In the arbitration between

SADTU OBO BROWN, N.D APPLICANT

And

DEPARTMENT OF EDUCATION EASTERN CAPE 1ST RESPONDENT
MRS C M DE VILLIERS 2ND RESPONDENT
MEC DEPARTMENT EDUCATION EC 3RD RESPONDENT
HOD DEPARTMENT EDUCATION EC 4TH RESPONDENT
SCHOOL GOVERNING BODY 5TH RESPONDENT
FOR BETHELSDORP COMPLIMENTARY SCHOOL

Employee’s representative: Mr A P Dayimani of SADTU
dayimaniap@webmail.co.za

1st Respondent’s representative: Ms A Slabbert
Ansie68@mweb.co.za

2nd Respondent’s representative: Mr A J Adams
antona@naptosa.org.za

School Governing Body: Mr W Stevens
Cell phone number: 0824540399

DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down for an arbitration hearing on 25 October 2018 and 23 January 2019 in Port Elizabeth. The Applicant referred an alleged Unfair Labour Practice dispute relating to promotion to the ELRC on 13 April 2018.

2. The Applicant was represented by Mr A P Dayimani of SADTU. The First Respondent was represented by Ms A Slabbert. The Second Respondent was represented by Mr A J Adams of NAPTOSA. The SGB was represented by Mr W Stevens.

3. The parties handed in 2 bundles and 2 Annexures at the arbitration hearing. Mr Dayimani included Annexure ‘E” in his arguments which reflects the closing date for the application of the HOD post which is the subject matter of this arbitration hearing.

4. The parties submitted written arguments which I received on 7 and 9 February 2019.

ISSUES TO BE DECIDED

5. Did the Respondent commit an Unfair Labour Practice related to promotion?

6. If so is the Applicant entitled to be appointed in the position of the Second Respondent?

COMMON CAUSE FACTS

7. The post of HOD for Bethelsdorp Complimentary School for the position of Afrikaans (Grade 8 – 12) and Administration, Post number 818 was advertised in the Eastern Cape School Bulletin.

8. The Applicant and the Second Respondent applied for the HOD post. Both were employed as post level 1 educators when they applied for the post.

9. The Applicant scored the highest points at the interview and the interview panel recommended the Applicant for the HOD post.

10. The SGB replaced the Applicant with the Second Respondent at the SGB ratification meeting.

11. The Second Respondent was appointed to the position of HOD Bethelsdorp Comprehensive School for the position of Afrikaans Administration. The Second Respondent was advised on 1 April 2018 to start in the position on 10 April 2018.

12. The Applicant claims that he is the best candidate for the position and should have been appointed to the position of HOD and not the 2nd Respondent.

FACTS IN DISPUTE

13. Whether the interview panel was unduly influenced by Mrs Booysen the previous HOD for Afrikaans & Administration prior to the commencement of the interview proceedings.

14. Whether the SGB was unduly influenced by Mr Arendse, the school principal at the SGB meeting.

15. Whether the Second Respondent meets the requirements for the post.

16. Whether the fact that the Second Respondent made a mistake on her application form by writing the incorrect post number renders the entire process irregular.

17. Whether the SGB comprised of the correct quorum at the SGB ratification meeting.

18. Whether the Second Respondent applied for the post within the required time period as per the advertisement. The Second Respondent submitted her application on 30 November 2017 which is 23 days after the closing date of the bulletin but the employer stamped the application form on 7 November 2017. (“Annexure F”)

EVIDENCE

The Applicant, Mr N D Brown (“Brown”) testified as follows:

19. He is a Level 1 teacher at Bethelsdorp School.

20. He was scored as the best candidate at the interview for the position of HOD Afrikaans and Administration.

21. The Applicant’s qualifications are as follows:

• BA Honours in Afrikaans
• Higher Diploma in Education.
• Sports Administration Course
• BA Human Resources UNISA
• BA Labour Relations UNISA
• Conflict Management UPE
• Various courses inter alia, leadership, education, facilitation.
• Matric marker, home language Afrikaans since 1997 and a senior marker for the National Senior Certificate examination for the last 2 years.

22. The Applicant’s teaching experience is as follows:

• 29 years teaching at Bethelsdorp Comprehension school, the school for which the HOD position was advertised.
• Teaching Afrikaans First Additional Language at the Bethelsdorp Comprehension School for 29 years.

Mr A January (“January”) testified as follows:

23. He was a SADTU observer at the interviews and a teacher component member of the SGB at the SGB ratification meeting.

24. January said at the interviews he was not given a copy of the applications and he only became aware after the entire process had been completed that the Applicant had an honours degree in Afrikaans.

25. De Villiers wrote the wrong post number on her application form and should therefore not have been shortlisted. Also her form was not completed properly.

26. The SGB was not properly constituted when they replaced Brown with Ms de Villiers.

27. The SGB is comprised of 14 members. To have a quorum 7 members must vote. There were only 6 members present at the SGB ratification meeting. (page 11 of Bundle B).

28. January said that Mrs Booysen, the previous HOD addressed the interview panel prior to the interview. She spoke about the requirements for the post. She said the panel must look for someone experience in Afrikaans Home Language. It is common cause that Afrikaans Home Language is teaching Afrikaans speaking students Afrikaans.

29. January said Mrs Booysen did not influence the panel’s decision to recommend the Applicant, but he said for him it was when Mr Arendse confirmed what Booysen said that convinced him to vote for de Villiers at the SGB meeting. He said he only found out afterwards that Brown has a Honours Degree in Afrikaans.

30. January said the reason he agreed to change to de Villiers was because Mr Arendse the school principal said at the SGB ratification meeting that the Applicant had no experience in teaching Afrikaans home language and that Mrs de Villiers is an experienced Afrikaans home language teacher. That is why he agreed.

Mrs C M de Villiers (“de Villiers”) testified as follows:

31. Mrs de Villiers’ qualifications are as follows:

• Senior Primary Diploma in Education
• Advanced certificate in Education

32. Ms de Villiers’ teaching experience is as follows:

• 27 years teaching experience of which she taught Afrikaans home language for grades 8 -12 for 16 years.
• For the past 8 years a marker in Afrikaans Home Language at the National Senior Certificate exams.
• Subject Head in Afrikaans at previous school in Hankey in Afrikaans Home Language for Grades 8 – 12

Mr L D Arendse (“Arendse”), the school principal at Bethelsdorp testified as follows:
33. Mr Arendse said that the Applicant had been teaching Afrikaans First Additional Language (“FAL”) to grades 10,11,12 for the past 29 years. It is common cause that FAL is different to Afrikaans Home Language in that whereas FAL is Afrikaans taught as a second language, Afrikaans Home Language is teaching Afrikaans to Afrikaans students, as a first language. Mrs Booysen who retired and whose position needed to be filled was teaching Afrikaans Home Language and did Administration. Arendse said the Applicant did not have Administration experience, whereas Mrs de Villiers had that experience.

34. Arendse said the most important qualification for the position was the experience of the successful appointee and that Mrs de Villiers had more experience than the Applicant in Afrikaans Home Language. He said the Applicant only taught Afrikaans Home Language to Grade 12 students for a period of 3 months when Mrs Booysen retired.

35. Arendse testified that at the time of the ratification meeting the SGB comprised of 10 members as there were 4 vacancies. To reach a quorum 6 members had to be present and 6 members were present at the ratification meeting.

ANALYSIS OF EVIDENCE AND ARGUMENT

SUBSTANTIVE FAIRNESS

36 After a consideration of the evidence and arguments presented at the arbitration hearing I concluded that the Applicant’s non-appointment to the HOD position was substantively unfair for the following reasons:

Afrikaans Home Language

37. It is common cause that Mrs Booysen and Mr Arendse expressed their view that Afrikaans Home Language was an essential requirement for the HOD position. It is furthermore common cause that Mrs De Villiers taught Afrikaans Home Language for grades 8 – 12 for 16 years and that Mr Brown taught FAL for grades 8 – 12 for 29 years. Mr January testified that he was influenced by the views expressed by Mr Arendse, which confirmed the views expressed by Mrs Booysen, that Mrs de Villiers was the better candidate because she taught Afrikaans Home Language. I am of the view that Mr Arendse unduly influenced the SGB members at the ratification meeting for the following reasons:

38. I am of the view that the criteria used to replace Mr Brown with Mrs de Villiers as the recommended candidate was unfair .

39. It was not a requirement for the post that the candidate was required to teach Afrikaans Home Language.

40. It is not in dispute that Mr Brown is far more qualified academically for the position of HOD Afrikaans than Mrs de Villiers.

41. Even if Mr Arendse and Mrs Booysen are of the view that the position of HOD Afrikaans requires a teacher with experience in Afrikaans Home Language I am not convinced that Mr Brown would not be the better candidate for the position. In this regard I agree with Mr Dayimani that the cornerstone of what the DOE does is guided (or in my view should be guided) by qualifications. It cannot be denied that experience plays a vital role in the education system. I am aware that qualifications are not the only factor to consider when a decision is made to recommend a suitable candidate for a post. In this matter I am however convinced that Mr Brown ticks all the boxes for the position of HOD Afrikaans and for Administration for the following reasons:

• Mr Brown’s expertise is Afrikaans.
• His home language is Afrikaans.
• He has 29 years of experience teaching Afrikaans FAL at the same school where the position of HOD was advertised.
• He is a senior matric marker in Afrikaans

• He has taught Afrikaans at Bethelsdorp high school for 29 years.

• The fact that Mrs de Villiers has a Primary School qualification and Mr Brown has a Masters Degree in Afrikaans cannot be ignored. In my view Mr Brown’s qualification and teaching experience far outweighs Ms de Villiers 16 years teaching experience in teaching Afrikaans Home Language to grades 8 -12.

Administration

42. Mr Adams conceded that it was possible that if the only criterion was Afrikaans the appointment of Ms de Villiers instead of Mr Brown to the HOD position could have amounted to an unfair labour practice. Mr Adams argued that there was however the second criteria namely Administration.

43. I am of the view taking into consideration Mr Brown’s academic record and experience that he is more than equipped to deal with the Administration of the Department. Mr Brown’s CV reflects that he did a course in Sports Administration and it is obvious that the other courses that he completed will assist him to grasp whatever is required from him to deal with the Administration of the Department in a matter of weeks.

PROCEDURAL FAIRNESS

44. I am of the view, taking into consideration my finding on substantive fairness, that it is unnecessary to make a finding on the alleged procedural irregularities committed by the employer.

45. I must however express my concern that although I gave the Respondents an opportunity to clarify why on the evidence presented Mrs de Villiers submitted her application form late and that the Department backdated her application, no explanation was forthcoming. I am of the view that a further investigation should be conducted by the Department regarding this incident. (Application form page 24 – 26 of Bundle “B”)

APPROPRIATE RELIEF

46. I am mindful of the fact that an employer has the prerogative to promote and that a Commissioner may only interfere in exceptional circumstances when the employer’s decision is clearly unfair. I am of the view that in the present matter the employer’s decision not to promote the Applicant was unfair.

AWARD

47. The 1st Respondent is ordered to promote the Applicant to the position of HOD Afrikaans Administration at the Bethelsdorp Comprehensive School with effect from 15 March 2019.

48. The 1st Respondent is ordered to adjust the Applicant’s remuneration retrospectively in accordance with the order of promotion.

49. The appointment of the 2nd Respondent, Mrs C M De Villiers, to the position of HOD is set aside with effect from 15 March 2019 when she is required to vacate the post. Mrs De Villiers is entitled to retain the remuneration she received as HOD in the post for the period from when she was appointed until the date her appointment is set aside, namely 10 April 2018 until 15 March 2019.

50. I make no order as to costs.

SIGNED AND DATED ON 03 March 2019

ADVOCATE L CHAROUX
COMMISSIONER