In the matter between

Luvuyo Sanadayi Applicant

And

Department of Education – Eastern Cape, 1st Respondent
Mr. F. Every 2nd Respondent
Mrs N. Jacobs 3rd Respondent
Mr. M.M. Mcono 4th Respondent
Ms. A. M. Ntombana 5th Respondent
Mr. Mkele 6th Respondent

Union/Applicant’s representative:
Mr Toyanto

ZEPE and CO Attorneys

Telephone: 072 596 6297
Telefax:
E-mail: mandy@squires.co.za

Respondent’s representative: Mr G Jacobs
Respondent’s address:

Telephone: 040 608 4542
Telefax:
E-mail: garthjacobs@rocketmail.com

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), was held at the Department of Education offices, Fort Beaufort, on 22 November 2019, 17 February 2020, 19 March 2021 and 10 August 2021. The Matter proceeded virtually via Zoom on 26 August 2021, 30 September 2021 and 14 October 2021.

2 The applicant, Mr. L Sanadayi was represented by Mr. A Ntoyanto, an attorney from Zepe and Co attorneys, on 26 Augusts 2021, the Applicant was represented by Ms A. Friderichs, an attorney from Squire Smith & Laurie Incorporated. The 1st respondent, the Department of Education – Eastern Cape, was represented by Mr G. Jacobs, a Senior Labour Relations Officer for the Respondent, the 2nd respondent, Mr E. Every was represented by Ms V. Van Wyk, an official from the Suid Afrikaanse Onderwys Unie (SAOU), the 3rd to the 6th respondent, Ms N Jacobs, Mr M M Mcono, Ms A M Ntombana and Mr Mkele was represented by Ms Malibogwe, an official from the South African Democratic Teachers Union (SADTU).

3 The hearing was held in English, it was digitally and manually recorded.

4 Parties agreed to submit heads of argument by no later than 21 October 2021, both parties did so.

Issue to be decided

5. The issue to be decided is whether or not the failure to shortlist the Applicant for the post of Education Development Officer (EDO) by the 1st Respondent constitutes an unfair labour practice in terms of section 186(2) of the LRA, and if so, to determine the appropriate relief.

Background to the matter

6. The Applicant referred an alleged unfair labour practice dispute pertaining to promotion. The Applicant applied for the post of Education Development Officer and was not shortlisted.

7. The Applicant sought that the successful candidate’s appointments be set aside, and that he be promoted to the said position.

8. Both parties submitted bundles of documents into record on which they would rely during the proceedings. The documents were accepted to be what they purport to be.

Survey of evidence

9. This is a summary and does not reflect all of the arguments heard and considered in reaching a decision.

Applicant’s evidence

10. The Applicant testified in short that he was initially shortlisted for the post of EDO, and on the day of the interview, he was told that the interviews were postponed. He would have expected a letter to that effect from the 1st Respondent.

11. The Applicant further testified that he lodged a grievance and that he never received feedback regarding his grievance. The advertisement for the post should outline what is needed by the Department of Education, and not what is needed by an individual person.

12. The Applicant also testified that the advertisement was silent on Afrikaans as a requirement, it required 5 years’ experience as a principal, and not as a deputy principal. Due to this, the Department of Education lowered the bar in terms of the requirements of the post and the process was pre-determined.

13. The Applicant read into record page 55 which is part of Circular No.6 of 2007 with regards to sifting which reads as follows:

“Only those applicants who meet the specified requirements for the post will be considered for appointment and may therefore be considered by the Interview Committee for short-listing and interviewing purposes. No additional names may be added to these official lists by the Interview Committee.”

14. Page 9 to 16 of the bundle of documents reflects the Master List and some of the candidates that made the master list is less qualified, such as candidate no.103, 65, 19, 99, 114 and 120, and it is uncertain how they made the Master List.
15. Under cross-examination, the Applicant confirmed that all the shortlisted candidates meet the minimum requirements in terms of qualifications and that he has 18 years primary school principal experience in a school with 114 learners.

16. The Applicant also confirmed that his school is earmarked for closure and that his performance is measured through the results of his school. High Schools performance is measured by the Matric results and a school with a pass rate of less than 60 percent is an underperforming school.

17. It was also confirmed that the Superintendent General (SG) has the right to appoint or not to appoint, the SG also has the powers to delegate and page 19 of the bundle shows how the Panel should be constituted, the SG on page 20 of the bundle withdrew the composition of the selection panel and replaced it as per page 20 with a higher standing selection panel.

18. The Applicant confirmed that he believed that he was also a suitable candidate for the post and that he is better than others, specifically the 2nd Respondent.

Respondent’s evidence

19. Mr Jack testified that he is employed as the Chief Director: Teacher Development and was the Chairperson of all six Interview Panels in the six districts at the time. The SG gave instruction that all process be declared null and void and that he be appointed as the Chairperson.

20. The number of posts for Amatole District were 5, for each post there must be 3 to 5 shortlisting candidates, they decided that they will reduce the number of shortlisting candidates to 3 per post and shortlisted 16 candidates.

21. The minimum criteria for the post was a three-year qualification in education, 5 years’ experience as a principal of a top performing school and circular D2 was used to determine what was a performing school. Performance was measured through the size of the school which is determined by the number of learners which in turn is the cost drivers that determine the number of educators in a particular school.

22. Policies also gives instruction to consider equity when considering appointments, such as woman, young people and people with disabilities. In the Eastern Cape, there is a policy to deracialize the workplace to reflect the demographics of the area. There are few women in managerial positions and the unions were happy with the shortlisting of candidates as well as the process and appointees.

23. Under cross-examination Mr Jack stated that they separate Primary School and Secondary Schools in terms of top performing schools and use Circular D2 as the criteria to determine a performing school.

24. Ms Mbane, candidate no. 48, was shortlisted even though she had three “0’ scores which was as a result of her school not having grade 6 pupils. Mr Jack also confirmed that Mr Every, the 2nd Respondent only had 4 years’ experience as a principal and does not meet the minimum requirements for the post. The Education Department has a responsibility to deracialise the workplace and decided to appoint Mr Every.

25. Under re-examination, Mr Jack stated that the appointment of EDO’s is regulated through the PAM and being a principal for 5 years is not in terms of the PAM, but was the criteria set by the SG.

26. The Panel determines additional criteria before they start shortlisting to reduce the shortlisted candidates from 131 to 16.

27. Mr Every was the principal at the second-best performing school and the number of learners is very important. If one needs to compare, the Applicant had 4 educators and Mr Every had 15 educators to manage.

Analysis

28. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.

29. 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”.

30. In this instance the Applicant challenges the fairness of the Department of Education not to shortlist him for the post of EDO he applied for as was advertised in Circular 25 of 2018/19 for Amathole West Ref. ECDOE 18/1/19.

31. The Applicant’s main contention is that he complied with the minimum requirements for the post and should have been shortlisted, and Mr Every, the 2nd Respondent, did not comply with the minimum requirements for the post, yet he was appointed. The main issue in dispute is the 5 years minimum management experience as a principal of a top performing school.

32. The issue of Ms N Mbane where she was shortlisted although she was not from a top performing school as she scored less than the Applicant was dealt with during the proceedings. It became apparent that Ms Mbane’s school did not have any grade 6 learners, thus she scored “0” in terms of performance.

33. What was not put before me, was the criteria that was use in determining Ms Mbane’s performance, it was also not raised as an issue as Ms Mbane was not appointed. In argument, the Applicant relied on this issue to indicate that the process followed left many unanswered questions which renders the process unfair. I cannot agree with this, it was never raised what criteria was used to determine Ms Mbane’s schools’ performance and she was also not a successful candidate. On that basis, there is no need to deal with Ms Mbane any further.

34. Turning back to the 5 years’ experience in a top performing school as a requirement. It is common cause that the advert made reference to a top performing school and 5 years management experience as a principal. It is further common cause that Mr Every only had 4 years’ experience at the time he applied for the post.

35. The Respondent’s defence for the deviation is three-fold, Mr Every was the principal at a high school with 15 teachers and the Applicant was from a primary school with less than 100 learners. Mr Every’s school was the second highest performing school between all the candidates and thus sets him apart from the Applicant.

36. Secondly, the panel was bound to consider equity and to deracialise the workplace. Mr Every was from a minority group and was Afrikaans speaking. It is so that Afrikaans was not a requirement in terms of the advert, however, the panel has the right to add additional criteria.

37. It is clear that there was a deviation from the advertised criteria, but what the Applicant failed to establish was that the deviation was arbitrary, capricious and irrational. The Respondents evidence was that a premium is placed on candidates from a larger school for obvious reasons, there is a difference in managing 15 educators to be a top performing school and 4 educators to be an underperforming school. There is simply no comparison, to put it mildly.

38. The Applicant referred to circular no.6 of 2007 that sets out the principles for recruitment and selection which stated that only candidates that meet the minimum criteria for the post may be shortlisted. The Respondent relied on the demographics of the employee population and the Employment Equity Act 55 of 1998.

39. The Applicant in argument made reference to Noonan v Safety and Security Sector Bargaining Council and others (2012) 33 ILJ 2597 (LAC) where the Court held that there is no right to promotion, only a right to be given a fair opportunity to compete for the post. Any conduct that denies an employee such an opportunity constitutes an unfair labour practice.

40. The Noonan matter mainly dealt with the successful candidate who did not disclose a warning on his file, if he had done so, he would not have been considered. Through his non-disclosure, he limited the possibility of other candidates to advance or to be appointed.

41. This is not the case in this instance, the Applicant had an opportunity to compete by applying for the post, he fell short on something the shortlisting panel placed a premium on, to be from a “top performing school”, and rightfully so.

42. In Malatji v City of Tshwane Metropolitan Municipality and others (JR 654/17) [2019] ZALCJHB 300 (handed down on 7 November 2019) the Court held considering the requirements outlined in the advertisement for the position and the Applicant’s qualifications, it is apparent that the Applicant did not establish that he was entitled to be shortlisted and to be appointed for the position as he failed to show that he possessed a tertiary-related qualification in policing and had the minimum of 8 years applicable experience in policing at senior management level. It follows that the Municipality’s conduct was not unfair. There is therefore, no merit to the Applicant’s contention that the arbitrator misconstrued the nature of the dispute and the evidence before him.

43. In this instance, the Applicant did not meet the requirements to be a principal of a top performing school. On that basis, the decision not to shortlist and promote the Applicant does not constitute an unfair labour practice.

44. The deviation of Mr Every was justified, it was not irrational, arbitrary or capricious and on that basis, not unfair.

45. In Arries 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 a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a 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. 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.

46. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) [2016] ZALCJHB 433 (handed down on 18 November 2016) it was held that a finding that a failure to promote was unfair must be a rational one i.e. it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the Employee’s qualifications and/or suitability for the position in question, against that of other candidates. The Court held that in promotion disputes it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for an Employee to show that the breach of the procedure had unfairly prejudiced him. This means that the Employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate

47. The Applicant simply failed to show that he would have been the best candidate, the Applicant is from a school with less than 100 learners and is ranked as an underperforming school. Even if the Applicant was shortlisted, on a balance of probabilities, he would not have been appointed for reasons already explained.

48. In light of the above, I find it appropriate to make the following award.

Award

49. The Applicant, Mr L Sanadayi, failed to establish that the respondent, the Education Department of the Eastern Cape, committed an unfair labour practice as envisaged in section 186(2) of the LRA when they did not shortlist the Applicant for the post of Education Development Officer.

50. The Applicant, Mr L Sanadayi, is not entitled to any relief.

Signature:

Commissioner: Henk Jacobs