In the matter between

SADTU obo Ndima Applicant

and

Western Cape Education Department 1st Respondent

V.N.Mdungela 2nd Respondent

ARBITRATOR: A.Singh-Bhoopchand

HEARD: 11 December 2018; 15 August 2019; 15 & 16 October 2019 & 4 November 2019

ARGUMENTS: 20 November 2019
DELIVERED: 2 December 2019

DETAILS OF HEARING AND REPRESENTTATION

1. The hearing was held over several days, 11 December 2018, 15 August 219, 15 & 16 October 2019 and 4 November 2019 at the Metro East Education District Offices and at the offices of the WCED in Cape Town. The applicant was represented by Advocate R.G.L.Stelzner SC of the Cape Bar, instructed by M.Funeka Attorneys. The First Resondent was represented by Advocate J. Williams of the Cape Bar, instructed by the State Attorneys Office. The second Respondent represented himself.

2. Two bundles of documents were handed in and they were accepted for what they purported to be. They were marked bundles “A” & “B”

3. Proceedings were digitally recorded.

4. The representatives provided me with detailed heads of argument , the last of which was received on 20 November 2019.

ISSUE IN DISPUTE

5. I must decide whether the First Respondent committed an unfair labour practice relating to the promotion of the Applicant to the advertised principals post, post number 231 at the Noxolo Xauka Primary School

BACKGROUND

6. The factual background is undisputed. On 13 February 2017, the principal post at Noxolo Xauka Primary School, post number 231, was advertised. The closing date for applications was 22 March 2019. The applicant applied for this post. He also applied for a further nine posts at levels P3 and P4 at various schools At the time of his application, he was the deputy principal at Noxolo Xauka Primary. He has also served as the acting principal at the school.

7. The applicant was not shortlisted for the post. He was aggrieved about this and he lodged an internal grievance. The outcome of the grievance investigation resulted in the shortlisting process being repeated. This time, the applicant was shortlisted. The repeat of the shortlisting process resulted in a delay in the finalization of the process and the deadline for submission of recommendations, which was the 12 May 2017, passed.

8. The second respondent had also applied for the post at Noxolo Xauka Primary . He also applied for similar posts at other schools including a principal’s post at the Andile Primary. On 12 December 2017, the second respondent was appointed to Andile Primary with effect from 1 April 2018.

9. In the meantime, the process for the filling of the principal’s post at another school, Nobantu Primary , continued. Applicant had also applied for this post. He was interviewed and was ranked the number one candidate. On 8 January 2018 he received a letter of appointment to this school. His appointment was effective from 1 April 2018.

10. On 23 March 2018, the applicant requested that his appointment date at Nobantu Primary be delayed to 1 July 2018. The reasons offered by the applicant were:
• He was the deputy principal at Noxolo Xauka Primary and that at the time he was the only one in leadership;
• In January 2018 he had commenced acting as principal; the principal post would not be filled before 1 April 2018, due to logistical reasons;
• Applicant stated that he was also an applicant for the principal post at Nxoxlo Xauka and “had an interest in the outcome of the whole process about the post”. He also said that the school was his first preference.
• Applicant went on to say that he was concerned that if he left at the end of the term , Nxolo Xauka Primary would be without a leader and this would cause instability and chaos.

11. The first respondent granted the applicant’s request to delay his appointment at Nobantu Primary. A fresh letter of appointment was issued with the appointment date of 1 July 2019.

12. On 5 April 2018, the first respondent notified that applicant that he was one of the nominees for the principal’s post and he was requested to indicate his preference between these two posts should he also be the successful candidate at Noxolo Xauka Primary School. In response, applicant indicated to the first respondent that Noxolo Xauka was his first preference.

13. On 28 May 2018, nearly a year after it was due , the notification in support of the nomination of the applicant for the principal post at Noxolo Xauka Primary was sent to the first respondent. As is required the SGB recommended three candidates. The applicant, who had scored the highest marks during the interview process was ranked by the SGB as the number one candidate. The second respondent who had scored the second highest marks during the interview process, was ranked second.

14. The HOD did not approve the appointment of the applicant. The second respondent was appointed to the post. The reason noted by the HOD on submission was that he (applicant) has already been appointed at another school.

15. The SGB of Noxolo Xauka Primary School was dissatisfied with the appointment and various letters were addressed to the first respondent in this regard. They requested that the applicant be appointed to the post for reasons, inter alia, that he was their preferred candidate.

16. The HOD’s response to the SGB was that in terms of section 6(3)(f) any suitable candidate on the list of recommended candidates may be appointed. Accordingly, first respondent remained with the decision that was made.

17. On 11 October 2018 the Union lodged an unfair labour practice dispute in which they allege that the failure to appoint the applicant is unfair. Applicants case is essentially that he ought to have been appointed as he was ranked as the number one candidate and that the HOD unfairly appointed the candidate that was ranked second.

18. Applicant seeks to be appointed to the post and an order setting aside the decision to appoint the second respondent to the post.

19. It is the first respondent’s case that the HOD has a discretion to appoint any suitable candidate on the list of recommended candidates and that he exercised his discretion fairly.

SUMMARY OF EVIDENCE
I provide only a brief summary as the facts are mostly common cause. I do not summarise the argument as they form part of the record but shall refer to them in my evaluation where necessary.
Evidence on behalf of the Applicant

20. Two witnesses testified, the applicant, Mr Ndima and Mr Tomose, the chairperson of the SGB.

21. Ndima: He testified that there had been friction between himself and the previous chairperson of the SGB. He enjoys a good relationship with the current chairperson, Mr Tomose. He believes that it is in the best interest of the school that he remains at the school. The reasons for this are that he has been the leader of the school for a while in that he served as both the deputy principal and the acting school principal; he has the support of the SGB as well as the parents; he understands the needs of the school and the community; he has brought stability to the school and a newcomer to the school will destablise the school.

22. In response to a question as to why he had applied for nine different posts, including one for a deputy principal post, he stated that he had done so to gain interview experience and that he had no interest in being appointed in any of those posts. He said that he had never had the intention to leave Noxolo Primary.

23. With regard to his appointment at Nonatu Primary, he said that he did not want to take up appointment there as the school was located in a dangerous area and he feared for his safety if he had to work there.

24. Tomose: He testified that he was appointed as SGB chairperson at the end of March 2018. There was a new SGB in place which had not been in place at the time the recommendation was made. He was appointed after the interview and ratification meeting had taken place. Although the SGB had stated in their recommendation that any of the three candidates were suitable for appointment, he and the current SGB believe that the applicant is the best candidate for the post. The applicant is familiar with the needs of the school and he has the support of the community .The second respondent is not aware of the needs of the school .Upon learning of the appointment of the second respondent to their school, the SGB had indicated to the first respondent that they would not allow him to come to the school.

25. He does not agree with respondent’s contention that the HOD can appoint any person on the list of recommended candidates.

Evidence on behalf of the Respondent

26. Two witnesses testified, Mr Wyngaard , the Deputy Director : Recruitment and Selection and Mr Schreuder, the HOD.

27. Wyngaard: He testified that the normal practice when people asked for an extension because they had applied for other posts , was to give them such extension. Candidates often applied for multiple posts and it was therefore common practice to ask candidates which of the posts was their preferred post. This was not a guarantee that they would get the post of their choice.

28. Schreuder: He testified that he took his responsibilities very seriously and sought to act in the best interest of education. He managed the principal and deputy principal appointments personally when he could , as these are important posts in the education system. He took a number of factors into consideration when deciding to appoint the second respondent as principal to Noxolo Primary School. These factors included:

• The SGB recommendation
• The fact that the first candidate on the list of recommended candidates had accepted another post;
• The qualifications of the recommended candidates: in this regard the second respondent has a Bed (honours) degree and the applicant has a Teachers Diploma -the second respondent is thus more qualified.
• The experience of the recommended candidates-the second respondent has more experience than the applicant and he was already principal , whereas the applicant was only a deputy principal.
• The scoring of the two candidates-there was less than 10% difference in their scores.
• The benefits that an outside applicant could bring into a new school-the second respondent would have brought newer and fresher ideas into Noxolo Xauka Primary

29. With regard to the complaint and the dissatisfaction of the SGB , he testified that he had decided to stay with his decision as he had applied his mind when making the appointment and he had made the decision in the best interests of schools and education. He is duty bound to consider the interests of all affected schools and not just that of Noxolo Xauka Primary.

30. When asked how he distinguished the circumstances of the applicant having been appointed at Nobantu Primary on 1 April 2018 and the second respondent who had also been appointed to start at Andile Primary on 1 April 2018, the HOD explained that when he took the decision , the second respondent had already commenced work as principal at Andile Primary and so he had been in the position for a few months , as opposed to the applicant who did not take up the position at Nobantu.

31. In response to a question as to why he wrote only one reason down on the submission when making the decision , he explained that the submission was an internal document and he had not written all of his reasons down.

32. In relation to the offer to the applicant to indicate his preference , he said that it was part of the process. Candidates regularly applied for many posts and when they were parallel processes, they would be asked to indicate their preference. This did not mean that their preference would be granted, but it would be one of the factors that would be considered in the decision- making process . However, the preference indication was never a limitation on his discretion.

33. When questioned on the weight given to the fact that the applicant had been acting as principal , his response was that the fact that the applicant was acting did not mean that he would be the best fit for the school. He would not necessarily bring in new ideas to the school. He considered, on the other hand that the second respondent would bring new ideas and vision to the school.

34. He went on to testify that when he responded to the SGB’s letter of complaint he did not provide his full reasons for not appointing the applicant, but he tried to convey to the SGB that it was his understanding that in terms of the law he is allowed not to accept the first candidate on the list. Ultimately, he had exercised his discretion to appoint any one of the three recommended candidates on the list, just not in the order of preference of the SGB. He had applied his mind to the decision and had considered all three candidates in the nomination.

35. He conceded that the submission was an important document but said the reason that he noted therein was not the only basis upon which his decision was based. He said that one had to look at the bigger picture and take into account his decision at both schools. There may be some disruption in moving the applicant , but this disruption was not caused by his decision-it was caused by the failure on the applicant’s part to accept his appointment. If his decisions had been given effect to at the relevant times, then both schools would have had principals. He said that his decisions are not always popular and not everyone was always happy with the choices that he makes. This was unfortunate but it does not change the exercise of his discretion. This was a lawful exercise of a discretion and he would never be able to please the SGB and all the candidates. His decision was based on what was rational in the circumstances.

EVALUATION
Introduction

36. This tribunal derives its jurisdiction to arbitrate promotion disputes from section 186(2)(a) of the Labour Relations Act No 66 of 1995,as amended, which reads as follows:

“unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion of the employee.

37. An employee who alleges that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. Promotions fall within the managerial prerogative and it is for this reason that arbitrators are not required to decide whether the employer has made the correct decision and has appointed the best candidate, but merely to determine whether the employer has acted fairly and has made a reasonable decision. These principles are well established and has been repeatedly confirmed by our courts;

“The decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is so flawed , an arbitrator should not readily interfere with this discretion. An arbitrator or court is not the employer . It therefore is not the task of the arbitrator or a court to decide whether the employer has arrived at the correct decision . The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. “

38. An arbitrator may only interfere with the employer’s decision if the employee proves that the employer , in not appointing him and appointing another candidate , acted irrationally , grossly unreasonably , capriciously or arbitrarily , or was actuated by bias malice or fraud

39. The mere fact that the candidate who was eventually promoted did not score the highest marks or is not better qualified does not necessarily justify a conclusion that he decision not to promote was unfair. The mere fact that an employee is already acting in a post does not give him or her an automatic right to a promotion.

40. ELRC Collective Agreement 3 of 2016 , which contains Guidelines for promotion arbitrations must also be considered in determining whether an unfair labour practice relating to promotion has been committed.

41. The arbitration of a promotion dispute entails a review of the employers decision. In applying the Sidumo 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.

42. It is the provincial HOD who is the employer of the educators in the province and who makes the appointments . Following interviews , the School Governing Body merely makes a recommendation containing three names of recommended candidates in order of preference, from which the HOD must make an appointment. Sections 6(3) and 7(1) of the Employment of Educators Act 76 of 1998 (EEA) contains the fundamental prescriptions , both to the Governing Body and to the HOD , as to how the selection and appointment procedures must be conducted. I quote the relevant sections thereof:

3(b). In considering the applications the governing body … must ensure that the principles of equity , redress and representativity are complied with and the governing body must adhere to –
(i). the democratic values and principles referred to in section 7(1);
(ii). Any procedure collectively agreed upon or determined by the Minister for the appointment ,promotion or transfer of educators;
(iii). Any requirement collectively agreed upon or determined by the Minister for the appointment , promotion or transfer of educators which the candidate must meet ;
(iv). A procedure whereby it is established that the candidate is registered or qualifies for registration as an educator with the South African Council of Educators;
(v). procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.
“(3)©. The governing body must submit , in order of preference to the HOD , a list of-
(i) At least three names of recommended candidates ; or…
(ii) Fewer than three candidates in consultation with the HOD.

(d). When the Department considers the recommendation contemplated in Paragraph (c), he or she must , before making an appointment , ensure That the governing body has met the requirements of paragraph (b).
(e). If the governing body has not met the requirements in paragraph (b), the Head of Department must decline the recommendation.
(f). Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list.
(g). If the Head of Department declines a recommendation, he or she must-
(i). consider all the applications submitted for the post;
(ii).apply the requirements in paragraph (b) (i) to (iv); and
(iii). Despite paragraph (a). appoint a suitable candidate temporarily

Discussion

43. Applicant’s first argument is that the HOD was not authorized by section 6(3)(f) of the Employment of Educators Act 1998 (Act 76 of 1998) (EEA) to simply ignore the recommendations , including the order of preference , of the SGB in the circumstances of this case. It is argued that if he did not wish to follow the recommendations , including the order of preference, he was required by the EEA to make a temporary appointment and the Department was required to give the SGB an opportunity to appeal his decision.

44. This argument can be laid to rest as the interpretation of these provisions is now settled law. The leading decision in this regard is Head of the Western Cape Education Department and Others v Governing Body of the Point High School and Others 2008 SCA. What can be gleaned from this decision is that the correct interpretation of the provisions of section 6(3), read in its totality is that the legislature has envisaged that the HOD must not merely act as a rubberstamp of the governing body . He must apply his own mind in determining which candidate is the best candidate. In exercising his discretion when making an appointment , the HOD is expected to act reasonably . He must place significant weight on the recommendation of the SGB who has interviewed the candidates. However, he is not necessarily limited by the order of preference. I agree with respondent’s submission in this regard which I repeat in the next paragraph.

45. The applicant’s argument is fundamentally flawed in that it misconstrues the nature and extent of the discretion given to the HOD in terms of section 6(3)(f) to choose any one of the suitable candidates , despite the order of preference. There is absolutely no basis in law for the attempt by the applicant to limit the discretion of the HOD to a scenario where the second candidate may only be appointed when the first candidate is not available. This contradicts the express wording of the statute, the intention of the legislature to broaden the discretion and the established case law dealing with unfair labour practices in relation to promotions and/or appointments . Moreover , the legislature would have stated it expressly if the intention was that the second and third candidates could only be appointed if the prior candidate was unavailable. Instead it was stated that an appointment could be made despite the order of preference.

46. I also agree that the applicant’s argument that the HOD in appointing the second preference was in fact declining the recommendation list, is also flawed. This is not the case. The HOD accepted the recommendation and made an appointment. He was only bound by law to reject the recommendation when the factors in section 6(3)(b) are present . None of these factors are present here. Nor is the case that there were less than three candidates recommended – the HOD had a recommendation before him which complied with section 6(3). Consequently , he had a discretion to appoint any one of the nominees , despite the order of preference. I also agree with the respondent that under these circumstances it was not necessary for the HOD to make a temporary appointment.

47. Having decided that the HOD does indeed have a discretion to appoint any of the three candidates on the list of recommended candidates, it remains to be decided whether in exercising his discretion, he acted fairly towards the applicant. Fairness involves making a value or moral judgment . What is fair in one case may not be fair in another. The assessment of fairness is therefore a fact specific and not a fact free enquiry. The fairness required in the determination of an unfair labour practice must be fairness toward both employer and employee. Fairness to both means the absence of bias in favour of either.

48. Discretion must be exercised rationally and in good faith . The exercise of discretion must always be subject to being tested against basic tenets of fairness. The court, in National Coalition for Gay & Lesbian Equality and Others v Minister of Home Affairs & Others (2000) SA (CC) at par 11 , in dealing with the challenge of discretion in general , decided that a discretion would be open to a successful challenge if the discretion was not judicially exercised and in particular: “had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.”

49. What then were the facts that influenced the HOD’s decision? The main reason advanced by the HOD for his decision is that the applicant had accepted an appointment at Nobantu Primary. In this reasoning he appears not to have rationally taken into account the fact that the second respondent had also accepted an appointment at Andile Primary. In fact, he stated in his testimony that the second respondent had already taken up his position at Andile Primary. Yet he failed to take into consideration the disruption that would be caused at Andile Primary who would lose a principal after serving a short period. The applicant on the other hand had not yet taken up his post at Nobantu Primary. The HOD’ s own evidence was that he has to look at the broader picture. I understand this to mean that he has to look at how all schools involved are affected.

50. Another reason advanced in his evidence is that he had considered that the second respondent had more experience as a school principal. The second respondent had been in the principal’s position for a mere three months. This can hardly be experience that could rationally have served as persuasive in the circumstances. The applicant had been acting as a principal for almost a year. While an acting position does not create an entitlement to a promotion , it can most certainly be considered as relevant experience. An acting principal is empowered to perform all the functions of a principal.

51. At B17, the motivation for his decision not to appoint the applicant at Noxolo Xauka is recorded as being “he has already been appointed at another school”. Despite having recorded only one reason, his testimony was that he had considered various factors. In addition to having considered that (in his view) , the second respondent was more experienced , he also considered that the second respondent has a higher qualification – he has a Bed (Honours) and the applicant has only a Teachers Diploma. Yet the applicant’s Teachers Diploma was an acceptable enough qualification to appoint him as principal at Nobantu Primary. Whilst we do not know anything about the other candidates that applied for the position at Nobantu Primary, it is unlikely that the applicant with his Teachers Diploma, was the most qualified candidate that applied for that principal’s post. I do accept that it is reasonable to compare qualifications , but I am not convinced that it was of relevance at this stage in the process and in the circumstances of this case.

52. The applicant was already at Noxolo Primary , having been the Deputy principal for a considerable period. He was acting as principal and had expressly indicated his preference for the school upon being asked by the first respondent to do so. It makes no sense to say that it is normal practice to ask candidates to indicate their preference and then to not give effect to it , especially in circumstances where that candidate is the number one candidate on the list of recommended candidates. What then is the point of asking? I accept that first respondent cannot guarantee that a candidate will be appointed to his preferred post , but it must at the very least be given reasonable consideration. I do not see that reasonable consideration was given to this factor.

53. The other reason advanced by the HOD for his decision is that he considered that the second respondent would have brought newer and fresher ideas to Noxolo Primary and he looked at the benefits that the applicant could bring to Nobantu. He also said that he has to make appointments in the context of the broader picture and that he has to make decisions in the best interests of education. It is difficult to fathom why he considered that these two schools were in need of “fresh ideas”. Three is no evidence that the documents that served before the HOD indicated in any way that Noxolo Xauka Primary was in need of “fresh ideas”. In fact , on the contrary, the SGB who are well versed and familiar with the needs of the school, recommended the applicant as their number one candidate. They went further by subsequently informing the HOD that the applicant had brought stability to the school and that the applicant was needed at the school to maintain this stability.

54. The HOD did not explain what he meant by “in the interests of education “ in the context of the appointment. It appeared to be a general statement without substantiation. Would education not be served if the applicant was appointed to Noxolo Xauka?

55. The other factor that needs to be considered in assessing the fairness of the decision is the order of preference of the candidates and the relevance thereof. The HOD is required, in terms of the prescripts , to place significant weight on the order of preference even though he does have a discretion to appoint any suitable candidate on the list. The SGB has first- hand knowledge of the circumstances of school and they have the advantage of having engaged with the candidates during the interviews. Their ranking of a candidate as the number one candidate is a clear indication that he is considered the best candidate for the job. So, if the HOD decides to deviate from the ranking he must have good reason to do so and must not be arbitrary . Counsel for the applicant argues correctly that the applicant’s case is not only premised on the fact that he had the required experience , ability and technical qualifications for the post , nor is it only based on the assertion that he scored higher in the interview process . It is based, inter alia, on the fact that the SGB nominated him as their first preference, based , inter alia, of their knowledge of him and the role that he played at the school and the importance of his staying on at the school to the broader community itself. I am not convinced that the HOD had good reason to deviate from the order of preference.

56. The Point High School judgment , although decided in the context of a review of administrative action , is of relevance in this matter as the findings of the SCA as to the nature of the decision making power of the HOD , the scope thereof and , in particular, the importance of paying proper regard to the recommendations of the SGB is equally applicable in this case. Similar considerations of fairness as underscores PAJA find application here. In fact , as stated in my introduction, the labour court has stated that the arbitrator’s function in assessing fairness in a promotion dispute , is akin to a review of the employer’s decision.

Finding

57. The first respondent has not provided good reason to deviate from the order of preference and the decision not to appoint the applicant is unreasonable, irrational and arbitrary. I do not find that the first respondent necessarily acted in bad faith but rather that it acted negligently in failing to give due consideration to the facts and circumstances . This is unfair to the applicant. The factors to be considered in deciding unfairness are not mutually exclusive

58. Despite the onus being on the employee to demonstrate that the failure to promote or appoint was unfair , the employer is by the same token , obliged to defend attacks on the substantive and procedural fairness of its decisions if it wishes to avoid a negative outcome.

59. This therefore implies that there is an obligation on the employer to place evidence of the fairness of the process followed and the rationale for its decision.

Remedy

60. The applicant seeks to be appointed to the post at Noxolo Xauka Primary School. I see no reason why such an order should not be granted. This effectively means that the appointment of the second respondent will have to be set aside.

AWARD

1. The respondent has committed an unfair labour practice relating to promotion as intended in section 186(2) of the LRA.
2. The applicant, Mr Ndima, is appointed to the principal’s post at Noxolo Xauka Primary School, with effect from 1 January 2020.
3. The appointment of the second respondent to the principal’s post at Noxolo Xauka Primary is set aside with effect from 1 January 2020.
4. I make no order as to costs.

A.Singh-Bhoopchand
ELRC Panelist