Department of Education: Gauteng v Education Labour Relations Council and Others (JR496/17) [2021] ZALCJHB 392 (19 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 496/17

In the matter between:

DEPARTMENT OF EDUCATION: GAUTENG Applicant

and

EDUCATION LABOUR RELATIONS COUNCIL First

Respondent

SJOLUND A. N.O Second

Respondent

BETANE L Third

Respondent

Heard: 25 November 2020

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 19 October 2021

JUDGMENT

MAHOSI J

Introduction

[1] This is an application brought in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside the arbitration award issued by the second respondent (arbitrator) under the auspices of the Education Labour

Relations Council (bargaining council), under case number PSES 468-16/17 GP, dated 10 February 2017.

[2] Before this Court is also the condonation application for the late filing of the answering affidavit. Having regard to the submissions, I am of the view that the interests of justice require a full determination of this matter and I, therefore, grant condonation.

Background

[3] Prior to outlining the applicant’s case in detail and considering the issues that gave rise to the claim, it is necessary to outline the facts that form the relevant background to the dispute between the parties.

[4] The third respondent is employed by the applicant as an Educator, based at Pholoso Secondary School. On or about 17 December 2017, the applicant advertised the vacant positions in Gauteng schools, amongst them, the position of Deputy School Principal at Pholoso Secondary School in Alexandra in the Government Gazette. Mr Betane applied for the position and he was shortlisted and interviewed.

[5] On 26 April 2016, at the interviews he obtained the score of 92 and another candidate, Ms Motoma, obtained a score of 90. The interview panel then recommended the appointment of the third respondent to the School Governing body (SGB). The recommendations of the interviewing panel were endorsed by the SGB and forwarded to the District Director, Mr Ndevu, for appointment. Mr Ndevu decided to appoint Ms Motoma instead of the third respondent.

[6] Aggrieved by the applicant’s decision not to appoint him, on 27 October 2016, the third respondent referred an unfair labour practice dispute in terms of section 186(2)(a) of the LRA to the bargaining council. The dispute was conciliated unsuccessfully and the matter was referred for arbitration, which was held on 18 and 19 January 2017. The arbitrator issued an arbitration award on 10 February 2017. It is that arbitration award which is the subject of this matter.

The arbitration award

[7] The issue before the arbitrator was whether the applicant committed an unfair labour practice by not appointing the third respondent into the position of the Deputy Principal. It was common cause that the third respondent applied, was shortlisted and interviewed for the position. Further that of the three shortlisted candidates, he obtained the highest score of 92 points and as a result, the SGB recommended that he be appointed.

[8] The conduct that the third respondent complained about was that the applicant reviewed the SGB’s recommendation, which led to his non-appointment. The applicant’s case was that it was entitled to appoint any suitable candidate after taking into account the equity grid at the school and the provisions of the Employment of Educators Act[2] (EEA).

[9] Having assessed the evidence before him, the arbitrator found, that the applicant's consideration of gender inequality was unfair, as the courts have held that an employer must have an Affirmative Action Plan or Policy prior to implementing the affirmative action.

[10] The arbitrator further found that both the third respondent and Ms Motoma have the minimum requirements and relevant experience for the post as advertised. Having made this finding, the commissioner

considered the applicant’s submission that Ms Motoma was a better candidate in terms of years of experience and stated as

follows:

‘Although the respondent has a specified discretion to disregard the SGB’S motivation and recommendation it must exercise this discretion in a manner which conforms to the statutory requirements of fair administration in the Constitution, and in PAJA. This was confirmed in Head, Western Cape Education Department and Others v Governing Body, Point High School and Others 2008 (5) SA 18 (SCA). The Court held in the matter of Kimberley, Junior School v Head of Northern Cape Education Department [2009] 4 All SA 135 (SCA) that a recommendation by a SGB is essential prerequisite for the promotion of the educator.[3]

[11] It was common cause that the SGB ratified the decision of the selection panel and recommended the appointment of the third respondent. The evidence before the arbitrator was that Mr Ndevu scrutinised the recommendations and found Ms Motoma to be the better candidate, which resulted in him arranging an urgent meeting with the SGB where they agreed that Ms Motoma should be appointed. However, Mr Poponi disputed that the SGB agreed to the appointment of Ms Motoma and that the issue of equity was discussed.

[12] Having assessed the evidence before him, the arbitrator found that the applicant failed to provide the minutes of the meeting where the SGB agreed to the appointment of Ms Motoma and the evidence that Ms Motoma was the better candidate and that the interview panel or the SGB erred in their decision to recommend the third respondent for appointment. It was for this reason that the arbitrator concluded that, on a balance of probabilities that the applicant committed an unfair labour practice.

[13] As a result, he ordered the applicant to appoint the third respondent into the position of the Deputy Principal at Pholoso Secondary School from 01 March 2017. The arbitrator further set aside the appointment of Ms Motoma into the position of the Deputy Principal.

Applicant’s submissions

[14] The applicant challenges the award on the grounds that the arbitrator committed gross misconduct and irregularity in relation to his duties as the arbitrator in that he failed to give due consideration to sections 7(1)(a), 7(1)(b) and 6(3) of the EEA; the advertisement of the post; the experience of Ms Motoma leadership, administration and management, which were the skills required for the post; to have due regard to the documentation placed before him, in relation to the qualification and experience of the third respondent, as compared to that of Ms Motoma; and to observe that the third respondent had a Post-Level 1 qualification and no leadership skills nor experience and occupied a position of an ordinary educator.

[15] It is the applicant’s further submission that the arbitrator misdirected himself to the facts by basing his decision on the absence of the equity plan and took irrelevant extrinsic evidence into account in interpreting the issue of Gender Equality in the Institution of Educators and disregarded the provisions of the relevant legislation.

[16] Furthermore, the applicant submits that the arbitrator committed a material error of law by misinterpreting the ELRC Recruitment Guide, failed to observe that the final decision of the appointment of a suitable candidate is the prerogative of the DOE and that the recommendations of the SGB are merely recommendations subject to the scrutiny of the District Director.

Respondent’s submissions

[17] The third respondent submits that although he was the first candidate for appointment, the District Director acted arbitrary and failed to formally decline the SGB recommendation. Further that the District Director failed to appoint him by erroneously relying exclusively on equity grid as applicable to the school and other legislative framework on affirmative action or employment equity in terms of the EEA and the Employment Equity Act,[4]

[18] The third respondent further submits that the District Director informed the SGB about its reservation in an informal manner and failed to afford the SGB a second opportunity to make a further recommendation in line with the Collective Agreement, which action makes Ms Motoma’s appointment without the recommendation of the SGB.

Applicable law and analysis

[19] The arbitration awards are reviewable in terms of section 145 of LRA, which provides that any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award.

[20] Section 145(2) defines a defect as the commissioner’s misconduct in relation to the duties of the commissioner as an arbitrator, gross irregularities in the conduct of the arbitration proceedings, exceeding the commissioner's powers or improperly obtaining an award. The test whether the decision reached by the arbitrator is one that a reasonable decision-maker could reach.

[21] The first ground on which the arbitrator’s award was challenged was that he failed to give due consideration to sections 6(3) and 7(1) of the EEA. It is appropriate, at this point to set out the provisions in question. The relevant prtions of section 6 reads:

‘(3) (a) Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial

Department of Basic Education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable

for the post concerned.

(b) In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or council, as the case may be, must adhere to—

(i) the democratic values and principles referred to in section 7 (1);

(ii) any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators;

(iii) any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators which the candidate must meet;

(iv) a procedure whereby it is established that the candidate is registered or qualifies for registration as an educator with the South African Council for Educators; and

(v) procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.

(c) The governing body must submit, in order of preference to the Head of Department, a list of—

(i) at least three names of recommended candidates: or

(ii) fewer than three candidates in consultation with the Head of Department.

(d) When the Head of Department considers the recommendation contemplated in paragraph (c), he or she must, before making an appointment, ensure that the governing body has met the requirements in paragraph (b).

(e) If the governing body has not met the requirements in paragraph (b), the Head of Department must decline the recommendation.

(f) Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list.

(g) If the Head of Department declines a recommendation, he or she must—

(i) consider all the applications submitted for that post;

(ii) apply the requirements in paragraph (b) (i) to (iv); and

(iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post.’

[22] Section 7 of the EEA reads:

‘7. Appointments and filling of posts.—

(1) In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195 (1) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and which include the following factors, namely—

(a) he ability of the candidate; and

(b) the need to redress the imbalances of the past in order to achieve broad representation.’

[23] The administrative action provided for in terms of the aforementioned sections of the EEA were considered in the judgment of Head of the Western Cape, Education Department and Others v Governing Body of the Point High School and Others,[5] where the Supreme Court of Appeal (SCA) stated as follows:

‘[10] The appointments made by the HoD were plainly the result of 'administrative action' as defined in s 1 of PAJA. The empowering provisions were those set out in s 6(3) of the EEA. The decision-making process contemplated in the section is a dichotomous one. The first step is for the governing body to make a comparative assessment of the candidates and to compile a list of those whom it recommends for appointment in its order of preference. This it must do in accordance with the precepts in s 6(3)(b). The HoD is then required to consider whether the governing body has arrived at its recommendation by a process which meets those precepts. It does not appear that he has a perceptible discretion in this regard. If he is of the view that the requirements have not been met, he is bound by s 6(3)(e) to reject the governing body's recommendation as a

whole and to proceed in terms of ss 6(3)(g). If he is satisfied that the stipulated requirements have been complied with, he may appoint a candidate from the governing body's list in terms of the discretion vested in him by ss 6(3)(f). The law is now clear that, in exercising this discretion, the HoD is required to act reasonably and, by taking into account all of the relevant factors and considering the competing interests involved, to arrive at a decision which strikes a 'reasonable equilibrium'. The court has no power to review this decision purely because there may be another, perhaps better, 'equilibrium' which could have resulted by attributing more weight to some factor or factors and less to others. If that struck by the decision-maker is reasonable, then it must stand.

The significance of my reference to a 'dichotomous procedure' is that, if he considers that the governing body has performed its functions properly, the HoD must obviously attribute substantial weight to the recommendations submitted to him. He is called upon to decide upon the appointment of a person from a list of people about whom he may have no personal knowledge. The governing body of such a school, constituted (in terms of the South African Schools Act) mainly by elected representatives of parents and staff, would naturally be expected to have a reliable comparative picture of the various candidates and their suitability for appointment at the school. Its choice and recommendation would obviously be better-motivated, and more reliable, than any that the HoD could make in the circumstances. While it is quite correct that he has a specified discretion to disregard the governing body's motivated recommendation and even its order of preference, he must clearly exercise this discretion in a manner which conforms to the statutory requirements of fair administration in the Constitution and in PAJA and also, in general, with the Department's policy.’ [Footnotes ommitted]

[24] It is apparent from the above authority that section 6 of EEA does not only provide for the powers the employer has in relation to the appointments, promotion and transfers of educators but also for the procedure to be followed in doing so. It is further apparent that “the appointments made by the Head of Department of Education were plainly the result of an 'administrative action' as defined in section 1 of PAJA.”

[25] The law is clear that the administrative decisions may only be subjected to judicial review in a Court or tribunal.[6] The “Court” is defined in section 1(iv) of PAJA as:

‘(a) the Constitutional Court acting in terms of section 167(6)(a) of the 30 Constitution; or

(b) (i) a High Court or another court of similar status; or

(ii) a Magistrate’s Court, either generally or in respect of a specified class of administrative actions, designated by the Minister by notice in the Gazette and presided over by a magistrate designated in writing by the Minister after consultation with the Magistrates Commission.’

[26] Section 1(xiii) of PAJA defines the tribunal as “any independent and impartial tribunal established by national legislation for the purpose of judicially reviewing an administrative action in terms of PAJA.”

[27] In the current matter, although the dispute was referred in terms of 186(2) of the LRA and the arbitrator described it as such, it is apparent from the reading of his award that what the arbitrator did was to review, set aside and substitute the decision of the applicant. This, is confirmed by the portion where the arbitrator states as follows:

‘…the arbitration is not the review of the process or the hearing de novo but a review of the employer’s decision…’[7]

[28] To an extent that the applicant’s decision sought to be challenged by the third respondent at the arbitration was the result of an administrative action as defined in s 1 of PAJA and further that the first respondent is not a Court or a tribunal as defined in PAJA, it follows that the arbitrator had no jurisdiction to review the applicant’s decision. As such, his award falls to be set-aside only on this ground.

Costs

[29] With regard to costs, I am of the view that the requirements of law and fairness dictate that there should be no order as to costs.

[30] Accordingly, the following order is made:

Order

1. The application for an order to review and set aside the arbitration award issued by the second respondent under the auspices of the first respondent under case PSES 468-16/17 GP, dated 10 February 2017 is reviewed and set aside.

2. There is no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Advocate Karabo Kgoroeadira

Instructed by State Attorney

For the respondent: MS Mphahlele of Mphahlele MS (MMS) Attorneys

[1] Act 66 of 1995 as amended.

[2] Act 76 of 1998, as amended.

[3] Index to application, p 18 to para 20 of the award

[4] Act 55 of 1998, as amended.

[5] 2008 (5) SA 18 (SCA) para 10.

[6] Section 6(1) of PAJA.

[7] Index to application, p 18 to 19 para 20 of the award.