IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
CAPE TOWN

Case No ELRC 305-21/22 WC

In the matter between

MOSES Applicant

and

DOE-WC 1st Respondent

November 2nd Respondent

A.Topley 3rd Respondent

Date of Award: 23 June 2022

Arbitrator: A.Singh-Bhoopchand

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was heard virtually over several days, 20 October 2021, 19 & 20 April, and 10 June 2022. The matter was concluded when the parties submitted their closing arguments, the last of which was received on 21 June 2022.

2. The applicant, Ms Leonara Moses was represented by Mr Xolile Ncebe, a representative of the trade union NAPTOSA. The First Respondent the Western Cape Education Department (WCED) was represented by Ms Diedericks, a Labour Relations Official within their Labour Relations Directorate. Mr F. Taseem, a representative of the trade union SADTU represented the Second Respondent. The Third Respondent was represented by Ms T. Mabombo, also a representative of SADTU.

3. A combined and agreed bundle of documents was handed in as evidence.

4. Proceedings were digitally recorded.

5. The parties submitted a signed pre-arbitration minute which records the facts which are common causes and the issues in dispute.

6. The second and third respondents are joined to this dispute as they are the appointees to the post in dispute.

ISSUE IN DISPUTE
7. I must decide whether the WCED committed an unfair labour practice relating to promotion in respect of the filling of the two advertised posts for Deputy Principal at the Rosendal Primary School

BACKGROUND
8. Ms Moses applied for the two advertised posts in vacancy list 2/2012, posts 1080 and post 1081 for two Deputy Principals at the Rosendal Primary School. She was shortlisted and nominated as the third preferred candidate for both posts. In respect of post 1080, Ms Topley was nominated as the number one candidate followed by Mr November. Ms Topley was appointed to this post. In respect of post 1081, Mr November was nominated as the first preferred candidate followed by Ms Topley, and he went on to be appointed to the post.

9. Ms Moses disputes the fairness of the process for the filling of the posts on the following grounds:
• Both appointees were present during the SGB “planner” meeting for the interviews for the post. They ought to have recused themselves as they had applied for the posts.
• The SGB did not take into consideration the curriculum needs of the school when they nominated two applicants from the intersen phase while the foundation phase is unrepresented at top senior management level.
• Two sets of minutes have been submitted by the respondent.
• The CBA scores were ignored.
• No ratification of the minutes took place.

SUMMARY OF EVIDENCE

All evidence has been noted and considered. I provide only a brief summary.
The Applicant’s Evidence
10. Leonara Moses: She has been an educator since 1993 and is currently a Head of Department at the Rosendal Primary School. She is currently responsible for the curriculum in the foundation phase, and she is fully qualified as a foundation phase educator. Both appointees are qualified in the intersen phase, but they do not hold any qualification for the foundation phase. Part of the responsibility of a Deputy Principal is to monitor the curriculum. In order to do this, you must have knowledge of the curriculum. Currently, the deputy principals are not able to advise her on the curriculum. In her opinion, at least one Deputy Principal must be able to guide the curriculum in the foundation phase. The School Governing Body (SGB) ought to have considered the needs of the school. The advertisement for the post states that the incumbent must be able to drive the curriculum from grade R-7.

11. The appointees were advantaged in the process because they were present and failed to recuse themselves during the first meeting of the SGB concerning the filling of the post.

12. There are several mistakes and inconsistences in the two sets of minutes that were submitted. An example of this is that the minutes of the interviews reflects that the chairperson of the SGB was absent on the day. Yet she signed the minutes. It is a requirement of the Recruitment and Selection process that members must attend all meetings. If this does not happen, it will invalidate the process.

13. The results of the Competency Based Assessment were not considered. She rejects the departments explanation that the assessment was for developmental purposes only. If this was so, then she as the third nominee would not have been sent for the assessment.

14. Prior to the post being advertised it was a practice at the school that the acting position for deputy principal was rotated. After the interviews for the post which took place on 26 October 2019, it was her turn to act as deputy principal. However, the principal told her that the SGB had decided that the other two HOD’s that had also applied for the post would stay on in the post until the permanent appointment was made and that there would be no more rotation of the position. She is of the view that the SGB showed bias towards the other two candidates.

Respondent’s Evidence
15. Margaret Bailey: She is the Secretary at the Rosendal Primary School, and she was responsible for the minutes of the process for the filling of the Deputy Principals post as well as the for the filling of the HOD posts. Both processes ran concurrently.

16. She was present at the first meeting for the process which was a meeting to discuss dates for the shortlisting for both the deputy principals post as well as the HOD to take place. Ms Topley and Mr November were both present during that meeting as they were to be part of the process for the filling of the HOD post. There was no discussion about anything else except for dates. Although it is not recorded in the minutes, Mr Jansen announced that applicants to the post must recuse themselves from the process. Mr November and Ms Topley were not part of any subsequent meeting for the filling of the deputy principal’s post.

17. Her explanation for there being two sets of minutes provided to the applicant, one signed copy and one unsigned, and which differed from each other in some respects, was that when she was asked for a copy of the minutes for this process, she simply sent the pro-forma minutes. She later submitted a copy of the signed minutes. The errors in the minutes regarding the numbering and other errors are merely human errors on her part and are not in any way a reflection on the process. She was overworked at the time and was confused by the new format of the minutes as well as the fact that she was simultaneously working on the HOD post as well. She could not ask anyone to assist her as the process is confidential. Ms Moses was not prejudiced in any way during the process – she was treated the same as everyone else.

18. Jacque Jansen: He is the Principal of Rosendal Primary. He confirmed that the purpose of the first meeting held during September 2019 was to discuss a business plan for the process, to discuss dates; to set time frames and to confirm the availability of the members. During the meeting he enquired about conflict of interest and announced that if anyone had applied for the post, they should recuse themselves when the deputy principals post is discussed. However, nothing was discussed about the deputy principals post at this meeting. Mr November and Ms Topley were not present at any of the subsequent meetings regarding the deputy principal’s post.

19. During the September meeting no one was in possession of the interview questions as the questions had not been prepared at that stage. He confirmed that Ms Bailey was responsible for minute-keeping and that he would normally check the minutes. However, Ms Baily often worked from home during that period, and he therefore cannot recall whether he had checked the minutes of the interviews. He conceded that here had been some errors on the minutes, but they were not serious errors, and they did not make a difference to the content of the minutes and the process.

20. When drafting the advertisement for the deputy principals post they were guided by the Personnel Administration Measures (PAM), and they adapted it for a primary school. The fact that the advertisement mentioned grade R-7 simply meant that the post was open for anyone from grade R-7 to apply. The post is not phase specific.

21. He conceded that the fact that Ms Moses had not been allocated an employment equity score was an omission. However, this did not have a negative impact on her as she was still shortlisted.

22. Candidates participated in the Competency Based Assessment (CBA) purely for the purposes of development. The assessment was not one of the determining factors in deciding on the nominations for the position. Only the interview scores were considered.

23. Marie Louis Mocke: She is the Director: Recruitment and Selection. She explained that the CBA is used to strengthen the recruitment process, but it is used in conjunction with the interviews. It is not a compulsory part of the process, and it is up to the SGB as to whether they want to use it or not.

24. During cross examination she said that if the SGB sends candidates for the assessment then they must take it into account.

25. Batandwa Sonamzi: He is currently the Circuit Manager for Circuit 5 Education District. He was permanently appointed to the position in 2022 and previously acted in the position for a while. Rosendal Primary School falls within his jurisdiction. He became involved in the process for the filling of the post only towards the end of the process when the CBA scores were made available. The SGB scheduled a meeting to receive the scores and he was present at that meeting. CBA is not a compulsory part of the process- there is no collective agreement that says that it is compulsory. The SGB has a discretion as to whether they wish to use it or not. In this case, the SGB had already made a nomination. He did ask the SGB if they wished to change their nomination based on the CBA scores and they indicated that they did not wish to change it. The main significance and purpose of the CBA is that it is used for developmental purposes. There are currently discussions ongoing with the unions as to whether the CBA will become compulsory in the future. In as much as CBA is not officially part of the process, the WCED encourages SGB’s to use it as part of the process.
26. Lizelle Domingo: She is a member of the SGB, and she was part of the process of the filing of the posts. There was no discussion about utilizing CBA scores during the process. The interview scores were used for the purpose of nominations. She heard about CBA for the first time after the nominations were made at a meeting with the principal and Mr Sonamzi. At no stage were they told that CBA scores were a compulsory part of the process.

ANALYSIS
The applicable legal principles
27. Section 186(2)(a) of the LRA provides that “an unfair labour practice means any unfair act or omission that arises between an employer and an employee including unfair conduct by the employer relating to promotion……”. An employee who alleges that she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement.

28. In Noonan v Safety & Security Sectoral Bargaining Council & Others it was held that there is no right to promotion 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 of competing for the post, then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by unacceptable 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.

29. In SAMWU obo Damon v Cape Metropolitan Council , it was held that “unless the appointing authority were shown to have not applied its mind in the selection of the successful candidate, the CCMA may not interfere with the prerogative of the employer to appoint when it considers the best candidate.

Applying the Law to the Facts

30. The first issue of contention is the alleged non-recusal of the two appointees from the planning meeting of 2 September 2022. The undisputed evidence is that they were indeed present for at least part of this meeting. The principal’s evidence, which was corroborated by Ms Bailey is that he did announce that if there was any conflict of interest that would arise by any members participation, that they should recuse themselves. It is unclear though whether they left the meeting at some stage or whether they remained, as the minutes do not record that they left the meeting. However, I am satisfied that the evidence establishes, that save for discussions around logistics, nothing material concerning the deputy principal’s post was discussed. The purpose of the meeting was purely a planning meeting as the name suggests. It is also undisputed that the process for the filling of the deputy principal’s posts ran concurrently with the process for the filling of the HOD post; that the appointees went on to form part of the process for the filling of the HOD post, but that they did not participate in any subsequent process regarding the deputy principal’s post. Even if the appointees had become aware of the date for shortlisting, I do not see how this would have advantaged them. More so because the applicant was in fact shortlisted.

31. The applicant’s main point of contention is that the SGB did not take into consideration the curriculum needs of the school by nominating two candidates from the intersen phase, while the foundation phase is unrepresented at senior management level. It is indeed so that the advertisement for the post states that the incumbent must have knowledge and experience of CAPS and driving the curriculum from grade R -7. One would expect, and this was confirmed by the principal’s testimony, that the needs of the school are considered when the advertisement is drawn up. Notably, the advertisement does not stipulate or specify that one post is for the foundation phase and that the other for the intersen phase. The principal explained that the mentioning of grade R-7 in the advertisement simply meant that the posts were open to anyone with experience in those grades. The applicant herself testified that as the HOD in the foundation phase, she is responsible for the curriculum. This is one of the core functions of the HOD, but it is evidently not a core function of a Deputy Principal.

32. The Personnel Administrative Measures (PAM) policy states that the function of a deputy principal is to assist the principal in managing the school and to promote the education of learners in a proper manner and to maintain a total awareness of the administrative procedures across the total range of school activities and functions. One of the core responsibilities of a deputy principal as described in PAM is to deputise for the principal in his or her absence. The overall emphasis in relation to the function of a deputy principal appears to be that of management and administration, like that of a principal. Furthermore, the advertisement does not state that an inherent requirement of the post is a qualification in the foundation phase. Neither does it mention the number of years of experience required for “driving the curriculum” suggesting that all that is required is basic knowledge and experience. Had an inherent requirement of the job been an in- depth knowledge of curriculum in a particular phase, one would expect that the advertisement would have said so. There is no evidence before me that the incumbents have no knowledge and experience whatsoever in the foundation phase especially given that they have acted in the post.

33. It is common cause that the so- called Employment Equity score is applied to the relevant candidates only at the shortlisting stage. The respondent has conceded that the applicant was incorrectly not awarded this score as was Mr November. Applicant was not prejudiced by this omission as she was shortlisted together with the incumbents. The fact that Mr November was also not awarded the score puts to rest the applicant’s suggestion that the omission in relation to her was an indication that the incumbents were favoured candidates.

34. Respondent has conceded that there are indeed several errors in the minutes. Ms Bailey who testified about the minutes came across as a credible witness. She gave a plausible explanation for the errors and took responsibility for them. Most of the errors, for example, the incorrect numbering, do not have any material bearing on the process. The inconsistency in relation to the minutes recording Ms Francis as being absent when she in fact signed the minutes was also adequately explained by Ms Bailey. The principal also confirmed that Ms Francis was in fact present. Overall, my impression was that the errors were simply “human errors” in relation to minute keeping as opposed to material flaws in the process. It is indeed so as argued by the Respondent that the process of the filling of any post by an SGB, a group of laypersons, would never run with mathematical precision. There would almost always be some procedural issues. The idea though is to not view every issue as a reason to repeat the entire process but rather to establish whether overall and objectively the candidates were given a fair opportunity to compete. In this instance the relevant question is whether the applicant was prejudiced by the poor minute keeping. I am satisfied that she was not prejudiced. Where the alleged irregular conduct has not caused any prejudice to a candidate, such conduct cannot be perceived to constitute unfair conduct.

35. The question of the exclusion of the CBA scores would amount to a serious procedural flaw if it ought to have been considered in terms of agreed process, policy, or agreement. First and foremost, Ms Mocke confirmed that in terms of the recruitment and selection policy, it is not a compulsory part of the process and that it is used as a developmental tool. The SGB is encouraged to use the CBA to identify areas of weaknesses in candidates so that they can be developed. In this process the CBA was requested by Mr Sonamsi the circuit manager only because Recruitment and Selection wanted it done and based on the above testimony it would have been for developmental purposes. Ms Mocke did also say that the SGB can choose at the outset to use the CBA as part of the process although it is not compulsory. In this instance it is evident that the SGB had chosen at the outset not to use it. Therefore, the nominations were made before the CBA was even requested and that to at the request of Sonamzi and not the SGB. That the SGB did not consider the CBA scores for the purposes of the nomination is therefore not a procedural flaw.
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36. In conclusion, I am satisfied that the applicant was not prejudiced, that she was given a fair opportunity to compete, and that the respondent’s decision was rational and not motivated by bias. It is no doubt understandable that the applicant is aggrieved given that she is a strong candidate and given her perception of bias. However, unhappiness and perception does not translate to unfairness.

In the premises, I make the following award.

AWARD

The applicant’s claim of an unfair labour practice is dismissed.

A.Singh-Bhoopchand