In the ARBITRATION between:

SAOU obo Bennet Napoleon
(Union / Applicant)

and

Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: Mrs van Wyk
Applicant’s address: No. 4 Cotswold Office Park
21 Barton Road
Port Elizabeth, 6001
Telephone: 041 364 0500
Telefax: 086 679 5692

Email venita.vanwyk@gmail.com

Respondent’s representative: Mr Louw
Respondent’s address: P O Box X726
Graaff-Reinet
6280
Telephone: 049 807 3064
Telefax: 049 807 2254

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held via the Zoom platform on 5 October 2020. The proceedings were electronically recorded via video. The applicant, Bennet Napoleon was represented by Mrs Van Wyk from SAOU. The respondent, Department of Education: Eastern Cape was represented by Mr Louw, a Labour Relation Officer in the employ of the respondent. The incumbent, Nomxolisi Makayi appeared in person and conducted here own representation. The parties (except for the incumbent) by agreement submitted closing written arguments on 12 October 2020.

ISSUE TO BE DECIDED

2. I am required to determine whether or not, the respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA as it relates to promotion

2.1 When the respondent elected not to appoint the applicant during April 2019 based on the marks awarded by the interview panel.

2.2 When the respondent did not short list the applicant and thereby not interview and evaluate him after the post of deputy principal was re-advertised.

BACKGROUND

3. The following was recorded in terms of the pre-arbitration minute as common cause:

3.1 The applicant is employed as educator for the Department of Education: Eastern Cape since 1 January 1997. He started teaching at Jeffreys Bay Comprehensive School when the school was open during April 2015, and he was promoted as a HOD in the humanities department at the same school in 2018.

3.2 The deputy principal’s post at Jeffreys Bay Comprehensive School was advertise in Bulletin Volume 2/1999, post number 500 during April 2019. The applicant was shortlisted and interviewed by the interview panel. The interview panel recommended the appointment of the applicant to the School Governing Body (SGB). The SGB caused the withdrawal of the advertisement for the post in that they were looking for an isiXhosa speaking person. When the post was advertised the bulletin indicated that the medium of the instruction at the school is English / IsiXhosa.

3.3 The respondent then re-advertised the post of deputy principal in Bulletin Volume 6 post number 445 indicating in the Bulletin (advertisement) that the medium of instruction was isiXhosa. The applicant applied and at the sifting stage, he was sifted out and therefore not shortlisted.

3.4 The incumbent was appointed during January 2020

3.5 The post of deputy principal to which the incumbent was appointed is a post level 3 salary level 10 post. The applicant is currently earning R368 355.00 per annum.

4. The applicant as to relief seeks for the appointment of incumbent to be set aside and for him to be appointed to the advertised post.

SURVEY OF EVIDENCE

5. The Applicant testified under oath to the following effect.

5.1 As to the language isiXhosa he can read/write and speak the language in that he was born in the Transkei and that was his first language until his family moved to East London. He received formal training as a subject in IsiXhoza at Dowe College as a third language.

5.2 Currently there are no subjects taught in IsiXhoza except for the subject language subject isiXhosa. The medium of instruction at Jeffreys Bay comprehension school is either English or Afrikaans. The incumbent currently teaches English for grade 12 and history for grade 11.

5.3 Under cross examination, the applicant indicated that it came to his attention that the district director met with the SGB who wanted the post to be re-advertised in that he was the recommended candidate prior to the withdrawal of the post. He was informed by a member of the SGB, Mr John Faulkner of this.

6. The respondent called Mr Garth Jacobs who testified under oath to the following effect.

6.1 He is employed by the respondent as a circuit manager and works at the Circuit Manager Centre in Humansdorp. 18 people applied for the advertised post, 9 were shortlisted and 9 were shifted out. Those who were shifted out did not qualify and only four people were interviewed and all 4 who were short listed and interviewed were African Xhosas

6.2 The applicant was not shortlisted in that he was not formally qualified to teach IsiXhosa as a language subject and from the documents before them, when they did the shifting, the applicant had no formal isiXhosa teaching qualification. The school wanted an African Xhosa educator. They do not advertise on racial grounds in that it is not permitted but they can do so on language grounds.

6.3 Under cross examination, the witness emphasized that the reference in the advert to IsiXhosa related to teaching the language subject of IsiXhosa.

ANALYSIS OF EVIDENCE AND ARGUMENT

7. The dispute was referred in terms of Section 186(2)(a) of the Labour Relations Act (the “LRA”):
“Unfair Labour practice” means any unfair act or omission that arises between an employer and an employee involving unfair conduct of the employer…. relating to the provision of benefits to an employee.”

8. The principles which determine promotion disputes are summarised by Commissioner Rycroft in Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA) at 1517 where he is reported as follows:
“The principles which must determine this dispute are, in my view, the following:
1. In the area of appointments and promotions, in the absence of gross unreasonableness which leads the Court or the CCMA to draw an inference of mala fides, the CCMA or Court should be hesitant to interfere with the exercise of management’s discretion.
2. In drafting the unfair labour practice provision, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. The Commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates.
3. The relative inferiority of a successful candidate is only relevant if it suggests that the superior candidate was overlooked for some unacceptable reason, such as those listed in section 6 of the EEA (Employment Equity Act 55 of 1998).
4. The division of the unfair labour practice jurisdiction between the Labour Court and the CCMA indicates that the legislature did not intend Commissioners to concern themselves when deciding disputes relating to promotion with the reasons why the employer declined to promote the applicant employee, but rather with the process which led to the decision not to promote the employee when selecting a candidate for promotion are relevant only insofar as they shed light on the fairness of the process.”
See also Cullen and Distell (Pty) Ltd [2001] 8 BALR 834 (CCMA).”
9. As was said in Public Servants Association obo Dalton & Another v Department of Public Works [1998] 9 BALR 1177 (CCMA) at 118 F–G, an employee will only be considered for promotion by the CCMA, or for that matter by an arbitrator, if he or she shows both unfair conduct on the part of the employer as well as that he or she would have been promoted, but for that unfair conduct. There must be a causal connection between the unfair conduct proved and the failure to promote the employee ( – see also Garbers, Contemporary Labour Law, Vol 9, No 3 of October 1999 at p30 and the cases cited there.)

10. The applicant does not dispute that the SGB up until they did not accept the recommendation of the interview panel were within their mandate to do so. However, the reasons they submitted for re-advertising the post, this was not within their powers. The reasons as evident by the letter from the SGB chairperson for the post to be re-advertised was that the recommended candidate was not a African Xhosa, the recommended candidate did not meet the requirements set by the SGB, the history of the school is very fragile, and they could not afford to make a wrong appointment and they profiled the second deputy principal to address the needs of the Xhosa learners and that is why they wanted a Xhosa person to assist with management of the isiXhosa stream. The applicant believes, that the SGB did not possess the powers to have the post re-advertised.

11. The applicant further argued from the contents of the letter it was evident that the SGB’s motivation behind withdrawal of the post was due to Equity considerations. The Equity Act according to the applicant states that an employer who employs more than 50 employees, can be seen as a designated employer and it is expected of the designated employer to have an employment equity plan. The SGB of Jeffrey Bay Comprehensive School in this case was not the employer and they had no equity plan and therefore they did not have authority to make a call as they did. The respondent, in this case is the Eastern Cape Department of Education and there is an Equity Plan in place, published and amended for the periods 2017/2018-2020/2021. The SGB therefore took it upon themselves to fill the role of an employer and implemented affirmative action on ad hoc basis and in a vacuum, leading to the re-advertisement and profiling of the post under incorrect information and the applicant therefore believes that this is does not benefit the school community.

12. The respondent argued that the Jeffreys Bay Comprehensive School as a new school that serves a diverse community and is the only non-fee paying high school in Jeffreys Bay. The feeder schools are Pellsrus with more than 1250 Afrikaans home language learners and Makukhanye Primary is more than 1300 isiXhosa home language learners. The racial composition of learners at Jeffrey Bay Comprehensive School are 56% African (Xhosa) and 44% coloured.

13. The respondent further avers that the applicant has not shown proof of his ability to teach IsiXhosa and the incumbent, Ms Makayi is a seasoned isiXhosa teacher and has extensive experience as a grade 12 language marker. She is currently not teaching isiXhosa at the school in that the SGB recommended her for the post of acting principal. During the arbitration as to the management component, utilizing the composition of the definition of “black people” in terms of the Employment Equity Act, the current principal is a white male who is currently absent, there exist two posts of deputy principal, one post is currently held in genetic terms by a coloured person and the other is now held by African person.

14. The evidence of the applicant from the onset when the incumbent took up a post as deputy principal did not teach isiXhosa as a languid subject. The real reason why the applicant was not appointed during the first round was because he was not in genetic terms an African and the reason for that is based on the racial composition of learners in that the SGB wanted an African person to be the deputy principal considering that the other deputy principal was coloured. This is a reason why the post was re-advertised and why only individuals who in genetic terms are Africans were shortlisted. Claiming that they were looking for an IsiXhoza language teacher was nothing but a ruse, the proof thereof is that the incumbent from onset was not teaching IsiXhosa. In the same breath, Mr Jacobs who testified for the respondent indicated that they are not allowed to advertise posts based on the racial classification but may do so based on language.

15. The applicant has taken issue and argued that the SGB did not have the powers to re-advertise or establish an equity plan for the school in that they are not the employer. The applicant is correct, however what the applicant has lost sight of is that it was the SGB that recommended that the post be re-advertised. Therefore, it is the respondent that ultimately took the decisions. It is clear based on evidence that the reason why the applicant was not appointed during the first round although recommended by the interview panel, and not shortlisted and considered during the second round was because he was not an African person in that he is coloured. This clearly amounts to racial discrimination unfortunately I do not have jurisdiction to determine whether discrimination was fair or not. There appears to be some rationale based on the racial composition of learners at the school for this.

AWARD

16. I find that the real reason why the applicant, Bennet Napoleon was not appointed during the first round and not shortlisted during the second round was based on race discrimination. The ELRC lacks jurisdiction to determine whether or not the discrimination was fair or not. Therefore, I am unable to determine whether the respondent, the Department of Education: Eastern Cape perpetrated an unfair labour practice relating to promotion as it relates to the applicant.

17. The referral of this dispute is therefore dismissed.

Name: Jonathan Gruss
ELRC Arbitrator