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[2002] ZALCJHB 3
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Majoe v CCMA (JR1381/01) [2002] ZALCJHB 3 (20 November 2002)
[COMMENT1]
Sneller
Verbatim/MLS
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR 1381/01
DATE:
2002-11-20
In
the matter between
T
MAJOE Applicant
and
CCMA Respondent
J U D G M E N T
LANDMAN
J
:
Mr Thulani Majoe was the head of Department of Commerce at the Hector
Peterson Secondary School in the Western Cape.
During 2000, the
Department of Education of the Free State published a list of
vacancies on its establishment.
One of the vacancies
was for a level 4 post i.e. the principal at
the Ikemisetseng Primary
School, Bothaville. The
closing date for applications was 23 March 2000. Mr Majoe
applied for the post.
His experience fell a few
months short of the minimum experience of seven years as a teacher
(which was prescribed for this post).
Mr Majoe met the minimum
academic qualifications which were required. Although his
experience was less than required,
his application passed the
shifting stage but the interviewing committee did not short-list him.
Mr Majoe was aggrieved by this.He
processed a complaint which was
that the Free State Education Department had committed an unfair
labour practice by overlooking
him for promotion or appointment on
the basis of invidious or irrelevant considerations and that the
department did not follow
the agreed procedures and policies set out
in the Education Labour Relations Council Resolution 5/1998.
An arbitrator appointed
by the bargaining council dismissed the application for relief.
In his award the arbitrator
said:
"The core of this
case is to respond to the requirements of the advertisement of the
vacancy for principal post level 4, (exhibit
D). It has
been stated clearly that the minimum requirement for post level 4 is
seven years minimum experience required.
From the applicant's
testimony and evidence provided, he does not have seven years
experience by six years nine months as he agreed
that he had a broken
service in between. According to the
Employment of Educators
Act 76 of 1998
,
s6(b)(i)and
(ii) state clearly that the head of
department may only decline the recommendation if any procedure
collectively agreed upon for
the appointment or promotion has not
been followed. Therefore Mr Majoe knew the post
required a person with seven
years experience, not six years.
Furthermore, the
Education Labour Relations Council Resolution 5 of 1998 stated that
failure to comply with this procedure
will lead to an application
being declared null and void or will be eliminated by
shifting."
In his conclusion the
arbitrator says:
"The applicant knew
that he does not have seven years experience. Secondly,
he admitted that in his application
form and Curriculum Vitae
that he provided contradictory and wrong information in which the
first shifting stage discovered
the errors made by the applicant."
Mr Majoe was
dissatisfied with the award and lodged an application in terms
of
s144
of the
Labour Relations Act 66 of 1995
to review and set
aside the award. The Member of the Executive Council of
the Free State has opposed this application.
The
application to review the award of a bargaining council is
susceptible to review in terms of
s33
of the
Arbitration Act 42 of
1965
and not the LRA. Arbitration is conducted under the
auspices of a bargaining council and takes place under the
Arbitration Act. However
, I am prepared to treat the present
application as one brought in terms of the Arbitration Act of
1965.The limited grounds of review
apply.
I am also prepared to
accept that the application has been brought timeously.
The MEC has raised several
points
in limine
. The first
point is that the arbitrator did not have jurisdiction to consider
the dispute.
There are two issues
relating to this point which need to be decided. Was Mr
Majoe entitled to complain about his failure
to be appointed by
relying on item 2(1)(b) of the LRA. The answer must
clearly be no.
Item 2(1)(b) reads as
follows:
"For the purposes of
this item an unfair labour practice means any unfair act or omission
that arises between an employer and
employee involving (b) the unfair
conduct of the employer relating to the promotion, demotion or
training of an employee or relating
to the provision of benefits to
an employee."
There is a clear
distinction between an application for appointment and an application
for promotion. Item 2(1)(b)
does not permit a
complaint relating to unfair conduct regarding the appointment of an
employee and therefore, regardless of who
Mr Majoe's employer was at
the relevant stage, he was not entitled to rely upon this item.
He could in the past have
relied on item 2(1)(a) which provides a remedy for discrimination on
a variety of grounds also in relation
to an application for
appointment.
This item was repealed by
the
Employment Equity Act 55 of 1998
with effect from 9 August
1999. In any event, Mr Majoe's complaint does not relate
to one of discrimination.He does,
however, allege that any
shortcoming in his experience should be overlooked by reason of
s25
of the EEA. This section does not have application in the present
case.
The second leg is that Mr
Majoe was not in line for promotion.He was an applicant for
employment and therefore could not bring his
case within the ambit of
item 2(1)(b).
Ms Van Zyl, who
appeared for the MEC, submitted that the
applicant was, at the time of his application
for the relevant
post, in the employment of the Education Department of the Western
Cape, hence, not his employer was not the
employer with
regard to the advertised post, being the Education Department
of the Free State. It was submitted
that at the time when Mr
Majoe applied for the relevant post, no employment relationship
was in existence between the
MEC, and the applicant.
Mr Khan who appeared for
Mr Majoe submitted that his client was employed by one part of the
state and so should be regarded as an
employee of the state,
consisting of the provinces when he was seeking promotion.
There may be situations
where this is the case. But this is not one of them. The
Employment of Educators Act 76 of 1998(the
Educators Act)
distinguishes between the Educator Establishment of the Department of
Education and the Education Establishment
of "a provincial
department of education." Each province has its own
education establishment.
The head of department of a
provincial department of education is in terms of that Act the
Employer (save as otherwise provided
in s5(3) of the Educators Act)
of Educators in the service of that department. See also
s31(b) of the Educators Act.
Transfers of educators
within provinces is generally within the power of a head of
department. Transfers between provincial departments
also take
place. The post of principal of the primary school at
Bothaville would have been an advancement or a promotion
in the sense
that it would have been a higher post with commensurate renumeration
and status for Mr Majoe. But as the
post was one
advertised widely, and in which applications were invited from all
qualified candidates across the provinces, it entailed
at least as
regards outsiders ( i.e. those educators not employed by the Free
State Education Department) an application for appointment.
I need not express an
opinion whether an educator in the Free State who aspire to such a
post would be applying for promotion. That
will have to be left for
another occasion. It follows that the application must be
dismissed.
This brings me to the
question of costs. There is no doubt that Mr Majoe
bona
fide
believed that he had been wronged. There is an
element of novelty in the matter regarding the question of
cross-provincial
promotions or appointments. Mr Majoe is
now employed at the Diteko Secondary School in the Free State as a
deputy principal
on 12 months probation. He is therefore
an employee of the MEC.
The
Department of Education of the Free State should have taken this
point
in limine
at the beginning of the arbitration hearing. It should
not have waited until the review to take this point. And
a great deal
of costs have been incurred. This, in my view, is a case
where the law and fairness does not require an
order for costs.
In the result the application is dismissed but no order is made as to
costs.
[COMMENT1]
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