In the matter between:

SADTU obo M BRUINTJIES Applicant

And

EDUCATION DEPARTMENT OF WESTERN CAPE 1st Respondent

And

R JONAS 2nd Respondent

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration hearing under the auspices of the ELRC took place virtually on the Zoom platform on 23 February 2022. The proceedings were digitally recorded.

2. Ms. N Mzizi, an official of SADTU, represented the applicant, Ms. Bruintjies. Mr. R Janson, a Senior Labour Relations Officer represented the 1st respondent, the Education Department of Western Cape. The 2nd respondent, Ms. R Jonas, was represented by an official of NAPTOSA, Mr. X Zigebe.

3. The parties filed written closing arguments on 3 March 2022.

THE ISSUE IN DISPUTE

4. I must determine whether the conduct of the 1st respondent constitutes an unfair labour practice concerning promotion. If so, I must determine the appropriate remedy.

BACKGROUND TO THE ISSUE

5. The 1st respondent advertised the Principal post at Tafelsig Primary School, post no 431 in Vacancy list 1/2020.

6. The applicant is an Educator at Tafelsig Primary School and she applied for the post. The applicant was shortlisted and interviewed for the post on 27 February 2021. The Interview Committee recommended three candidates for appointment. The first-choice candidate Mr. Smith scored the highest mark of 242. Ms. Jonas scored a mark of 209 and recommended as the second-choice candidate. The Interview Committee’s third-choice candidate was Ms Motsembe with a mark of 197.

7. Mr. Smith accepted a principal post at another school and the Head of the Education Department of the Western Cape (HOD) appointed Ms. Jonas as Principal of Tafelsig Primary School with effect from 1 January 2022.

8. The applicant claims that she was prejudiced during the appointment process. She prays for the appointment of Ms. Jonas to be set aside and for the 1st respondent to redo the appointment process. The 1st respondent denies committing an unfair practice concerning promotion.

SUMMARY OF EVIDENCE AND ARGUMENT

9. I have considered all the evidence and argument presented in this Arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings; I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute. Both parties submitted documentation into evidence. I have taken these documents into consideration.

The applicant’s evidence
10. Ms. Bruintjies testified that she is an educator for 26 years and acted as Principal of Tafelsig Primary School for approximately 20 months with distinction and with little support from the School Governing Body (SGB).

11. Ms. Bruintjies testified that the Circuit Manager, Ms. Piers was the resource person during the shortlisting and interview process. Ms. Piers investigated her for financial mismanagement and informed her during October 2021 to stop acting as Principal. She believes that Ms. Piers is biased against her.

12. Ms. Bruintjies testified that she was informed by a SADTU union representative that during the shortlisting process Ms. Piers asked him “why his comrade is spending the school’s money?”

13. Ms. Bruintjies testified that during the interviews there were technical difficulties with a laptop used for the presentations. She was asked by Ms. Piers to leave the room. When she returned the Interview Committee did not greet her. Ms. Bruintjies testified that she did the presentation and answered all the interview questions.

14. Under cross-examination, it was put to Ms. Bruintjies that the investigation concerning financial mismanagement only commenced after the interview Committee made their nominations on 27 February 2021. Ms. Bruintjies maintained that Ms. Piers was conflicted and that she was prejudiced.

15. Ms. De Waal testified that she is a SADTU shop steward and attended the interviews on 27 February 2022 as well as the nomination process. She drafted a report about her observations and raised a number of concerns.

16. Ms. De Waal testified that when she arrived for the interviews Ms. Piers was already busy explaining the interview process to the Interview Committee. Ms. De Waal explained that the questions for the interviews was not printed in her presence and the interview packs were already prepared upon her arrival.

17. Ms. De Waal confirmed that Ms. Bruintjies was interviewed and scored by the Interview Committee. She testified that when Ms. Bruintjies left the room Ms. Piers said that she saw Ms. Bruintjies is wearing a medical bracelet. One of the members of the Interview Committee, Ms. Jordaan, then responded that Ms. Bruintjies has lupus.

18. Ms. De Waal submitted that during the Interview Committee’s deliberations of the candidates she noticed that there was mostly negative feedback about Ms. Bruintjies. The Interview Committee commented that Ms. Bruintjies was unprofessional. Ms. De Waal raised her concerns as an observer and informed the Interview Committee that she does not agree with some of the feedback. She mentioned that one of the candidates, Mr. Smith was also unprofessional to make a comment of “thank you my love” to Ms. Piers.

19. Under cross-examination Ms. De Waal was asked to present a policy or legislation that requires interview questions to be drafted and printed in front of an observer. Ms. De Waal replied that she does not have such a document. Ms. De Waal submitted that Ms. Bruintjies was unfairly treated because 1) she was not greeted as other candidates; 2) her medical condition was disclosed and 3) the Interview Committee made negative comments about her during their deliberations of the candidates.

The 1st respondent’s evidence

20. Ms. Piers testified that as the Acting Circuit Manager at the time, she was the resource person for the Principal post at Tafelsig Primary School.

21. In as far the allegation is concerned that Ms. Piers asked a SADTU union representative during the shortlisting process why Ms. Bruintjies is spending the school’s money, Ms. Piers testified that this discussion took place between her and the SADTU representative outside the venue where the shortlisting meeting was held and that none of the members of the Shortlising Committee was aware of the discussion.

22. About the allegation that Ms. Bruintjies was prejudiced because of her comment that she was wearing a medical bracelet and tone of the interview Committee members replied that Ms. Bruintjies has lupus, Ms. Piers testified that this comment did not alter Ms. Bruintjies marks because the scores were already calculated by that time.

23. Concerning Ms. Piers’s investigating allegations of financial mismanagement against Ms. Bruintjies, Ms. Piers testified that the investigation emanated from a complaint on the Anti-Corruption Hotline. The investigation started in August 2021. The nomination process was already finalised in March 2021.

24. Under cross-examination it was put to Ms Piers that she did not give Ms. Bruintjies the support that she required during the time that she acted as Principal. Ms. Piers replied that Ms. Bruintjies never contacted her about challenges she may have had.

25. Ms. Piers denied the contention that she has badmouthed Ms. Bruintjies. Ms. Piers testified that it was one of the Interview Committee members who, during the deliberations of the candidates, remarked that Ms. Bruintjies acted unprofessional.

26. Ms. Jordaan, an educator at Tafelsig Primary School and secretary of the School Governing Body (SGB), testified that she was the one who replied to Ms. Piers’s comment that Ms. Bruintjies has lupus. Ms. Jordaan said that this comment was made during a break in the presence of Ms. De Waal and one Interview Committee member, Ms. Lombaard. She testified that the scoring of the candidates was done and captured by that time.

27. Under cross-examination Ms. Jordaan testified that Ms. Bruintjies informed her that she has lupus. Ms. Jordaan maintained that the Interview Committee already calculated Ms. Bruintjies score when Ms. Piers asked about the medical bracelet.

Closing arguments
28. The written closing arguments of the parties are part of the record. I have taken it into account, and I don’t find it necessary to repeat it here in full. If I do not refer to a particular argument in this summary, it does not mean that I did not consider it.

29. The applicant referred to item 3.3(b(i) of the Personnel Administrative measures (PAM) which provides that “The decision of the Interview Committee must not be based on undue influence. Undue influence will exist if intimidation, threats, corruption, bribery or undue interference in the process of objective selection results in the unequal treatment of candidates.” The applicant argued that she was discredited on two occasions, once during the shortlisting process by Ms. Piers comments to the SADTU representative and secondly during the interview process when her medical condition was discussed. The applicant feels strongly that the comments made regarding her health challenges had an impact in the scoring and consensus and that this was the reason she was not recommended for appointment.

30. The applicant referred to Ms. De Waal’s objections to the points system to allocate twenty-five marks to questions as well as to the fact that the questions was prepared before Ms. De Waal arrived. The applicant further mentioned that the interview process took place on the 27th of February 2021 and the nomination process only finalized on the 3rd of March 2021.

31. The applicant argued that Ms. Piers was unprofessional, biased, and unsupportive of the applicant. The applicant submitted that she performed extremely well in the interview but because of negativity against her and comments made she was scored less. She believed that she was the best suitable candidate for the position because she performed well in the interview as well as she has acted in the position.

32. The 1st respondent argued that the applicant has failed to demonstrate the Department’s failure to nominate and appoint her resulted in an unfair labour practice. The 1st respondent submitted that the referral was frivolous and seeks a cost against the applicant.

33. The 2nd respondent argued that the applicant has failed to prove that she suffered any prejudice and as such the application ought to be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENTS

34. Section 186(2) of the Labour Relations Act, 66 of 1995, defines an unfair labour practise any unfair act or omission that arises between an employer and an employee involving inter alia unfair conduct by the employer relating to promotion. The onus is on the Applicant to prove unfair conduct on the part of the Respondent in relation to promotion.

35. I will begin by setting out the principals to consider in dealing with promotion disputes.

36. In SAPS v SSSBC & Others (2010)/P426-08 (LC) the Labour Court amply sets out the governing law on promotional disputes and goes on providing the following principles to determine unfair conduct relating to promotions:

• There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. The exceptions are when there is a contractual or statutory right to promotion
• Any conduct that denies an employee a fair opportunity to compete for a post constitutes an unfair labour practice.
• If the employee is not denied the opportunity of competing for a post, the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
• The corollary of this principle is that 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. See also PSA obo Department of Home Affairs (1999) 6 BLLR 577 (CCMA) where it was held that “…it must be stated that an employer cannot be said to have committed an unfair labour practice simply because it makes an unwise choice of candidate…”

37. In SAPS v SSSBC & Others (2010 P54-09 (LC) Basson, J held as follows:
• the decision not to promote should be exercised in a manner that does not constitute an unfair labour practice;
• the definition of an unfair labour practice refers to any unfair act or omission that arises between an employer/employee involving unfair conduct relating to promotion in terms of section 186(2)(a) of the LRA ’95. This definition has been interpreted by the LAC in Department of Justice v CCMA & Others (2004) 4 BLLR 297 (LAC) as referring to conduct relating to the actual promotion or non-promotion and conduct relating to promotion;
• 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 promote is seriously flawed, the Court and arbitrator should not readily interfere with the exercise of the discretion;
• the role of the commissioner is to oversee that the employer did not act unfairly towards the candidate that was not promoted. Contra: see Minister of Safety & Security v SSSBC & Others (2009) 18 LC 1.15.52 where it was held that an employer does not per se have an unfettered discretion when deciding whom to promote/the employer is not shielded from blatant forms of unfair labour practices.

38. In the more recent decision in City of Tswane Metropolitan Council of South Africa v South African Local Government Bargaining Council [2011] 12 BLLLR 1176 (LC) the judge referred with approval to the two-stage approach outlined in Ndlovu v CCMA and Others (2000) 21 ILJ 1653 (LC) to determine if the failure to promote an employee was unfair, namely, that:
[11] …it can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously, a person who is not so qualified cannot complain if they are not appointed.
[12] the next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer to appoint one in preference to the other is rational, it seems to be that no question of unfairness can arise.

39. The applicant referred to item 3.3(b(i) of the Personnel Administrative measures (PAM) which provides that “The decision of the Interview Committee must not be based on undue influence. Undue influence will exist if intimidation, threats, corruption, bribery or undue interference in the process of objective selection results in the unequal treatment of candidates.” The high point of the applicant’s case is that Ms. Piers is biased against her and has unduly interfered in the selection process which resulted in the applicant being prejudiced.

The shortlising process
40. The applicant submitted that she was discredited during the shortlisting process by Ms. Piers’s comments to the SADTU representative. The applicant did not call the SADTU representative who attended the shortlisting process as a witnesses. The applicant’s evidence on this score is hearsay.

41. Ms. Piers’s made several concessions during her testimony, and I have no reason to find her testimony unreliable. On Ms. Piers’s version she asked the SADTU union representative outside the venue where the shortlisting meeting was held why Ms. Bruintjies was spending the school’s money. On her version none of the members of the Shortlising Committee was aware of their discussion. Without any evidence to the contrary, I accept the version of Ms. Piers. I find no evidence that the short-listing process has been irregular or unfair towards the applicant and the applicant was not prejudiced by the comments made by Piers to the SADTU representative, in as far as the appointment process is concerned.

The interview and nomination process
42. Ms. De Waal testified that when she arrived at the venue on 27 February 2021 Ms. Piers was already busy explaining the interview process to the Interview Committee. As the resource person it is Ms. Piers’s duty to guide the Interview Committee and I find nothing untoward on this score.

43. Ms. De Waal took issue that the questions used during the interview was not printed in her presence and that the interview packs were already stapled upon her arrival. Ms. De Waal could however not point to any policy, collective agreement or legislation that was breached in this regard.

44. The applicant referred, in closing argument only, to Ms. De Waal’s objections to the points system to allocate twenty-five marks to the questions. There is no evidence that different questions were asked to candidates or that a different scoring system were used for some of the candidates. As all the candidates were subjected to the same questions and scoring system, the applicant could not have been prejudiced.

45. The applicant further referred to the fact the interview process took place on the 27th of February 2021 and the process was only finalized on the 3rd of March 2021. There is nothing untoward in interviews being held on a certain date and a nomination process being finalised on a later date. Again, all candidates were subjected to the same process.

46. The applicant believes that the comments made about her health challenges impacted the scoring and nomination process. In my view Ms. Piers question about the medical bracelet that the applicant was wearing was indeed unprofessional and the disclosure of the applicant medical condition by Ms. Jordaan was also uncalled for. But did this impacted the scores allocated to the applicant and unduly influenced the Interview Committee?

47. The corroborated evidence of Ms. Piers and Ms. Jordaan shows that the remarks about the applicant’s medical bracelet and medical condition were made after the applicant was interviewed and her score calculated. There is no evidence that the applicant’s scores on the questions asked was changed by the Interview Committee. The remarks thus did not influence the final mark achieved by the applicant during her interview.

48. The uncontested evidence of Ms. Jordaan is that the uncalled-for remarks were made during a break in the presence of Ms. De Waal and one Interview Committee member, Ms. Lombaard. There is however no evidence that the applicant’s medical condition was discussed by the Interview Committee during its deliberation of the candidates. Had it been it would have been improper.

49. It is evident that the Interview Committee recommended the three candidates who achieved the highest scores during the interviews. All three candidates recommended have outscored the applicant.

50. With regard to Ms. Piers’s investigation against the applicant for financial mismanagement, this had no bearing on the Interview Committee recommendation because the Committee’s recommendation was made in March 2021 and the investigation against the applicant only started in August 2021.

51. I am not persuaded on the evidence presented during this arbitration that Interview Committee was unduly influenced by Ms. Piers or that the applicant was prejudiced in the appointment process.

52. To conclude, the HOD and not the Interview Committee or SGB has the final say in terms of sections 6 and 7 of the Employment of Educators Act in appointing a suitably qualified candidate. While the HOD cannot ignore the Interview Committee or SGB’s recommendation of its recommended candidates, the legislature had given the HOD the right to appoint anyone of the three recommended candidates or not make an appointment at all. No evidence was presented by the applicant that Ms. Jonas was not a suitable candidate for promotion and no evidence was placed before me that the HOD had acted in bad faith or irrational in promoting Ms. Jonas. The HOD’s decision to promote Ms. Jonas does not warrant my interference.

53. In as far as the 1st respondent argued that the referral was frivolous, I am not persuaded that the referral was totally without merit.

AWARD

The 1st respondent did not commit an unfair labour practice relating to promotion. The applicant’s application is dismissed. I make no order as to cost.

ELRC Panelist: Jacques Buitendag