IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA DIGITAL ZOOM CONFERENCE
In the matter between
SADTU obo KB MOTHIBI Applicant
and
EDUCATION DEPARTMENT NORTH WEST First Respondent
and
P KHONKHOBE Second Respondent
PANELLIST: Pieter Greyling
Award: 01 July 2024
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration proceedings were conducted on 11 April 2024 and 19 June 2024. The Applicant was at all times represented by Mr T Monkwe, an official of the referring trade union. The First Respondent was represented at the proceedings of 11 April 2024 by Mr KMM Keetile, an official and the Second Respondent represented himself. At the proceedings of 19 June 2024, Ms B Phuswane informed the proceedings that she is to represent the First Respondent. The Second Respondent, notified all parties concerned on 18 June 2024, that he withdraws from the proceedings.
2. At the proceedings of 11 April 2024, a Directive was issued to deal with the applications filed in respect of jurisdiction, opposition to joinder and the disclosure of documents. The Second Respondent indicated that he will not oppose the application to join him as a party to the proceedings. A Directive was issued with regard to the filing of papers, in respect of the jurisdictional challenge and the disclosure of documentation.
3. A Jurisdictional Ruling was issued on 23 April 2024, directing that the Council has jurisdiction to arbitrate the dispute and also ordering the disclosure of the documentation as set out in the particular Ruling. Subsequently, the Second Respondent filed an application in terms of Section 144 of the Labour Relations Act (LRA), with the objective of rescinding the Jurisdictional Ruling of 23 April 2024. This application was dismissed. The Second Respondent then, on 18 June 2024 filed an application with the Labour Court for the review of the Jurisdictional Ruling issued on 23 April 2024. The Second Respondent also filed a notice in terms of which all parties were informed that: “As previously indicated to all of you, I will henceforth play no role in any arbitration proceedings pertaining to case number ELRC 623-23/24 NW until my application has been disposed of by the honourable court.”
ISSUE TO BE DECIDED
4. It is to be decided whether the failure of the First Respondent to shortlist the Applicant for the advertised position of Principal: PL4-P3 at the Mokasa Primary School, constitutes an unfair labour practice as envisaged in terms of Section 186(2)(a) of the LRA.
5. The Applicant presented a bundle of documents (Bundle A), consisting of 109 pages to be used during the proceedings. The Respondent indicated that it will make use of the Applicant’s bundle during the proceedings. Reference to documents will be made as follows: Bundle A, p__.
BACKGROUND TO THE DISPUTE
6. That Applicant started his career as a teacher in 1984. He raised through the ranks to the position of headmaster of a primary school. At the time of applying for the position in question, the Applicant occupied the position of a departmental head at post level 2 at Thagamoso Primary school. The Applicant is currently earning a salary of R636,357.00 per annum. The Applicant wants the appointment to be set aside and to be awarded compensation.
EVIDENCE AND ARGUMENTS BY THE PARTIES
Evidence own behalf of the Applicant
7. The Applicant, Mr KB Mothibi testified on his own behalf. The following can be highlighted from his testimony:
7.1 The Applicant stated that he was unfairly treated by the First Respondent for which he has been working for the past 37 years. He stated that he is fully compliant with the minimum requirements as advertised for the post and as reflected in Departmental Circular 26 of 2023. He pointed out that all candidates had to be in possession of a Grade 12 Certificate and must have at least a recognised three-year qualification (REQV 13), which must include appropriate training as an educator. With regard to years of experience, the minimum requirement was set at seven years.
7.2 The Applicant then reflected that he has a Grade 12 Certificate, a Primary Teachers Certificate; University Primary Diploma in Education; Advanced Certificate in Education; Bachelor in Education Degree and a Master in Education Degree. The Master’s degree focused on school management. He has 34 years experience and was previously appointed in the position of a principal, until he was at one stage demoted.
7.3 The Applicant then referred to the CV of the Second Respondent, being the successful candidate (Bundle A, p36). From the CV of the Second Respondent, it is apparent that he has a Grade 12 Certificate; a National Diploma in Sport Management; a B-Tech in Sport Management; a Post Graduate Diploma in Management and that he obtained in 2018 a Post Graduate Certificate in Education.
7.4 He further pointed out, with reference to the curriculum vitae of the other candidates, that as far as academic qualifications are concerned, he has a Master’s degree while the highest qualification of the other applicants were honours degrees. The highest number of years’ experience of most the other candidates varies between 22 and 27 years, while he has 40 years of experience. With regard to managerial experience, the highest number of years of experience of the other candidates are 24 years while he has 36 years managerial experience. On this basis, the Applicant believes that he is the best candidate for the position.
7.5 The Applicant further explained that when he became aware of the fact that he was not appointed, he wrote a letter to the District Director, but did not receive any response. He further referred to the minutes of the “Panel Review Meeting” that sat on 04 September 2023. This panel was appointed by the Director. It was the mandate of the panel to review the appointment processes in respect of a number of appointments made in different schools as well as the appointment made at Mokasa Primary School (Bundle A, p21). The panel, after reviewing the recruitment process in view of the complaint of the Applicant, came to the conclusion that the allegations regarding discrimination on the basis of age and locality were confirmed by the shortlisting minutes of the interview panel. The panel also concluded that a number of candidates with higher qualifications and more overall teaching and management experience were overlooked without any reasons advanced. It was pointed out that those applicants who already occupy the position of school principal and deputy principals at post level III, seeking promotion, were excluded and a post level II department head was shortlisted (the successful candidate). The panel therefore concluded that the process showed elements of bias and unfairness. The panel recommended to the Director that the process be set aside and that an independent panel be appointed to restart the recruitment and selection process.
7.6 It is the Applicant’s submission that the appointment must be set aside and that he must be remunerated for being treated unfairly. He suffered emotionally from the failure to be appointed while being the best candidate. He also believes that the District Director must be penalized.
7.7 Under cross-examination, the Applicant conceded that the purpose of the interviews was to allow the School Governing Body (SGB) to appoint somebody that suited the situation the best according to its perception. The Applicant conceded this fact but argued that if he had been given the opportunity to attend the interviews, he would have outclassed the other applicants.
8. The second witness for the Applicant was Mr OH Maseng. The following can be highlighted from his testimony:
8.1 The witness is a School Principal and is also a member of the District Review Panel that was appointed by the District Director to review the recruitment and selection processes of a number of schools. He stated that the mandate of the panel was to advise and recommend to the director with regard to the grievances and complaints received by candidates. He further stated that he attended the panel meetings as a representative of SADTU. He further stated that he has been a member of the Panel for more than five years.
8.2 The witness then referred to the minutes of the Review Meeting (Bundle A, p20), that was held on 04 September 2023. The panel consisted of himself, the Circuit Coordinator, Acting Director: Human Resources and a representative of a Professional Education Union. He further explained that a number of irregularities manifested itself with the appointment at Mokasa Primary and the that panel recommended to the Director that the selected candidate not be appointed and to rerun the process of recruitment and selection.
8.3 The report reflected that the Applicant raised concerns in respect of discrimination on the basis of age and locality (tribalism) as reasons for his exclusion from the shortlist. The panel reflected that the minutes of the shortlisting committee confirmed the allegations. It further advised that a number of candidates with higher qualifications and more teaching and management experience were overlooked for shortlisting without any reasons advanced. The panel concluded that the process showed elements of bias and unfairness.
Evidence on behalf of the Respondent
9. The representative for the First Respondent at this point in time indicated that she was not going to call any witnesses to testify on behalf of the First Respondent and closed the case.
SUBMISSIONS BY THE PARTIES
10. Both parties presented well prepared written heads of argument, which were considered in the analysis.
ANALYSIS OF EVIDENCE AND ARGUMENT
11. The Applicant applied for a position as Principal (PL4 – P3) at the Mokasa Primary school. The position was advertised in a Departmental Circular 26, 2023. The Applicant, despite adhering to the minimum qualifications, was not shortlisted for the interviews. He initiated a grievance but received no response from the District Director. This led the Applicant with no other alternative but to refer an unfair labour practice – promotion dispute to the Council. The essence of the Applicant’s case is that he believes that he is the best candidate for the position.
12. In general terms, promotion can be described as the movement or advance to a higher rank or position. To be successful in an unfair labour practice/promotion dispute, the onus rests with the employee to prove that he/she is the better candidate for the position in question (see: Buffalo City Public FET College v CCMA and others (P 372/12) [2016] ZALCPE 18). In essence, the employee must show the existence of the conduct or decision complained off. If the employee fails in this regard, it is the end of the matter. It is however also expected of the employer to disclose evidence before the tribunal to show that it acted fairly and in good faith during the promotion exercise (see: IMATU obo Visagie v Mogale City Municipality (JR 86/15) [2017] ZALCJHB 432 and Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT).
13. In Noonan v SSSBC and others [2012] 33 I LJ 2597 (LAC) it was held that there is no right to a promotion, only a right to be given a fair opportunity to compete for the post. Any conduct that denies the employee in question an opportunity to compete for the post, constitutes an unfair labour practice. In City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC), the Court held that the overall test in respect of unfair promotion is one of fairness. In deciding whether an employer acted fairly in filling or refusing to promote an employee, it is important to consider whether:
13.1 The failure to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer;
13.2 The employer’s decision was arbitrary, or capricious, unfair or the employer failed to apply its mind to the promotion of the particular employee;
13.3 The employer’s decision not to promote was motivated by bad faith or was discriminatory;
13.4 There were insubstantial reasons for the employer’s decision not to promote;
13.5 The employer’s decision not to promote was based upon a wrong principle.
14. In Aries v CCMA and others (2006) 27 ILJ 2324 (LC), the court held that there are limited grounds on which a commissioner or a court may interfere with the discretion exercised by an employer. The managerial prerogative, being the exercise of a discretion, should 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.
15. To conclude, in this regard, cognizance can be taken of the dictum in Nqcobo v Standard Bank of South Africa and others (D 439/12) [2013] ZALCD 33 (23 September 2013) at [31] …, which states: “Employers have a prerogative as to whom they seek to promote or appoint as long as that discretion is exercised fairly by giving the employee opportunities to apply for the post and also by the use of a fair assessment or recruitment criteria. Unfairness cannot merely be established from the fact that an employee’s expectations of an appointment of promotion was not met. It is therefore required of the employee to demonstrate that there was conduct that denied him/her of a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason or on the other hand, that the successful candidate was dishonest and misled the employer”.
16. From the evidence presented, the following facts are of relevance and were not challenged:
16.1 All the candidates (26), qualified for the position as advertised;
16.2 The shortlisting committee decided to set the following additional criteria:
16.2.1 Candidates on the same post level as the advertised position will not be considered;
16.2.1 Gender will not be a consideration although the panel recognised the fact that the appointment of a male candidate will assist in bringing about equity;
16.2.2 There is a need for a long-term, stable school management environment and therefore “locality” and “longevity” were also considered. It is not clear as to how this additional requirement were to be applied (see: Report by the Resources Panel – Bundle A, p14).
17. From the “Shortlisting Report” prepared by the School Governing Body (SGB), it was reflected that the candidates from the Baga-Mothibi circuit would be considered first and if a suitable candidate is not found, then from the districts, and if there is still not a suitable candidate, then the other applicants will be considered.
18. With regard to the argument that the Applicant was not given a fair opportunity to compete for the post, the Applicant made the following submissions:
18.1 The minimum requirements for the position were a Grade 12 certificate and the applicant must have had at least a recognised three-year qualification (REQV 13), which must include appropriate training as an educator. With regard to experience, an applicant must have at least seven years’ experience as an educator and given that the post is that of a principal, management and administration skills. The Applicant pointed out, with reference to the five candidates shortlisted, that he, in all respects, were far better qualified in respect of appropriate academic qualifications, years of experience as an educator and years of experience as a manager. He stated that if he was allowed to attend the interviews, he would have been able to show to the interview panel that he is the best person for the post.
18.2 The SGB set further criteria to be utilised in the process of shortlisting (Bundle A, p13). These additional criteria are set out in 16.2 above.
18.3 It was submitted that if age was taken into consideration, it amounts to discrimination in terms of the Employment Equity Act, 1998. It was further stated that if age was applied as a criterion, then it was inconsistently applied as candidate Johnny is in the same age bracket as the Applicant. With regard to the criteria that candidates should be shortlisted from the Baga-Mothibi circuit, the argument was raised that the advertisement was an open advertisement for applicants countrywide to respond to. He further pointed out that until 2018, he taught at Mokasa Primary and that he was born in the village and that the circuit was named after his father. It was also submitted that the Second Respondent does not stay within the boundaries of the Baga-Mothibi circuit. The second criterium was therefore used to eliminate said candidates from the group shortlisted.
18.4 The Applicant further argued that there is an obligation on the shortlisting panel to shortlist the most suitable applicants, the “cre’me dela cre’me” of all those who applied for the position. It is submitted that in this particular instance the panel shortlisted the weakest candidates. In this regard the Applicant referred to Kwadukuza Municipality v Rajamoney and Others (D 880/10) [2013] ZALCD 17 (13 June 2013) where the court held as follows:
“[15] For the requirements of an advertised post to be met, therefore, cognizance must be taken of the objective of the policy to ensure that the candidate who best meets the selection criteria is appointed. The shortlisting of a candidate who least meets the selection criteria will ordinarily fly clear in the face of the objective of the policy. Such shortlisting would then be arbitrary and contrary to the selection criteria.”
19. The First Respondent submitted that the argument of the Applicant that he is the best qualified in all respects and that it entitles him to be appointed, does not have substance. If this was the case, then there would have been no need to conduct interviews as the candidate with the longest experience and highest qualifications could automatically be appointed. The interviews are used to find the most suitable candidate. In many instances the candidate with the lesser qualifications comes out as the best candidate in the interviews. The Second Respondent met the minimum requirements for the position and he was selected by the panel after the interviews, as the best candidate. The Applicant is not familiar with the abilities of all the candidates and can therefore not make the statement that he could have outclassed all the other candidates if he was allowed to attend the interviews.
20. It was pointed out that the Applicant acknowledged that it was not wrong for the First Respondent to consider longevity in recruiting the most suitable candidate for the post. It is common cause that the Applicant will be reaching his retirement age in the next five years as opposed to the Second Respondent, who will only retire in 30 years’ time. For stability in schools, long-term appointments are of cardinal importance.
21. The First Respondent also indicated that the Applicant cannot claim compensation for the period that he was not employed in the position that the Second Respondent was appointed in. The Applicant held a particular position in the First Respondent in terms of which he renders services to the First Respondent and he was paid for those services rendered.
22. For the Applicant to prove substantive unfairness there are four hurdles that the Applicant needs to cross being:
22.1 Compliance with the minimum requirements;
22.2 Sound reasons to interfere with the managerial prerogative;
22.3 The reasonableness of the employer’s decision;
22.4 There must be a causal link between the irregularity or unfairness and the failure to promote.
23. Compliance with the minimum requirements: As reflected above all 26 candidates who applied for the position adhered to the minimum qualifications.
24. Sound reasons to interfere with the managerial prerogative: The shortlisting committee set certain additional criteria and it was evident that the emphasis or reason for these criteria was to ensure a stable school environment in the medium and long-term. In this regard, the committee wanted to appoint a candidate that would be in it for the longhaul and their locality is to be preferred. This objective in itself does not constitute discrimination. The test for discrimination would be how these criteria were applied in the selection process. The onus rests with the Applicant to show bad faith or improper motive. The Applicant argued that the territorial preferential was used to exclude him. However, as testified by the second witness for the Applicant, the successful candidate also resides outside the particular circuit. The addresses as reflected in the application forms indicate that both the Applicant and the Second Respondent stay in Pudimoe. If there was any intention to exclude the Applicant, then obviously the territorial preference would not have served its purpose.
25. It is further to be noted that it is not a requirement that the SGB must invite the candidates with the highest qualifications. It must also be noted that there were other candidates with exemplary qualifications and experience who were also not invited. The Applicant failed to show any evidence of any bad faith or improper motive. In Goliath v Medscheme (Pty) Ltd (1996) 17 ILJ 760 (IC) as referred to in PAWC (Department of Health and Social Services v Bakwani and others (2002) 23 ILJ 761 (LC) 771, the court expressed itself as follows “it is quite possible that the assessment made of the candidates and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness, which leaves the court to draw an inference of male fides, this court should be hesitant to interfere with the exercise of management’s discretion”.
26. With regard to the reasonableness of the position it must again be noted that all 26 candidates had the minimum qualification requirements. To focus the selection criteria on the requirement of ensuring a long-term stable environment at a school, is not an irrational requirement. It is quite possible that the decision regarding who is to be shortlisted was not the correct one. There is however no evidence that the decision was made arbitrarily, capriciously or male fide i.e. it was a reasonable decision (see: Head, Western Cape Education Department and others v Governing Body, Point High School and others 2008 (5) SA 18 (SCA).
27. The Applicant must also establish a causal connection between the irregularity or unfairness and the failure to promote. For all practical purposes, the Applicant needed to show that, but for the irregularity or unfairness, he would have been appointed to the post (see: KwaDukuza Municipality v SALGBC [2008] 11 BLLR 1057 (LC); Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 2647 (LAC) at 35). If it is for purposes of argument accepted that the Applicant, having the highest qualifications and the most extensive experience, should have been invited to the interviews, there is still no evidence that indicates that the Applicant would have been appointed. The SGB is not obliged to appoint the candidate with the highest qualifications, but rather the candidate that it regards as the most suitable for the position. The argument that the Applicant presented was that if he was invited to the interviews, he is certain that he would have been able to convince the SGB that he was the best suited candidate. Such an argument however does not show that the Applicant is the best candidate amongst all the candidates who applied for the position.
AWARD
28. In view of the analysis as set out above and considering the various criteria, I must conclude that the failure of the SGB not to invite the Applicant for an interview and the subsequent appointment of the Second Respondent as principal of the Mokasa Primarily School, does not constitute an unfair labour practice as envisaged in terms of Section 186(2 (a) of the LRA.
29. The matter is therefore dismissed.
30. I make no order as to costs.
Signature:
Panelist: PIETER GREYLING
Sector: Education Department of North West