In the Arbitration between

SAOU obo Marry Cherry

DETAILS OF HEARING AND REPRESENTATION

1. This unfair labour practice dispute with specific mention to promotion was set down for arbitration in terms of section 186(2)(a) of the Labour relations Act 66 of 1995 (LRA), under the auspices of the Labour Relations Council, on 02 December 2024, 06 February 2025 at the offices of the Department of Education in Gqeberha.

• The applicant, Marry Cherry (Ms Cherry) was present on all the days and was represented by Ms Venita van Wyk (Ms van Wyk) an Official from SAOU (Union).

• The 1^st respondent, Department of Education Eastern Cape was present on all the days and was represented by Sakhiwo Kralo and Employee Relations Officer at the respondent.

• It is worth mentioning that on 02 December 2024, the 2nd respondent (Mr Ashley Stuurman) was not present despite being properly notified of the scheduled proceedings. He was contacted by the 1^st respondent’s representative Mr Kralo in my presence, and he confirmed to have received the notice of setdown, and that he never made contact with the 1^st respondent, nor the 1^st respondent made contact with him to secure his presence on the day; he confirmed on the respondent’s phone that he is aware of the consequences of his absence, and that he will be able to attend if there is another sitting.  There was no application for postponement from the 1^st respondent for me to determine, I therefore proceeded in the absence of the 2^nd respondent.

• The 2^nd respondent was only in attendance on 06 January 2025.

• Parties submitted their opening statements orally.

• Parties submitted their bundle of documents, and were marked (Applicants Bundle- A1, and 1^st Respondent’s Bundle- B1).

• Mr Rodney Kivedo, Andre de Monk, Marry Cherry, John Draai, testified during the proceedings.

• Evidence was tendered under Oath.
• The proceedings are manually and digitally recorded

1. Both parties agreed to file their closing arguments in writing by no later than 13 February 2025.

1. Only the applicant filed his closing arguments on time by 13 February 2025, the respondent filed its closing arguments on 14 February 2025 and was later that the seven day’s period prescribed in the ELRC dispute resolution rules.

BACKGROUND TO THE MATTER

1.  The applicant commenced employment with the respondent on 01 January 2006, she is currently employed as a Post Level 1 Educator at David Livingstone Secondary School, and is earning a salary amount R372,003.00 per annum.

1. It is common cause that the applicant applied for the position of a Deputy Principal Post level 3, salary amount R487,737.00 – R1078,725.00 per annum, as it was advertised on OPEN POST BULLETIN FOR DEPUTY PRINCIPALS AND DEPARTMENTAL HEADS dated 10 May 2024, and was not successful.

1. It is common cause that the applicant was eliminated during the shortlisting stage, and was not invited to attend the interviews.

1. It is further common cause that Mr Ashely Stuurman the 2^nd respondent in this matter was invited to attend the interviews and was successful in the position.

1. The applicant is challenging an Unfair Labour Practice in that the 1^st respondent has failed to promote her to the positions of a Deputy Principal as it was advertised.

1. The applicant is challenging the following

PROCEDURE

• The composition of the selection panel.
• The legitimacy of the selection panel member Mr Botha.
• The shortlist criteria was not set by the selection panel.

SUBSTANTIVE

• The applicant is better qualified that the 2^nd respondent.
• The applicant has been acting in the position for more than 12 months.
• Whether or not the applicant should have been promoted by the respondent to a position of the Deputy Principal.

ISSUE TO BE DECIDED

1. I must determine whether the 1^st respondent, Department of Education-Eastern Cape has committed an Unfair Labour Practice, in not promoting the applicant Ms Marry Cherry.

• The applicant seeks the appointment of the 2^nd respondent Mr Ashley Stuurman to be set aside.

SURVEY OF EVIDENCE AND ARGUMENT

• This is a summary of the evidence pertinent to this dispute as in terms of Section 138(7)(a) of the LRA.

APPLICANTS 1^st WITNESS

RODNEY KIVEDO (MR KIVEDO)

• He testified that, he is currently employed by the 1^st respondent as a Teacher at David Livingstone Secondary School, and that He was present at the SGB meeting on 18 July 2024 that selected the Selection / Shortlisting Panel, and he was the Chairperson of the Interview Panel with the following members Mr Kivedo, Mr Draai, Mr de Monk, Mrs van Sassie, Mrs Louw, Ms Paterson, Mr Derrocks, Mr Botha.

• The following members Mr Jacobs, Mrs van Sensie, Mrs Jacobs, were not present and they send their apologies and three (3) Learners Components of the SGB never attend interviews. The apologies were not in writing but through WhatsApp Messenger.

• It is Mr Kivedo’s testimony that Ms van Sassie was not attending SGB monthly meetings regularly but she was on attendance on this meeting on 18 July 2024. It is further the testimony of Mr Kivedo that Mr Botha never attended any of the SGB monthly Meetings and never gave any reasons, but on that day of the 18 July 2024 he attended meeting for the selection of the Shortlisting Panel.

• He was amazed when he saw Mr Botha attending this SGB Panel Selection meeting, and while the Principal Mr Draai was explaining the procedure before the actual meeting could start, Mr Botha told Mr Kivedo to recuse himself; and me that I will have conflict of interest with regards to a family member who has applied for the position. According to the testimony of Mr Kivedo this brought an amazement to him as himself was not aware of any possible conflict of interest, and that how can Mr Botha know who has applied before the actual starting of the meeting, and the opening of the envelope of application.

• Mr Kivedo further testified that Mr De Monk, Mr Louw, also did not know that they were going to have a conflict of interests in the Shortlisting process, as Mr Botha was specific to them. The resource person (Mr Draai) said those who have conflict of interest in the matter will have to recuse themselves.

• In terms of how the selection criteria was crafted, the testimony of Mr Kivedo is that the selection criteria was discussed by the selection panel and were getting advice from time to time from the unions representative (SADTU) (NAPTOSA). It is further testimony that the third and fourth criteria’s were set by the panel, and that the participants in the short listing including the applicant met the requirement for the first three (3) shortlisting rounds. H further submitted that criteria 1,2, and 3 which were set and by NAPTOSA representative Mr Saayman and that the Panel made no contribution to the shortlisting. He does not see the wneed to increase the criteria.

• On the day of the interviews 06 August 2024, NAPTOSA Official Mr Saayman gave an apology as he was unable to attend, and on contacting NAPTOSA they were informed that no one from NAPTOSA will be attending the interviews.

• It is further the testimony of Mr Kivedo he was told by the panel that the best Candidate for the position of the Deputy Principal was Mr Du Preez, and that when he (Mr Kivedo) had to sign for the recommendations of Mr Stuurman he informed the Principal that he is not happy with the appointment of Mr Stuurman.

APPLICANTS 2^nd WITNESS

ANDRE de MONK

• He is the Chairperson of the School Governing Body David Livingstone Secondary School since 2021. He is experienced in being part of the Shortlisting Panel but was not part of the Shortlisting and interview Panel.

• He was told by Mr Botha to recuse himself and his Sister in law had also applied in the position. At the time of being informed by Mr Botha he was not aware that his Sister in law had applied. On confirming telephonically her Sister in law confirmed her application, and he Mr de Monk had to recuse himself from the Shortlisting Panel.

• He was also not invited to the rectification of minutes meeting that was held on 06 August 2024 at 18h00.

APPLICANTS 3^rd WITNESS

MARRY CHERRY (The Applicant)

• The applicant Ms Marry Cherry testified that she is better qualified that the 2^nd respondent in that she holds the following qualifications a Bachelor of Education, Higher Diploma in Education, Primary Teachers Diploma, Advance Certificate in Education, Honours in School Management and Administration Whole School Development, in that she qualifies as an REQV15 in terms of her qualifications.

• It is the testimony of the applicant the 2^nd respondent is qualified as an REQV13 in that he holds Higher Diploma in Education, Bachelor of Education and Bachelor of Arts.

• It is the applicant’s testimony that the form of Mr Stuurman has been incorrectly completed in that he wrote an incorrect REQV17 in which he does not have.

• It is the applicant’s further testimony that she is a better candidate that the 2^nd respondent in that she has been an internal HOD of the languages at the school since 2016, extended management team since 2008, HOD of First Additional Language, and She has also been Grade 12 Grade Head. The applicant further testified that in the past five years she always acted in position of a Deputy Principal in the absence of a Deputy Principal, and that She is a Disciplinarian at the School.

• The applicant’s further testimony is that Mr Stuurman returned to the school as grade 11 teacher after his resignation and he became an HOD for History.

• It is the applicant’s testimony that she should have been shortlisted for the position.

RESPONDENTS 1^st WITNESS

JOHN DRAAI (MR DRAAI)

• He testified that he is currently employed by the respondent Department of Education Eastern Cape, as the Principal at David Livingstone Secondary School, and on he acted as a resource person in the shortlisting and interview process of the position of the Deputy Principal.

• He received the enclosed envelope with the application form for the 1^st respondent, and he kept it in his office drawer where no other person has access except him. The unions (NAPTOSA and SADTU representatives) and SGB representatives were invited to the shortlisting meeting by means of the school secretary contacting them telephonically.

• According to Mr Draai he was approached by the applicant Ms Cherry who said to him that the shortlisting and interview process must be handled by the 1st respondent as she fears biasness towards the Technical Operational Curriculum (Special needs Techers). He informed the applicant that he has been trained for his work and that the envelope with applications is still closed.

• On 18 January 2024 there was a meeting for selection of the Shortlisting Panel, and it was raised that if anyone has a conflict of interests, he or she must recuse himself or herself from the panel, the reason that it was discussed early was to avoid the shrinking of the panel. Mr de Monk the deputy chairperson had a conflict of interest and he recused himself. He testified that he did not see anything wrong with that approach of the meeting.   

• The following panel elections were made:

Mr Kivedo as the Chairperson, Ms Paterson as the secretary, Ms van Sassie as the Deputy Secretary, Mr Derrocks as the non-teaching member, Mr Botha as the teaching representative. It is the testimony of Mr Draai that although Mr Botha was absent for one or two meetings, he has not been rendered an excluded member of the SGB. It is Mr Draai’s testimony that the envelope he handed to the panel was sealed and no one disputed it, and the criteria of four (4) rounds was set by the Panel before the opening of the envelopes.

• According to Mr Draai, the position of the Deputy Principal that they were recruiting for required a more of an English Teacher as the deputy principal who left was teaching English at the school, and Ms Cherry was eliminated on the third criteria. The fourth criteria agreed upon was that an HOD will be preferred, with 15 years of teaching experience, teaching of English, Afrikaans and other subjects will be an added advantage to the candidate. Mr Stuurman met the requirements and was shortlisted, and the interview panel recommended Mr Stuurman as the Deputy Principal. 

• It is the testimony of Mr Draai that the respondent did not commit any unfair labour practice against the applicant as the applicant did not meet the shortlisting criteria, based that she was on a post level 1 and Mr Stuurman was on a post level 2. He testified that the applicant was never an HOD nor has she ever acted in the position of the Deputy Principal and that Ms Stuurman was an HOD Grade head, and subject head (Afrikaans and English).

• It is further the testimony of Mr Draai that the applicant did not even write in her CV that she had acted in the position of the deputy Principal.  

ANALYSIS OF EVIDENCE

• This matter is referred in terms of Section 186(2)(a) of the LRA with specific reference to a promotion. Section 186 (2)(a) of the LRA states’’ An unfair labour practice means any unfair act or omission that arises between an employee and employer involving unfair conduct by an employer relating to promotion’’.

• It is trite law therefore that the applicant in this matter bears the onus of proof in proving that the unfair conduct occurred.

• The composition of the selection panel, and legitimacy of the member Mr Botha.

• The applicant’s version that Mr Botha has not been attending SGB meetings was rebutted by the respondent through the testimony of Mr Draai who testified that Mr Botha was absent on two SGB meetings and that at the time of the SGB meeting on 18 July 2024 for the selection of the shortlisting panel Mr Botha was a good standing member of the SGB and not an excluded member.

• Despite Mr Kivedo’s testimony that Mr Botha would not pick phone when he is phoned had to attend the monthly SGB meetings, there was no evidence from him proving that Mr Botha has been excluded as an SGB member.

• There was further no evidence from the applicant to remove this evidentiary burden created by the rebuttal of the respondent. More-over the testimony of Mr Draai is relevant and reliable in that he is a member of the SGB and the applicant is not he stands to know better the affairs of the SGB that the applicant.

• The shortlisting panel comprised of eight members, namely: Mr Kivedo -Teacher; Ms Paterson -Parents, Mr Botha -Teacher, Mrs Van Sassie -Parent, Mr Derrocks – non-Teaching, Mr Thyiso (SADTU union) and Mr Saayman (NAPTOSA).

• The applicant’s witness Mr Kivedo confirmed in his testimony that the student component are never invited to witness interviews for purpose of confidentiality of the interviews, does not impact the number and ability of the SGB to select members among each other for the panel.

• Despite the suspicious motive behind the presence of Mr Botha as according to the applicants, the evidence in front of me proves that Mr Botha was supposed to be present on the day as a member of the SGB. There is no evidence that he got access to list of the names of the applicants to be shortlisted, neither the applicant could prove as to who informed Mr Botha about panel members with conflict of interests. I find nothing unbecoming when the panel raise the matter on how to deal with conflict of interest prior the actual conflict arises, if the purpose is to manage shrinking of the panel. 

• I find that all relevant components of the SGB panel were represented and the composition of the panel was legitimate to proceed with the shortlisting.

• The shortlisting criteria was not set by the selection panel.

• In the examination in chief Mr Kivedo is asked ‘’How did the panel craft the criteria’’, in his answer he say ‘’The panel crafted the criteria and we were assisted by the unions’’.

• This answer clearly suggests the minimal involvement of the unions in the crafting of the criteria, expect where invited to do so. From a bystander position this is nothing less than two trade unions sitting for one purpose to observe the proceedings.

• During the same examination in chief Mr Kivedo contradicts himself by saying there was nothing that the panel did. Taking into consideration the applicants second witness Mr de Monk whose testimony is that criteria number three (3) and four (4) were crafted by the panel.

• The testimony of Mr Kivedo is that the crafting of the criteria was dominated by Mr Saayman, and that the panel did nothing in the crafting.

• He contradicts himself in his own testimony when he says the third and fourth criteria was crafted by the panel. These contradictions are material to the dispute and leave the applicant with two conflicting versions, I cannot find relevance and reliability when weighing contradictions on the balance of probabilities. There is nothing much on the testimony of Mr de Monk as he had to recuse himself before even the beginning of the shortlist process

• Under the circumstances the respondent version that the criteria was crafted by the panel must stand as unchallenged, and as the most relevant and reliable.

SUBSTANTIVE

• The applicant is better qualified than the 2^nd respondent; applicant has been acting in the position for more than 12 months.

• Mr Stuurman highest qualification is a Higher Diploma in Education, which is a Postgraduate qualification, and the applicant highest qualification is an Honours in Education which is also a postgraduate qualification, and both their qualifications are relevant to the education.

• I am not convinced by the applicant’s version that she better qualified that the applicant, the evidence of the applicant cannot be reliable, taking into consideration that a Higher Diploma in Education and Honours in Education must hold the same NQF level rating, as they are both post graduate qualification lesser that the Masters in Education.

• Further that than that it is proved by evidence that the 2^nd respondent is well suitable for the position as she has more than fifteen years of teaching, and she was at post level 2 at the time of the appointment. These were the requirements as per the shortlisting. The version that the 2^nd respondent had resigned from the before was disputed by Mr Draai.

• There is no convincing evidence from the applicant that the crafting of the shortlisting criteria was crafted outside the requirements as per the bulletin, or on purpose to unfairly eliminate the applicant. She was eliminated at early stage, and the 15 years of service, and post level 2 requirements are on the higher criteria round. Indeed, standards must be set to find competent candidates to positions of critical nature.

• Even if the appointment of Mr Stuurman is overturned, I do not find the applicant as the better suitable candidate than the 2^nd respondent Mr Stuurman. This was also confirmed by the applicant’s witness Mr Kivedo who said Mr Du Preez was a better candidate in terms of scoring. In this matter the comparison is between the applicant and Mr Stuurman (the 2^nd respondent).

• I have assessed the applicant’s and the 2^nd respondent’s application forms, they both have uncompleted space, and incorrectly completed paragraphs. To mentions few, see Paragraph 19 of Mr Stuurman indicate an incorrect REQV 17 compared to his qualification, paragraph 21.1 of the applicant indicated incorrect information that she was an HOD which is proved in these proceedings that she was never an HOD. Further than there are open spaces left incomplete in her application form. I cannot fault the shortlisting criteria for giving them both the benefit of doubt through the early criteraia stages. It is just a minor procedural issue in which the applicant benefited as well from the doubt, in that she proceeded to round three (3) where she was eliminated.

• Further than that, the applicant’s testimony that she acted as a Deputy principal was disputed by Mr Draai in that in the in her 16 years of him being the school principal at David Livingstone the applicant never acted as a Deputy Principal, and that she was never paid acting allowance, she never even claimed it as she was not entitled to it. The only thing that the applicant did was to teach the language that the Deputy Principals were before they left the school.

• I have assessed the evidence in front of me, and on making a value judgement I find that the 1^st respondent, Department of education Eastern Cape did not commit any unfair labour practice against the applicant, Ms Marry Cherry.

         AWARD

• I find, the 1^st respondent, Department of Education did not commit any unfair labour practice against the applicant, Ms Marry Cherry.

• I order no cost.

Signature:
Commissioner:	Thobela Obey Mqamelo
Sector:	Education