Sneller Verbatim/MLS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR 1381/01
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.