In the Arbitration between:

SADTU OBO GRANT WILLIAMS
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(1st Respondent)

and

ENSLIN MENTOOR
(2nd Respondent)

Union / Applicant’s representative: Mr. J Adams
Telephone: 083 634 9207
Telefax: 086 662 0331
Email: jadams@sadtu.org.za

1st Respondent’s representative: Ms. L Randall
Telephone: 021 467 2858
Telefax: 021 425 8612
Email: Lauren.Randall@westerncape.gov.za

2nd Respondent’s representative: Mr. R Baard
Telephone: 071 877 4657
Telefax: Not available
Email: vvvwk2@saou.co.za
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 22 May-; 18 July-; and 4 October 2019 in Worcester. The proceedings were digitally recorded.

2. Mr. J Adams, an official of SADTU, represented the applicant, Mr. G Williams. The 1st respondent, the Department of Education – Western Cape (WCED) was represented by its Assistant Director Labour Relations, Ms. L Randall. Mr. R Baard, an official of SAOU, represented the 2nd respondent, Mr. E Mentoor.

3. I received the written closing arguments from the applicant and 1st respondent on 14 October 2019. I did not receive closing arguments from the 2nd respondent.

THE ISSUE IN DISPUTE

4. I must determine whether the conduct of the respondent constitutes an unfair labour practice in relation to promotion and if so, I must determine the appropriate relief.

BACKGROUND TO THE ISSUE

5. The applicant is employed as a Post Level 1 Educator at Slanghoek Primary School. He has acted as the Head of Department (HOD): Intermediate Phase since 2016.

6. The applicant applied for the permanent position of HOD: Intermediate Phase and was nominated as the preferred candidate by the School Governing Body (SGB). The 2nd respondent was nominated as the SGB’s second preferred candidate.

7. On 27 September 2018 the WCED informed the SGB that the applicant “…is not qualified to teach Life Skills, Technology, Economics, Business studies and Economic and Management Science (EMS) in the intermediate and the senior phase. The applicant is qualified to teach EMS in the Further Education and Training (FET) phase. The nomination for appointment of Mr. G G Williams to the advertised post is therefore not approved. It is the Department’s intension to appoint the second nominee, Mr. E Mentoor, as he is suitably qualified to only teach English, Technology, and Life skills / Life Orientation in the Intermediate and Senior Phase.”

8. The 2nd respondent was appointed as the HOD: Intermediate Phase at Slanghoek Primary School with effect from 1 April 2019.

9. The applicant claims that the WCED committed an unfair labour practice in relation to promotion. The applicant seeks an order to the effect that the appointment of Mr. Mentoor as the HOD: Intermediate Phase at Slanghoek Primary School be set aside and for him to be appointed to the position. The WCED denies that the applicant was subjected to an unfair labour practice relating to promotion

SUMMARY OF EVIDENCE AND ARGUMENT

10. The applicant and the WCED presented bundles of documents into evidence. The applicant testified and called three witnesses. The WCED called one witness. The 2nd respondent did not testify or call any witnesses.

11. I have considered all the evidence and argument presented during 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.

The applicant’s evidence

12. Mr. G Williams testified under oath. The applicant has a B. ED degree in Economic and Management Science, and a B. ED Honours Degree in Education Management. The B. ED degree is a qualification to teach in the FET phase. He is professionally qualified to teach in the FET phase.

13. The applicant’s testimony is that he is also qualified to teach in the intermediate phase because of the subjects he passed as part of his B. ED degree; the CAPS Teacher Orientation Intermediate Phase training that he attended from 9-11 July 2012 and the fact that he has been appointed and teaching in the intermediate phase for 9 years. He has also acted as HOD for 3 years.

14. He submitted that the WCED never informed him that he is not suitably qualified to teach in the intermediate phase. Mr. Williams submitted that the advertisement for the post referred to CAPS training and experience in education management and school administration, which he has.

15. It was agreed as common cause that the applicant meets all the requirements for appointment as HOD in terms of the Personnel Administrative Measures (PAM) expect for the relevant educational qualification in as far as it concerns the intermediate phase.

16. The applicant testified that it was not previously explained to him that a qualification in the intermediate phase is required for appointment in a promotional post of HOD: Intermediate Phase. The applicant agreed that the three day CAPS training does not put him on the same academic level as the 2nd respondent, whose Postgraduate Certificate in Education (PGCE): Intermediate and Senior Phase professionally qualifies him to teach in the intermediate phase. The applicant agreed that he does not have a tertiary qualification to teach in the intermediate phase and that he specialised in the FET phase.

17. Ms. W K Manus testified under oath. She is an educator at Ceres Primary School. Ms. Manus testified that she has a qualification to teach in the FET phase but has been teaching in the intermediate phase since 2011. She submitted that if she applied for a HOD post in future that she will consider it unfair if she is not appointed only because she is not suitably qualified.

18. Ms. K Roodman testified under oath. She is a Deputy Principal. Ms. Roodman testified that she was appointed as a Deputy Principal in 2012 even though she has a FET qualification and no qualification in the intermediate phase. She believes that is was unfair of the WCED to have overseen the applicant for promotion only because he does not have an academic qualification in the intermediate phase.

19. Mr. J Rustin testified under oath. He is the Provincial Secretary of SADTU for the Western Cape. He explained that the Minimum Requirements for Teacher Education Qualifications (MRTEQ) is designed to set minimum requirements for teacher education qualifications and is aimed at ensuring that the higher education system produces high quality teachers. Mr. Rustin referred to WCED Circular 26/2019 under the heading “Evaluation of qualifications: Foundation Phase and Intermediate Phase Post Graduate Certificates in Education as well as the National Professional Diploma in Education.” He said that when the union was consulted on the circular it objected to it because the circular did not address the purpose of the legislation and it should not have applied to qualifications that were already accredited. MRTEQ serves merely as guidelines for universities to develop teaching programmes that comply with the required teaching qualifications. He explained that he foresees a crisis in education because of the number of educators that teach in phases where they are not qualified for but will, as result of the circular prescripts, not be able to be promoted.

20. Mr. Rustin submitted that the qualification of the applicant and 2nd respondent is equal except that the applicant’s qualification is in the FET phase and the 2nd respondent’s qualification is in the intermediate- and senior phase. He pointed out that applicant has a honours degree which the 2nd respondent does not have.

The respondent’s evidence

21. Mr. H. Wynberg testified under oath. He is employed by the WCED as the Deputy Director Recruitment and Selection.
22. Mr. Wynberg testified that the SGB made recommendations in terms of section 63 of the Employment of Educators Act, 76 of 1998 and that the decision to appoint lies with the Head of Department / delegated authority.

23. He testified that an HOD post also requires the incumbent to teach. He submitted that the applicant was not promoted as HOD: Intermediate Phase because he is not suitably qualified to teach in this phase as he has an EMS qualification that qualifies him to teach in the FET phase whereas the 2nd respondent is suitably qualified to teach in the intermediate- and senior phase. He explained that MRTEQ read with PAM provide that an educator must be suitable qualified to teach in a phase. Mr. Wynberg testified that the CAPS training is a 3-day course and is not a 360 or 120 credit NQF qualification. Mr. Wynberg explained that the WCED provides bursaries and that the applicant could apply for the Advanced Certificate in the intermediate phase which is recognised in terms of MRTEQ.

24. Mr. Wynberg testified that the WCED has made mistakes in the past by appointing educators in phases for which they have not qualified for. The National Department of Education informed the WCED to ensure that persons are appointed in the correct phase. Since 2016 the WCED endeavours to ensure that each educator is qualified to teach in the phase he or she is appointed in. He said circular 26/2019 was sent out to reconfirm this position.

Closing arguments

25. The written closing arguments of the parties are on record. I do not find it necessary to repeat them here. I have taken them into account. If I do not refer to a particular argument in this summary, it does not mean that I did not consider it.

26. Mr. Adams argued that the WCED has acted unfairly in not promoting the applicant. The applicant has a B. ED and B. ED Honours in school management. He has done CAPS training and has the skills to teach in the intermediary phase. He has been teaching in the intermediate phase for 9 years and has also acted as HOD. He is suitably qualified for the HOD post and he meets all the requirements in terms of PAM for the HOD post expect for the educational qualification in the intermediate phase. MRTEQ has been applied incorrectly by the WCED.

27. Ms. Randall argued that WCED did not only rely on MRTEQ but also on PAM and circulars to inform its decision. The WCED appointed the 2nd respondent because he was more suitably qualified than the applicant. The 2nd respondent met all the academic- and experience requirements and has also completed CAPS training. Based on the applicant’s qualifications he is qualified only to teach Business Studies, Economics and Economic Management Sciences in the FET phase. He does not have specialist training in the intermediate phase. The applicant was not prejudiced and the WCED acted in the best interest of the school in appointing the 2nd respondent.

ANALYSIS OF EVIDENCE AND ARGUMENTS

28. Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended, 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 (Ethekwini Municipality vs SA Local Governing Bargaining Council & Others [2009] JOL 23625 (LC)).

29. I will begin by briefly setting out the principals that should be taken into account when dealing with promotion disputes.

30. In SAPS v SSSBC & Others (2010)/P426-08 (LC) the Labour Court 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…”

31. 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.

32. In City of Tshwane 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.

33. Having the abovementioned principals in mind, I will now evaluate the applicant’s case.

34. The applicant is a well-qualified educator. He has a B. ED degree in Economic and Management Science, and a B. ED Honours Degree in Education Management and he has completed the CAPS training. He has been teaching in the intermediate phase for 9 years and he has also acted as HOD for 3 years. These factors made him a good candidate to compete for the HOD: Intermediary phase position at Slanghoek Primary School. He was also nominated for appointment by the SGB as its preferred candidate.

35. On the other hand, the 2nd respondent meets all the academic and experience requirements for the HOD: Intermediary Phase position and he has also completed the CAPS training. He was nominated for appointment by the SGB as its second choice candidate.

36. The discretion to appoint does not lie with the SGB but with the WCED. The WCED can appoint any of the candidates nominated by the SGB. The WCED preferred to appoint the 2nd respondent. With both candidates meeting the requirements as set out in the advertisement, the decision was based on the academic qualifications of the two candidates.

37. I have no reason to reject respondent’s version that the National Department of Education informed the WCED to ensure that persons are appointed in the correct phase and that the WCED has since 2016 endeavoured to ensure that educators are qualified to teach in the phase when they are appointed.

38. In PSA obo E L Thorne v Department of Community Safety and others (CA07/2017) the Labour Appeal Court held that the Department of Community Safety is allowed to set an educational standard which it believes is reasonable for the requirements of the post. The same principle applied in this case.

39. It is common cause that the applicant is professionally qualified to teach in the FET phase and not in the intermediary phase even though he has been teaching in the intermediate phase. It was agreed between the parties as being common cause that the applicant meets all the requirements for appointment as HOD in terms of PAM expect for the relevant educational qualification in as far as it concerns the intermediate phase. The 2nd respondent on the other hand has a PGCE Intermediate- and Senior Phase qualification which means that he is professionally qualified to teach in the intermediate phase.

40. For promotion to the post of HOD: Intermediate Phase, the WCED has preferred to appoint the 2nd respondent who has a qualification to teach in the intermediate phase over the applicant whose qualification is to teach in the FET phase.

41. Having regard to the fact that the promotional HOD post for which the two candidates competed for was in the intermediate phase, I am not persuaded that it was grossly unreasonable for the WCED to prefer the 2nd respondent. The situation would have been different if the HOD position was in the FET phase. Then the applicant should have been promoted and not the 2nd respondent. The discretion exercised by the WCED to appoint the 2nd respondent was not irrational or seriously flawed as he meets the advertised requirements and is also professionally qualified to teach in the intermediate phase.

42. I find that the applicant has failed to discharge the onus of proving an unfair labour practice relating to promotion. I have no reason to set aside the appointment of the 2nd respondent. The relief that the applicant is seeking must accordingly fail.

AWARD

43. The 1st respondent, the Department of Education – Western Cape, has not committed an unfair labour practice relating to promotion when not promoting the applicant.

ELRC Panellist: Jacques Buitendag