Case Number: ELRC615-24/25EC
Panelist: Hadley Saayman
Date of Award: 17 February 2025

In the ARBITRATION between

SAOU obo Tanya Paulsen

And

Department of Education – Eastern Cape
(1st Respondent)

J M Phefo
(2nd Respondent)

Applicant’s representative:    Ms A Van Wyk

Applicant’s address: SAOU
21 Barton Rd
Cotswold
Qeberha
Telephone:
E-mail: VenitavW@saou.co.za

1st Respondent’s representative: Mr E Hector
Department of Education
Sarah Baartman
Graaff-Reinet

Telephone:
E-mail: Euan.Hector@ecdoe.gov.za

2nd Respondent’s representative   :      

Mr S Mahambehlala
SADTU

DETAILS OF HEARING AND REPRESENTATION

1. This matter was set down for arbitration in terms of Section 186(2)(a) of the Labour Relations Act (LRA) on 27 January 2025. The Applicant, Ms Tanya Paulsen was represented by Ms Van Wyk a Union official of SAOU. The 1st Respondent, the Department of Basic Education-EC was represented by Mr E Hector. an Assistant Director. The 2nd Respondent and Incumbent, Ms M Phefo was represented by Mr S Mahambehlala, a Union official of SADTU. The parties agreed to submit written closing arguments by 3 February 2025, which they have done. ISSUE TO BE DECIDED
2. I am required to determine whether the 1st respondent committed an unfair labour practice as
   contemplated by Section 186(2)(a) of the LRA. BACKGROUND TO THE ISSUES
3. The applicant, Ms Tanya Paulsen applied for a vacancy of a Departmental Head of Jeffreys Bay Comprehension Secondary School, which was advertised in Bulletin-Volume 2 of 2024. The applicant was shortlisted and interviewed. The 2nd respondent, Ms Jemina Phefo was ranked number one (1), recommended and appointed as Departmental Head with effect 1 October 2024.
4. The applicant’s representative did not indicate during the Arbitration proceedings or in her written closing arguments which relief the applicant was seeking. It was only during the opening statement that the applicant’s representative indicated that the applicant felt that she was supposed to be appointed as Departmental Head. SURVEY OF EVIDENCE AND ARGUMENT
5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the
   Labour Relations Act 66 of 1995 (LRA), relevant to the dispute at hand. APPLICANTS EVIDENCE
6. The applicant, Ms Tanya Paulsen testified that she commenced employment as an educator with the respondent since 2014 where she was teaching at an Agricultural High School in the Free State. She holds a Diploma in Agriculture and a Post Graduate Certificate in Education. She started working as Post Level 1 educator at Jeffreys Bay Comprehension during 2017.She teach Natural and Life Science for grade 9 and Life Science for grade 10 and 12. She believed that she fair well during the interview and that she was currently fulfilling the duties as Departmental Head. The secretary as well as an educator of the SGB resigned immediately after the interviews and therefore she suspected that the processes was not fair.
7. The applicant called Mr Eric Van Rooyen a SAOU member, who testified that he was an observer during the shortlisting and interview proceedings. Only two applicants applied for the vacancy. The panel decided to invite both the applicants for the interview. The chairperson of the interview panel recommended that they would reach consensus on the preferred candidate. The applicant’s score was 62 and that incumbent 61. RESPONDENTS EVIDENCE
8. Mr Daniel Jocker, a teacher at Jeffreys Bay Comprehension School and SGB member. He testified that he was part of the shortlisting and interview proceedings. The vacancy was advertised for Physical Sciences. The applicant possessed a Diploma in Agricultural Science, whilst the incumbent was in possessed of a BSc Degree. During the shortlisting the panel decided to invite both candidates for the interview. ANALYSIS OF EVIDENCE AND ARGUMENT
9. The parties were granted an opportunity to submit written closing arguments, which I have considered.
10. Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as

meaning inter alia:

(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an

employee involving —

(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes

about dismissals for a reason relating to probation) or training of an employee or relating to the provi-sion

of benefits to an employee;…”

11. The Labour Relations Act requires employers to treat employees fairly when they apply for promotions.

An employee who alleges that he is the victim of an unfair labour practice bears the onus of proving

all the elements of his claim on a balance of probabilities. The employee must prove not only the

existence of the labour practice, but also that it is unfair.

12. Fairness requires that the position and interests of both the employee and employer are taken into account

in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or

value judgment to established facts and circumstances. In doing so, it must have proper regard to the

objectives sought to be achieved by the Act.

13. The respondent submitted that the applicant did not qualify for the vacancy as it was advertised for
    Physical Science, whist the applicant had a qualification in Agricultural Science. The respondent fur-ther
    submitted that applicant should not have been shortlisted in the first instance as she did not meet the
    requirements for the vacancy. This is very confusing, because the respondent itself shortlisted and invited
    that applicant for an interview. The respondent also submitted that the reason why they invited both
    applicants for the interview, was because there were no other candidates that applied for the vacancy. This
    is not only confusing, but also misleading.
14. However, it was common cause that the applicant did not have a qualification in Physical Science, whilst
    the incumbent has a BSc degree in Physical science and relevant teaching experience in Physical
    Science, for which she has received recognition for achieving 100 percent pass rate.
15. The assessment of fairness in promotion decisions is fundamentally anchored in a thorough examina-tion
    of both the procedures employed and the justifications presented by those making the decisions. It is
    imperative for employers to conduct themselves in a manner that is both lawful and consistent with the
    established objective standards of fairness. This includes adhering to specific criteria set forth for
    promotions, as well as their own internal policies. Such adherence serves a critical purpose: it ensures
    that all eligible employees are granted a genuinely fair opportunity to compete for the available posi-tion.
    If an employee is not afforded this fair chance, any conduct that limits such opportunities is likely to be
    construed as an unfair labour practice, carrying significant legal implications.
16. Moreover, when it comes to evaluating a candidate’s suitability for promotion, it is vital that this as-sessment
    is performed with a fair lens, rather than relying on a strictly mechanical process. This means that a
    justifiable degree of subjectivity and discretion must be reserved for the employer, allowing for nu-anced
    judgments that consider various factors related to the candidate’s qualifications and fit for the role.
17. In the context of pursuing a claim for unfair labour practices associated with promotion decisions, the
    burden of proof typically rests on the employee. To prevail in such a claim, the employee generally must
    demonstrate that she was not granted a fair opportunity to compete for the position in question. This often
    necessitates the presentation of evidence that highlights flaws in the promotional process, showcasing
    that despite possessing the necessary experience, skill set, and technical qualifications for the role, the
    employee faced an unjust appointment decision. The crux of such claims often revolves around
    demonstrating that the decision-making process was marred by unfair practices, resulting in a failure to
    recognize the rightful merits of the employee in question.
18. The applicant did not provide any constructive or substantive evidence of any irregularities by the selection
    or interview panel. It was common cause that the applicant’s Union was one of the observers at the
    selection and interview process and that no irregularities were reported or declared.
19. The Labour Appeal Court considered the balance that must be struck between the managerial

prerogative to promote employees and the principle that labour forums must intervene in the labour arena

if fairness so requires. The judgment in Ncane v Lyster 2017 38 ILJ 907 (LAC) confirms that labour

forums and the court will not easily interfere with an employer’s decision regarding who should and who

should not be promoted.

20. In Noonan v SSSBC and others [2012] 33 IJL 2597 (LAC), it was held that there is no right to pro-motion
    in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that

denies an Employee an opportunity to compete for a post constitutes an unfair labour practice. If the

Employee is not denied the opportunity to compete for the post, the only justification for scrutinizing the
selection process is to determine whether the appointment was arbitrary or motivated by an unac-ceptable
reason. 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.

21. Having considered the evidence in its totality, I am convinced that the applicant was not unduly denied an
    opportunity in presenting her candidature for the vacancy. The applicant failed to discharge the onus to
    proof that the 1st respondent committed an unfair labour practice as envisaged by Section 186(2)(a) of
    the Labour Relations Act (LRA).
22. I therefore find that the applicant is not entitled to any relief.

AWARD

23. The1st respondent, the Department of Education-Eastern Cape, did not commit an unfair labour
    practice as contemplated by Section 186(2)(a) of the LRA.
24. The applicant, Ms Tanya Paulsen is not entitled to any relief.
25. No order as to costs.

Commissioner: Hadley Saayman
Sector: Education