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Copyright : Chris Brunton & Associates ELRC’s Arbitrators Reference Handbook: April 2008

ELRC’S ARBITRATORS REFERENCE HANDBOOK

By

CHRIS BRUNTON

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TABLE OF CONTENTS

PAGE

1. INTRODUCTION 1.1 THE ELRC’S APPROACH TO DISPUTE RESOLUTION 1.2 THE ELRC’s RELATIONSHIP WITH ITS ARBITRATORS

1.2.1 Rates 1.2.2 Terms of Payment 1.2.3 Tenure 1.2.4 Work Distribution

1.3 PROFESSIONAL SUPPORT AND DEVELOPMENT

1.3.1 Professional Development Sessions 1.3.2 Up2speed 1.3.3 Labour Bulletins 1.3.4 ELRC’s Arbitrators Reference Handbook

1.4 THE ELRC’S EXPECTATIONS 2. PRELIMINARY MATTERS

2.1 JURISDICTION

2.1.1 Jurisdiction Generally 2.1.2 Claims for payment or other benefits 2.1.3 Deemed Dismissals (Absenteeism)

2.2 ADJOURNMENTS 2.3 REPRESENTATION 3. MISCONDUCT 3.1 OVERVIEW 3.2 FAIR PROCEDURE 3.3 FAIR REASON

3.3.1 Section 17 Misconduct 3.3.2 Section 18 Misconduct 3.3.3 Fair Sanction



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3 4. INCAPACITY POOR PERFORMANCE

4.1 OVERVIEW 4.2 FAIR PROCEDURE

5. INCAPACITY : ILL-HEALTH 5.1 FAIR PROCEDURE 6. APPOINTMENTS AND PROMOTIONS

6.1 OVERVIEW 6.2 SOME HISTORICAL PROBLEMS

6.2.1 The Unfair Labour Practice Jurisdiction v The Discrimination Jurisdiction

6.2.2 The Difference Between an “appointment” and “promotion” 6.2.3 Who is the employer?

6.3 ELEMENTS OF A FAIR APPOINTMENT 6.4 FAIR PROCEDURE

6.4.1 The different era’s

6.4.2 General comments on fair procedure 6.4.3 Minimum requirements 6.4.4 Advertising 6.4.5 Sifting 6.4.6 The composition of the interview committee 6.4.7 Shortlisting 6.4.8 Conducting the interviews 6.4.9 The nature of the employer’s discretion to appoint 6.4.10 SGB recommendations 6.4.11 Appointments by Head of Department 6.4.12 Grievance procedures

6.5 DISCRIMINATION

6.6 GROSSLY UNREASONABLE APPOINTMENTS



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4 7. APPOINTMENTS AND PROMOTIONS – PROCEDURAL ISSUES

7.1 THE ONUS

7.2 JOINDER

7.3 UNION REPRESENTATION

7.4 ARBITRATORS POWERS TO GRANT RELIEF

8. REVIEW

8.1 THE TEST ON REVIEW

8.2 WRITING REVIEW - PROOF AWARDS



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5 1. INTRODUCTION

1.1 THE ELRC’S APPROACH TO DISPUTE RESOLUTION

The ELRC is charged with providing the statutory dispute resolution mechanisms

in the Public Education Sector. The ELRC’s mission statement is:

“To be the leading provider of quality, effective, efficient and non-partisan

administration and facilitative mechanisms for Labour Peace and for the

development of a quality South African Public Education Sector”

The ELRC is committed to providing a quick and professional dispute resolution

service through its conciliators and arbitrators.

While the ELRC strives to provide a fast and efficient administration service, it

realises that the end product of the dispute resolution process lies in the hands of

its conciliators and arbitrators.

1.2 THE ELRC’S RELATIONSHIP WITH ITS ARBITRATORS

1.2.1 Rates

1.2.1.1 Daily Rate: R 1 500.00

1.2.1.2 Award Fee: R 500.00

1.2.1.3 The daily rate and the award fee for panellists are in the process of being

revised and being presented to the Legal Committee of the ELRC. This new fee

policy will be made available once it has been ratified by Council.

1.2.2 Terms of Payment



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6 The ELRC has implemented the following as of the 2008/2009 financial year:

1.2.2.1 All invoices are to work on a fixed payment cycle.

1.2.2.2 Panellist will be required to submit their invoices by the 20 th of every

month, or the first working day before the 20 th, if the 20th of the month

falls on a weekend or a public holiday.

1.2.2.3 All invoices submitted timeously will be settled before the beginning of

the next invoicing cycle.

1.2.2.4 Should any invoice be submitted after the cut off date of the payment

cycle, the invoice will become payable in the next payment cycle.

1.2.2.5 Panellists are to ensure that their invoices are SARS compliant. If an

invoice is defective it will be returned to the panellist for re-submission.

1.2.2.6 Panellists are to ensure that all supporting documentation (order note,

outcome report, ruling, settlement agreement, award) is attached to the

invoice on submission. In the absence of the necessary supporting

documentation, the invoice will be returned to the panellist for re-

submission.

1.2.3 Tenure

1.2.3.1 In keeping with the general norm set by the CCMA, all contracts with

panellists will be for a duration of 3 years from the date of signature

thereof.

1.2.3.2 Six months prior to the end of the contract, panellists would be invited

to re-apply to be considered as a panellist for the ELRC.

1.2.3.3 All applications will be given due consideration and subject to the

ratification in terms of the ELRC constitution.

1.2.4 Work Distribution

The ELRC is committed in the new financial year to ensure an equal distribution

of work to its panellists, subject to the panellist availability. Panellists will be



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7 utilised on a more regular basis than in the past. Statistics of Panellist usage will

be published on a quarterly basis for purposes of transparency and

accountability.

1.3 PROFESSIONAL SUPPORT AND DEVELOPMENT

In order to support and develop its Arbitrators the ELRC has undertaken a

number of initiatives that are set out hereunder.

1.3.1 Professional Development Sessions

The ELRC intends running professional development sessions on a bi-annual

basis in order to alert Arbitrators to the latest developments in both legislation

and case law. These sessions will take place at various venues around the

country.

1.3.2 Up2speed

Up 2 speed is a legal resources website focussing specifically on the Public

Education Sector. It is run and edited by Chris Brunton and Associates and may

be accessed at Up2speed.co.za. The ELRC has entered into an arrangement

with Up2speed to allow ELRC Arbitrators free access to the site. It is necessary

for arbitrators to register on the site and obtain a user name and password.

Details of this procedure are set out below.



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Up2speed Registration Procedure

1. An Arbitrator accessing the site for the first time will have

to register and be allocated a user name and password.

This is a “one off” procedure and thereafter the Arbitrator

will simply use the user name and password obtained

through the registration process.

2. On the homepage of Up2speed (up2speed.co.za), just below

the “login” box there is a “clickable” group registration button.

Arbitrators should click on this button and they will be

taken through to a registration page.

3. On the registration page Arbitrators should:

- Enter their username which will be their email address.

- Enter their group code which will be obtained from the

ELRC.

4. The website will automatically generate a unique

password and this will be emailed to the Arbitrator

at the email address given previously.

5. Once the Arbitrator has obtained the password

access to the site will be obtained by simply entering

the username i.e. the Arbitrator’s email address and

the allocated password.



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1.3.3 Labour Bulletins

The ELRC in conjunction with the Nelson Mandela Metropolitan University and

Chris Brunton and Associates will be producing a Labour Bulletin on a quarterly

basis. These Labour Bulletins are designed to update arbitrators with the latest

developments in legislation and case law. They will be emailed to arbitrators and

will also be available on the Up2speed website.

1.3.4 ELRC’s Arbitrators Reference Handbook

The ELRC commissioned this ELRC’s Arbitrators Reference Handbook for

distribution. It is the intention to update and expand the Arbitrators Handbook

from time to time.

1.4 THE ELRC’S EXPECTATIONS

The ELRC expects the following from its Arbitrators:

• Fairness

• Quality

• Promptness

• Consistency

The Code of Good Practice for Arbitrators is contained in Schedule 3 of

annexure C to the ELRC Constitution and is reproduced in the legislation

section of this Handbook for Arbitrators’ convenience



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10 2. PRELIMINARY MATTERS

2.1 JURISDICTION

2.1.1 Jurisdiction Generally

Persons

The persons over whom the ELRC has jurisdiction is governed by its scope

which is set out in Section 6 of the ELRC Constitution as follows:

“6. Constitutional scope

The registered scope of the Council extends to the State in its capacity as employer and

those employees in respect of which the Employment of Educators Act, 1998, applies.”

This means that the ELRC may deal with disputes involving Educators as defined

above but may not deal with disputes involving:

• Public Service Employees

• School Governing Body appointed Educators or Support

Staff

Disputes involving these categories of employees should, in the case of public

servants, be referred to the General Public Service Sectoral Bargaining Council

and, in the case of SGB appointed Educators or support staff, be referred to the

CCMA.



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11 The ELRC consists of only one party in respect of the employer i.e. the State and

two parties in respect of the employee viz SADTU and SAOU (this is a federation

of unions including HOSPERSA, NATU, PEU, PSA, SAO and NAPTOSA). The

only non-parties who may refer disputes to the ELRC are Educators as defined in

the Employment of Educators Act who are not members of a union. As the

dispute resolution procedures of the ELRC are in line with what is required by the

Labour Relations Act, no special procedures apply to non-parties other than in

respect of the referral of mutual interest disputes that arbitrators will not be

dealing with.

Types of Disputes

The ELRC has jurisdiction to deal with the following types of disputes as set out

in annexure B to the ELRC Constitution:

• Unfair labour practices involving appointments, promotions and

transfers – see Clause 14.3

• Dismissal disputes – see Clause 14.2

• Automatically unfair dismissals – see Clause 14.2.1 (a)

• Operational requirements dismissals (both single and multiple) –

see Clause 14.2.1(b)

• Disclosure of information disputes – see Clause 14.2.2(a)

• Organisational rights disputes – see Clause 14.2.2(b)

• Agency shop disputes – see Clause 14.2.2(c)

• Picketing disputes – see Clause 14.2.2(d)

• Unfair discrimination disputes in terms of the Employment

Equity Act – see Clause 14.2.2(e)

• Disputes involving the enforcement of collective agreements or

the non-compliance with the Basic Conditions of Employment

Act – see Clause 14.2.3(a) and (b)



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• Unfair labour practice other than appointment promotion

disputes – see Clause 14.1

• Pre-dismissal arbitrations – see Clause 14.1.6

As can be seen from the above the ELRC has, through Collective Agreement,

significantly extended the jurisdiction that it would otherwise have had under the

Labour Relations Act.

Non-parties

The issue of whether the extension of jurisdiction applies to non-parties i.e. non-

union members has not yet been thoroughly investigated and arbitrators are

advised to exercise caution if they are dealing with the matter involving a non-

party where the issue in dispute is one in which a Bargaining Council would not

normally have jurisdiction.

Internal Grievance Procedures

The dispute resolution procedure set out in the ELRC Constitution also contains

provisions that most disputes may only be dealt with if the internal grievance

procedure has been exhausted (This does not apply to appointment and

promotion disputes (See Clause 14.3.1)). There are also provisions to the effect

that disputes may only be referred within certain time periods. If a dispute is

referred without having been processed through the appropriate internal

grievance procedure or is referred out of time, the jurisdiction to deal with such

matter is absent until the internal procedure has been followed and/or

condonation has been obtained for the late referral of the dispute. These matters

are usually monitored by the dispute resolution department of the ELRC and

dispute referrals are sent back to the referees requiring compliance. If, however,

an arbitrator is faced with a dispute where it becomes apparent or it is argued

that the internal grievance procedure has not been followed and/or the dispute



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13 was referred out of time, this is a jurisdictional matter that needs to be

determined prior to the process proceeding.

2.1.2 Claims for payment or other benefits

As discussed above, the ELRC has through Collective Agreement extended its

jurisdiction to allow it to deal with the enforcement of matters dealt with in the

Basic Conditions of Employment Act. In the private sector an individual seeking

payment of wages or of some other benefit would utilise the procedures set out in

the Basic Conditions of Employment Act which require the individual to approach

the Department of Labour. The Department of Labour would, through its

inspectors, issue compliance orders and, if there was no compliance, refer the

matter to the Labour Court for an enforcement order. Through its Constitution

the ELRC has given itself the power to deal with such matters and has set out the

procedure to be followed in Clause 23 of annexure B to the ELRC Constitution.

This provides that a dispute should be referred to the General Secretary of the

ELRC who should investigate the complaint and, if justified, issue a compliance

order in terms of Clause 23.4 requiring the non-compliant party to comply within a

specified period. If there is no compliance the General Secretary should refer

the dispute to arbitration in terms of Clause 23.5. An Arbitrator would then

determine the matter in terms of Clause 23.6.

The practice up to this point in time has been that the General Secretary has not

as yet exercised his/her powers to investigate such complaints and issue

compliance orders. Parties do however fairly regularly refer such disputes to the

ELRC. Typically these disputes are claims by an individual against a particular

Provincial Department of Education for unpaid salary or other monetary benefits.

The question arises as to whether the ELRC has the jurisdiction to deal with

these disputes through arbitration by virtue of the fact that they are framed as

unfair labour practices. The answer to this question lies in an analysis of what

constitutes an unfair labour practice as defined in the Labour Relations Act.



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14 Broadly speaking the definition provides that an unfair labour practice is an act or

omission between employer and employee involving, inter alia, the provision of

benefits. In Schoeman & Another v Samsung Electronics (1997) 18 ILJ (LC)

it was held that the payment of wages and/or salary did not constitute a “benefit”

as contemplated in the definition of unfair labour practice in the Labour Relations

Act. As such claims could not be categorised as falling within the definition of

unfair labour practice, they are not justicable in the CCMA. They are also outside

the scope of jurisdiction of most Bargaining Councils - as we have seen the

ELRC has created a special jurisdiction to deal with these claims but the

prescribed procedure would have to be followed in respect of those claims before

the jurisdiction arises for those matters to be arbitrated by the ELRC. This

jurisdiction, if it were to arise, does not originate in the definition of the unfair

labour practice but originates in the provisions of the Basic Conditions of

Employment Act read together with the ELRC Constitution.

2.1.3 Deemed Dismissals (Absenteeism)

Section 14 in the Employment of Educators Act provides as follows:

“14. (1) An educator appointed in a permanent capacity who –

(a) is absent from work for a period exceeding 14 consecutive days

without permission of the employer;

(b) while the educator is absent from work without permission of the

employer, assumes employment in another position;

(c) while suspended from duty, resigns or without permission of the

employer assumes employment in another position; or

(d) while disciplinary steps taken against the educator have not yet

been disposed of, resigns or without permission of the employer

assumes employment in another position, shall, unless the

employer directs otherwise, be deemed to have been discharged



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15

from service on account of misconduct, in the circumstances

where –

(i) paragraph (a) or (b) is applicable, with effect from the

day following immediately after the last day on which the

educator was present at work; or

(ii) paragraph (c) or (d) is applicable, with effect from the

day on which the educator resigns or assumes

employment in another position, as the case may be.

(2) If an educator who is deemed to have been discharged under paragraph

(a) or (b) of subsection (1) at any time reports for duty, the employer

may, on good cause shown and notwithstanding anything to the contrary

contained in this Act, approve the re-instatement of the educator in the

educator’s former post or in any other post on such conditions relating to

the period of the educator’s absence from duty or otherwise as the

employer may determine.”

This Section (and Section 17 of the Public Service Act which contains a similar

provision) has been the subject of judicial debate for some time. The issue which

has given rise to debate is whether or not it is necessary to hold some form of

enquiry or procedure prior to the termination of an educator’s service under this

provision. It was argued that the requirement of “fair labour practice” in the

Constitution would require some form of pre-termination enquiry. On the other

hand it was argued that termination in terms of Section 14 of the Employment of

Educators Act was not a termination of the employee’s service by the employer

but was rather a termination “by operation of law”. In terms of the requirement for

fair labour practice as contained in the Constitution, it was argued that the

provisions of Section 14(2) were sufficient to protect the employee if there was a

good reason for the employee’s absence from work.

The matter was debated at arbitrations and in the High Court for some time and

appears to have been finally settled (subject to the Constitutional Court ruling on

the matter) by the Supreme Court of Appeal judgment in the matter of Phenithi

vs Minister of Education and Others (2006) Up2speed (SCA)



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In the Phenithi case the SCA held that the discharge of an Educator in terms of

Section 14(1)(a) did not constitute administrative action as the discharge

occurred by way of “operation of law”. As no administrative act was involved

there could be no argument that the audi principle should apply and that the

employee should have been given a hearing prior to discharge.

The Court further held that Section 14(a) is not unconstitutional as it does not

preclude the educator placing facts before the employer either before or after the

termination which the employer would have to take into account in exercising a

discretion whether to “direct otherwise” and either stop the operation of Section

14 or alternatively reinstate the Educator.

From the ELRC arbitrator’s point of view this case is crucial as terminations “by

operation of law” do not fall within the jurisdiction of the ELRC – any disputes

arising out of such terminations must be adjudicated by the High Court. This

means in simple terms that these cases should not be entertained at the ELRC

level.

Arbitrators should however exercise caution in approaching Section 14

dismissals as each case will have a unique set of facts and must be looked at on

the basis of those facts. In the matter of WRM Mothoa & Mpumalanga

Department of Education (2007) Up2speed (ELRC ARB), the arbitrator was

confronted with a situation where an employee who had been absent for more

than 14 days resumed work and had been working for some five months when he

received a letter from the Department indicating that his service had been

terminated under Section 14(1)(a) due to an absence of more than 14 days. The

arbitrator held that:

“However that does not mean that, simply because an employer

categorises a termination as being in terms of Section 14 of the said Act,

that that is the end of the matter. The forum hearing the matter, in this



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case the ELRC, must determine the true nature of the dispute and decide,

on that basis, whether it has jurisdiction. In this case the termination

cannot, on the facts before me, be a termination in terms of Section 14 of

the Employment of Educators Act. Section 14 contemplates the situation

where an educator’s service terminates while he/she is absent from work.

If he/she returns to work the employer must decide whether to reinstate

the employee in terms of Section14 (2) “on good cause shown”. If the

employee resumes work with the knowledge and consent of the employer

it must be presumed that the employer has consented to the

reinstatement. In this case the employer purports to invoke the deeming

provisions of Section 14 after the employee has resumed work for five

months. The use of the Section 14 procedure was clearly wrong – in

accepting the employee back for five months the employer lost the right to

invoke the Section 14 procedure. What we are thus left with is a

termination for either misconduct, or possibly incapacity, that the ELRC

does have jurisdiction over.”

A further aspect that may give rise to further juristic debate is the provision in

Section 14(1)(a) that the employer may “direct otherwise”. In the Phenithi case it

was held as follows:

“But the fact that S 14(1)(a) does not compel the employer to give an

educator a hearing before its provisions came into operation does not

necessarily make it unconstitutional. The section does not totally exclude

a hearing. While it is true that it does not place an obligation on the

employer to invite an educator to a hearing, the educator is not precluded

from placing before the employer material or facts that may move the

latter to 'direct otherwise', ie to direct that the operation of the provisions

of s 14(1)(a) be lifted or that the section shall not take effect. As was said

in Louw, the phrase 'unless the employer directs otherwise' is not entirely

clear. Whether the employer may 'direct otherwise' only before the expiry

of the period contemplated by the section is not clear from the wording of

the section. A definitive finding on this aspect is, however, not necessary

as no approach was made in this case for the third respondent to 'direct



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otherwise'. Section 14(2) also affords an educator an opportunity to be

heard and to be reinstated, provided he/she is able to show good cause

as to why the employer should reinstate. The fact that s 14(2) provides for

a hearing only after an educator has been deemed to be discharged in

terms of s 14(1)(a) does not mean that the latter subsection is in conflict

with the Constitution (cf Buffalo City Municipality v Gauss and Another).”

2.2 ADJOURNMENTS

Parties requiring an adjournment or postponement prior to the conciliation or

arbitration should use Clause 55 of annexure B to the ELRC Constitution which

provides that they should apply in writing for a postponement and that such

application will be considered by the General Secretary. Parties may also apply

at the hearing for an adjournment and arbitrators should deal with such

applications on their merits taking into account:

• Reason for the adjournment

• The prejudice to the parties

• The issue of costs

It should be noted that arbitrators have the power to award costs as provided for

in Clause 64 of annexure B and that such costs may include both the opposing

parties’ costs and the Counsel’s wasted costs. It would appear from the wording

of Clause 64.4.3 that the Arbitrator is in fact the custodian of the ELRC’s right to

costs and should protect the ELRC from wasted costs in the appropriate

circumstances.



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2.3 REPRESENTATION

At Conciliation

No legal representation is allowed at conciliation – Clause 24.6 provides that only

parties may attend conciliations. An employee may be represented by a

member, an officer bearer or an official of a trade union and the employer may be

represented by an employee of the employer. Clause 24.6.2 requires that parties

must attend conciliation in person unless all the parties to the dispute agree

differently.

At Arbitration

Parties may be represented as for conciliation but in addition may be represented

by legal practitioners. In dismissal cases involving conduct or capacity, parties

are not entitled to legal representation unless the arbitrator makes a ruling based

on the factors set out in Clause 25.4.2 which are the same criteria applying in the

CCMA.

At Con-arb

Clause 26.6 provides that the provisions of the Act (LRA) and “these procedures”

applies. It follows that representation in the conciliation phrase of con-arb will be

as for conciliations as above and, in the arbitration phrase, similarly, as set out

above.



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3. MISCONDUCT

3.1 OVERVIEW

Misconduct dismissals account for approximately 20% of the disputes referred to

the ELRC. In considering these disputes an Arbitrator must consider whether

the dismissal was preceded by a fair procedure and whether the dismissal was

for a fair reason as required by the Labour Relations Act. Schedule 2 of the

Employment of Educators Act contains the disciplinary procedures applicable to

Educators while the “disciplinary code” applicable to Educators is contained in

Sections 17 and 18 of the Employment of Educators Act.

3.2 FAIR PROCEDURE

The Disciplinary Code and Procedures for Educators set out in Schedule 2 to the

Employment of Educators Act contains the procedures applicable when handling

misconduct matters involving Educators. Although it is called the Disciplinary

Code and Procedures for Educators, it deals primarily with the procedures

applicable rather than the actual acts of misconduct that are found in the Act

itself.

The procedure set out in the Disciplinary Code and Procedures for Educators is

divided into informal discipline and formal discipline.

The informal disciplinary procedure is set out in Item 5 of the Disciplinary Code

and Procedures and is intended to be used in those situations where the

maximum sanction that may result from the disciplinary procedure is not more

than a final warning. Informal discipline is administered at an institutional level by

the head of the institution or the immediate supervisor of the educator where the

educator concerned is the head of the institution or office. In simple terms this

means that at school level, principals are responsible for informal discipline and,



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21 if a principal is to be disciplined the principals immediate manager would deal

with the informal disciplinary procedure.

The formal disciplinary procedure is dealt with in Items 5 to 9 of Schedule 2 to the

Employment of Educators Act and provides for the following:

Ø a formal charge sheet in the form prescribed

Ø notice of at least 5 days must be given

Ø the enquiry must be held within 10 days of the issue of the

notice

Ø the chairperson must be impartial and of a grade higher than

the accused

Ø union representation is allowed but legal representation is

only permitted in exceptional circumstances

Ø an appeal is provided for

The procedure at the hearing should be in line with the now well-established

guidelines for running a hearing and should include the right to call witnesses and

produce other forms of evidence, the right to cross-exam, the right to argue the

issue of guilt and the right to present argument and/or evidence in mitigation in

the event of a guilty finding.

Diagrams illustrating the informal procedure for educators and the formal

procedure for educators are set out on the following pages.



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22 OVERVIEW OF PROCEDURE FOR EDUCATORS Counselling

Verbal warning Written warnings Final warnings

The employer must convene a meeting and the educator may be represented by the educator’s trade union representative who is based at the institution. Reasons should be given to the educator as to why it is necessary to initiate the procedure. The educator/educator’s representative is heard on the misconduct in issue. The employer may counsel the educator or issue one of the three warnings set out in the column to the left hereof. Written warnings are on form A and final written warnings on form B. Warnings are valid for six (6) months. A sanction is filed in the educator’s personal file and the educator has a right to object to the sanction. The objection is not an appeal and the objection is simply filed together with the sanction.

Fines, demotion and suspension or dismissal

A disciplinary enquiry is always required

LESS FORMAL DISCIPLINARY PROCEDURE

FORMAL DISCIPLINARY PROCEDURE (NOT

HANDLED BY PRINCIPALS)



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23 INFORMAL DISCIPLINARY PROCEDURE FOR EDUCATORS PROCESS ITEM IN ISSUES SCHEDULE 2 Misconduct > Misconduct is defined in Sections 17

(1) and 18 (1) Decide whether less formal or formal procedure should be used Convene meeting (4)6(b) > No specific notification document is

prescribed > Should be in writing > Should contain reasons why

disciplinary process is being initiated > Allow educator time to prepare

Allow representation (4)6(b)(1) > Trade Union representative

> Employee based at same institution Repeat reasons why (4)6(b)(1) > Similar to “putting the charge” procedure initiated Educator heard on misconduct (4)6(b)(3) > Not necessary to call witnesses or

lead evidence > Conduct inquisitorially > Conduct fairly > Try and establish facts without calling

witnesses Decide sanction (4)6(c) > From counselling to final written

warning Educator may lodge (4)6(d)(1) > Objection lodged objection (NO APPEAL) > No appeal allowed

Serious misconduct referred for formal disciplinary enquiry



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24 FORMAL DISCIPLINARY ENQUIRIES FOR EDUCATORS PROCESS ITEM IN ISSUES SCHEDULE 2 Misconduct >misconduct is defined in Sections 17.1 and 18.1 Notice of Enquiry 5 > written notice – Form C

> minimum 5 days notice of enquiry > must specify charge and details of time, place

and venue > must be served

Suspension/ Transfer 6 > on full pay for maximum 3 months

> transfer possible > appropriate where educator may jeopardize

investigation or be a danger

Enquiry 7 > must be within 10 working days of notice > must be within 1 month or 60 days of suspension or transfer > impartial presiding officer > generally no legal representation > record 7(a)&(14) > Evidence > both sides may call witnesses Finding on 7(16) > reasons to be given Guilt Guilty Not guilty 7(16) Mitigation 7(17) > mitigating and aggravating circumstances Sanction 8 > decision and reason within 5 days Appeal 9 > by employee or employer to member or

minister



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25

Arbitrators assessing whether or not a fair procedure has been followed should

have reference to the above procedures as by and large the courts have held

that a departure by an employer from its own procedures would be unfair.

Conversely, compliance with a procedure would normally be fair.

An unusual provision in the informal disciplinary procedure is that there is no right

to an appeal. The educator, if he or she is unhappy with the result, may object

and the objection is filed with the sanction and lasts for the same duration as the

sanction. If there are no further transgressions during the stipulated time period

for which the sanction lasts, the objection falls away at the same time as the

sanction falls away. However if there is a further occurrence of misconduct

during the period that the sanction is still in effect, the objection also remains.

The net result of this is that any chairperson or arbitrator considering a case in

which the employer seeks to rely on a previous sanction that has an objection

noted against it, would have to revisit the sanction against which the objection

was lodged and would, in effect have to sit as an appeal chairperson in relation

to that sanction. Only if the Arbitrator or chairperson concluded that the sanction

was properly given and that the objection had no substance, could the previous

sanction be taken into account in the subsequent misconduct proceedings.



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26

3.3 FAIR REASON

3.3.1 Section 17 misconduct

Section 17 contains acts of misconduct for which dismissal is a mandatory

sanction. There are five types of misconduct identified, which are as follows:

(a) theft, bribery, fraud or an act of corruption in regard to

examinations or promotional reports;

(b) committing an act of sexual assault on a learner, student or

other employer;

(c) having a sexual relationship with a learner of the school

where he or she is employed;

(d) seriously assaulting, with the intention to cause grievous

bodily harm to, a learner, student or other employee;

(e) illegal possession of an intoxicating, illegal or stupefying

substance; or

(f) causing a learner or student to perform any of the acts

contemplated in paragraphs (a) to (e).

Prior to imposing any sanction a fair procedure must be followed. The effect of

this section is that the chairperson having made a finding of guilt in respect of the

misconduct, has no discretion to consider mitigating or aggravating factors. The

question that does arise is whether or not the imposing of a mandatory sanction

offends against the principle of fair labour practice as contained in the

Constitution. To date the constitutionality of this section has not been challenged

but such cases may arise in the future.

Section 17 has been dealt with in a number of arbitration awards which appear

on the Up2speed website and the majority of the cases involve either sexual

assault or a sexual relationship with a learner. A brief perusal of these cases



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27 highlights the difficulty of proving cases involving sexual offences or sexual

relationships. In a number of arbitrations the educator has been reinstated on

the basis that the employer has failed to establish factually that the sexual

assault or relationship occurred

Section 17(1)(a) contains a certain measure of ambiguity in that it is not

absolutely clear whether the qualifying clause “in regard to examinations or

promotional reports” applies to all the acts that precede the qualifying clause or

whether it applies only to “an act of corruption”. In Cloete v Department of

Education Northern Cape (2006) Up2speed (ELRC ARB) the Arbitrator found

that fraud unconnected with the “examinations or promotional report” constitute a

Section 17 offence. The interpretational ambiguity of this section does not

appear to have been argued in this case.

3.3.2 Section 18 misconduct

Section 18 contains a laundry list of misconduct much of which has been carried

forward from previous legislation and is expressed in somewhat archaic

language. Many of the acts of misconduct are so broadly phrased that almost

any act can be made to fit within the definitions. The acts of misconduct

described in Section 18 vary from those that warrant dismissal through to minor

offences. An offence may be both a Section 17 and a Section 18 offence.



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28 3.3.3 Fair sanction

The Test

In the Constitutional Court matter of Sidumo & Another v Rustenberg Platinum

Mines Ltd (2007) Up2speed (CC) the Court held as follows:

“It is a practical reality that, in the first place, it is the employer who hires

and fires. The act of dismissal forms the jurisdictional basis for a

commissioner, in the event of an unresolved dismissal dispute, to conduct

an arbitration in terms of the LRA. The commissioner determines whether

the dismissal is fair. There are, therefore, no competing “discretions”.

Employer and commissioner each play a different part. The CCMA

correctly submitted that the decision to dismiss belongs to the employer

but the determination of its fairness does not. Ultimately, the

commissioner’s sense of fairness is what must prevail and not the

employer’s view. An impartial third party determination on whether or not

a dismissal was fair is likely to promote labour peace.”

And:

“To sum up. In terms of the LRA, a commissioner has to determine

whether a dismissal is fair or not. A commissioner is not given the power

to consider afresh what he or she would do, but simply to decide whether

what the employer did was fair. In arriving at a decision, a commissioner

is not required to defer to the decision of the employer. What is required is

that he or she must consider all relevant circumstances.”



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29

Guidelines

Sections 17 and 18 do not contain any guidelines as to what constitutes a fair or

reasonable sanction in relation to each act of misconduct. A number of the

Provincial Departments of Education already have or are in the process of

developing guidelines and an example of such a guideline was issued by the

Gauteng Department of Education as HRM Circular 65/2007 which is included in

the legislation section of this handbook. The document is merely a guideline that

has been issued by one Provincial Department in order to try and ensure more

consistency amongst its chairpersons and does not have any binding status

outside of the province. It is nevertheless some indication of what an appropriate

sanction might be.



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30

4. INCAPACITY : POOR PERFORMANCE

4.1 OVERVIEW

Incapacity: poor performance is one of the reasons for which an employer may

terminate an employee’s service. For the dismissal to be fair the employer must

have followed a fair procedure and must have taken its decision to terminate

based on a fair reason.

4.2 FAIR PROCEDURE

The incapacity: poor performance procedure to be used in dealing with educators

is set out in Schedule 2 of the Employment of Educators Act which provides

detailed guidelines on exactly how the procedure should be run. An Arbitrator

assessing whether or not there has been a fair procedure in such matters should

compare the procedure followed by the employer against that contained in

Schedule 1. If the employer has significantly departed from the legislated fair

procedure it would render the procedure unfair.

Item 7(a) of the Incapacity Code and Procedures for Poor Work Performance

provides that the person appointed by the employer to conduct the incapacity

procedures must be on a post level higher than the educator and must as far as

practicably possible be his or her direct supervisor or the immediate supervisor of

such supervisor. The bulk of Educators are employed at schools and the

practical result of this is that the bulk of incapacity procedures will be carried out

at school level. From Item 7(a) it appears that the procedure could be conducted

by a Head of Department of the school as well as a Deputy Principal or a

Principal. However, the power to terminate does not lie at school level. Item

6(a) of the Incapacity Code and Procedure For Poor Work Performance requires

that prior to terminating an educator’s service, a formal enquiry must be



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31 convened. Item 6(b) requires that the formal enquiry be run along the same lines

as a misconduct enquiry. Practically speaking principals do not set up and run

formal enquiries but refer the matter to the district office.

In summary then in dealing with Incapacity: Poor Performance for educators

there are two processes involved - the first process which is conducted at a

school level up to the point immediately before initiating a formal enquiry and a

second process where a formal enquiry is run which is conducted by district

office personnel.

A flow chart setting out the Incapacity: Poor Performance Procedure is set out on

the following page.



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32 PROCEDURE TO DEAL WITH INCAPACITY: POOR PERFORMANCE SCHEDULE 1 TO THE EMPLOYMENT OF EDUCATORS ACT Perceived Poor Performance > Item 1 (2) (a) – (e), agreed > Performance standards in > Collective agreement 1 of 2003

Written Reasons > Item 1(1)(a) > Must be served Representative > Union representation allowed > Counsellor must a grade higher Item 7(9)(D)

Meet with educator Explain and evaluate > Requirements Item 2(3)(a)) > Evaluation Item 2(3)(b) > Indicate Item 2(3)(c) Hear educator > Or union representative Develop plan > Item 4 (a) – (c) Educator improves Educator fails Fails to meet standard Or refuses No further action Misconduct Procedure Formal hearing Demotion Transfer Termination

School based

Non-school based (formal procedure)



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33 4.3 FAIR REASON

The essence of incapacity: poor performance lies in an assessment of whether or

not an employee is meeting or not meeting a reasonable performance standard

set by the employer. The question that follows is what constitutes reasonable

performance standards in the public educator sector? While the procedure for

incapacity: poor performance is laid down in Schedule 1 to the Employment of

Educators Act, the performance standards are not laid down either in Schedule 1

of the Employment of Educators Act or in the Act itself. Item 2(2) of Schedule 1

initially provided that educators were to be evaluated according to performance

standards collectively agreed by the parties at the ELRC. However, for a long

time no standards could be agreed and eventually Item 2(2) of Schedule 1 to the

Employment of Educators Act was amended to read as follows:

“Despite Section 4 of this Act, the performance of educators must be

evaluated according to performance standards which may be prescribed

by the Minister.”

The Minister was becoming impatient with the inability of the parties to reach

agreement at the ELRC. The amendments had the desired effect and the parties

entered into Collective Agreement 1 of 2003 under the auspices of the ELRC.

This agreement has the snappy title of “Evaluation Procedures, Processes and

Performance Standards for Institution Based Educators” but will be referred to in

the handbook as the Performance Standard Agreement. Item 4 of the

Performance Standard Agreement states specifically that the procedures set out

in the agreement should be used for:

- salary in grade progression

- incentives and rewards

- incapacity

- confirmation of permanency.



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34 The Performance Standard Agreement does not apply to educators employed on

salary level 13 and above as well as those on SMS.

As can be seen from the above the Performance Standard Agreement does not

only relate to incapacity – in the education sector, there is an ongoing evaluation

of educators for various reasons some of which are listed above. An attempt has

therefore been made by the parties to create a single unified performance

measurement instrument so that educators are not measured according to

different standards using different performance measurement instruments. A

perusal of the performance measurement instruments contained in the

Performance Standard Agreement reveals that the instrument is designed to

measure a wide range of abilities. It involves the educator being evaluated and

being scored out of 5 with 2 being the minimum permissible performance rating.

The difficulty that arises is that the performance measurement instrument is in

many ways too broad to be effectively used within the confines of incapacity:

poor performance procedure. An educator may be poorly performing in a

particular aspect e.g. keeping up with the curriculum while being adequate in

other areas. To effectively utilise the incapacity: poor performance procedure it is

necessary to focus in on specific areas of incompetence – it does not necessarily

involve all facets of the educator’s performance.

A further difficulty arises in that educators are evaluated on a quarterly and

annual cycle for quality management purposes. In Collective Agreement No. 8 of

2003, being the Integrated Quality Management System (IQMS), an attempt has

been made to integrate all of the different types of performance standards and

procedures into a single IQMS agreement. The perception has arisen that an

educator can only be evaluated according to the IQMS cycle which is quite

different to dealing with a poorly performing educator whose performance must

be assessed and improved quickly to avoid irreparable harm to the learners for

whom that educator is responsible. Item 7 of the Performance Standard

Agreement, Resolution 1 of 2003 provides as follows:



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35

“7. UNACCEPTABLE PERFORMANCE

Managers and staff should be aware of poor performance well before the

formal evaluation discussion. Where performance is unacceptable

supervisors should ensure that they are providing feedback and support

on an ongoing basis. If any educator were to be told that his/her work

performance was rated as unacceptable at the appraisal and this was the

first time he/she had heard about it, then there would be very strong

grounds for lodging a grievance in terms of the grievance procedure.

Where a poor performance is unidentified, corrective action should commence immediately and not wait until the next quarterly review or annual appraisals.”

This makes it clear that the incapacity: poor performance procedure, while using

the same performance measurement instrument as the IQMS, should be dealing

with poor performance quite independently from the other performance

evaluation cycles applicable to educators. A diagram locating the incapacity:

poor performance agreement within the context of the Integrated Quality

Management System (IQMS) is set out on the following page.

The fascinating aspect of the implementation of incapacity: poor performance in

the public educator sector that has not yet been addressed is the conflict

between the rights of the educator to fair labour practice as opposed to the rights

of the child to a decent education and the duty of the employer to provide the

child with that education.



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36

LOCATING THE INCAPACITY: POOR PERFORMANCE AGREEMENT WITHIN THE CONTEXT OF THE IQMS

MANAGER AWARE OF POOR PERFORMANCE INCAPACITY: POOR PERFORMANCE PROCEDURE:

LETTER OF MEETING

EVALUATE USING RELEVANT PORTIONS OF

MEASUREMENT INSTRUMENT FROM IQMS

IMPROVEMENT PLAN

ASSESS PROGRESS IN TERMS OF PLAN

IMPROVEMENT NO IMPROVEMENT NO FAULT

FORMAL ENQUIRY

DEMOTION TRANSFER TERMINATION



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37 5. INCAPACITY: ILL-HEALTH 5.1 FAIR PROCEDURE

The procedures relating to Incapacity: Il-health are set out in Items 3 – 11 of

Schedule 1 to the Employment of Educators Act and are titled Incapacity Code

and Procedures in Respect of Ill-health or Injuries. A summary of the procedures

are set out in a diagrammatic form hereafter. Once again Arbitrators in

assessing the fairness of the action taken in terms of such procedure should

compare the actual events as opposed to the procedure prescribed in the code.



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38 INCAPACITY: ILL-HEALTH PROCEDURE

FAIR REASON

SOURCE: Gauteng DOE HRM Circular

ASSESSMENT OF PERFORMANCE(Regular or ad hoc)

Manager identifies poor performance

INVESTIGATION

- Informal procedure will be initiated - Provide written reasons

WRITTEN REPORT TO EMPLOYEE AND/OR REPRESENTATIVE

NO FURTHER ACTION

Temporary disability leaveto allow recovery

PERMANENT

ILL-HEALTH/INJURY

ADAPT DUTIES/ ACCOMMODATE DISABILITY

MEDICAL EVIDENCE

- Employer’s medical practitioner - Employee’s medical practitioner

INPUTS BY EMPLOYEE/

EMPLOYEE REPRESENTATIVE

TEMPORARY

ILL-HEALTH/INJURY

SUBSTANCE ABUSE(ALCOHOL/DRUGS)

cause of ill-health

OPTIONS

MEDICAL RETIREMENT

ALTERNATIVE EMPLOYMENT

ENCOURAGE REHABILITATION

ORDER FORMAL REHABILITATION

PROGRAMME

COUNSEL EMPLOYEE

DISMISSAL DUE TO ILL-HEALTH

FAILURE TO COMPLY/ REPETITIVE BEHAVIOUR

§ Written report &

consultation with employee/representative § Formal hearing

FORMAL ENQUIRY

Same procedure as disciplinary enquiry



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39

5.2 FAIR REASON

In incapacity: ill-health matters the extent of the ill-health and the effect of it on

the employee’s work performance is usually assessed by medical practitioners.

It is on the basis of the reports by these medical practitioners that decisions

should be based. A problem that has been encountered in the public education

sector is the situation where educators claim to be unable to perform their jobs

and, on occasions take extended sick leave, mostly on full pay, based on their ill-

health. In many of these cases the employer believes or suspects that the

underlying cause of the “ill-health” is not genuine – many of the cases involve

areas where it is very difficult to assess the extent of the medical problem e.g.

depression, back pain etc. The anomalous situation then arises where the

employee wishes to be “boarded” but the employer, while willing to allow the

employee to stop working, does not want to agree to boarding because of the

financial implication for the pension fund. One has, in effect, the reverse situation

where the employee is wishing to be discharged for ill-health and the employer is

resisting. These situations often arise in a stalemate and employees go for

months and even years on full pay without rendering any service.

The framework to be applied to these cases that may come before arbitrators in

due course is that the employer would be terminating for refusal to work while the

employee would be claiming ill-health. They would therefore arise as misconduct

cases.



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40

6. APPOINTMENTS AND PROMOTIONS – SUBSTANTIVE LAW

6.1 OVERVIEW

Appointment and promotion disputes constitute approximately 80% of the

disputes that are referred to the ELRC. A useful framework to use in considering

whether a particular appointment or promotion was fair is to ascertain whether

the employer:

(a) followed a fair procedure;

(b) did not discriminate;

(c) did not make a grossly unreasonable decision when

appointing a particular person.

These three criteria have been arrived at by analysing past cases, all of which fall

into one of the three categories. Procedural disputes account for the majority of

the cases, followed by issues involving discrimination and finally those cases in

which arbitrators or judges have categorised the decision of the employer as

simply grossly unreasonable. Prior to embarking on a discussion of these three

topics we will, in the following sub-chapter deal with certain historical and

jurisdictional issues.

The majority of disputes arising from the public education sector arise out of

appointments and promotions that take place at school level. The procedure

followed in respect of such appointments is set out in the Employment of

Educators Act and in the Personnel Administration Measures hereinafter referred

to as the “PAM”. The distinguishing feature in these appointments is that the

school governing body plays a significant role in the procedure. Prior to 1994

appointments were done primarily by the employer. After 1994, with the

broadening of democracy, the school governing bodies (SGBs) were given the

power to recommend the educators to be appointed at their schools. The right of



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41 the SGBs to recommend educators has been steadily eroded by various

amendments to the Employment of Educators Act. At this stage the PAM has not

been amended to cater for the changes in legislation and at times there may be

conflicts between the provisions of the Employment of Educators Act and PAM.

Any conflicts must be resolved in favour of the dominant legislation being the

Employment of Educators Act. The different eras and the changing role of the

SGB will be dealt with more fully under the section on fair procedure hereunder.

6.2 SOME HISTORICAL PROBLEMS

6.2.1 The Unfair Labour Practice Jurisdiction v The Discrimination Jurisdiction

The unfair labour practice jurisdiction contained in the Labour Relations Act only

applies as between employer and employee. The jurisdiction to deal with

discrimination matters arises from Section 6 of the Employment Equity Act which

provides that for the relevant sections dealing with discrimination, the term

employee includes an applicant for employment. The practical effect of this

provision is that internal applicants (who are already employees) may raise

disputes about appointments and/or promotions utilising either the unfair labour

practice jurisdiction or the discrimination jurisdiction (or both). Individuals who are

applying for jobs for the first time i.e. external applicants, may only utilise the

discrimination jurisdiction. This means that such external applicants cannot rely

on the procedural unfairness as this does not fall within the ambit of the

discrimination jurisdiction.



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42 6.2.2 The Difference between an “appointment” and a “promotion”

Section 186 (2) of the Labour Relations Act reads as follows:

“(2) “Unfair labour practice” means any unfair act or omission that

arises between an employer and an employee involving-

(a) unfair conduct by the employer relating to the

promotion,(our underlining) demotion, probation (excluding

disputes about dismissals for a reason relating to

probation) or training of an employee or relating to the

provision of benefits to an employee;”

This means that the unfair labour practice jurisdiction is only available in respect

of promotions.

In relation to existing employees (who are the only persons who have access to

the unfair labour practice jurisdiction), for all practical purposes there is no

difference between the terms appointment and promotion and the terms should

be interpreted as meaning effectively the same thing. Any attempt to

differentiate between appointments and promotions, as was done for instance by

Judge Wagley in the case of Department of Justice vs CCMA and Others

(2001) 22 ILJ 2439 (LC), leads to absurdities and unfair discrimination between

different classes of employees.

The matter was considered by Judge Pillay in the matter of Jele vs Premier of

the Province of KwaZulu-Natal and Others (2003) Up2Speed (LC) In this

case the learned Judge analyses the history of appointments and promotions in

the public service and points out that prior to the 1st July 1999 there existed a

different system of appointments and promotions in the public service. In terms of

the public service codes employees would advance or be promoted internally



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43 almost automatically provided they met certain criteria. Appointments only

occurred in certain instances and in these cases there was external advertising.

However there was a major amendment to the law on the 1st July 1999 and

automatic advancement fell away. As the learned judge points out:

“In summary, therefore, all appointment and promotion processes have to

be filled after advertising so as to reach, as efficiently and effectively as

possible, the entire pool of potential applicants, especially persons

historically disadvantaged.”

The learned judge goes on to deal with the findings of Judge Wagley in the

Department of Justice vs CCMA and Others case and she finds the following:

“ 40. In my respectful view, I do not see why a position should be a

promotion for a candidate who is already in the public service and an

appointment for one who is not.

41. Additional to any other remedies that we might have, public

service candidates may have recourse to item 2 (1)(b) of Schedule 7 of

the LRA if they are not promoted. The new recruits cannot prosecute a

similar claim because there is not a pre-existing employment relationship

with the State. That provides an irrational and factual basis for

differentiating between public service and non-public service candidates

who vie for the same post. The differentiation flows from a literal

interpretation of item 2 (1)(b) of schedule 7 of the LRA. Contextually, it is

also consistent with the provisions relating to promotion in the

Constitution, the PSA and its regulations discussed above. If non-public

service candidates are disadvantaged by not having the same remedy, it

is unfair.”

The finding in the Jele case was confirmed by the Labour Appeal Court in the

case of Member of the Executive Council for Transport: Kwazulu-Natal and

Others vs Jele (2004) Up2speed (LAC).



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44

6.2.3 Who is the employer?

As we have seen existing employees may access the benefits of the unfair labour

practice jurisdiction in challenging their non-appointment or promotions. The

question then arises in the context of the public service at large, as to who is the

employer of employees in the various departments. The issue was decided in

the matter of Member of the Executive Council for Transport: KwaZulu-Natal

and Others v Jele (2004) Up2Speed (LAC).

Mr Jele was employed by the Department of Health, KwaZulu-Natal. He applied

for the position of Chief Director in the Department of Transport, KwaZulu-Natal.

When he was not appointed he challenged the MEC for Transport’s decision not

to promote him in terms of the unfair labour practice provisions contained in Item

2(1)(b) of Schedule 7 to the Labour Relations Act 1995. The unfair labour

practice jurisdiction is only available to existing employees and it therefore

became critical to determine whether or not Mr Jele could be considered to be an

existing employee of the State in the broad sense or whether he was merely an

employee in the Department of Health. If the latter he had no right to invoke the

unfair labour practice, if the former he was entitled to utilize the provisions of the

unfair labour practice.

The Labour Court found that employees employed in the provincial government

are part of the public service and that all employees who are employed in the

public service are employees of the State. Mr Jele was therefore applying for

another position within the same employer and therefore could invoke the

provisions of the unfair labour practice.

A further issue that will arise if persons employed in other state departments

applied for positions within the Department of Education is which Bargaining

Council will have jurisdiction to deal with the dispute. The scope of the ELRC

restricts its jurisdiction to Educators as defined in the Employment of Educators



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45 Act and presumably therefore had Mr Jele, employed by the Department of

Transport, applied for a position as an educator, his dispute could not have been

adjudicated on by the ELRC. The dispute would have had to be referred either to

the General Public Service Sectoral Bargaining Council or the Public Service

Sectoral Bargaining Council.

6.3 ELEMENTS OF A FAIR APPOINTMENT Fair Procedure An employer must follow a fair procedure that includes following a collectively

agreed procedure or alternatively a legislated or regulated procedure such as

that in the PAM. Procedural issues include advertising, sifting, shortlisting, the

interview process, the school governing body’s recommendation, the Head of

Department’s appointment, and challenges to whether the school governing body

was properly constituted or followed a proper procedure around issues such as

recusal, correctly convening meetings etc.

Non Discriminatory The Employer must not discriminate either directly or indirectly. Certain

discrimination would be categorised as fair discrimination such as where the

discrimination is occasioned by the inherent requirements of a job or where it is in

pursuit of the goals of employment equity. Employment equity policies and/or

affirmative action plans have given rise to a multitude of disputes.



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46 Appointments must not be grossly unreasonable Management has a general managerial prerogative to make appointments and

arbitrators will not easily substitute their views for the views of the employer.

Certain appointments may be categorised as grossly unreasonable in that they

are not objectively or rationally defensible to the outside observer which gives

rise to a suspicion of mala fides or negligence.

6.4 FAIR PROCEDURE

6.4.1 The Different Eras

The Employment of Educators Act 76 of 1998 came into effect on 2 October

1998. Subsequently there have been a number of important amendments to the

provisions relating to appointments. The first of these was contained in the

Education Laws Amendment Act No. 50 of 2002 that came into effect on the 1

January 2004. This amendment (in Section 6A) introduced a new procedure for

the first appointment or appointment after break in service of an educator. We

are not sure whether this procedure has been significantly used and are not

aware of any disputes that have been processed through the ELRC arising out of

this procedure. In essence the Section 6A procedure provides for the employer

to appoint first time educators or educators returning after a break in service after

consultation with the SGB on the specific posts and requirements thereof – in

other words the SGB’s part in the process has been reduced to being consulted

on the needs of the school. They do not take part in the selection of the

candidate nor are they influential in recommending a particular educator for

appointment. As set out above, this procedure has remained largely untested to

date.

A further significant amendment was introduced in terms of the Education Laws

Amendment Act No. 24 of 2005 that came into effect on the 26 January 2006 .



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47 Prior to this amendment there had been no formal direction to the SGBs to take

into account the need to transform schools. Prior to the amendment the

Employment of Educators Act had only required the Head of Department to take

into account whether or not transformational needs had been addressed in

deciding whether to accept the SGB’s recommendation or not. In simple terms

the responsibility to look closely at the need for transformation has been placed

squarely on the SGBs. The other important effect of the amendment relates to

the recommendation that the SGB makes to the HOD - SGBs normally

recommend three Applicants in an order of preference for appointment and the

HOD could only depart from the recommendation on certain narrow grounds set

out in the Act. The position subsequent to the amendment is that the SGB

makes its normal recommendation to the Head of Department but the HOD is no

longer bound to accept the SGB’s order of preference or the whole

recommendation itself. The HOD may appoint any one of the recommended

candidates irrespective of the order in which they were recommended by the

SGB. Furthermore the HOD can make an appointment outside of the

candidates recommended by the SGB. Such an appointment would be a

temporary appointment and would be subject to an appeal by the SGB. If no

appeal were lodged, then the temporary appointment would become permanent.

As far as we are aware this process has not been tested in the form of disputes

coming to the ELRC. It should be taken into account that the PAM has not been

amended to cater for either of the above amendments which may give rise to

conflicts between the regulations and legislation.

Diagrams are set out on the pages that follow indicating the procedure prior to

and the procedure subsequent to the 2005 amendment.



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48 PROCEDURE PRIOR TO THE 2005 AMENDMENT

APPLICATIONS/ ADVERTISMENT

Eliminate applicants who do not meet minimum qualifications

SHORT LIST

Should consider and act as a “filter”

RECOMMENDATION TO SCHOOL GOVERNING BODY

SCHOOL GOVERNING BODY RECOMMENDS TO HEAD OF DEPARTMENT

INTERVIEW

Motivation

Fair procedure / fair criteria

Examine CVs and choose 5 using advertised selection criteria

Head of Department applies Section 6 B of EEA

SIFTING

HEAD OF DEPARTMENT APPOINTS



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49

PROCEDURE SUBSEQUENT TO 2005 AMENDMENT

VACANCY

ADVERTISEMENT

SIFTING/SHORTLISTING

INTERVIEW

SGB RECOMMENDS

3 (APPLY 5 PRINCIPLES)

HOD REVIEWS

APPOINTS CHANGES ORDER REVIEWS LIST

AND APPOINTS AND APPOINTS

TEMPORARILY

SGB APPEALS

MEC HEARS APPEALS

UPHOLDS DECLINES

POSSIBLE COURT REVIEW



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50

6.4.2 General Comments On Fair Procedure The main guidelines as to what constitutes fair procedure are contained in the

PAM that should be followed insofar as it does not conflict with the Employment

of Educators Act as amended. The various provisions contained in the PAM

should also be interpreted in line with the broader jurisprudence existing in regard

to appointment and promotion disputes as well as the specific jurisprudence that

has arisen around appointments and promotions in the education sector.

6.4.3 Minimum Requirements

An Employer is entitled to set minimum requirements for a position that it intends

filling.

See: Diphiko and University of North West and Another (2000)(9) CCMA

6.9.8 (IR Net) and Durban Metro (Durban Electricity Service Unit) and IMATU

(1998)(7) Arb 6.9.9 (IR Net))

The minimum requirements may include certain specific skills, academic

qualifications and/or experience. The minimum requirements must be reasonable

and must be non-discriminatory. The Employment Equity Act stresses that there

should be recognition of prior learning and that a person should not be excluded

from a job merely by virtue of a lack of experience, as this would hinder the

transformation process.

See: Adriaanse and Swartklip Products (1999) 8 CCMA (IRNET 6.9.6)).

Generally academic qualifications and experience are regarded as accurate

predictors of an individual’s ability to do a job. The National Qualifications

Framework and the Skills Development Act expressly recognise the role of

qualifications as predictors of a person’s ability to perform a job. Once an

employer sets minimum requirements it must apply them consistently and failure

to apply them consistently will be unfair.

See: NUMSA obo Cook and Delta Motor Corporation (2000)(9) CCMA 6.9.6

(IR Net).



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51

The minimum requirements for educators are set out in Regulation 1 of Chapter

B of PAM. In the education sector it has been the practice in some Provinces to

expand on the minimum requirements set out in PAM. Any minimum

requirements or special requirements proposed by the employer should be stated

as clearly as possible so as to avoid problems of interpretation. It has become

practice in recruitment to categorise a job in terms of minimum or core

requirements and additional or non-core requirements. In other words a job can

be defined in terms of the “must haves” and the “nice to haves”. The more fully a

job is described and categorized the more likely the employer will be in obtaining

the correct employee – these requirements, core and non core set the guidelines

for the entire selection process and are critical. The advertisement that goes out

for a particular educator post is critical as it defines the criteria against which the

candidates must be measured. Many disputes arise when a selection is made on

the basis of criteria that were either not in an advertisement or not introduced

properly at another stage in the process. Ideally the advertisement should

determine the criteria for selection – in exceptional cases it is possible to

introduce further criteria in a fair manner at a later stage in order to distinguish

between candidates who are otherwise equal. It has become common practice

when advertising jobs to indicate that preference will be given to certain race or

gender groups – this has not yet been done extensively in education as far as we

are aware. There is nothing unlawful with such advertisements. The difficulty in

the education sector has been determining whether or not there is an

employment equity plan that covers the school situation. This will be dealt with at

greater length under the section on discrimination.



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52 6.4.4 Advertising

Regulation 3.1 (a) of the PAM stipulates that vacant posts for educators must be

advertised. It is fairly common practice in organisations for a preference to be

given to internal Applicants. In the education sector it has been common practice

to limit legibility of Applicants to internal Applicants particularly for post levels 2

and above. If an employer deviated from the advertised selection criteria the

result, would, in all probability, be deemed to be unfair. See: Metro Rail

(Pretoria) and TWU 1998 (ARB) 6.9.17 (IR Net)

6.4.5 Sifting

Sifting is a process in which the applications for a particular position are

scrutinised to ascertain whether the applicants can go on to the next stage of the

process. The sifting process should be a largely objective process that sifts out:

§ Those applications that are defective because the application is

incomplete or that the required documents have not been included e.g.

certified copies of qualifications.

§ Applications where the applicant does not comply with the minimum

requirements for the job e.g. the requirements set out in PAM or

registration with SACE.

There have been instances where individuals sifting applications have been over

zealous in sifting out applications – a common sense approach should be taken

as to whether the defect is material or not – does the omission mean that the

applicant is not able to be considered for the position or not.



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53 Regulation 3.2 stipulates that the “employing Department” must do the sifting.

This means that sifting is a departmental function and is not a function that can

be delegated to SGBs as has been done by some provinces on occasion. The

sifting process is usually done at either regional or district level.

The provisions of the PAM that require the employer to write to all Applicants

advising them of the fate of their application in the sifting process and the

requirements of reporting to the Provincial Chamber of the ELRC have, to our

knowledge, been largely ignored due to the extreme numbers of applications

received by Departments. The practice may vary from province to province.

6.4.6 The Composition of the Interview Committee

The interview committee is a committee of the SGB as contemplated in Section

30 of the South African Schools Act. An interview committee is appointed by

and is responsible to the SGB. The interview committee has a mandate to

perform a specific function as outlined in Regulation B 3.3 of PAM.

The interview committee is made up of the following persons:

• one departmental representative (who may be the school principal),

as an observer and resource person;

• the principal of the school (if he/she is not the department’s

representative), except in the case where he/she is the applicant;

• members of the SGB, excluding educator members who are

applicants for the advertised post/s; and



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54

• one union representative per union that is a party to the provincial

chamber of the ELRC. The union representatives should be

observers to the process of shortlisting, interviews and the drawing

up of a preference list.

When a parent’s child leaves the school, that person’s right to be a member of

the governing body ceases.

The departmental representative and the union representative are observers

which means they should not actively participate in any of the processes – they

are observers. In addition the departmental representative is referred to as a

“resource person” which means that he/she could be asked by the interview

committee for advice on procedures etc (this does not extend to advice on who is

the best candidate).

The role of the union observer has often been controversial and in the matter of

G Singh and the Minister of Education and Culture and the Government for

the Province of Kwazulu-Natal and Others Up2speed (ELRC ARB), the

Arbitrator, Mr K Tipp SC, said the following:

“In my view what is contemplated is that an observer has a positive duty

to intervene at the appropriate stage whenever there is a prospect that

one candidate may be prejudiced or another given advantage. However,

there is clearly a line to be drawn between the input of an observer and

full participation of a committee member, particularly in relation to matters

such as scoring. It does not form part of the function of an observer to

insist on the amendment of questions that the scoring members of the

selection committee have discussed and formulated. Similarly, it is not

for an observer to insist upon the revision of a particular score. It is not

the function of the observer to give directions on matters of substance.

Committee members receive independent training to that end. The



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55

primary role of an observer is to ensure procedural fairness and equality

of treatment of different candidates.”

It is common practice for the Provinces to further refine the composition of

interview panels- see for example HRM Circular No. 37 of 1999 issued by the

Province of KwaZulu-Natal Department of Education and Culture, Clause 4.1.

Arbitrators should familiarise themselves with the provisions of the circular in

terms of which the post in dispute was advertised as the terms of the circular will

be crucial in considering both procedural and substantive fairness.

Section 26 of the South African Schools Act makes it clear that a member of a

governing body, and, by implication a member of the interviewing committee,

must withdraw from any discussion or decision making process on any issue in

which the member has a personal interest. This was discussed in the matter of

SADTU obo J S David and Department of Education KwaZulu-Natal – in this

matter it was alleged that members of the interview committee had failed to

recuse themselves as required by the South African Schools Act. It was found

on a factual basis that such members had recused themselves when necessary.

In SADTU obo Mrs. Ndlovu and the Department of Education KwaZulu-Natal

it was alleged a member of the interviewing committee acted improperly by

remaining on that committee when she was having a relationship with one of the

applicants. Once again in this case it was found on a factual basis that no such

relationship had been proven and accordingly the non-appointee’s claim was

rejected.

It is permissible to have co-opted members on the interview committee. A

member could be co-opted onto the SGB and could thereafter be made a

member of the interview committee.



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56 6.4.7 Shortlisting

Shortlisting must be done by the interview committee of the SGB. At this stage

the appointment process is no longer a largely objective process as it was in the

sifting stage as subjective elements come into play. The shortlisting process

involves comparing the available candidates with the criteria set out in the

advertisement. The purpose of the shortlisting phase is to select the best five

candidates to go through to the next stage that is the interview stage. This works

quite effectively if the advertisement contains sufficient detail and criteria to

enable a proper selection to be made. If the details in the advertisement are

sparse it means that it may be difficult to select a shortlist of candidates. At this

point the interview committee may have to introduce additional criteria to use for

the purposes of shortlisting and many disputes have arisen around the

introduction of such criteria as obviously there is a tendency on behalf of

unsuccessful Applicants to believe that the criteria were introduced to suit

particular candidates. One of the ways that has been used to combat this

perception of unfairness is that interview committees, realising that the

advertisement criteria are not going to be sufficient, may introduce particular

criteria before scrutinising the applications.

6.4.8 Conducting the interviews

Regulation B 3.3(g) of the PAM stipulates that interviews should be conducted

according to the guidelines agreed upon by the employer and by the trade union

in the provincial chambers. Arbitrators should therefore have reference to the

agreements reached in such provincial chambers and to the circulars advertising

the posts as the provincial agreements are often incorporated into the circulars.

Parties should be given fair notice of the interview date - 5 working days in terms

of the PAM Chapter B Item 3.3 (e). If trade union representatives have been

given notice and fail to attend it would not make the interviews procedurally

unfair.



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57

See for example Mpumalanga Education Department and SADTU obo Makua

(1999) Up2speed website (ELRC ARB) and SADTU obo Moodley and

Western Cape Education Department (1999) Up2speed website (ELRC ARB)

The interview committee should remain consistent throughout the process, even

though the interviews may take place on different days, to ensure fair and equal

treatment of all candidates. Similarly other conditions relating to the interview

such as venue and questions asked should be kept as standard as possible.

Arbitrators have had occasion to consider the behaviour of members of the

interview committee during the interviews, and In the case of SADTU obo

Nundalall vs the Department of Education and Culture KwaZulu-Natal

unreported (ELRC ARB) the procedure was held to be unfair where one of the

members of the interview committee had taken two cell phone calls during the

interview of a particular applicant and, in addition, the applicant had been

interviewed while there was a church meeting going on next door while other

applicants had not had this disadvantage. The golden rule is that the interview

committee must give each applicant a fair and equal opportunity and must use

their common sense in ensuring that this occurs. The reverse aspect of this is

that it should not be taken to ridiculous lengths i.e. unless the behaviour or

conduct by the interview committee indicates a lack of attention or unfairness,

minor discrepancies as to venue etc should not invalidate the entire procedure.

The test should always be whether there has been material compliance with the

principle that all applicants are entitled to be treated equally.

It has become common practice of SGBs to use various scoring systems devised

by the Provincial Departments and to score candidates according to their

responses to a set of questions that the interview committee agrees prior to the

start of the interviews. These guidelines are usually set out in the circular

advertising the posts.



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58

Generally scoring systems are described to be merely a “guideline”. This has

been refined in some of the systems to allow a departure from the scoring system

provided that the discrepancy in score is not beyond a certain numerical value.

The difficulty is that, having imposed a scoring system, a departure from that

scoring system inevitably gives rise to a grievance. Ideally therefore there should

not be any departure from the scoring system as the scoring should incorporate

the other issues that later give rise to the choice of an underscoring candidate.

This having been said it would depend on each of the provincial guidelines as to

what leeway is allowed to depart from the formal scoring system.

Although the proceedings at interview stage are meant to be confidential, it

happens in practice that many of the candidates are able to obtain detailed

information as to what happened at the interviews and particulars as to how they

were rated in the scoring. Where a candidate scored the highest and is not then

recommended by the interview committee, a dispute almost inevitably follows. In

law however there would seem to be no reason why an interview committee or,

an SGB, should not recommend a candidate who was not the highest scored

candidate provided it has fair reasons for doing so e.g. transformation or some

operational issue.



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59 6.4.9 The Nature of the Employer’s Discretion to Appoint

In the matter of Herbert and The Department of Home Affairs (1998)

(Up2speed) (CCMA) it was held as follows:

“The decision to promote an employee falls in my view with the prerogative of

management. In this regard see George v Liberty Life Association of Africa (1996) 17 ILJ (IC), and Misra v Telkom (1997) 6 BLLR 794 (CCMA) with which I

respectfully disagree. The comments of PAK Le Roux in Contemporary Labour Law Volume 7 no 4 page 40 are noted and reflect the correct situation.

The Labour Relations Act 1995 entitles an employee who is aggrieved because

he was not promoted to challenge this in view of the unfair labour practice

provisions of the Act. The question then is: if the decision to promote is

management’s decision, when can an employee challenge this decision?

Goliath v Medscheme (Pty) Ltd (1996) 5 BLLR 603 (IC) in my view provides

the correct answer when dealing with decisions to promote where discrimination

on prohibited grounds is not alleged, as in this case. In this case it was stated

that “in the absence of gross unreasonableness which leads the court to draw an

inference of mala fides, this court should be hesitant to interfere with the exercise

of management’s discretion”. Le Roux, in his article entitled “Developments in

individual labour law” in Current Labour Law 1996 page 46, reinforces this view.”

In the matter of SAMWU obo Damon and Cape Metropolitan Council (1999)

Up2speed (CCMA) it was held as follows:

“The dispute is in terms of item 2(1)(b) of Schedule 7 of the Act which

states that:



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60

“… an unfair labour practice means any unfair act or omission that arises

between an employer and an 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.”

The onus is on the Union to make a case of unfair labour practice and to do so it

needs to examine the reasons why their member was not appointed and identify

defective reasoning on the part of the appointing authority. Unless the appointing

authority was shown to have not applied its mind in the selection of the

successful candidate, the CCMA may not interfere with the prerogative of the

Employer to appoint whom it considers to be the best candidate.

In alleging that an appointment is unfair, the Union effectively asks the CCMA to

review the decision of the Employer.

In the Labour Appeal Court judgement in the case of Carephone (Pty) Ltd v

Marcus, the Court considered the review process.

“When the Constitution requires administrative action to be justifiable in relation

to the reasons given for it, it gives expression to the fundamental values of

accountability, responsiveness and openness. It does not purport to give courts

the power to perform the administrative function themselves, which would be the

effect if justifiability in the review process is equated to justness and correctness.

In determining whether administrative action is justifiable in terms of the reasons

given for it, value judgements will have to be made which will, almost inevitably,

involve the consideration of the “merits” of the matter in some way or another. As

long as the judge determining this issue is aware that he or she enters the merits



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61

not in order to substitute his or her own opinion on the correctness thereof, but to

determine whether the outcome is rationally justifiable, the process will be in

order.

It seems to me that one will never be able to formulate a more specific test other

than, in one way or another, asking the question: is there a rational objective

basis justifying the connection made by the administrative decision maker

between the material properly available to him and the conclusion eventually

arrived at?”

In this dispute the Union has failed to indicate where the Employer did not apply

its mind in not appointing the Employee.

The Union has provided me with reasons for its claim that the Employee should

be appointed. This is not sufficient. The test for review is much more exacting.

The Union needs to show where the Employer’s reasoning is defective.”

In the matter of Cullen and Distell (Pty) Ltd (2001) Up2speed (CCMA) it was

held as follows:

“There is a further reason why Greeff’s CV is not relevant. This is that the

relative strengths and weakness of candidates for a position cannot in

themselves prove that an employer committed an unfair labour practice by failing

to appoint or promote an inferior weaker candidate. In drafting item 2(1)(b) of

Schedule 7, the legislature did not intend to require arbitrating commissioners to

assume the roles of employment agencies. A commissioner’s function is not to

ensure that employers choose the best or most worthy candidates for promotion,

but to ensure that, when selecting employees for promotion, employers do not

act unfairly towards candidates. A more highly qualified or senior candidate may

feel badly done by if he or she is overlooked. However, this does not mean that

the employer has acted unfairly for purposes of that term as it is used in item



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62

1(1)(b). The relative inferiority of a successful candidate is only relevant if it

suggests that the superior candidate was overlooked for some unacceptable

reason, such as those listed in section 6 of the EEA. If that is the case, the

legislature has decided that the Labour Court, not the CCMA, must decide

whether the reason for the failure to promote is unfair. The Labour Appeal Court

has made it clear that it will not interfere with an employer’s decision to promote

or appoint a particular candidate if the employer considers another to be superior,

unless when so doing the employer was influenced by considerations that are

expressly prohibited by the legislature, or are akin thereto: see Woolworths

(Pty) Ltd v Whitehead [2000] 6 BLLR 640 (LAC).

That the unfair labour practice jurisdiction is so divided between the Labour Court

and the CCMA indicates that the legislature did not intend commissioners to

concern themselves when deciding disputes relating to promotion with the

reasons why the employer declined to promote the applicant employee, but

rather with the process which led to the decision not to promote the employee.

The reasons for the decision to overlook an employee when selecting a

candidate for promotion are relevant only insofar as they shed light on the

fairness of the process. Although the applicant suggested in passing that Greeff

was preferred to her because he is a male, this allegation did not form part of her

case. The applicant was unable to suggest any other reason from which the

inference could be drawn that the selection process was unfairly manipulated so

as to ensure that she was not promoted.

In the final analysis, all the applicant relies on in support of her claim that she

should have been appointed is that she has the qualifications for the job. This is

not enough in itself to prove that the respondent acted unfairly by not appointing

her: See inter alia, SAMWU obo Damon v Cape Metropolitan Council [1999]

3 BALR 259 (CCMA); Jones v Western Cape Education Department [1999] 4 BALR 467 (IMSSA); Western Cape Education Department v Dhlikili [2000] 6 BALR 1444 (IMSSA); Ndlovu v CCMA & others [2000] 12 BLLR 1462 (LC).”



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63 6.4.10 SGB Recommendations

Regulation 3.3 (i) and (j) of the PAM reads as follows: -

“(i) At the conclusion of the interviews, the interviewing committee

should rank the candidates in order of preference, together with a

brief motivation, and submit this to the school governing body for

the recommendation to the relevant employing department.

(j) The governing body must submit their recommendation to the

Provincial Education Department in their order of preference”

The question that has arisen in practice is whether or not the SGB may

depart from the recommendation of the interview committee and, if so, in

what circumstances. In the matter of Dubazana & Department of

Education KwaZulu Natal (2003) Up2speed (ELRC ARB) Arbitrators

Richard Lyster, Nomonde Gobodo and Brian Currin found as follows:-

“Given the clear and unambiguous wording of Resolution 5 of 1998

(PAM), as well as the clear wording of 11.2 above, it must be accepted

that the law as it presently stands, is that the governing body has the right

to exercise an independent choice, and it is not obliged to “rubber stamp”

the recommendation of the interviewing committee.”

The above judgement makes it clear that the recommendation to the Head of

Department must be from the governing body and that the governing body must

exercise its mind in making a recommendation, not merely “rubber stamp” the

decision of the interview committee. However it is submitted that it was never

intended for the School Governing Body to “second guess” the interview



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64 committee which was constituted precisely for the purpose of choosing the best

candidate. The School Governing Body should be seen as a “filter” and not as a

“player”.

In assessing the interview committee’s recommendation the school governing

body should be guided by the principles contained in Section 6(3)(b) of the

Employment of Educators Act that may be summarized as follows:

(a) affirmative action or employment equity principles have been

followed;

(b) a fair procedure was followed i.e. there was no procedural defect;

(c) the candidate meets the minimum requirements;

(d) the candidate is either registered or qualifies for registration with

SACE;

(e) there has been no improper conduct on behalf of the interview

committee such as bias or undue influence.

If the governing body is not satisfied with the interview committee’s

recommendation for one of the above reasons, then it should refer the matter

back to the interview committee to redo the procedure from the point that it

became defective. If this process is followed many of the disputes, which arise

where the School Governing Body departs from the recommendation of the

interview committee, will be avoided.



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65

6.4.11 Appointments by Head of Department

In terms of Section 6(d) of the Employment of Educators Act, a Head of

Department must revisit the five requirements set out in Section 6(b) before

making an appointment. The Head of Department has a number of choices as

set out in the flow chart above illustrating the post 2005 amendment procedure.

The Head of Department may appoint the educator ranked highest by the SGB,

or may, alternatively, appoint any one of three applicants recommended by the

SGB without reference to the SGB’s ranking. The HOD may alternatively appoint

a person who was not recommended by the SGB. If the Head of Department

appoints one of the candidates recommended by the SGB, it appears that the

SGB has no redress other than possible remedies under the administrative law

jurisdiction. However should the HOD follow the procedure in terms of Section

6(g) of the EEA and appoint “a suitable candidate temporarily” (not

recommended by the SGB), the SGB has a right of appeal and the procedures

set out in Sections 6(h) to (k) apply. We are not aware of any disputes involving

the appeal procedure that have been dealt with either at arbitration or by the

courts. It would seem however that the principles of joinder might apply to such

appeals, as the “temporary” educator appointed by the HOD would seem to

acquire certain rights.

6.4.12 Grievance Procedures

Clause 15.2 of the Negotiation, Consultation and Dispute Resolution Procedures

being annexure “B” to the ELRC Constitution, provides that a party may not refer

a dispute, except in a dismissal dispute, before invoking the grievance procedure

relative to that dispute and allowing 45 days for the resolution thereof. Clause

15.3 however provides that in the case of promotions, appointments and



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66 transfers there is no compulsion to invoke the grievance procedure. The reason

behind this provision is that a practice, (which in some of the Provinces has been

formalised by way of agreement at the Provincial ELRC Chamber), has arisen

that local or area dispute resolution committees are set up to deal with disputes

arising out of appointment and promotion processes. This procedure has

evolved to try and deal with the disputes and grievances as close to source as

possible and, where possible before the procedure moves on and an

appointment is made. In some provinces, when grievances arise during the

appointment process, the process is halted until such time as those grievances

have been resolved. There have been a number of examples where grievances

have been “resolved” at a local grievance committee hearing but the appointment

has been proceeded with ignoring the decisions of the local grievance committee.

This has given rise to a further formal dispute at the ELRC level. It appears that

these types of dispute often arise out of clash of wills between SGBs and the

employer and/or the unions.



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67 6.5 DISCRIMINATION

The issue of discrimination arises in the appointment and promotion process

under two guises –

(a) In the first instance a particular individual may claim that he or she

was discriminated against on the basis of race, gender or disability.

These types of cases usually involve a situation where a White

male has scored the highest in the interviews but is passed over in

favour of another candidate who scored lower but belongs to a

particular racial or gender grouping;

(b) In the second instance disputes often arise where employees claim

that they should have received a preference and been appointed

because of their belonging to a particular racial or gender grouping.

The right to equality and the right not to be discriminated against arise directly

from the Constitution. The rights to equality is, in the workplace, primarily given

effect through the Employment Equity Act No. 55 of 1999 and outside of the

workplace through the Promotion of Equality and Prevention of Unfair

Discrimination Act No. 4 of 2000. In addition to these Acts the whole process of

transformation has been given impetus through the Broad Based Black

Empowerment Act No 53 of 2003.

Back at the workplace however the SGB and later, the Arbitrator is faced with a

simple decision as to whether or not a particular individual can be given

preference or have a preference withheld and, if so, on what basis. Turning to

the Employment Equity Act, this requires that an employer has an employment

equity plan which regulates the process of transformation for each workplace.

Each of the provinces have been declared a workplace but the first hurdle is that,

to our knowledge, no province has an employment equity plan which extends

down to school level. The employment equity plans talk of broad transformation



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68 but do not have plans for transformation at a school level. The difficult

conceptual issue that arises is that, if one were to analyse all of the level one

educators in a particular province, a province could be demographically correct

i.e. would have a majority of black educators and a majority of female educators.

However, the distribution of these educators within the schools in the province

might vary enormously. There might still be “black” schools and “white schools.

The same applies to gender differentiation. By and large the former model C

schools are situated in the desirable urban areas and these schools often are or

are perceived to be “white staffed”.

Significant steps have been made in regard to transformation but an analysis of

the various Education Amendment Acts makes it clear that further transformation

is required. The difficulty is that if one defines the workplace as the province,

there seems to be no basis at a particular school for differentiating in favour of a

particular educator provided that the figures throughout the Province add up to

correct demographics.

To complicate matters further, in the matter of Dudley v The City of Cape Town

(2004) Up2speed (LC) it was held that the Employment Equity Act does not give

rise to a positive right to be affirmed. The general goals of transformation to be

attained under the Employment Equity Act should be enforced through the

provisions of the Employment Equity Act that do not extend to creating individual

rights to affirmation.

On the other hand, in the matters of Gordon v Department of Health, KwaZulu-Natal (2004) Up2speed (LC) and Minister of Finance and Another v Van

Heerden (2004) Up2speed (CC) it was held that the Constitution, properly

interpreted, meant that persons have a positive right to equality which, in the

historical context of South Africa, means they have a right to be affirmed in order

to achieve the goals of equality. These cases interpret the word equality in the

Constitution to include the right to be treated in such a way so as to achieve

substantive equality and not merely procedural equality. In simple terms these



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69 cases appear to open the door to a broad based transformation without relying

specifically on employment equity plans or the Employment Equity Act.

To complicate matters further the Constitutional Court, in SANDU v Minister of Defence & others (2007) Up2speed (CC) held that “Section 23(5) expressly provides that legislation may be enacted to regulate

collective bargaining. The question that arises is whether a litigant may bypass

any legislation so enacted and rely directly on the Constitution. In NAPTOSA &

others v Minister of Education, Western Cape, & others, the Cape High Court

held that a litigant may not bypass the provisions of the Labour Relations Act 66

of 1995, and rely directly on the Constitution without challenging the provisions of

the Labour Relations Act on constitutional grounds. The question of whether this

approach is correct has since been left open by this Court on two subsequent

occasions. Then, in Minister of Health & another NO v New Clicks South Africa

(Pty) Ltd & others (Treatment Action Campaign & another as Amici Curiae),

Ngcobo J writing a separate judgment held that there was considerable force in

the approach taken in NAPTOSA. He noted that if it were not to be followed, the

result might well be the creation of dual systems of jurisprudence under the

Constitution and under legislation. In my view, this approach is correct: where

legislation is enacted to give effect to a constitutional right, a litigant may not

bypass that legislation and rely directly on the Constitution without challenging

that legislation as falling short of the constitutional standard”

It could thus be argued that transformation in the workplace is governed by the

Employment Equity Act, and that, on the basis of the rationale of Dudley, no

individual right to affirmation arises from this Act. SANDU precludes direct

access to the Constitution and the individual seeking positive affirmation would

have to look elsewhere for the right to such affirmation. Unless a Province had an

employment equity plan which dealt specifically with the school no such right

could emanate from the employment equity plan.



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70 If one turns to the Employment of Educators Act, Section 6 contains a reference

to the transformational principles set out in Section 7 of that Act. Section 7 makes

reference to the principles set out in Section 195 of the Constitution which

requires the Public Service to be transformed but goes on to require in Section

195(3) that national laws be enacted to ensure transformation. One thus comes

around the circle back to the Employment Equity Act, Dudley and SANDU.

There seems to be a tension between the Gordon and Van Heerden

judgements and the SANDU judgement. On the one hand the Constitutional

Court has interpreted the Constitution as creating a right to “positive” equality in

the sense of a real right to be affirmed rather than simply a right not to be

discriminated against. On the other hand the Court, in SANDU, has precluded

direct access to constitutional rights if legislation has been enacted to advance

those rights – the correct route in those cases is to have the legislation declared

as unconstitutional.

The simple solution to this jurisprudential dilemma is for the provinces to have

employment equity plans that deal with the school situation – until then the

arbitrator is clearly operating in a rarefied atmosphere where the winds of change

are still blowing. Our view is that at this point the Gordon and Van Heerden

route should be followed – possibly the answer lies in the application of the

meaning of equality set out in Gordon to Section 5 of the Employment Equity Act

which requires the employer to promote “equal opportunity” in the workplace –

i.e. to interpret this Section as creating an individual right to be affirmed. It does

seem to be at odds with the overall intention of the Act, which might be due to

the Act falling short of delivering the full right to equality as contemplated in the

Constitution.



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71 6.6. GROSSLY UNREASONABLE APPOINTMENTS

In dealing with alleged unfair appointments, the courts and the CCMA have, as

set out above, assumed what is in effect a “review” jurisdiction. They will only

interfere with the decision of the employer in relation to the appointment on

limited grounds. In regard to fair procedure the Courts have ample precedent

and in dealing with discrimination the jurisdiction is as above. There remain

those cases where appointment is unfair not because of an unfair procedure or

because of discrimination but simply because the appointment is so grossly

unreasonable that it offends the sense of fairness. In the matter of Herbert and

Department of Home Affairs (1998) Up2speed website (CCMA) the Arbitrator

held:

“The decision to promote an employee falls in my view with the prerogative of

management.

In this regard see George v Liberty Life Association of Africa (1996) 17 ILJ (IC), and Misra v Telkom (1997) 6 BLLR 794 (CCMA) with which I respectfully

disagree. The comments of PAK Le Roux in Contemporary Labour Law Volume

7 no 4 page 40 are noted and reflect the correct situation.

The Labour Relations Act 1995 entitles an employee who is aggrieved because

he was not promoted to challenge this in view of the unfair labour practice

provisions of the Act. The question then is; if the decision to promote is

management’s decision, when can an employee challenge this decision?

Goliath V Medscheme (Pty) Ltd (1996) 5 BLLR 603 (IC) in my view provides

the correct answer when dealing with decisions to promote where discrimination

on prohibited grounds is not alleged, as in this case. In this case it was stated

that “in the absence of gross unreasonableness which leads the court to draw an

inference of mala fides, this court should be hesitant to interfere with the exercise

of management’s discretion”. Le Roux, in his article entitled “Developments in

individual labour law” in Current Labour Law 1996 page 46, reinforces this view”.



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72

In the Goliath case quoted in Herbert above, the Court went so far to say

that it would only interfere where the unreasonableness was so gross that

it gave rise to an inference of mala fides –an inference that there had been

some bias or ulterior motive motivating the decision. It could be likened to

looking at a pattern of iron filings arranged by a magnet behind a piece of

paper – one sees the pattern, but one cannot see the magnet. The

pattern would however lead to a clear inference of a force acting on the

iron filings that created the pattern.

In the matter of IMATU and Greater Pretoria Metropolitan Council (1999)Up2speed (ARB) it was held at follows:

“20. Upon an evaluation of the information placed before me, there is no

explanation as to why it was thought on any rational justifiable

grounds that Ms Havenga or Mr Garagae were “more eligible” than Mr

Laranja for the post in question. In Ms Havenga’s case it appears ex

facie the specification for the job that she was not a person who had

the minimum specifications to apply. Why the employer’s own

minimum specifications were waived in order to make it possible to

appoint her is unexplained. In the case of Mr Garagae it seems at

least prima facie self-evident that he had no experience in Local

Government nor in the administration of the Regional Services

Council legislation, two respects in which Mr Laranja must have been

advantaged. What then, the question must be asked, was in the

minds of the interviewing and appointing authorities when they chose

to discard Laranja and appoint the other two individuals? No

explanation has been tendered, and no plausible inference can be

teased from the facts, which is capable of explaining the outcome.

21. The employer is enjoined at law to comply with the standard terms

of employment cited above. On the basis of the information placed

before me, it is not possible to conclude that any rational person

could have found that either Ms Havenga or Mr Garagae were



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73

“more eligible” in terms of clause 6.3.2 more particularly having

regard to the qualifications and experience of Laranja.”

See also the matter of SAMWU obo Damon and Cape Metropolitan Council

(1999) Up2speed (CCMA) quoted above .



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74 7. APPOINTMENTS AND PROMOTIONS – PROCEDURAL ISSUES

7.1 THE ONUS

As we have seen above the onus in unfair labour practice disputes falls on the

Applicant who is almost inevitably an employee or a union. See: Herbert And

Department of Home Affairs (1998) 7 CCMA 6.9.9; SAMWU obo Damon and

Cape Metropolitan Council (1999) 8 CCMA and Cullen and Distell (Pty) Ltd

(2001) 10 CCMA 6.9.3 The Courts have consistently stated that they will only

interfere with the employers decision as to who to appoint on the three grounds

above and that, in examining the employers decision they will only interfere with

the employers choice if it is grossly unreasonable

The Labour Relations Act provides that an employee must only be dismissed

after a fair procedure and for a fair reason. An unfair labour practice is:

“any unfair act or omission that arises between an employer and an employee involving:

(a) unfair conduct by the employer relating to promotion …”

The Constitutional Court has recently had occasion to examine the concept of

fairness in the matter of Sidumo and Another v Rustenberg Platinum Mines &

Others (2007) Up2speed (CC). The issue in this case was whether or not the so

called “reasonable employer test” applied to sanction. The Constitutional Court

resoundingly rejected the notion of the reasonable employer test and stressed

that there should be no deference to the employer in applying the concept of

fairness. In essence it said that fair is fair – not the employer’s notion of fair or

the employee’s notion of fair but fairness as determined by the Court or

Arbitrator. In the light of this judgement the question arises as to what test the

Constitutional Court would find appropriate in deciding whether an employer’s

decision in a particular appointment matter was “fair”. Would it opt for the review



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75 test that has up to now been applied in the High Courts in evaluating the

employer’s decision or would the Constitutional Court hold that this involved too

much deference to the employer and insist on applying the concept of fairness as

set out in the Sidumo case.

It seems unlikely that the Constitutional Court will go against its decision in

Sidumo and that, at very least, the test will be reformulated focusing on the

concept of fairness.

7.2 JOINDER

In the matter of Public Servants Association v Department of Justice &

Others (2004) Up2speed website (LAC) the Court held that:

1. If a party has a direct substantial interest in arbitration

proceedings he/she must be joined. (The successful

Applicant does have a direct and substantial interest).

2. Failure to join invalidates the entire arbitration proceedings.

3. Any arbitration order made in the absence of the affected

party would not be binding on him.

4. It is not a good defence to a non-joinder to say that the

affected party acknowledged the proceedings and decided

not to join.

5 The failure to join the successful candidate rendered the

arbitration proceedings irregular and reviewable.



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76 This case has now been followed in the matter of National Commissioner of

the SA Police Service v Safety and Security Bargaining Council & Others

(2005) 26 ILJ 903 (LC), where, at page 909 the judge summarized the Public

Servants Association case as follows:-

“In the Public Servants Association case Zondo JP pronounced himself

on some very important issues of law. The points that have a direct

bearing on the issues in this case can be summarized as follows:

(a) Where a party has a direct and substantial interest in arbitration

proceedings he/she must be joined in such proceedings or at least

be given an opportunity to be heard. The duty to join the affected

party rests primarily on the arbitrator. Of course the parties

themselves have a duty to alert the arbitrator in this regard and

can apply for the joinder of the affected party.

(b) Failure to join the affected party would be a gross irregularity. The

following statement at 704H-I sums up the legal position and I

quote:

“In conducting the arbitration proceedings to finality and

making such a damaging finding against the appointees

without affording them any opportunity to be heard or joined in

the arbitration proceedings, the commissioner committed a

gross irregularity which vitiates the entire arbitration

proceedings over which he presided. The parties before him

must also bear some blame for not drawing his attention to the

need to join or hear the appointees.”

(c) An adverse order thus made in the absence of the affected party

would not be binding on him.



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77 (d) It is not good defence to a non-joinder point to say that the

affected party had knowledge of the proceedings and decided not

to join.

When taking into account the legal position as stated above, it becomes clear

that referral of the matter to a newly constituted selection panel would be an

exercise in futility. In the first place, there is no longer any vacancy for which

applications can be reconsidered since Nel’s appointment still stands.

Secondly, any such referral would have to be preceded by the setting aside of

Nel’s appointment, which this court cannot do since Nel has not been joined in

the proceedings nor was he given a hearing during the arbitration proceedings

wherein adverse findings were erroneously made against him.”

7.3 UNION REPRESENTATION

The thorny issue that arises for Unions dealing with appointment and promotion

disputes is that they might be required to represent, within one dispute, different

parties with differing interests. The situation often arises where a union member

is disputing the appointment of another union member.

In the matter SADTU obo T Reddy v KwaZulu-Natal Department of Education

and Others (2007) Up2speed (ELRC Arb) it was held that a Union could not

represent both the successful job applicant and the person disputing that

person’s appointment i.e. both employee parties to the dispute. In this case the

employer objected to such representation and the arbitrator upheld the objection.

We would respectfully disagree with this finding. The prejudice that may occur is

that one of the employee parties would not be properly represented, as there

could be a conflict of interests. However even the Law Societies allow a single

attorneys firm to represent different parties provided they consent to the

arrangement – See KwaZulu-Natal Law Society Practice Handbook, Rulings

Section, Ruling 2.2(c) which, in summary says that a single firm of attorneys may

not act for and against the same client without that client’s consent. The message



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78 is clear – we will protect you against a conflict of interests but if the parties who

may suffer prejudice waive that protection by agreement we will not interfere. We

would suggest that arbitrators apply the same principles and ask the parties

represented by the same Union if they consent to such representation. If the

parties who stand to suffer the prejudice have no objection there seems no basis

on which the arbitrator or the opposing party could have any valid objection.

7.4 ARBITRATORS POWERS TO GRANT RELIEF

This issue is dealt with in the ELRC Constitution under the extracts set out below:

“14.3 If the dispute relates to any act or omission of the School Governing Body

acting in terms of s 6(3) of the Employment of Educators Act 76 of 1998 with regard to appointments, promotions and transfers insofar as it affects the right of educators to a fair labour practice, any party to such dispute may refer it to the General Secretary for conciliation-arbitration.

14.3.1 The party referring the dispute need not, in the interests of

expedition, invoke or exhaust the internal grievance procedure before referring such dispute.

14.3.2 Should the dispute involve a defect in the recommendation, or

involve a failure to make a recommendation, to the Head of the Department in terms of s 6(3)(a) of the Employment of Educators Act 76 of 1998 and should the matter proceed to arbitration:

14.3.2.1 the arbitrator shall be required to determine whether

the recommendation or non-recommendation of the employee(s) was procedurally and/or substantively fair;

14.3.2.2 the arbitrator may on good cause shown and if it is in the interests of justice substitute the decision of the SGB with his/her own in which case the decision of the arbitrator shall then be accepted as the decision of the SGB and shall be accepted by the Head of Department in terms of s 3(a) of the Employment of Educators Act 76 of 1998;

14.3.2.3 the parties may agree to supplement or amend the terms referred to in clauses 14.3.2.1 and 14.3.2.2,

but such agreement must be reduced to writing and signed by all the parties to the dispute.”



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79

The somewhat obscure wording in the ELRC Constitution is probably

occasioned by the ruling in the matter of Reddy v KZN Department of Education and Culture and Others (2003) Up2speed (LAC) in which it

was held (this being prior to the 2005 amendments) that the Department of

Education could not be held responsible for acts of the SGB, at least until

such time as an appointment has been made by the HOD. The provision

in the ELRC Constitution is to negate the effect of the Reddy judgment

which, if followed, would have the result that the entire procedural aspect

of an appointment could not be held to be the act of the employer until the

employer took ownership of that procedure by making the appointment.

This would prevent the employer and employees dealing with grievances

that arise during the promotion, which, as we have seen, has become an

effective and widespread practice throughout South Africa. Whether the

ELRC Constitution achieves its goal is mute. If the Reddy judgment is

correct that during the procedural phase the Department of Education

cannot be held liable, the dispute at that stage would fall outside the scope

of the ELRC, as it would not be a dispute between an employer and an

employee - the dispute would actually be between the SGB and the

educator.

We believe that the Reddy judgement is incorrect. The reality of the

situation is that the employer initiates the appointment process and

through its representation on the SGB (the principal) and through a

departmental observer or a resource person, the employer effectively

guides the process through to its conclusion , that is the recommendation

of a particular applicant. The SGB during this process has certain rights

that its exercises but these rights are exercised by the SGB on behalf of

the employer. This formulation of the SGB’s role would avoid the

problems occasioned by the Reddy judgement - we are not aware of any

cases dealing with this argument at this point in time.



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80

In simple terms the Arbitrator has the power to:

(a) Order that the process be redone in its entirety or from a particular

point onwards e.g. from the shortlisting stage;

(b) Order that the person against whom the unfair labour practice has

been committed is awarded compensation;

(c) Order the appointment of the candidate who should have been

appointed.

The relief set out in point (a) above i.e. the redoing of the process, is most

commonly awarded where there has been a procedural flaw which

accounts for the majority of the cases.

Compensation has been awarded in situations where by the time the

dispute comes before the arbitrator, the person against whom the unfair

labour practice was committed has subsequently been promoted into

another position. The compensation is then normally the salary that the

person missed out on for the period when they should have been

appointed but were not. There have also been a number of cases where

compensation has been awarded even though a person has not yet been

promoted.

Finally the Arbitrators and the Courts have the powers to appoint – this

occurs normally in those situations where it is clear that, but for the unfair

labour practice, the person would have got the job. A simple example

would be where there are only two applicants for a position.



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81

8. REVIEW

No Arbitrator wishes to be successfully reviewed. The ELRC does not

wish to have a stream of reviews as it involves extra costs and detracts

from the quick and efficient dispute resolution service which it seeks to

provide. The parties do not want to be in the position of having to review

with the attendant costs and delays. This places the onus squarely on the

shoulders of the Arbitrator to make a correct decision at first instance.

8.1 THE TEST ON REVIEW

The recent matter of Sidumo & Another v Rustenberg Platinum Mines Ltd

and Others (2007) Up2speed (CC) seems to have finally settled the issue that

the test to be used in dealing with the review of CCMA Awards is the test set out

in Section 145 of the Labour Relations Act and not the review test under common

law or the review test applicable in the Promotion of Administrative Justice Act.

Section 51(8) of the Labour Relations Act provides that “unless otherwise agreed

to in a Collective Agreement, Sections 142A and 143 to 146 apply to any

arbitration conducted under the auspices of a Bargaining Council.” It has not

been “otherwise agreed” in the ELRC Constitution to exclude the above sections

and accordingly they are applicable. It would seem therefore that the test

applicable to the review of ELRC arbitration awards is the same as that

applicable to CCMA arbitration awards i.e. the test set out in Sidumo.

There are a number of judgments by different judges in the Sidumo matter and

they are not all ad idem on all issues. The majority judgment however found that

the review jurisdiction applicable to reviews of CCMA and Bargaining Council

matters is as contained in Section 145 of the LRA. In considering whether

Section 145 of the LRA was constitutional, the Court said the following:



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82

“To summarise, Carephone held that Section 145 of the LRA was

suffused by the then constitutional standard that the outcome of

an administrative decision should be justifiable in relation to the

reasons given for it. The better approach is that section 145 is now

suffused by the constitutional standard of reasonableness. That

standard is the one explained in Bato Star: Is the decision

reached by the commissioner one that a reasonable decision-

maker could not reach? Applying it will give effect not only to the

constitutional right to fair labour practices, but also to the right to

administrative action which is lawful, reasonable and procedurally

fair.”

The Court went on to hold that:

“[118] CCMA figures reveal that each year between 70 000– 80

000 cases are referred to the CCMA for conciliation in respect of

dismissals. Given the pressures under which commissioners

operate and the relatively informal manner in which proceedings

are conducted, and the further fact that employees are usually not

legally represented, it is to be expected that awards will not be

impeccable.

[119] To my mind, having regard to the reasoning of the commissioner,

based on the material before him, it cannot be said that his

conclusion was one that a reasonable decision-maker could not

reach. This is one of those cases where the decision-makers

acting reasonably may reach different conclusions. The LRA has

given that decision-making power to a commissioner.”

Finally in a concurring judgment, Sachs said the following:

“[158] In my view, then, the key to the present case is to interpret and

apply section 145 in a manner that is compatible with the values of



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83

reasonableness and fair dealing that an open and democratic society

demands. What is largely implicit in the judgments of my colleagues

should, I believe, be the centrepiece of the analysis. I agree with what

appear to be the underlying premises of the two judgments: in an open

and democratic society based on human dignity, equality and freedom, it

would be inappropriate to restrict review of the commissioner’s decision to

the very narrow grounds of procedural misconduct that a first reading of

section 145(2) would suggest; at the same time, the labour-law setting,

requiring a speedy resolution of the dispute with the outcome basically

limited to dismissal or reinstatement, makes it inappropriate to apply the

full PAJA-type administrative review on substantive as well as procedural

grounds; and to the extent that the right to just administrative action is

involved, the values of fair dealing that underlie section 33 of the

Constitution must be respected. I accept that inasmuch as the right to a

fair labour practice is at the centre of the analysis, the outcome of the

arbitration process must not fall outside the bounds of reason; to accept it

doing so would hardly represent a fair outcome. Finally, acknowledging

the adjudicatory element that implicates the right to a fair hearing under

section 34, I would hold that a fair hearing demands that at the very least

there be some reasonably sustainable fit between the evidence and the

outcome.”

8.2 WRITING REVIEW - PROOF AWARDS

Extracting some of the principles from the above, in order to write a review

proof award, an Arbitrator must:

(a) conduct him or herself in such a manner that parties perceive

him/her to be unbiased. This essentially boils down to treating

the parties equally and with the necessary respect;

(b) ensure that the audi alteram partem rule is applied;



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84 (c) make sure that you have jurisdiction;

(d) carefully assess the evidence and make it clear which

evidence you are accepting and which evidence you are

rejecting and the reasons for such decisions;

(e) apply the law to the evidence (without necessarily being over

technical in quoting lots of case names);

(f) found all your decisions on the basis of what is “fair”.



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85

LEGISLATION

INDEX

1. Employment of Educators Act

2. Extracts from PAM – Chapter B (Procedure for appointments and

promotion)

3. Gauteng Department of Education HRM Circular 65/2007 – dealing with

discipline

4. Negotiation, Consultation and Dispute Resolution Procedures – Annexure

B to the ELRC Constitution

5. Code of Ethics for Arbitrators – Annexure C to the ELRC Constitution



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