In the ARBITRATION between

NAPTOSA obo MANUEL SYCE
(Applicant)

And

DEPARTMENT OF EDUCATION (EASTERN CAPE)
(1st Respondent)

ANZE GERBER
(2nd Respondent)

SGB: OTTO DU PLESSIS HIGH SCHOOL
(3rd Respondent)

SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) – whether the appointment of the 2nd respondent and non – appointment of the applicant was unfair and constitutes an unfair labour practice as contemplated in section 186(2)(a) of the LRA.

The appointment of the 2nd respondent and the non – appointment of the applicant was procedurally and substantively fair and did not constitute an unfair labour practice as contemplated by section 186 (2) (a) of the LRA.

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (promotion dispute). It was set down for arbitration hearing at the Nelson Mandela Bay District offices at Sydwell in Port Elizabeth on the 10th & 11th of February 2022 before Commissioner Malusi Mbuli.

2. The applicant Mr. Manuel Syce attended the hearing and was represented by Mr. Anton Adams an official of the applicant’s trade union NAPTOSA. The 1st respondent, the Department of Education (Eastern Cape) was also present at the hearing and was represented by Mr. S. Kralo, an official of the respondent. The 2nd respondent Mrs. Anize Gerber was also present at the hearing and represented herself.

3. The matter was finalized on the 11th of February 2022 and the parties agreed to file their closing arguments not later than the 18th of February 2022 and both parties filed their arguments.

ISSUE TO BE DECIDED

4. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so the appropriate remedy.

BACKGROUND TO THE ISSUE

5. The applicant, Mr. Manuel Syce applied for the position of Principal – at Otto Du Plessis Senior Secondary School in the Nelson Mandela Bay District of the respondent. The applicant was shortlisted and interviewed for the said position but was not appointed to the said position.

6. The interview panel and the SGB recommended the applicant and the 2nd respondent for appointment by the respondent in terms of the Employment of Educators Act after the applicant scored 2nd highest scores and the 2nd respondent scored the highest marks at the interviews.

7. The Department of Education – Eastern Cape appointed the 2nd respondent Mrs. Anize Gerber who is now occupying the position.

8. The applicant felt that the process that led to the appointment of the 2nd respondent and her non – appointment was unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the LRA.

9. It is not in dispute that both the applicant and the 2nd respondent qualified for the position but the issue in dispute is whether there was a ratification meeting that recommended the appointment of the 2nd respondent.

10. The applicant’s dispute is premised on procedural fairness as opposed to substantive fairness and the applicant’s argument is that the Department of Education acted unfairly in appointing the 2nd respondent and prays that the process be restarted.

11. The parties are in dispute on whether there was a ratification meeting by the governing body before the decision to appoint was made and whether that constitutes procedural fairness or unfairness. The parties agree that the decision or power to recommend a candidate to the department rests with the School Governing Body and that the decision to appoint rests with the Department of Education – EC.

12. The applicant then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 11th of February 2022.

SURVEY OF EVIDENCE

Applicant’s submissions.

13. Mr. Manuel Syce testified to the following effect.

 He applied for the position of Principal at Otto Du Plessis Senior Secondary School in the Nelson Mandela Bay District of the respondent. He was an H.O.D. from 2015 and became a Deputy Principal from 2018 and an Acting Principal until the appointment of the Principal was made and the 2nd respondent was appointed.

 He stated that Mrs. Gerber was Acting Deputy Principal and that the SGB did not like him because they said he was not listening to them and the other issues related to payments to be made by the school.

 He averred that he was not happy with what was happening because he was always accused of not doing what the SGB instructed and these complaints were laid and discussed behind his back because the SGB doesn’t want to be challenged.

 He states that a negative message was created about him and the relationship between him and the chairperson of the SGB deteriorated to the extent that the chairperson would not visit or go to his office when he is at school.

 He confirmed that he was not part of the SGB meeting if there was any that made a recommendation to the respondent for the appointment of the Principal. He averred that he was informed by Mr.Veleon, Mr. Venter and Mr. Plaatjies who are all educators co – opted to serve as members of the SGB that there was no consensus between the SGB members about the candidate to be recommended to the Department of Education Eastern Cape.

 He testified that he was told by Mr. Plaatjies that there was no ratification meeting but he also said later that he was told that there was no consensus and haven’t seen any recommendation from the School Governing Body.

14. The 2nd witness of the applicant was Mr. Quinton Mark Plaatjies who testified as follows:

 That he serves as a School Governing Body member of the school and was also part of the interviews and was also trained before he took up that role together with the other panel members of the interviews.

 He averred that the interviews were held and the outcome was that the 2nd respondent was rated no 1 and the applicant was rated no 2 at the interviews and both the two candidates were presented to the SGB for consideration because the interview panel could not reach consensus on who should be recommended by the SGB to the Department of Education.

 He confirmed that the 2 candidates were referred to the SGB and there was a meeting of the SGB that was held after the interviews (ratification meeting) but there was no consensus as to who should be recommended to the Department of Education for appointment.

 He stated that the SGB decided to refer the 2 names to the Department of Education with the 2nd respondent as no 1 and the applicant as no 2 as it appears on the scores of interviews and that the Department will then exercise its discretion on who to appoint.

 He confirmed the minutes of the ratification meeting and confirmed again that the SGB could not unanimously agree on the candidate to be appointed by the Department of Education.

Respondent’s submissions

15. The respondents 1st witness Mr. Morne Scott testified that:

– He was the Chairperson of the S.G.B. of Otto Du Plessis Senior Secondary School for 3 years and was the Chairperson of the SGB when the appointment process of the Principal was undertaken.

– He averred that he was trained 3 times in conducting interviews and the role of the SGB and has participated in appointments before the appointment in question and none of those appointments were disputed or challenged.

– He averred that just before the appointment or recruitment of the Principal they were trained by Mrs. Mzinzi and that training took more than an hour and it focused on the role of the SGB in the recruitment of educators.

– He stated that he was part of the panel of interviews for this post of the Principal, confirmed his signature and that there was no unanimous decision on who to recommend to the SGB for ratification but the panel agreed to refer the 2 names 2nd respondent and the applicant to the SGB for consideration.

– He confirmed that the 2nd respondent Mrs. Gerber was rated no 1 and the applicant rated no 2 and were referred to the SGB in that order and even the SGB at its ratification meeting could not reach consensus and decided to refer both names to the Department of Education Eastern Cape the respondent for decision and appointment. He confirmed that there was a ratification meeting immediately after the interviews and is the one that decided to refer both names to the D.O.E. for decision.

– He averred that the recommendation form was signed when all participants were present and it was a true reflection of what happened in the interviews. He stated that all were present including Mr. Plaatjies and he also signed the form.

– He averred that Mrs. Mzinzi was the resource person at the interviews and she advised then to motivate if they were to recommend Mrs. Gerber as well because she was an H.O.D and that there was a jump from the position of H.O.D to that of the Principal.

16. The 2nd witness of the respondent was Mrs. Nomsa Isabella Mzinzi who testified to the following effect::

– She averred that she works for the respondent as a Circuit Manager and has occupied that position for a period of 4 years and had been involved in about 20 promotional posts recruitment and out of those this is the 1st one to be disputed,

– She averred that she never had a conversation with or interacted with the applicant when the applicant was a Deputy Principal at Otto Du Plessis Senior Secondary School. She testified that the Principal has to work with the School Governing Body in the administration and management of the school.

– She confirmed her signature appearing on the recommendation form by the interview panel that was presented at the school and confirmed that she attended the interviews for this position in question and was a resource person in those interviews.

– She testified that when she signed the recommendation form everyone had already signed including Mr. Plaatjies and there were about 4 pages attached to the page with the signatures that were appearing on page 9 from page 4 – 9 of the common bundle.

– She confirmed that she had trained the SGB in May 2021 because the SGB had to be trained on the process and to select the panel of interviews. She averred that the SGB was also satisfied with the assessment of the interview panel that recommended Mrs. Gerber as the number 1 candidate even though they were not unanimous on her recommendation for appointment.

– She advised that there is nothing wrong in the SGB referring both names to the Department of Education employer for selection and appointment when they cannot agree because the Department of Education is the ultimate employer but the SGB must have applied their minds and attempted to agree and come up with their choice.

– She averred that there was no error and she was satisfied about the process that was followed as a person who understand what is required and has deal with the issue on a number of occasions without it being contested.

ANALYSIS OF EVIDENCE AND ARGUMENT

17. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.

18. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that:

– every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to shortlist the applicant.

19. Both the applicant and the 2nd respondent were shortlisted to the position in question and were also interviewed. The respondent appointed the 2nd respondent to the position of the Principal. The 2nd respondent was recommended as the no 1 candidate by the of interview panel and SGB.

20. As indicated above the applicant contests the procedural fairness of the appointment of the 2nd respondent and his non – appointment because the SGB did not hold the ratification meeting before making a recommendation to the respondent.

21. In this regard the applicant’s representative called 2 witnesses, the applicant Mr. Manuel Syce and Quinton Mark Plaatjies in support of the applicants claim and the respondent called Mr. Morne Scott and Mrs. Nomsa Isabella Mzinzi who gave evidence on behalf of the respondent.

22. The two candidates in question in this dispute, the applicant and the 2nd respondent were both eligible for appointment to this position. The evidence and version of the applicant that there was no ratification meeting is hereby rejected as unfounded and without any credible basis because:

– The recommendation of the appointment of the 2nd respondent was made in the ratification meeting and the minutes of the SGB meeting of the 13th of March 2018 confirm that the SGB accepted the report by the interviewing panel and also recommended the 2nd respondent as the no 1 candidate.

– The applicant submits that there was no ratification meeting held by the SGB before the recommendation was made to the Department of Education. Evidence led at the hearing points to the fact that the SGB held the ratification meeting. In that meeting the SGB made the recommendation in the manner they did and acted within their authority because the power to recommend appointment rests with them and this power has to be respected because there is reason for its existence.

– I agree with the respondent’s witness Mrs. Nomsa Mzinzi that there is nothing wrong in the SGB referring both names to the Department of education for selection and appointment when they cannot have a unanimous decision. This is even better because there was indication of who was preferred by the majority of role payers and that is clear from the outcomes of the interview and the recommendation itself.

– In this dispute I have no reason to disbelieve the corroborated evidence of the employer witnesses and prefer that of the applicant and his witness. The 2nd respondent met the requirements of the post as envisaged in Regulation 11 of the Employment of Educators Act 76 of 1998 and this is not disputed.

– From the argument above it then follows that the decision by the respondent to appoint the 2nd respondent and not to appoint the applicant was procedurally and substantively fair based on the evidence and argument advanced above.

– The 2nd respondent was recommended by the SGB as a no 1 candidate and the respondent has to appoint the 2nd respondent unless there is a valid and reasonable explanation for disregarding that recommendation. The applicant has failed to demonstrate that there was an invalid, unreasonable and unfair reason why the respondent appointed the 2nd respondent.

23. The respondent has the authority and discretion to appoint but has a responsibility to exercise such discretion reasonable and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion which had been exercised by a party competent to exercise that discretion.

24. The reason for this is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.

25. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.

26. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.

– Whether the employer’s decision was arbitrary, or capricious, or unfair.
– Whether the employer failed to apply its mind to the promotion of the employee.
– Whether the employer’s decision not to promote was motivated by bad faith.
– Whether there were insubstantial reasons for the employer’s decision not to promote.
– Whether the employer’s decision not to promote was based upon a wrong principle.

27. If one looks at how the discretion was applied by the respondent in this case it is clear that the SGB held the ratification meeting, deliberated on the recommendation that was referred to the Department of Education the employer, even though the SGB was not unanimous in the recommendation.

28. The candidates were referred to the Department of Education by order of the ratings in the interview and ratification meeting with the 2nd respondent occupying number 1 position and the applicant occupying number 2 position.

29. The applicant has not managed to demonstrate that one or some of the factors for consideration in the decision above exist for him to challenge the application of the employer’s discretion.

30. There is a clear basis for the respondent to act in the manner described above and the manner in which this discretion was exercised justifies the appointment because discretion was not exercised in an arbitrary manner, for insubstantial reasons or without applying the mind and obviously not unfairly. There is no justifiable reason for me to interfere with the exercise of the respondent’s discretion in appointing the successful candidate and the appointment of the 2nd respondent in this matter stands.

31. In the circumstances I make the following award.

AWARD

32. The appointment of the successful candidate referred to as the (2nd respondent) Mrs. Anize Gerber and non – appointment of the applicant Mr. Manuel Syce was fair and did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.

33. The applicant’s dispute referred to and dealt with here under case number ELRC594-21/22 EC is dismissed and the applicant is not entitled to any relief.

34. I make no order as to costs at this stage.

Signature:

Commissioner: Malusi Mbuli