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19 February 2025 – ELRC557-24/25EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN HUMANSDORP

Case No: ELRC 557-24/25 EC

In the matter between

NAPTOSA obo BJ Van Rooyen Applicant

and

Department of Education: Eastern Cape First Respondent

Odwa Gqozo Second Respondent

School Governing Body of Third Respondent
Patensie Agricultural School

ARBITRATOR: Anthony Walter Howden

HEARD: 5 February 2025

DATE OF AWARD: 13 February 2025

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2) (a) – alleged unfair conduct relating to promotion.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

  1. The dispute was scheduled for arbitration in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (LRA) read with Clause 7.3 of the ELRC Constitution: Dispute Resolution Procedures (as amended on the 25 July 2023). The arbitration was held on 5 February 2025 at the offices of the Department of Education – Eastern Cape in Humansdorp.
  2. The Applicant, Mr B.J Van Rooyen, was present and was represented by Adv GD Saayman from the National Professional Teachers Organisation of South Africa (NAPTOSA).
  3. The First Respondent, Department of Education – Eastern Cape, was represented by Mr E.W Hector from the Labour Relations Department.
  4. The Second Respondent, Mr O Gqozo, was present however indicated that he would just be observing on instructions from his attorney.
  5. The Third Respondent, the School Governing Body (SGB) of Patensie Agricultural School, more specifically the Chairperson of the SGB, failed to attend these proceedings although properly notified via e-mail of the notice of set down.
  6. On the day the parties requested that the closing arguments be submitted in writing. It was agreed that the parties would submit the written closing arguments simultaneously on 12 February 2025 before close of business.
  7. The closing arguments for both parties were received timeously and were taken into consideration when finalising the award.

ISSUES IN DISPUTE

  1. This matter came before the Council in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the LRA). I am required to determine whether or not the Respondent committed an unfair labour practice by not sifting-in the Applicant and if so grant the necessary relief.

BACKGROUND TO THE DISPUTE

  1. The Applicant, BJ Van Rooyen, is employed by the Respondent as a PL 2 Educator at the Patensie Agricultural School.
  2. The Applicant applied for the promotion post of Deputy Principal at the Patensie Agricultural School as advertised in Bulletin 2 of 2024 with Post Number 806.
  3. The Applicant was not sifted in at the sifting process as the Applicant had allegedly not met the minimum requirements of the post.
  4. The Applicant seeks that the Third Respondent’s appointment be set aside and the whole process re-done, which includes the re-advertisement of the post, with a different/independent panel.

SURVEY OF EVIDENCE AND ARGUMENT

  1. It is common cause between the parties:
  • That the Applicant is employed by the First Respondent as a PL 2 Educator at Patensie Agricultural School.
  • That the Applicant applied for the position of Deputy Principal at Patensie Agricultural School as advertised in Bulletin 2 of 2024 Post Number 806.
  • That the successful candidate, the Second Respondent, was appointed to the position on 19 September 2024. (Approved 18 September 2024).
  • That at the time of the application the Second Respondent was a PL 1 Educator at Patensie Agricultural School.
  • That during the Sifting Process at the District Office in Humansdorp the Applicant was not sifted-in and fell out of the running for the post.
  • That only two candidates were sifted-in and shortlisted for the interviews.
  1. The issue(s) in dispute is whether the Respondent committed an unfair labour practice by not sifting-in the Applicant during the sifting process. Further issues in dispute raised by the parties:
  • That no ratification meeting took place to recommend the Second Respondent to the post.
  • That no application to the HoD was made to proceed with the interview process with only two candidates, as per PAM requirements.
  • That the profile of the post was drafted by the SGB however changed by the Principal to suit the Second Respondent.
  • Whether the Second Respondent met all the requirements of the post.
  • Whether the Applicant met all the requirements of the post.
  • Whether the politicians placed pressure on the First Respondent to advertise the post to suit the Second Respondent.
  1. The parties submitted bundles of documents (Applicant – Bundle A and Respondent – Bundle B). None of the documents were initially in dispute and initially it was agreed that the documents’ contents were what they purported to be. During these proceedings however it became evident that this was not the case.
  2. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Submissions

  1. Briefly put the Applicant and his witnesses submitted that the First Respondent had committed an unfair labour practice by, amongst a number of other issues, not sifting-in the Applicant during the sifting process.

The Respondents’ Submissions

  1. On the day the Respondents’ representative indicated that he would not be calling any witnesses as the Applicant and the Applicant’s witnesses had basically confirmed everything that his witnesses were going to testify about.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

  1. Section 186 (2) (a) of the LRA states:
    “Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving – 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 provision of benefits to an employee.”
  2. It is basically common cause that the position was advertised by the First Respondent with the learning areas of: Agricultural Sciences /Technologies, Agricultural Management Practices.
  3. It is basically common cause that the Applicant has the following specialisation subjects/areas/fields:
    Mathematical Literacy, Economics and Mathematics.
  4. During evidence-in-chief the Applicant stated that the School/SGB had approved the Post Profile for the position, however then alleged that this was amended by the Principal to suit the Second Respondent due to political pressure.
  5. Firstly, this remains a mere allegation as no evidence was provided to substantiate this statement.
  6. Secondly the School/SGB Post Profile is only a recommendation to the First Respondent and the First Respondent is not obliged to apply the recommendation in any way. Nowhere in the Personnel Administrative Measures (PAM) document or in the Employment of Educators Act 77 of 1998 as amended (EEA) does it state that the School/SGB Post Profile is more than a recommendation.
  7. It stands to reason that the department would have done some form of analysis on the school to determine the school’s needs and thereafter advertised accordingly.
  8. Thirdly it is interesting to note that the post was advertised in the Bulletin, the post went through the sifting process, the post was shortlisted with SGB members present and the post went through the interview process with SGB members present however not once was a formal complaint forwarded to the First Respondent about the “amended” job requirements. The SGB, all relevant stakeholders and interested parties, have by their silence tacitly approved the post as advertised.
  9. To raise this issue at this juncture is a matter of it being “A little too late”.
  10. The Applicant did not meet the minimum requirements for the post with regards to the learning areas required and therefore could not be sifted in.
  11. Taking into consideration all the above and on the balance of probability, it is my finding that the Respondent had not committed an unfair labor practice by not sifting-in the Applicant during the Sifting Process.
  12. I therefore make the following award:

AWARD

  1. The Applicant, BJ Van Rooyen, has failed to prove that the First Respondent, Department of Education – Eastern Cape, committed an unfair labour practice relating to promotion in terms of Section 186 (2) (a) of the LRA.
  2. The Applicant’s dispute referral is dismissed.

Panellist: Anthony Walter Howden
ELRC