he scored the best.
  62. Under re-examination the applicant stated that the decision to appoint was not done in a fair manner according to the route form as he has more than six years teaching experience and he is suitable qualified. He presented in writing that the WCED was not correct regarding his qualifications. He stated that the minimum criteria were Management and Administration and with his qualifications he can teach at Grade 4-7 in Languages and Life Orientation.
  63. It is the further testimony of the witness of the first respondent (Ms Schafers) that the applicant’s education history is on page 64 and the time period in years’ experience is more than eight years. The witness agreed to that as well that the applicant is suitably qualified to teach in the senior phase. On page 3 of bundle “R” point 2.8 is read: “It is to be noted that although the post has been advertised with Administration and Management, the requirement is that the candidate/nominee be qualified in the intermediate and/or Senior Phase”. She explained that there is no teaching periods stipulated and any suitability in one phase also mean in the other phase meaning both intermediate and senior phase. The applicant has 6 years and the successful candidate 8 years suitably experience according to the WCED. She believed it is not a fair and accurate assessment of the qualifications and experience of the applicant as the stakeholders did not decide on accurate information.
  64. It is the submission of the representative of the applicant that during the examination in chief the applicant proved and confirmed his years of experience providing documentary evidence of his employment history with the first respondent. He also verified his qualifications, with evidence of his qualifications provided, ironically in the respondent’s bundle. Should the HOD have been provided with the correct information, indicating that Mr Fillis is suitably qualified and that he has the relevant years of experience, there exists no reason for the HOD not to support the nomination. The respondent claims that the only reason Mr Fillis was not appointed is because the second respondent, Mr Hanabe is more suitably qualified, yet Mr Fillis has a higher REQV and is on a higher post level in a post level 3 position as a Senior Education Specialist (Subject Advisor) for the intermediate phase grade 4 to 7. Mr Fillis has a post graduate degree in Curriculum Studies and currently oversees the management of curriculum for his subjects in the Intermediate Phase in his district. Mr Hanabe, whom the respondent claims is the better candidate was a post level 2 Department Head before being appointed into the principal post.
  65. It is the further submission by the representative of the applicant that the HOD did not base his decision not to appoint Mr Fillis because the second respondent is qualified in more than one phase, but rather that the information received for the first candidate, which subsequently disqualified him, was inaccurate. The respondent’s witness agreed that Mr Fillis is suitably qualified and meets all the minimum requirements. Not only was he nominated as the preferred candidate by the SGB, but he also performed the best throughout the entire process. The representative of the applicant believes that they have proven the substantial and procedural unfairness in the non-appointment of Mr Fillis into the post. In promotion arbitrations, causal connection refers to the link or relationship between an employee’s actions, qualifications, or performance and the decision to promote them. It is the basis for determining whether a promotion is a direct result of the employee’s eligibility, performance or other relevant factors.
  66. It is a further submission had it not been for the recommendation in the route form, which was based on inaccurate information, which resulted in gross unfairness as the applicant was not provided a fair opportunity to promotion, the HOD would have no reason not to appoint the first candidate. The applicant’s information regarding his qualifications and years of experience to the HOD were incorrectly and inaccurately verified. This dereliction resulted in a determination flaw in the process and immediately disqualified the applicant. When asked to point out the evidence of their claim in the route form, the first respondent’s witness failed to do so and simply reiterated their claim that the decision was because Mr Hanabe was more suitably qualified.
  67. In the Principal’s Job Description, PAM Document-Employment of Educators Act 76 of 1998, it is not a legislated requirement of a principal-whose core function is primary administration and management to teach in two or more phases and grades. The witness of the first respondent testified to this stating a principal’s role is mainly administration and management and that an educator qualified in one phase would still qualify for a principal’s post. One cannot necessarily determine whether the HOD had reached a reasonable decision in that, based on the information provided to him it was never a decision he was allowed the opportunity to make. However, it is evident that the decision was irrational given the irregularities and omissions.
  68. According to the representative of the applicant they proved with sufficient evidence that the respondent has in fact committed an unfair labour practice relating to promotion, in that Mr Fillis was not treated fairly during the promotion or appointment process. Not only was the process procedurally unfair in that the Department failed to accurately and fairly verify and confirm Mr Fillis documents which detailed his years of experience, as well as the qualifications, but that this then lead to substantive unfairness in that the HOD based his decision not to appoint Mr Fillis in the post, based on the abovementioned incorrect information received from Recruitment and Selection. A reasonable and fair decision was not made in the non-appointment of Mr Fillis as he was the preferred candidate nominated by the SGB and his non-appointment resulted in an unfair labour practise. He must therefore be appointed to the post.
  69. In Sun International Management (Pty) Ltd v CCMA and others (JR939/14) [2016] ZALCJHB 433 it was held that a finding that a failure to promote was unfair must be a rational one i.e., it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the employee’s qualifications and/or suitability for the position in question, against that of other candidates. The Court held that in promotion disputes it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. The employee must also show that the breach of the procedure had unfairly prejudiced the employee. The employee must not merely show that that he was the suitable candidate for consideration, but that he was the best candidate. I find that in this case in question the applicant could show that he was the best suitable candidate for consideration, but he also could proof that he was the best candidate for the position as Principal according to the results and recommendation by the SGB.
  70. In Kimberley Junior School v The Head of the Northern Cape Education Department [2009] 4 All SA 135 (SCA) the judge ruled that the Employment of Educators Act requires the governing body to make a recommendation to the provincial HOD. No appointment, promotion, or transfer to any post on the educator establishment of a public school, may be made without the recommendation of the governing body of the public school. A recommendation by a school governing body is an essential prerequisite for the appointment of an educator in a departmental position; without such a recommendation the HOD acts ultra vires and unlawful.
  71. After making an analysis of the process, I find that the SGB is entrusted with the duty of nominating a suitable person for a post, but the final decision is still that of the Department (HOD) to appoint. In this case the Department appointed the second respondent as the suitable candidate for appointment. An employee who alleged that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. He must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair. It depends upon the circumstances of a particular case and essentially involves a value judgement.
  72. The arbitration of a promotion dispute entails a review of the employer’s decision. In applying the Sidomo test to promotion disputes, it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair. A recommendation by a School Governing Body during a ratification meeting is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such a recommendation the promotion is ultra vires and unlawful. In this case the ratification meeting took place and the majority of the constituted SGB voted in favour of the nomination of the applicant as the best candidate to the HOD.
  73. Substantive unfairness relates to the reason for not promoting the applicant whereas procedural unfairness relates to an unfair process applied by the employer during the recruitment and selection process. There is no general right to promotion. What employees do have, is a right to be fairly considered for promotion when a vacancy arises. It is however expected that the employer should appoint the best candidate when selecting suitable candidates for promotion. The role of the arbitrator is to oversee that the employer did not act unfairly against the applicant who was not promoted. The decision to promote falls within the managerial prerogative of the WCED.
  74. When deciding whether a procedure conducted in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should not make a finding of procedural unfairness. Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then for the employee to prove an unfair labour practice relating to promotion, he should generally, at least demonstrate that there was conduct that denied him a fair opportunity to compete a post. Further no declaration was made and minute as testified by the witness of the first respondent
  75. I find that the procedure followed by the Panel constituted by the SGB was appropriate and the applicant was not prejudiced in any way as he was shortlisted and interviewed and was nominated as one of the top three candidates. There was no proof of conduct that denied him a fair opportunity to compete in the post as Principal.
  76. In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.
  77. I find that the interview and ratification process was not flawed. The applicant requests for the process to be repeated and this cannot be done as the correct process were followed to appoint the successful candidate. There was indeed discrimination against the applicant and the decision not to appoint him was grossly unreasonable as the HOD was in possession of inaccurate years of service of the applicant and wrong qualification information. The applicant could prove that he was the best candidate for the position, was it not for the inaccurate information about his experience and qualifications that was sent to the HOD via Recruitment and Selection. He had eight (8) years’ experience, and he can teach in Grades 4 to 7 as indicated on page 66 of bundle “A”.
  78. To show unfairness relating to promotion, an employee needs to show that the WCED, in not appointing the applicant and appointing the second applicant, acted in a manner which would ordinarily allow a Court of law to interfere with the decisions of a functionary by proving that the WCED had acted irrationally, capriciously or arbitrary, was actuated by bias. The appointment of Mr Hanabe was not wrong with the information at hand by the HOD. Had the HOD been aware about the correct and accurate information of the applicant he probably had appointed the applicant.
  79. As indicated, the applicant bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. From a procedural aspect I am satisfied that the applicant did not suffer prejudice during the recruitment and selection process for the promotion post. I find that the procedure followed by the HOD was not fair and that an Unfair Labour Practice was committed by the first respondent not to appoint the the applicant based on inaccurate information about his experience and qualifications. He met both requirements of seven (7) years’ experience and the qualifications to teach in either/or Intermediate and Senior Phase.
  80. Considering the above I make the following award.

AWARD

  1. The first respondent did commit an unfair labour practice in the non-appointment of the applicant to the advertised position of Principal at Murraysburg Primary School Post Number 60. It is not appropriate to remove the successful candidate Mr MG Hanabe from the Principal Post as he met all the requirements to be appointed. He can teach on intermediate and senior phase from grades 4-6 and Grade 7. The WCED decided that Mr MG Hanabe meet the requirements of the post.
  2. However, the applicant, Mr LJ Fillis, must be compensated for three (3) months the difference between his present salary notch and the salary notch of the principal post. The monthly difference in the salary notch must be paid by the WCED over the next three (3) months from the end of April 2025 up to the end of June 2025 and it amounted to R14 001-25 per month. The total amount to be paid over the three (3) months amounted to R42 003-75.
  3. There is no order as to costs.

Signature:

Panelist: Gert van der Berg
Sector: Education Department of Western Cape