In the ARBITRATION between
SADTU obo Aubin Billet
And
Department of Education – Eastern Cape
(1st Respondent)
Gaynor Zana
(2nd Respondent)
Applicant’s representative: Mr. S Gashi
Applicant’s address: SADTU
No.37 Belgravia Cresent
East London
5200
Telephone: Siyabongagashi4@gmail.com
E-mail:
Mr. G Jacobs
1st Respondent’s representative : Department of Education
Humansdorp
Telephone: garthjacobs@rocketmail.com
E-mail:
Adv. G D Saayman
2nd Respondent’s representative : NAPTOSA
28 Sixth avenue
Newton Park
Gqeberha
Email: Cosec@naptosa.org.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act (LRA) and concluded on 20 August 2024. The Applicant, Mr Auben Billet was represented by Mr. Gashi a Union official of SADTU. The 1st Respondent, the Department of Basic Education-EC was represented by Mr G Jacobs and the 2nd Respondent and Incumbent, Ms Gaynor Zana was represented by Adv.G D Saayman, a Union official of NAPTOSA. The parties agreed to submit written closing arguments by 27 August 2024, which they have done.
ISSUE TO BE DECIDED
2. I am required to determine whether the 1st respondent committed an unfair labour practice as
contemplated by Section 186(2)(a) of the LRA.
BACKGROUND TO THE ISSUES
3. The applicant, Mr Billet applied for a vacancy of a School Principal of Misgund (DRC) Junior Secondary School, which was advertised in Bulletin-Volume 1 of 2023. The applicant was not shortlisted and interviewed. The 2nd respondent, Ms Zana was ranked number one(1), recommended and appointed as School Principal.
4. Regarding relief, the applicant seeks the setting aside of the appointment of the Incumbent, 2nd
Respondent and that the entire selection and interview process be set aside, alternatively compensation.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the
Labour Relations Act 66 of 1995 (LRA), relevant to the dispute at hand.
APPLICANTS EVIDENCE
6. The applicant, Ms. Auben Billet testified that he holds a Bachelor of Education degree from Unisa with Social Science, Computer Sciences, Geography and English as Major subjects. He started working as Post Level 1 teacher in September 2013. He gained managerial experience whilst working as a Director and Chief Executive Officer of a private company. His employment history included the following: Founding Director- RUDEM, General Manager – Flavioguard (PTY) Ltd, Administrative Officer, Educator – WCED for the period 2014, Senior Phase Head, Acting HOD, a co-opted member of the SGB, and a member of the SMT from 2015 – 2023.
7. Ms Monesme Rousouw testified that she was a SGB parent member of Misgund (DRC) Junior Secondary School at the time. Ms Stokwe was the resource person. The envelope with the applications was open when the SGB received it. She does not know who opened the envelope. The applicant’s application from and CV was in the envelope. She and two other SGB members decided before the time that Mr Billett is their preferred candidate for the post. The resource person, Ms Stokwe took the CV of the applicant from her and said that it cannot be the same family member to be principal from generation to generation.
8. Mr Shelton Jansen testified that he was the chairperson of the panel that did the shortlisting. The envelope with the applications was open when they received it. He does not know who opened the envelope. Mr Mongo was the scribe, who took minutes of the proceedings. He signed the minutes, which stated that the envelope was opened in their presence by the chairperson, but he cannot dispute or agree that it was his signature.
RESPONDENTS EVIDENCE
9. Ms Gaynor Zana, the incumbent testified that she has 16 years teaching experience and met the minimum requirements for the post as principal. She was not part of the panel and had no influence on the interview- panel.
ANALYSIS OF EVIDENCE AND ARGUMENT
10. The parties were granted an opportunity to submit written closing arguments, which I have considered.
11. Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as
meaning inter alia:
(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an
employee involving —
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes
about dismissals for a reason relating to probation) or training of an employee or relating to the provi-sion
of benefits to an employee;…”
12. The Labour Relations Act requires employers to treat employees fairly when they apply for promotions.
An employee who alleges that he is the victim of an unfair labour practice bears the onus of proving
all the elements of his claim on a balance of probabilities. The employee must prove not only the
existence of the labour practice, but also that it is unfair.
13. Fairness requires that the position and interests of both the employee and employer are taken into account
in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or
value judgment to established facts and circumstances. In doing so, it must have proper regard to the
objectives sought to be achieved by the Act.
14. The applicant submitted that he should have been shortlisted as he did meet the minimum require-ments
for the vacancy and that he was suitably qualified for the position of Principal. The applicant further
submitted that the resource person unduly influenced the panel. The applicant further submitted that he
did indicate on his application EDP01 form as well as his CV that he had management experience, as per
the additional criteria of the selection panel.
15. The applicant conceded that he did not subpoena his EDP01 form from the respondent and neither did
he make a copy of the same. The applicant submitted that he initially did not have any issue with the
selection and interview process, until he received a WhatsApp from a person that was not part of the
selection and interview process. The applicant also conceded that he was not necessarily the best
candidate for the vacancy.
16. It was common cause that the selection panel decided on an additional criteria of management
experience to be stated on the candidates EDP01 form. Both, Ms Rossouw and Mr Jansen confirmed
that Mr Mongo, the scribe was a reliable person. Ms Rossouw also confirmed that she has no issue with
the incumbent, Ms Zana, whilst Mr Jansen stated that he supported the recommendation of the appli-cant
more than hundred percent. It was also common cause that the minutes of the selection panel re-flected
that the reason for the applicant’s exclusion was that his EDP01 form did not contain the additional
criteria as decided by the panel. Mr Jansen further confirmed that the incumbent, Ms Zana was
recommended as the best suitable person by the panel and SGB.
17. The Applicant did not provide any constructive or substantive evidence of any irregularities by the selection
or interview panel. It was common cause that the applicant’s Union was one of the observers at the
selection and interview process and that no irregularities were reported or declared.
18. The Labour Appeal Court considered the balance that must be struck between the managerial
prerogative to promote employees and the principle that labour forums must intervene in the labour arena
if fairness so requires. The judgment in Ncane v Lyster 2017 38 ILJ 907 (LAC) confirms that labour
forums and the court will not easily interfere with an employer’s decision regarding who should and who
should not be promoted.
19. In Noonan v SSSBC and others [2012] 33 IJL 2597 (LAC), it was held that there is no right to pro-motion
in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that
denies an Employee an opportunity to compete for a post constitutes an unfair labour practice. If the
Employee is not denied the opportunity to compete for the post, the only justification for scrutinizing the
selection process is to determine whether the appointment was arbitrary or motivated by an unac-ceptable
reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not
constitute unfairness justifying an interference with the decision to appoint.
20. Having considered the evidence in its totality, I am convinced that the selection and interview process was
fair and that the applicant was not unduly denied an opportunity in presenting his candidature for the
vacancy. The applicant failed to discharge the onus to proof that the 1st respondent committed an un-fair
labour practice as envisaged by Section 186(2)(a) of the LRA.
21. I therefore find that the applicant is not entitled to the relief sought.
AWARD
22. The1st respondent, the Department of Education-Eastern Cape, did not commit an unfair labour
practice as contemplated by Section 186(2)(a) of the LRA.
23. The applicant, Mr Aubin Billet is not entitled to the relief sought.
24. No order as to costs.
Commissioner: Hadley Saayman
Sector: Education