Case Number: ELRC 511-24/25 EC
Commissioner: Henk Jacobs
Date of Ruling: 14 February 2025

In the matter between

NAPTOSA obo Owen Mac Donald
(Applicant)

And

1st Respondent Department of Education – Eastern Cape;
2nd Respondent Ms B Diedericks
(Respondent)

Union/Applicant’s representative:

Adv Saayman

Telephone:
Telefax:
E-mail: saaymangavin@gmail.com

Respondent’s representative:
Respondent’s address:

Telephone: Ms A Slabbert
Telefax:
E-mail: Ansie68lro@gmail.com

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (as amended) (LRA), was held at the District Offices of the Education Department, Gqeberha on 30 October 2024 and 29 January 2025.

2 The applicant, Mr O Mac Donald, was represented by Adv. Saayman, an official from the National Professional Teachers’ Organisation of South Africa, (NAPTOSA). The 1st respondent, the Department of Education – Eastern Cape, was represented by Ms A Slabbert, the Labour Relations Officer for the Respondent. The 2nd respondent, Ms B Diedericks, was represented by Ms V van Wyk, an official form the Suid – Afrikaanse Onderwysers Unie (SAOU).

3 The hearing was held in English/Afrikaans and was digitally recorded.

4 Parties further agree to file written heads of argument by no later than 05 February 2025, both parties did so.

Issue to be decided

5. The issue to be decided is whether or not the Applicant was subject to an unfair labour practice when he was not appointed to the post of Deputy Principal at Sunshine Special School, and if so, to determine the appropriate relief.

Background to the matter

4. The Applicant applied for the post of Deputy Principal as advertised in bulletin 2 of 2024 and was shortlisted, the Applicant was interviewed and was ranked 2nd. The Applicant was not appointed and referred an alleged unfair labour practice dispute to the Education Labour Relations Council (ELRC) relating to promotion.
5. The Applicant sought for the successful candidate’s appointment to be set aside, and that the Applicant be appointed to the post of Deputy Principal, alternatively, compensation, or, for the appointment of the successful candidate to be set aside and an independent panel be appointed to start the recruitment process afresh.
6. The following facts are common cause: Ms Diedericks and Mr Mc Donald applied for the post of Deputy Principal at Sunshine Special School, Mr Mc Donald was ranked 2nd by the interview panel as well as the ratification process. Ms Plaatjies received the highest score during the interviews.
7. The selection criteria used was ‘consensus’. Ms Diedericks was appointed to the post of Deputy Principal.
8. The Applicant is appointed as a level 1 educator, he teaches severely intellectually disabled children at Sunshine Special School since 01 April 2020. He was appointed as an educator since 01 January 1991 and holds the following qualifications: 3-year Diploma in senior primary level, Advanced Certificate in Education.
9. The 2nd Respondent holds a BA ED Degree at secondary school level, she was appointed in 1998 and resigned in 2009, she was re-appointed in 2010 as Head of Department at Linkside High School as a post level 2 educator.
10. The following facts are in dispute: The Applicant alleged that the 2nd Respondent does not have severe intellectual disability (SID) teaching experience or qualification and that she does not meet the minimum requirements of the post. The interview panel was biased and that the interview and shortlisting process was not fair.
11. The parties submitted bundles of documents into record which was accepted into the record to the extent that they are what they purport to be. Survey of evidence
12. This is a summary and does not reflect all of the arguments heard and considered in reaching a decision.

Applicant’s evidence

13. The Applicant testified that the post grades are ISEN/SID as per page 10 of the bundle which stands for learners with special needs and severe intellectual disabilities and that an educator teaching at a Special Needs School should have a foundation phase qualification, it will be difficult for teachers without foundation phase qualifications to teach at a Special Needs School.
14. An educator with a high school qualification would not qualify to teach in such a post and the 2nd Respondent should not have been shortlisted.
15. D-Caps stands for differentiated curriculum and Caps stands for the mainstream curriculum. Cape Receive School does not use D-Caps as the leaners are not intellectually disabled, but physically disabled.
16. Mr Jacobs was the chairperson for the interview panel, about 10 years ago, they owned and managed a swimming club, they had an argument regarding finances and Mr Jacobs divorced his wife during that time. The Applicant further testified that he sided with Mr Jacobs wife and ever since, they do not see eye to eye.
17. Ms Thomas was a panellist; she uses the same transport as Mr Jacobs or Mr Arries. Mr Arries is appointed as a driver at the school, he and Mr Jacobs are friends and call each other on first name basis. Ms Daniels was the secretary, and Mr Sias does not have transport and drives with Mr Jacobs or Mr Arries.
18. The Applicant testified that he believes that Mr Jacobs influenced the panel
19. Under cross-examination, the Applicant confirmed that he could have raised a grievance, and he was aware of who would be on the interview panel. He contacted Mr Arries a week before the appointment to hear if a decision was made, he did not cite the principal as a reference at his previous appointment because he also applied for a promotional post and was not appointed.
20. The Applicant further confirmed under cross-examination that he was not trained to teach foundation phase, nor was he trained to teach SID learners, Ms Daniels who were on the panel is the same Ms Daniels who acted as a reference for him and that they are on a first name basis.
21. Ms George testified that she is the Principal at Sunshine Special School and was the resource person in the recruitment process, she had to overlook the process. The post was advertised before, there was a grievance and thereafter they received training to ensure the correct processes were followed.
22. The minimum requirements for the post were special needs qualifications and foundation phase qualifications and a normal teacher’s qualification for high school would not qualify you for the post. The school has about 30 teachers with only 3 male teachers, they have a new school building that needs to be maintained with a fleet of vehicles, as a woman she needs to be escorted and requires a man to assist her to manage the school.
23. Ms George further testified that the panellists did not score correctly, she noted they scored Ms Plaatjies high where she hardly answered the questions. The second Respondent did not answered question 4 well, and the Applicant gave a very good answer, and Jacobs only gave a score of 2.
24. The selection criteria decided on was consensus, the panel deliberated about their placings and most had Ms Diedericks as their preferred candidate, Ms Daniels had the Applicant as her preferred candidate and explained why, she then decided to accept Ms Diedericks as the preferred candidate to reach consensus.
25. The letter on page 119 was a grievance authored by Mr Jacobs, the reasons for the grievance were not valid. After the interview process, she went through the documents and noted that some candidates did not comply, she met with the SGB and a complaint was filed whereafter the post was cancelled, Mr Van Heerden who was recommended did not comply and the Applicant was ranked second, but they did not want to appoint the Applicant.
26. Under cross-examination, Ms George stated that the 2nd Respondent worked at a special school and was eligible to be shortlisted, if she had a choice, she would have appointed the Applicant, but she does not have any concerns with the 2nd Respondent.
27. Ms George further confirmed that the panel was appointed for the second round as it is still the same SGB that is appointed, the questions were changed but the question regarding SIB was also asked in the first recruitment process.
28. If the panel had to consider points instead of consensus, the Applicant would not have been appointed.
29. Ms Daniels testified that she is appointed as the Deputy Principal at Sunshine Special School, she placed the Applicant first as her recommended person for the post of Deputy Principal since he had a good interview and had experience, while the 2nd Respondent also had a good interview.
30. The other panellists did not provide reasons why they recommended the 2nd Respondent as their preferred candidate.

Respondents evidence

31. Mr Jacobs testified that he is an educator at Sunshine Special School, he was the chairperson of the interview panel, they received training before the interview process. They decided to use consensus as the selection criteria.
32. Mr Jacobs also testified that he was not biased as he had a different candidate than the Applicant or Ms Diedericks, as his preferred candidate and he compromised to reach consensus. Ms Diedericks met the requirements for the post, she had lots of experience as she was appointed as an HOD and was teaching at a special needs school. In a previous interview process where the Applicant applied for the post of HOD, he agreed that the Applicant be appointed as HOD.
33. There is no special qualification for teaching learners with SID, teachers are exposed when they are appointed in such posts. During the recruitment process, he would provide a lift to panellists who do not have transport if they so requested, but he did not influence anyone not to select the Applicant.
34. During the initial advert for the post and the selection process, it became apparent that Ms George went through the applications, she called an SGB meeting where not all the members were present and they amended the preferred candidate from Mr Van Heerden to the Applicant as the preferred candidate, they got to hear about it later and lodged a complaint.
35. The interview panel for the second recruitment process for the post of Deputy Principal was not the same, Ms Hall fell away, and Mr Sias was appointed.
36. Under cross examination, Mr Jacobs stated that the Applicant has a good relationship with Ms George who called him by his first name and others on their surname as well as Ms Daniels. He further confirmed that he was not aware that the chairperson should be a parent and not a teacher and he was appointed and trained.
37. Mr Arries has his own transport, and he did not take any one of the panellists to the interviews in his car and no union objected to him being the chairperson.
38. Mr Nogaga testified that he acts as the Chief Education Specialist and is the Circuit Manager for Sunshine Special School and that Bergsig, Cape Receive Schools fall within his jurisdiction. Cape Receive has special learners with learning disabilities and the 2nd Respondent would have gathered experience by teaching learners with learning disabilities.
39. There is no qualification for SID and the Department does re-deploy teachers from mainstream schools to Sunshine Special School.
40. Under cross-examination, Mr Nogaga confirmed that the post of Deputy Principal is a management and administration post, and he would not have signed off if the 2nd Respondent did not comply with the requirements of the post.
41. Mr Arries testified that he was part of the interview panel and that he did not influence anyone, Ms Thomas and Mr Sias do not have transport, there are no taxis operating in the area and he gave them a lift.
42. After the interview on 28 August 2024, the Applicant called him and send him a WhatsApp message, the Applicant wanted to know if there was any decision with regards to the post. During the conversation the Applicant told him that Mr Jacobs is bad, and he will do anything for him not to get the post.
43. On the next day, the Applicant posted picture messages on the drivers WhatsApp group and on 01 September 2024, the Applicant send him a personal message that insulted him, and he went to report same to Ms George.
44. Under cross-examination, Mr Arries confirmed that the typed minutes of the recruitment process as per the bundle of documents is not an accurate reflection of what transpired, and it was the first time he saw the typed minutes. There was a discussion between panellists after the interviews to reach consensus. The minutes were typed by Ms Daniels, and he saw the handwritten minutes on the day of the interview.

Analysis

45. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
46. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any 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 provisions of benefits to an employee”.
47. The Applicant’s claim is that the 2nd Respondent does not have severe intellectual disability (SID) teaching experience or qualifications and that she does not meet the minimum requirements for the post. The interview panel was biased and that the interview and shortlisting process was not fair.
48. I will deal with whether the 2nd Respondent qualified for the post as was advertised. In argument, the Applicant submits that the 2nd Respondent did not have the experience to teach SID learners and should not have been shortlisted. The Applicant himself testified that there is no qualification for teaching SID learners, this was further confirmed by Mr Nogaga, that teachers gain experience by being placed at schools with learners who have special learning needs. Therefore, it was disingenuous of the Applicant to testify that the 2nd Respondent did not qualify because she did not meet the minimum requirements or the inherent requirements for the post as he himself did not have a qualification to teach SID learners.
49. There was no deviation from the standard, Mr Nogaga testified that the 2nd Respondent gained some experience from her previous employment to teach learners with special learning needs and Ms George testified that she has no issue with the 2nd Respondents performance after she was appointed.
50. Furthermore, the post was that of a Deputy Principal, which by its very nature, is a managerial post and administrative post with some teaching that is required. If one needs to draw a comparison between the Applicant and Ms Diedericks, then Ms Diedericks has more managerial experience than the Applicant. Mr Nogaga also confirmed that the 2nd Respondent gained experience in her previous post to a certain degree and that they place teachers at special needs schools from mainstream schools. On that basis, the Applicants claim that the 2nd Respondent did not meet the minimum requirements for the post must be dismissed.
51. I will now turn to whether the interview panel was biased. From the Applicants evidence, it can be deducted that a strained relationship exists between the Applicant and Mr Jacobs who was the chairperson of the interview panel, and the result of this strained relationship is that Mr Jacobs influenced the interview panel not to recommend the Applicant.
52. The Applicants version of the situation amounts to speculation, no evidence was presented that Mr Jacobs influenced any member of the panel to not recommend the Applicant. There was an allegation that Mr Jacobs transported members of the panel to the interview, on a balance of probabilities, the Applicant failed to present any evidence to this effect. The Applicant further argued that Mr Jacobs and Mr Arries has a close relationship and could have influenced each other. No evidence to this effect was presented during the arbitration, and thus the claim stands to be dismissed.
53. What can be deducted from the Applicant evidence was that Ms George is blatantly biased towards the Applicant, she directly testified she would have appointed the Applicant in the position if it was up to her. This is worrying to the extent that on a balance of probabilities, Ms George supported the Applicant to refer a dispute and to sympathise with him.
54. During cross-examination, it was put to Mr Jacobs that his appointment did not comply with the regulations governing the appointment of interview panel chairpersons. What struck me as strange is that the issue was never canvassed as an issue in dispute at the onset of the proceedings and no evidence to this effect was put before Mr Jacobs to respond to, it was an averment put to him from nowhere. Advocate Saayman failed to place on record a copy of the act he relied on, in order for the sitting to take judicial notice, he failed to place on record any evidence that the chairperson must be a parent member of the SGB.
55. This is misleading and done in bad faith. In order to deal with this issue, I relied on the Personal Administrative Measures (PAM) which guides interview proceedings for all educators and states as follows:

“B.5.4.1 Interview Committees must be established at educational institutions where
vacancies are advertised.
B.5.4.2 The Interview Committee must comprise:
B.5.4.2.1 One departmental representative (who may be the school principal), as an observer
and resource person.
B.5.4.2.2 The principal of the school (if he/she is not the departmental representative),
except in the case where he/she is an applicant.
B.5.4.2.3 Members of the SGB, excluding educator members who are applicants to the
advertised post/s.
B.5.4.3.4 One union representative per union that is a party to the provincial chamber of the
ELRC. The union representatives will be observers to the shortlisting, interviews
and the drawing up of a preference list.
B.5.4.3 Each Interview Committee must appoint from amongst its members a chairperson
and a secretary.”

56. Nowhere in the PAM does it refer that the chairperson must be a parent member of the SGB, on that basis, the claim that Mr Jacobs was incorrectly appointed must be dismissed.
57. I will now turn to the issue of whether the shortlisting and interview process was unfair. The Applicant failed to identify what was unfair, I will not deal with the shortlisting process, the Applicant was shortlisted, and the 2nd Respondent complied with the requirements as was already confirmed hereinabove.
58. What in terms of the interview process that was unfair is not clear, the questions were structured, it was decided that the panel will use consensus as the selection criteria and will rely on scores should they not reach consensus. The panel reached consensus and made a recommendation. Consensus does not mean all members should have ranked the same candidate first, it means after deliberations, there should be an agreement, and that is was what they did.
59. It is clear the Applicant had an expectation to be appointed and was very disappointed when he was not appointed. This can be expected, but that does not mean that the Respondent committed an unfair labour practice because one is unhappy. There is no right to be appointed to a promotional post, only a right to a fair opportunity to compete for the post.
60. One can argue that the personal vendetta between the Applicant and Mr Jacobs could prejudice the Applicant, the Applicant testified he was aware who the interview panel would have been, and he was aware of the grievance procedures, yet he failed to ledge a grievance against the members of the interview panel. One can further argue that Ms George and Daniels would have favoured the Applicant, which they did, therefore, there was no prejudice towards the Applicant.
61. I did not intend to deal with the WhatsApp messages, however, in argument the Applicant argues that Mr Arries was misleading the arbitration to state that the messages sent to him by the Applicant were degrading. What can be deduced from the evidence regarding the WhatsApp messages was that they were in bad taste, Mr Aries testified that the Applicant never did this before, only after the interview, whether the messages were forwarded or not, they were intentional and in bad taste, something one should not expect from professional teachers.
62. In light of the above, I find it appropriate to make the following award.

Award

63. The Applicant, Mr O Mac Donald, was not subjected to any unfair labour practice by the Respondent, the Department of Education -Eastern Cape when he was not appointed to the post of Deputy Principal at Sunshine Special School.
64. The Applicant’s dispute referral is dismissed.

Signature:

Commissioner: Henk Jacobs
ELRC