Panelist: Jonathan Gruss
Case No.: ELRC527-24/25EC
Date of Award: 17 April 2025

In the ARBITRATION between:

Edward Thomas van Heerden & 4 Others
(Applicant)

and

Department of Education : Eastern Cape

(Respondent)

Applicant’s representative: Mr Adams – Naptosa & Mr Cunningham - SADTU  

Respondent’s representative: Ms Slabbert     

Third Party representative: Ms van Wyk- SAOU    

Summary: Section 186(2)(a) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to promotion.

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled 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 at the District Offices in Gqeberha on 31 January 2025, 26 March 2025 and 27 March 2025 and the proceedings were electronically recorded. The applicants, Edward Thomas van Heerden, Sam Madatt and Sherine Booysen were represented by Mr Cunningham from SADTU, Standon Rowen Potgieter and Lindton Le Grange represented by Mr Adams from NAPTOSA. The respondent, Department of Education: Eastern Cape was represented by Ms Slabbert, a LR Officer. The incumbent, George Louw was represented by Ms van Wyk from SAOU. The SGB of Gelvandale High School did not attend the arbitration although they were joined as parties who have a substantive interest in the proceedings. The parties by agreement submitted written closing arguments on 3 April 2025.

ISSUE TO BE DECIDED

2. The dispute referred concerns an alleged unfair labour practice dispute relating to promotion as it relates to the none-appointment of the individual applicants.

BACKGROUND TO THE ISSUES

3. The applicants referred a ULP promotion dispute to the ELRC. The following applicants, Mr van Heerden, Mr Madatt and Ms Booysen were not short listed. Mr Potgieter and Mr Le Grange were short listed and interviewed for the position of Deputy Principal.
4. The parties proceeded by way of a Stated Case and the following was recorded.

4.1 It is agreed that the incumbent, Mr Louw who was the successful candidate and appointed to the disputed post was convicted in 2006 of misconduct in arranging and attending an after party after a matric ball. He was sanctioned to a fine of R3000.00.

4.2 The incumbent in completing EDP 01 Form, education employment profile form at clause 29.1 on page 40 of the Combined Bundle on a question “Have you ever been convicted of misconduct” the applicant indicated ”No”.
4.3 The applicants aver that the incumbent made a misrepresentation when he indicated No to having been convicted of misconduct. Therefore, his promotion to the advertised position was unfair that resulted in an ULP relating to promotion. His appointment therefore stands to be set-aside and the post to be re-advertised. The interviews to be done by an independent panel.

4.4 The Commissioner arbitrating this matter must determine whether the incumbent made a misrepresentation and whether as a consequence thereto was an unfair labour practice committed.

SURVEY OF EVIDENCE

5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

INCUMBENT’S EVIDENCE

6. Mr George Louw gave evidence under oath to the following effect.

6.1 He was charged for misconduct in 2005. There was a matric ball with an after party, after the matric ball. The learners as well as parents requested him to attend the after party to ensure the kid safety and discipline.

6.2 After the after party he was called in by the principal who informed him that a report was made that he arranged and attended an after party. The principal explained to him that this was against the school’s policy and he had to sign a verbal warning. He admitted to the principal this was true and he apologised. Thereafter, Mr Eskock from the district office came to the school and reported that there was a letter that was faxed to the Department and the letter stated that there was inappropriate relationship between himself and a learner at the after party. The principal then shared with Mr Eskock his involvement with the after party and informed Mr Eskock that he, the principal had dealt with the issue of him arranging and attending the after party. The principal indicated that he was unaware of the alleged incident regarding the inappropriate relationship as reported. He was charged thereafter with misconduct involving an inappropriate relationship with a learner and was found not guilty on that charge. However due to the fact that he admitted to attending the after party he was fined R3000.00 for violating Gelvandale High School’s policy.
6.3 He was not the only educator who attended the after party in that Mr O’Brien and Mr van Lorrerensberg both educators attended the after party and they were never charged for attending after party. He was charged in that he signed a letter for the parents confirming the request that he would be attending the after party. The letter was submitted to the principal by Mr Eskock that the District Office received concerning allegations of inappropriate relationship with a learner although the letter never identified the learner by name.

6.4 He applied for the position of deputy principal and indicated that he was never convicted of misconduct and he indicated no to the question. The charge of misconduct referring to inappropriate conduct with the learner he was cleared of those charges. Therefore, he believed he was not convicted of misconduct. The fine for R3000.00 he paid was not because of the conviction of misconduct it was because he admitted to the principal that he arranged and attended the after party. The violation of the school policy was not part of the misconduct charge.

6.5 Under cross-examination by Mr Adams, it was put to the witness that he could not have been fined had he not been found guilty of misconduct. The witness responded that it now makes sense that he was found guilty of arranging and attending an after party. However at the time of him completing form he believed that he was not convicted of the charge. It was put to the witness that his failure to disclose and declare his conviction put him at an advantage. The witness indicated that this was not his intention.

ANALYSIS OF EVIDENCE

7. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable.
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:
9. 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.
10. 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.
11. 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).
12. 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).”
13. 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.)
14. One has to look at the matter SA Police Service v SSSBC, Robertson NO & Noonan case no P426/08, Cheadle AJ at [14] held:

“(a) There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
(b) Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
(c) The employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
(d) 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.”

11. On Appeal in, Noonan v Safety & Security Sectoral Bargaining Council and others [2012] 9 BLLR 876 (LAC), the LAC indicated that there must be a causal connection between the consequences of the procedural irregularity (omission) and its unfair effect on the promotion process.
12. The incumbent, Mr Louw testified that he intentionally did not make a misrepresentation concerning when he indicated on his application form no to the question have you ever been convicted of misconduct. His rationale is that although he was charged with having an inappropriate relationship with a learner at the after party he was acquitted on that charge and was fined R3000.00 because he admitted to arranging and attending an after party. When Mr Louw was challenged by Mr Adams under cross examination that one could not get a fine without been found guilty of misconduct. It was only then did Mr Louw conceded that it now makes sense that he was found guilty of attending arranging an after party. I enquired from Mr Louw whether learners were consuming alcohol at the after party, he conceded that the learners consumed alcohol outside and he was inside with the parents. It was further suggested to Mr Louw that he by indicating that he had never been convicted of misconduct he had an advantage in his candidacy opposed to those candidates who have never been convicted of misconduct. When the arbitration commenced it was initially suggested by the applicants’ that the incumbent, Mr Louw was fined R3000.00 for having an inappropriate relationship with a learner at an after party and for arranging and attending an after party. It then transpired that the fine of R3000.00 was for Mr Louw arranging and attending an after party. What was clearly downplayed by Mr Louw and the respondent was the involvement of alcohol. I find it highly improbable concerning the serious nature of the allegations, the harsh sanction of a fine of R3000.00 that Mr Louw forgot that he was actually convicted of misconduct.
13. In the Noonan matter according to the kopnota (headnote) the Labour Appeal Court noted “that the existence of a criminal or disciplinary record is linked to the concept of a candidate’s suitability for a post. It considered the provisions of the relevant national instruction, which regards suitability as so important that it provides for suitability to be established before an application for promotion is considered, during consideration of the application and after approval of the promotion. The effect of M’s non-disclosure was that the panel, which had to be informed of the disciplinary infraction, was unaware of it and therefore could not evaluate its seriousness in the context of the requirements of the post. A further effect of the non-disclosure was that the other shortlisted candidates were competing against a candidate who had possibly entered the contest illegitimately – without disclosure and without an evaluation of the disciplinary sanction as required by the instruction it could not be said whether M would have been shortlisted or selected as one of the three candidates. The court considered the court below’s finding that the unfairness of the non-disclosure and its consequences were not material unless it affected the opportunity for promotion, which it held was not the case. The court found that this approach overlooked several aspects: there had been no disclosure at all by M and the commissioner had condoned the non-disclosure only after the appointment was made. In addition, it downplayed the value of process and lent support to possible dishonest practices. It devalued the role of the selection panel and, importantly, it prejudiced the appellant as he would possibly have been ranked first on the list of recommendations. Moreover, non-disclosure enabled M to rise through the process to a stage where the commissioner was able to condone the lapse. This was manifestly unfair – every applicant was obliged to apply his or her mind carefully to the application form and to complete it honestly and diligently so as to compete fairly with other candidates. The court found further that the SAPS was responsible for the consequences of M’s omission and its unfair effect on the promotion process. The national instruction required the commander to verify the information in the application form of an employee under his command. M’s commander clearly failed to verify the correctness of the information in M’s form when he certified it, and this omission constituted the causal connection between M’s omission and the SAPS’s responsibility for the unfairness of the process.”
14. The respondent in their conclusion of their closing arguments made reference to the Criminal Procedures Act that states that “the right to prosecute any offence elapses after 20 years from the time of the offence was committed.” They argued further in terms of the Criminal Procedures Act you can apply for expungement of your criminal record after period of 10 years from date of the conviction. It was argued that the incumbent, Mr Louw cannot be held captive by an insignificant offence that happened 20 years ago. Therefore respondent request that the applicants’ referrals be dismissed.
15. Any reference to the Criminal Procedures Act is misplaced in that we are not dealing with a criminal conviction and a criminal case. The fact that a candidate such as Mr Louw had previously been convicted of the disciplinary transgression this on its own does not serve as a disqualification such as a candidate not meeting the minimum requirements for a post. However, as demonstrated in the Noonan matter the failure to disclose means that a candidate such as the incumbent, Mr Louw had an unfair advantage in that the interview panel was not able to evaluate his suitability for the position. When I questioned the respondent why this transgression was not recorded on persal it was explained to me that such information was not recorded due to administrative deficiencies. What does concern me that all the applicants were aware of Mr Louws previous disciplinary transgression and I ask myself the question why was the interview panel as well as the SGB not aware of the disciplinary transgression?
16. Therefore, considering the previous disciplinary transgression of Mr Louw I determine that the applicants’ have been able to prove for reasons as expressed above that unfair labour practice occurred due to a procedural irregularity caused by the omission of Mr Louw to disclose his disciplinary record. Secondly the failure of the respondent to ensure that Mr Louw’s disciplinary records were kept updated on persal contributed and resulted in those attending to the shortlisting not been able to detect the inaccuracy of Mr Louw application as to his previous disciplinary record. A candidates application for promotion should always be checked against persal that should reflect a candidate’s employment history.
17. I therefore determine it to be appropriate under the circumstances to set aside the appointment of the incumbent, Mr Louw and direct that the post of deputy principal be re-advertised and that the shortlisting and interviews be conducted by independent panel appointed by the respondent who in turn shall allow the SGB to rectify based on interview recommendations to recommend to the respondent who to appoint to the re-advertised deputy principal’s post. Mr Louw is entitled to apply when the post is re-advertised and be considered provided that he indicates that he had previously been convicted of misconduct.
18. It is recommended that the Head of Department investigate in terms of Section 22 of the South African Schools Act whether the SGB has the necessary competency and whether they are able to be unbiased to candidates when attending to the shortlisting and the interviewing of candidates and whether an independent panel should be appointed to conduct the shortlisting and the interviewing of candidates. Allegations were made that Ms van Rensburg, a none-educator member and a staff member of the SGB was biased in favour of the incumbent. Should the respondent elect to utilise its’ powers to appoint an independent panel it will still have to allow the SGB to ratify the outcome of the interviews as to recommendation.

AWARD

19. The respondent, the Department of Education: Education had perpetrated an unfair labour practice relating to promotion when they appointed the incumbent, Mr George Louw as Deputy Principal at Gelvandale High School. The applicants, Edward Thomas van Heerden, Sam Madatt, Sherine Booysen, Standon Rowen Potgieter and Lindton Le Grange were denied a fair opportunity to compete fairly in there candidacy for the advertised position of deputy principal at Gelvandale High School.
20. The appointment of incumbent, Mr George Louw is set aside with immediate effect and the respondent is directed to re-advertise the position of Deputy Principal at Gelvandale High School within 90 days from date of them receiving this award. Mr Louw is entitled to apply when the post is re-advertised and for his candidacy to be considered.

Name: Jonathan Gruss
(ELRC) Arbitrator