Case Number: ELRC492-24/25EC
Arbitrator: Clint Enslin
Date of Award: 13 January 2025

In the matter between

NAPTOSA obo Rosella Lindoor
(Applicant)

And

Department of Education – Eastern Cape First Respondent

Marike Louwrens Second Respondent
(Respondents)

Union/Applicant’s representative:

Mr Anton Adams

Telephone: 083 720 1356
Telefax:
E-mail: antona@naptosa.org.za

Respondent’s representative: First Respondent – Ms Annalie Slabbert / Second Respondent – Adv. Gavin Saayman
Respondent’s address:

Telephone: 071 894 8607 / 082 519 1005
Telefax:
E-mail: Ansie68lro@gmail.com / cosec@naptosa.org.za

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute (promotion), referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), was held at the First Respondent’s offices in Gqeberha, on 15 October and 25 November 2024.
2. The Applicant, Ms Rosella Lindoor was present and represented by Mr Anton Adams, an official of NAPTOSA. The First Respondent, Department of Education – Eastern Cape, was represented by Ms Annalie Erasmus, an Employee Relations Officer of the First Respondent. The Second Respondent, Ms Marike Louwrens, was represented by Adv. Gavin Saayman, an official of NAPTOSA.
3. The arbitration was digitally recorded.
4. Written heads of argument were filed on 2 December 2024.

Issue to be decided

5. The issue to be decided is whether or not the failure, by the First Respondent, to appoint the Applicant to the position she applied for, being the post of Departmental Head, at Hillside Technical High School, amounted to an unfair labour practice; and
6. if so, to determine the appropriate relief.

Background to the matter

7. The Applicant referred an alleged unfair labour practice dispute pertaining to promotion.
8. The Applicant sought that the Second Respondent’s appointment be set aside and that she be appointed to the said post, alternatively, that the appointment process run afresh.
9. The following fact were common cause:

9.1 The Applicant is employed by the First Respondent as a PL1 Educator.

9.2 She applied for a vacant substantive post, as advertised on 10 May 2024, under post number 528 in bulletin volume 2 of 2024.

9.3 The Applicant applied for the position of Departmental Head, at Hillside Technical High School, a PL2 post.

9.4 The abovementioned position would have amounted to a promotion for the Applicant.

9.5 The Applicant’s current salary notch is R438 204 per annum and if she was appointed into the disputed post, it would have been R467 169 per annum.

9.6 The Applicant was shortlisted and interviewed for the position.

9.7 The Applicant was one of three persons recommended by the SGB and was placed second.

9.8 The Second Respondent was appointed to the position in dispute on 1 September 2024.

10. The following facts were in dispute:

10.1 Whether the Second Respondent met the minimum requirements of the post.

10.2 Whether the Applicant was the best candidate.

11. The parties submitted joint bundles of documents which were marked as “A” and “B”. Parties agreed that the documents were what they purported to be. Survey of evidence
12. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
    terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
    evidence and arguments heard and considered in deciding this matter.

Applicant’s evidence
Ms Lindoor

13. Ms Lindoor, testified that she had a 3 year Diploma in Education (Senior Primary) as well as a Higher Diploma in Education, which was a fourth year of studies. She had been an educator since 1993. Page 7 to 20 of A was her application set out her teaching history. At her current school she taught Geography grade 10 to 12 and Tourism grade 12. She was also appointed as a grade 12 marker, for the last 12 years, marking Tourism. She was also part of a winter school program, where she taught Geography to grade 12. The First Respondent had never said that she could not teach High School.
14. Page 5 of A contained the advert for the position in dispute (post 528). It was for grades 8 to 12. Learning areas subjects were Geography, History and Life Orientation. Post 499 on the same page, was for grade 10 to 12 and the subjects were History and Geography. The grades between these posts therefore differed. She was qualified to teach grades 8 to 12. Page 84 of A was a list of qualifying candidates, which contained 7 candidates. Page 83 of A confirmed that all seven were shortlisted. The Second Respondent’s qualifications per page 75 of A onwards indicated that none of the three required subjects were done by her in her first year of studies and in her third year she did Maths Literacy and General Accounting. The Second Respondent was qualified to teach Maths Literacy and Accounting, which was not the requirement of the post. She did have Life Orientation in her third year, but everyone had that.
15. She believed she was the best candidate because she had 27 years’ experience in teaching Geography and Tourism, which were exam subjects. She also marked Tourism. She further acts as Department Head for Social Science, Geography and Life Orientation and had previously acted as Department Head for History and Tourism. She was currently the Grade Head at Chatty Secondary School. She is also a co-ordinator of the feeding scheme.
16. Page 81 of A, which was part of the shortlisting minutes, under “Round 2” it stated that applicants must have taught 1 of the 3 subjects advertised and when it was last taught by them would be asked in the interview. She agreed that this confirmed that the SGB would be satisfied with only one of the subjects having been taught by the applicants. Section D on the same page required minimum teaching experience of 3 years. In round 3 this requirement was escalated to minimum 5 years teaching experience. Per page 64 of A, the Second Respondent had 7 years teaching experience and 12 years total working experience. On this same page it indicated that she, at the time of her application, inter alia, taught Life Orientation grade 11 and 12. At her previous school she, inter alia, also taught Life Orientation grade 10 to 12. She agreed that the Second Respondent therefore met the requirements of the SGB.
17. Page 59 of A was the interview panel’s final scoring. The Second Respondent had scored 21 points while she had scored 15 points. She agreed that this meant that the Second Respondent had a better interview than her. She further agreed that page 58 of A indicated that according to the panel the Second Respondent had stood out amongst all the interviewed candidates and that the majority consensus of the panel was that she was the best candidate. She disputed that her qualification did not allow her to teach High School. She agreed that the Second Respondent’s BEd degree was for High School, but claimed it was for trade 10 to 12. She also agreed that the Second Respondent’s BEd Honours was in management. She conceded that a department head was a management position. She agreed that the Second Respondent was better qualified than her, but stated that she had more experience.
18. She agreed that the Second Respondent qualified to be shortlisted. She agreed further that according to page 59 of A, despite being ranked second, according to the scoring she was scored fourth. The Second Respondent, and two other candidates had scored more than her. She agreed that she was, according to the panel, not the best of all those interviewed. She disputed that the panel had favoured her by placing her second when she had in fact scored fourth. She conceded that there was a big difference in the score the Second Respondent received versus the score she received. She further conceded that although she had more teaching experience than the Second Respondent, she was not the best candidate of all the candidates.

Respondent’s evidence
Mr Winston De Kock

19. Mr De Kock testified that he was the SGB panel chairperson. He had been on the SGB for 8 years. Page 80 onwards of A was the interview minutes. Page 81 was the criteria set for short listing. He read the requirements set out on page 81. The applicants had to have been teaching at least one of the subjects in the advert on page 5 of A. All panel members and union had agreed to this. To him, and as far as he could remember all the other panel members, the Second Respondent had been the best candidate. The Second Respondent had been the best candidate on scoring and by consensus. As he recalled, the Applicant was ranked second, despite scoring the fourth highest, as the panel had felt that she had done better in the interview than the two candidates that scored second and third highest. They all, however, had the Second Respondent as the best candidate.
20. Section C on page 81 spoke of 3 years teaching experience which may include skills still being developed. The 5 year teaching requirement in round 3 referred to general teaching experience. All the short listed candidates were interviewed. Page 37 of B was ELRC Collective Agreement 2 of 2002 which guided appointments. Page 37 of B at 4.1.11 it read: “Sub-clause 3.6.4: The number of 5 (five) applicants is a guideline and the total to be short listed, in addition to those suitable excess educators, is subject to the discretion of the School Governing Body”. There were no excess educators and they had shortlisted 7 candidates. He believed the guideline allowed for this. He disputed that he or other panel members had “leaned” towards the Second Respondent. They had not been sitting next each other when scoring. The principal had also not stated that he wanted the Second Respondent.

Mr Nythil Paulsen

21. Mr Paulsen testified that he was the principal and had been so for approximately 11 years. He had been the resource person during the filling the disputed position. They were looking for someone to manage the humanities section (Life Orientation, History and Geography). They realised that they needed someone with managerial skills and experience in one of the subjects. The shortlisting and filling of the position had been fair, but in hindsight he had allowed the SADTU representative to persuade them to change the Applicant to second position. The first candidate (Second Respondent) had, however, not changed.
22. Before being appointed in the disputed position the Second Respondent had taught Accountancy and Life Orientation. If he recalled correctly, she had previously taught maths. She was also in charge of the school nutrition program, convenor of the learner wellness program and served as PL1 educator on the School Management Team (“SMT”). She was also the school financial officer. According to the interview panel rankings on page 59 of A, the Second Respondent had scored the highest. Second was Ms Petersen, third was Ms Gemmel, and fourth was the Applicant. Page 58 of A was effectively a short version of why the SGB members had ratified the decision of the panel. Page 57 of A was the SGB recommendation to the First Respondent. They had recommended the Second Respondent. He had been present at the ratification meeting. Page 58 of A had been captured correctly. The unions had been present at the interviews and there had been no objection to the recommendation of the Second Respondent. The union also had no objection to the procedure that had been followed.
23. Despite the Applicant having scored fourth, the SADTU representative had argued for her. He allowed a panel discussion on this, which resulted in her being moved to second place. In hindsight he should not have allowed this. Some had felt the Applicant should be second and others should be second. There was never any issue about the first position. He agreed that despite the position including management, approximately 85% of the role was teaching. He disputed that they had included Life Orientation in the advert in order for the Second Respondent to be appointed. He could not speak to the advert under number 499 on page 5 of A, however, as far as their school was concerned, they required someone to manage the department. All students took Life Orientation. The profile of the post was determined after they had sat with the SMT to determine the needs of the school and that had then been presented to the SGB for approval. Although the Second Respondent was part of the SMT, she was not involved in any discussion relating to the post.
24. The acting appointment letter, on page 47 of A, which he had issued to the Second Respondent before the post was advertised, was issued by him for management purposes and his paper trail at the school. The department would issue such letters when there was remuneration involved, but this one was just for internal purposes. He agreed that 7 candidates were shortlisted, but submitted that they were allowed to shortlist more than 5. Shortlisting was not based on years of experience only. He did not agree that the Applicant was better qualified for the position. Geography and History were being phased out at the school, but Life Orientation would remain. They had included the two subjects to be phased out in the advert as they currently still needed management of them. He agreed that consensus had been reached to place the Applicant second. The purpose of the interview was to find the most suitable candidate.

Analysis

25. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
26. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any 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 provisions of benefits to an employee”. (Own underlining)
27. The Applicant challenged the alleged unfairness of her non-appointment to the post of Departmental Head at Hillside Technical High School based on two grounds. Firstly, that the Second Respondent did not meet the minimum requirements of the post. Secondly, that she was the best candidate and should therefore have been appointed.

Did the Second Respondent meet the minimum requirements for the post?

28. The Second Respondent possesses the required minimum qualifications and experience, as well as those set out on page 81 of A, which were developed as the rounds of the process unfolded. She holds a BEd degree as well as a BEd Honours. She has 7 years teaching experience. She also taught Life Orientation, which was one of the subjects listed. The Applicant in fact conceded that the Second Respondent qualified to be shortlisted. There is nothing before me indicating otherwise. I accordingly accept that she did in fact did meet the minimum requirements.

Was the Applicant the best candidate?

29. In essence it is clear that the Second Respondent had better/higher qualifications than the Applicant and that the Applicant had more experience. Appointment processes are often complex matters with various factors playing a role in the ultimate appointment. The main factors are usually qualification, experience and performance in the interview process. The Applicant conceded that according to the scoring of the panel, she was not the best candidate after the interviews. In fact, she came fourth after the scoring. Ultimately, she was moved to second though.
30. The Applicant’s challenge appears to be summed up in paragraphs 15 above, where in response to a direct question as to why she believed she was the best candidate she responded as follows: She believed she was the best candidate because she had 27 years’ experience in teaching Geography and Tourism, which were exam subjects. She also marked Tourism. She further acts as Department Head for Social Science, Geography and Life Orientation and had previously acted as Department Head for History and Tourism. She was currently the Grade Head at Chatty Secondary School.
31. From the above it is, to my mind clear, that she basis her claim to be the best candidate on her experience. The problem with this is that despite her clearly having vast amounts of experience, this is not the only factor looked at. As stated, qualifications and performance in the interview also play roles in this regard. The Second Respondent had better qualifications than her and according to the scoring, in the interviews, the Second Respondent performed significantly better than her in the interview process. There is nothing before me to lead me to the conclusion that there were any defects in the scoring. I accordingly cannot conclude that the Applicant was the best candidate.
32. There is a final point I will touch on briefly. The Applicant seemed to take issue with the fact that 7 candidates were shortlisted. Paragraph 4.1.11 on page 37 of B was referred to in this regard. Despite this clause referring to clause 3.6.4, which does not seem to exist, it states that: “The number of 5 (five) applicants is a guideline and the total to be short listed, in addition to those suitable excess educators, is subject to the discretion of the School Governing Body.” I cannot agree with what appears to be the Applicant’s interpretation of this clause to the effect that it limits the maximum number of candidates to be shortlisted, excluding those in access, to a maximum, of 5. I say this as it firstly states that the number of 5 is a guideline. Secondly, it states that the total number to be shortlisted, in addition to the suitable excess educators, is subject to the discretion of the SGB. (Own underlining.) On a plain reading it therefore, in my view, confirms that over and above any suitable excess educators, the number to be shortlisted is at the discretion of the SGB. I can find no issue with the fact that 7 candidates were shortlisted.
33. In light of the above, I am of the view that the Applicant has failed to prove, on a balance of probabilities, that the First Respondent committed an unfair labour practice against her by not appointing her to the position of Departmental Head, at Hillside Technical High School

Award

34. The Applicant, Ms Rosella Lindoor, was not subjected to an unfair labour practice by the First Respondent, the Department of Education – Eastern Cape.
35. The Applicant, Ms Rosella Lindoor, is not entitled to the relief she seeks.

Signature:

ELRC Arbitrator: Clint Enslin