In the matter between

SOUTH AFRICAN DEMOCRATIC TEACHERS UNION ON BEHALF OF N. G. JACOBS Applicant

and

DEPARTMENT OF EDUCATION WESTERN CAPE Respondent

ARBITRATION AWARD

________________________________________________________________

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

The arbitration took place at the offices of the Department of Education, Western Cape in Adderley Street Cape Town on 9 September 2010. The applicant, Ms. Nonwakazi Gladys Jacobs (Jacobs), was represented by Ms. N. Sofiyiya(Sofiyiya), an official with SADTU. The respondent, the Department of Education Western Cape (the respondent), was represented by Ms. B. Noble, its labour relations officer.

Jacobs testified on her own behalf and Mr. Clinton Booysen(Booysen), a human resources officer with the respondent and Mr. Ishgaak Matthews(Matthews), a labour relations officer with the respondent testified on behalf of the respondent.

A common bundle of documents was handed in to evidence.

THE ISSUE IN DISPUTE

4. Does the conduct of the respondent in not appointing Jacobs into Post Number 0091 as advertised in Vacancy List 1 of 2009 constitute unfair conduct for the purposes of Section 186 (2) of the Labour Relations Act 66 of 1995 as amended.

THE BACKGROUND TO THE DISPUTE

5. Jacobs began working for the Department of Education in 1993. She is presently an office based learner support educator working with Intshinga and Siyazingisa Primary Schools in Gugulethu. She is presently earning R13278,00 per month.

6. Post Number 0091 for a Departmental Head at Intshinga Primary School was advertised in Vacancy List 1 of 2009. The applicant applied for the position and was short-listed. She went for an interview at Intshinga Primary School on 10 May 2009. She was nominated as candidate number 1 by the interview panel/committee.

SUMMARY OF EVIDENCE AND ARGUMENT

7. Jacobs testified as follows:

8. She had held a post level one position at the Department of Education for seventeen years. In February 2009 she applied for the Departmental Head post at Intshinga Primary School. She was not aware that there was an excess of personnel at the school. She would not have applied if she was aware of the excess. She had a good relationship with Ms. Tybosch(Tybosch), the acting principal at Intshinga Primary School. On 12 May 2009 Tybosch told Jacobs that she had won the interviews and that she was number one.

9. This was not the first time that she had applied for a promotion post. She was not familiar with the proceedings of filling a post. Sometimes she did receive letters from the respondent informing her whether she was successful or not.

10. She became aware of the excess position at the school on the day of the grievance meeting at Intshinga Primary School attended by Matthews in April 2010. At the grievance meeting Matthews said that he came as a result of the letter Jacobs had sent the department and he was not going to entertain what was said by Tybosch to Jacobs (“you are number one on the interviews”).

11. When Tybosch told her that she was the number one candidate for the position her hopes were raised as she felt that she was going to be the head of the department. Despite the fact that the department had the final say in appointments Jacobs felt that what Tybosch had said to her created a legitimate expectation of being appointed because the panel tries to select the most suitable candidate.

12. Jacobs testified further that by nominating her as the first candidate for the post she was regarded as suitable for the post and as the number one candidate was the most suitable. Power is not given to the School Governimg Body(SGB) to make appointments because they do not pay the educators.

13. Jacobs testified that the Head of Department of the respondent does consider other things e.g. Employment Equity etc when making the appointment and before the post is advertised.

14. She testified that she was treated unfairly because she did not know that there was an excess at the school. She is not disputing the advertisement for the position being placed but she is disputing the fact that she was nominated as the number one candidate and did not get appointed. That amounted to unfair treatment.

15. Tybosch told Jacobs that if she gets appointed Ms. Mazamiza(Mazamiza) won’t be with them but if Ms. Matiwane gets appointed then Ms. Mazamiza will stay. Ms. Matiwane(Matiwane) was appointed and Mazamiza was still there.

16. Booysen testified as follows:

17. He has been working for the respondent for twenty four years. He works in the establishment section of the respondent where he controls and maintains the establishment and sees to it that the schools stay within the establishment. Each school is issued with an establishment of how many posts they qualify for and Booysen’s task is to see that it is maintained.

18. He further testified that the number of educators must equal the number of posts. If there are more educators than posts then an excess will exist. There is a process in place to identify excess staff and to place them in vacant substantive posts. This process is done by the circuit managers who will look at the subjects and if the educator does not offer the subjects he or she will be placed elsewhere or the Last in First Out system will be used.

19. Booysen is familiar with the Jacobs case and with Intshinga Primary School(Intshinga). At Intshinga nine posts are allocated and there are nine permanent educators, one educator in excess at post level 1 and one vacant post at post level 2.

20. Booysen testified further that he is aware of the educator post that was advertised at Intshinga.

21. He testified that one cannot appoint more people than posts.

22. When the nominations came through he highlighted to the team dealing with appointments that there is an excess at Intshinga and if they go ahead with the appointment it will cause more excess. While Booysen testified that it will cause more excess I take it to mean that it will maintain the excess and not increase it.

23. He testified that the school places the advertisements. The school should know that there is an excess because they are issued with the school’s establishment and the principal should know how many educators are at the school and should also know that he or she should stay within the establishment.

24. Booysen testified that the policy on excess is that the educators in excess should get preference when appointments are made.

25. He was aware of the excess at post level one at Intshinga. The bulletin was open for everyone to apply. There was no excess at the Head of Department post level at Intshinga .

26. When he looked at the nominations he was guided by circular 31 of 2009. The identifying of the person in excess at Intshinga Primary School was done prior to the publication of the bulletin. He was not aware of anyone who was on contract at the school nor did he know if there was a retirement at the school. He testified that the principal resigned in January 2010.

27. Matthews testifies as follows:

28. He became aware of the situation when the circuit manager asked why the Department of Education did not finalise the appointment. Head Office wanted Matthew’s office to go to the School Governing Body because the WCED could not appoint the first nominee as it would exacerbate the excess at the school.

29. Matthews, Ms. D. Moleko, the IMG manager, the Circuit team manager, Mr. C. Mdingi informed the School Governing Body of the excess and advised them to re-consider nominating someone else. The main reason for this was that Jacobs did not form part of the school’s establishment.

30. The SGB said that the WCED can go ahead and make an appointment that would be in the best interests of the school.

31. Matthews testified further that the respondent would confirm an appointment if it is made from inside the school. Matiwane, the second person would be good because she is inside the school and would not exacerbate the excess.

32. Jacobs lodged a grievance and Matthews met Jacobs and Sofiyiya at a grievance meeting where the excess situation was explained.

33. Jacobs did not accept the respondent’s explanation and wanted to take the matter further.

34. Matthews testified that the person on contract may have been kept till the end of 2009 but he is not quite sure if that is correct. In 2010 someone retired but not in 2009. He was not sure why Jacobs did not get a letter telling her that she was unsuccessful.

35. When asked in cross examination whether it was fair to choose an internal candidate above an external candidate Matthews testified that the rationale was based on the excess situation and that the Employment Equity Act was not breached because gender, race, disability or any other equity issue did not affect the non appointment of Jacobs as the only issue was the excess issue.

36. Normally the principal should inform the SGB of the excess situation as the WCED informs the principals.

37. Resolution 5 of 1998 gives guidance as to the appointment situation where excess exists. Vacancy lists also gives guidelines to the schools and the SGB’s are given training by the respondent.

38. The IMG manager and the principal identify the excess at the schools.

39. It is not Matthews’ responsibility to inform the school of excess at the school.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

Jacobs testified that she was treated unfairly because she did not know that there was an excess at the school and that not appointing her into the position at Intshinga when she was nominated as the number 1 candidate amounted to unfair treatment. Jacobs also contended that when Tybosch told her that she nominated as the number 1 candidate this created in her a legitimate expectation to getting the job.

In order to show unfairness relating to appointment or promotion, an employee needs to show that the employer, in not appointing him or her and appointing another candidate, acted irrationally, capriciously or arbitrarily or was biased or driven by malice or fraud or failed to apply its mind or unfairly discriminated against the employee.

I will now look at the Employment of Educators Act 76 of 1998 as amended which sets out the Powers of the Employer with regard to appointments and promotions.

Powers of employers

6. (1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator –

(a)……..

(b)in the service of a provincial department of education shall be made by the Head of Department.

(3) (a) Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school, may only be made on the recommendation of the governing body of the public school, and, if there are educators in the provincial department of education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are so in excess and suitable for the post concerned.

(b) In considering the applications, 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 for Educators; and

(c) procedures that would ensure that the recommendation is not obtained through undue influence on members of the governing body or the council as the case may be.

(c) The governing body or the council, as the case may be, must submit, in order of preference to the Head of Department, a list of –

(i)at least three names of recommended candidates; or

(ii) fewer than three candidates in consultation with the Head of Department.

(d) When the Head of Department considers the recommendation contemplated in paragraph (c), he or she must before making an appointment, ensure that the governing body or council, as the case may, has met the requirements in paragraph (b)

(e)….

(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.

Appointments and filling of posts

7. (1) In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195(1) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and which include the following factors, namely –

(a)the ability of the candidate; and

((b)the need to redress the imbalances of the past in order to achieve broad representation.

43. A collective Agreement setting out procedures to be followed regarding educators who are in excess of the educator establishment is Resolution 2 of 2001. It states that:

S3 Parties to the Council agree that:

3.1 The relevant Provincial Education Departments shall absorb all educators declared in excess in terms of Resolution 6 of 1998

3.2 The absorption of educators declared in excess may include:

3.2.1. Absorption by appointment into vacant posts at the same institution or another institution or office

44. Even though Sofiyiya alluded to the Employment Equity Act being breached I agree with the respondent that the Employment Equity Act was not breached because gender, race, disability or any other equity issue did not affect the non appointment of Jacobs as none of those categories were issues in dispute and neither Sofiyiya nor Jacobs presented any argument on the Employment Equity Act being breached.

45. Jacobs also testified that when Tybosch told her that she was the number one candidate for the position it created a legitimate expectation that she would be appointed. During cross examination Jacobs did acknowledge that she knew that the Respondent makes the appointment and that before making the appointment it may consider factors like Employment Equity. Jacobs was aware that the SGB does not make the appointments but the Head Of Department does. She was also aware that the SGB submitted 3 names as recommendations of suitable candidates to the respondent. As she knew that there was the possibility of the Head of Department choosing another recommended candidate she could not possibly believe that she had a legitimate expectation of being appointed.

46. Jacobs testified that by not informing her that there was an excess at the school she was treated unfairly. Neither the legislation nor the collective agreements state that Jacobs had to be informed of the excess situation at the school. She did not show that she tried to access this information from the respondent. As Matthews testified the principals are notified of the excess position at their schools. Jacobs could have asked the principal before applying for the position. Her testimony does not show that she did this.

47. Jacobs argued that as the SGB chose her as their first choice the Respondent was therefore compelled to appoint her and by not appointing her it had acted unfairly. A collective agreement (resolution 2 of 2001) governs the absorbing of educators declared in excess. It states that absorption may include appointment into a vacant post. When Booysen looked at the applications he highlighted to the appointments team that as there was an excess of educators at Intshinga if they appoint Jacobs there will still be an excess at the school. The employer responded by meeting with the SGB and explaining the situation to them and at that meeting it was agreed upon that the second recommended, suitable candidate, Matiwane would be appointed. This was done as Matiwane was an educator at post level 1 at the school and if she were to move to the post level 2 position it would eradicate the excess situation at the school. . Mazamiza will no longer be in excess. As Matthews testified the SGB said that the respondent can go ahead and appoint Matiwane if it is in the best interests of the school.

In doing this the employer has not acted irrationally, capriciously or arbitrarily nor did it display bias against Jacobs. This decision was not driven by malice nor fraud . Nor did the employer fail to apply its mind to the situation at Intshinga Primary School. It did not unfairly discriminate against Jacobs. Its decision was based on its operational requirements which is to eradicate the excess situation in schools The second recommended candidate, Matiwane was a suitable candidate and was therefore appointed.

Eradicating excess at the schools is pursued rigorously by the respondent. As Booysen testified his job is to control and maintain establishment at schools. Each school is issued with an establishment which informs them of how many posts they qualify for and Booysen’s job is to see that the schools stay within that establishment. As he testified the number of educators must equal the number of posts and if there are more educators than posts a process was in place to identify the excess staff and to place them in vacant substantive posts. At Intshinga Mazamiza was identified as an educator in excess and was placed in the post left vacant after Matiwane had been promoted.

S6(f) of the Employment of Educators Act 76 of 1998 as amended allows the Head of Department to appoint any suitable candidate on the recommended list despite the order of preference. This is the prerogative of the employer and it was not acting outside its powers when it appointed Matiwane and not Jacobs.

Sofiyiya asked Matthews why the contract person was kept when there was an excess position at the school. Matthews said that the person was kept until the end of 2009 but he was not certain if this was the position. Sofiyiya forwarded no argument in this regard. There is no evidence before me to suggest that this relates to the excess position or the position advertised.

52. The HOD and not the SGB appoints suitably qualified educators to teaching positions. While the HOD cannot disregard the fact that the SGB has nominated a particular candidate as their first choice, and whilst the HOD should realise that significant weight should be placed on the fact that the SGB has nominated a candidate as their first choice the Employment of Educators Act has given the HOD the right to appoint the second or third nominee instead of the first nominee.

53. Provided that the HOD does so for a rational and fair reason, and provided that he or she does not appoint an incompetent person or person who is much weaker than the best candidate, the HOD is entitled to appoint the second or third nominee if that candidate is suitably qualified and experienced.

54. The fact that a candidate is nominated by the SGB as its first choice, can therefore not give that candidate any reasonable expectation that she will necessarily by appointed. The applicant did not show that Matiwane was not a suitable candidate for the position. Matthews testified that the respondent met with the SGB to inform them about the excess position at the school and to ask them to re-consider their nominations. Agreement was reached that Ms. Matiwane would be appointed as this would eradicate the excess position at the school. The suitability of Ms. Matiwane was not raised as an issue so I am satisfied that the respondent has appointed a suitable educator who is not incompetent or much weaker than Jacobs.

55. Sofiyiya argued that Jacobs is a victim beyond her control and because she works at two schools she is not part of the staff establishment of any school in the Western Cape and as such will be disadvantaged when applying for a position where excess exists at the school. I disagree with this as she was not appointed because an internal candidate applied who was suitable. If a suitable internal candidate was not recommended by the SGB Jacobs would most probably have been appointed. Jacobs will only lose to an internal candidate if the internal candidate is recommended by the SGB and is suitable for the position in question.

56. I am satisfied that the decision of first respondent to appoint Ms. Matiwane and not the applicant was a fair decision. I am satisfied that in appointing Matiwane and not Jacobs assists with eradicating the excess situation at Intshinga and is consistent with Resolution 2 of 2001 The respondent in filling post number 0091 acted in a fair and rational manner, consistent with the Employment of Educators Act and Resolution 2 of 2001. I am also satisfied that in the process the respondent did not discriminate unfairly against the applicant.

AWARD

57. This application for relief in terms of the Labour Relations Act 66 of 1995 as amended is dismissed.

PANELIST: LORRAINE MARTIN

23 SEPTEMBER 2010