Award  Date:
4 October 1999
Case Number: PSES 00 WC
Province: Eastern Cape
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Venue: 04 November 1999
Award Date: 4 October 1999
Arbitrator: L J BOZALEK


In the arbitration between:






1.1 The parties to this arbitration are the Western Cape Education Department (‘WCED’) and SADTU on behalf of its members Mr J P Sigudla and Mrs N S Ntinta. The Department was represented by Mr Colin Esau and Mrs Helen Ward and the union by Messrs Wayne Myburg and Mervyn Christians. The arbitration was held on 11 and 21 October 1999.

1.2 Both members had referred a dispute concerning the nomination of other educators to two posts at Bloekombos Primary School viz that of Deputy Principal and Head of Department. The disputes were referred to the Education Labour Relations Council in terms of clauses 15(1)(c) of the Constitution. That clause gives jurisdiction to arbitrate a range of disputes of right involving unfair labour practices in this case constituting alleged unfair conduct by the employer relating to the promotion or demotion of the employee. Conciliation was not successful and thus the arbitration was conducted.

1.3 The parties’ representatives handed in a document entitled “Terms of reference” (although it was in fact a list of points of dispute between the parties) in which they agreed that the disputes centred around the following :

1.3.1 The selection processes i.e. the interviews for the various posts, were done “simultaneously”.

1.3.2 Information was leaked by a Mrs Mdluli, a governing body member, prior to the interviews to the Council.

1.3.3 The secretary of the governing body told a Mr Robo that Mr Sigudla had been nominated. Upon closer examination it appeared that the true complaint in regard to points 3.2 and 3.3 was that the interview and nomination process had been a charade since some or all of the governing members had taken a decision to appoint the eventual nominees well before the interviews were held.

1.3.4 Mr Sigudla applied for two posts but was only interviewed for one. Here it was alleged that since two HOD posts were involved Mr Sigudla should have been interviewed twice.

1.3.5 The criteria used during nominations. On closer examination this ground appeared to be a challenge to the governing body to justify or motivate in some rational way its choice of candidates.

1.4 By agreement a further ground of complaint was added viz disputing that any SADTU observer was present at the interviewing and nominating process or if she/he was, that she/he was not properly mandated.

1.5 It is as well for me to set out here in brief the response or defence of the WCED to the grounds of complaints which are as follows :

1.5.1 AD paragraph 3.1

No candidate was disadvantaged by the process of simultaneous interviews.

1.5.2 AD paragraph 3.2 and 3.3

Any leaking of information or allegation that the interviews were a charade was denied.

1.5.3 AD paragraph 3.4
The two HOD posts different in that one applied to the junior primary and the other to the senior primary portion of the school and Mr Sigudla was qualified only for the senior primary post.

1.5.4 AD paragraph 3.5

The School Governing Body (“SGB”) utilised a point system and whoever scored the most was the successful candidate.

1.5.5 AD paragraph 4

The question of a SADTU observer was a purely internal matter with the SGB’s only obligation to inform SADTU of the short-listing and interviewing process.

1.6 Ms Ntinta contested the process relating to the post of Deputy Principal to which the SGB nominated a Ms April. Mr Sigudla contested the process relating to the Head of Department posts to which the SGB nominated Ms Nginto and Ms Duma.


2.1 The disputants themselves gave evidence and led the evidence of a further four witness. I will only set out that evidence which I consider to be material to the issues to be determined.

2.2 Mr Jeffrey Sigudla

2.2.1 Mr Sigudla, a teacher at Bloekombos since 1997, testified that he had applied for the two HOD posts and had been interviewed on 13 March 1999. The day before his interview however, in the Deputy Principal’s office (Mr Kene), Mrs Mdluli, a member of the governing body had in his (Sigudla’s) presence and that of another teacher. Mr Motsana, told Ms April that on the following day she would be elected as Deputy Principal of the school and Ms Nginto would be elected as her HOD. Mrs Mdluli had added that even Tula (Mr Batyi, the principal) knew that. Mr Sigudla testified that he felt depressed upon hearing this. He had regarded it as unfair labour practice and a form of victimisation since he would go to the interview lacking confidence. He had nonetheless not immediately objected but had attended the interview and only after the results had become known had he declared a dispute.

2.2.2 Regarding the assertion that the one HOD post related to the junior primary school, he conceded that he did not have junior primary qualifications but stated that nothing in the advertisement for the post had stated that they were related to the junior primary school. The principal himself had indicated at a meeting that both HOD posts were senior primary posts and had advised him to apply for one of Ms April for the other. When he testified Mr Batyi stated that he could not recall telling Mr Sigudla that the posts were both for the senior primary section. The witness had been acting HOD in the senior primary section.

2.3 Ms Ntinta

2.3.1 Ms Ntinta, the other disputant, testified that she too had taught at Bloekombos Primary School since 1997 and held the position of Head of Department in the junior primary school. She had furthermore acted as Deputy Principal for six months and had then applied for that post. Mrs Ntinta declared a dispute because she had been disappointed by the fact that Ms April had been nominated to the post of Deputy Principal although she had very little experience. Furthermore, Ms Ntinta had already heard, prior to the interviews that she was not going to be nominated. This she had been told by her witness Ms Matai who had told her that they (presumably the SGB) were using her (Ms Ntinta) in effect to teach Ms April the job.

2.4 Ms N D Matai

2.4.1 Ms Matai, a teacher at Bloekombos testified that on 10 March 1999, three days before the interviews were held she had gone through the Deputy Principal’s office into the strong room to sort out some netball kit. There she had overhead remarks made in front of the Deputy Principal, Mr Kene. Ms April, Ms Nginto by Mrs Mdluli. What had caught her attention was the entrance of Mrs Mdluli in what the witness described as “an outburst of excitement”. Mrs Mdluli had greeted those already in the office referring in Xhosa to Ms April as “her principal”, to Ms Nginto an “her head of Department” adding also that she as principal of the school was saying so and that even Mr Batyi (the actual principal) knew that she was the principal of the school. When this outburst took place Ms Matai was, unknown to Ms Mdluli, in the adjoining strongroom listening to what was being said. When Ms Matai stepped out of the strongroom shortly thereafter, Mrs Mdluli and the others present appeared shocked by the realisation that Mrs Mdluli had unknowingly disclosed this “secret” to Ms Matai. Earlier Ms Matai had been in the foyer of the school when she had heard Mrs Mdluli talking to a parent and a teacher. Mrs Mdluli had made a remark to the effect that “do they think they can be deputy principal of a school whilst they are so untidy”. According to Ms Matai this could only have been a reference to the internal applicants viz Mrs Ntinta and Mrs Ngahle. When Mrs Mdluli testified she denied making any such remarks.

2.4.2 The witness testified that Mrs Mdluli, besides being a member of the SGB, was a parent at the school and was also employed by it as a cleaner. She played a major role in the school’s activities and, according to the witness, in fact was the “real” principal of the school. She often got her own way in matters and if people did not do things the way she wanted they ended up being a “victim” and could even lose their work. Mrs Mdluli’s prominent position in the school community was also attributable to the fact that she was a leader in the community and therefore a very powerful person. Ms Matai admitted that Mr Sigudla was her”boyfriend”.

2.4.3 In cross-examination it was put to Ms Matai that Mrs Mdluli would deny that the strongroom incident even happened or the incident in the foyer. In due course when Mr Kene and Mrs Mdluli testified they denied that there had been any such incident.

2.5 Mr M Motsana

2.5.1 Mr Motsana, another teacher at the school, was called to substantiate Mr Sigudla’s account of what had been said to Ms April and others by Mrs Mdluli in the Deputy Principal’s office. He confirmed Sigudla’s account but added that Mrs Mdluli had also said that on the following day there would be no interviews, it was just a mere formality. His account differed in some details from the account given by Mr Sigudla but not to any significant degree. I asked all witnesses who made allegations concerning statements by Mrs Mdluli indicating a pre-judging of the nomination process to testify to these remarks both in Xhosa and English so that there could be no misunderstanding.

2.6 Mr P Robo

2.6.1 Mr Robo was yet another educator at Bloekombos Primary and had been treasurer of the governing body. Prior to the interviews being conducted the principal had advised him that all the interviews for the various posts would be held on the same day and therefore, even though he was only applying for a post level 1 position he could not be part of the interviewing process. The witness had regarded the decision to exclude him as unfair because it had been taken whilst he was not part of the meeting and without his having an opportunity to respond thereto. Mr Robo also testified that he had been concerned about rumours that Mr Sigudla would not get the HOD post and that such post and that of Deputy Principal would be filled from candidates from Embasa Primary School where the Principal and Deputy Principal had previously worked. Accordingly he had decided to speak to the secretary of the governing body, Mr Mnqanqeni. He had gone to the latter’s house on the weekend on which the interviews had been held and had been told by Mr Mnqanqeni not to worry because Mr Sigudla had been nominated. Early on the Monday morning, wanting to put Mr Sigudla’s mind at rest, he had told him this news.

2.6.2 This witness also stated that he had been involved in the preparatory stages of the interviewing process where no distinction had been made between the two HOD posts i.e. one being for the senior and one for the junior primary. In his view there was no need for an HOD post at the junior primary level. It was put to Mr Robo that Mr Mnqanqeni would deny the conversation at his house as claimed but would say that there had been a conversation before the interviews had been held concerning Mr Robo’s unhappiness at having been excluded from the governing body for the purpose of the interview and nomination process. There had been no conversation either before or after the interviews regarding Mr Sigudla’s candidacy.

2.7 Mr F Shabangu

2.7.1 Finally, the disputants called an educator at Hector Peterson High School, Mr F Shabangu. He testified that he had been asked by his principal, as a SADTU member, to attend the interviews at Bloekombos Primary on 13 March 1999 as an observer because the principal himself who had participated in the short-listing process was not available. Mr Shabangu described the evaluation and nomination process stating that members of the governing body had allocated marks to the candidates whom they had interviewed which marks had been recorded by Mr Kene. Each member had only allocated one mark per candidate and had not motivated these. The members of the committee had been Mr Kene, the Deputy Principal, Mrs Mdluli, the Principal, Mr Batyi, the secretary, Mr Mnqanqeni, and a Mr Qetswana, the chair.

2.7.2 Under cross-examination Mr Shabangu stated that it had been the first occasion on which he had acted as an observer and although he had signed a form to the effect that he was happy with the interviewing and nomination process he had expressed oral reservations. The one in particular that he recalled ws that for one of the HOD posts. When the scores were announced he had noted that the candidate nominated had earned the lowest marks. This was post 1537. He had raised his objection at the time as well as his concern that there might be legal implications.


3.1 I propose to deal with the various aspects or grounds of complaint underlying the dispute as set out in paragraph 3 above and in the process examine the evidence given in this regard on behalf of the WCED and the arguments made by both parties.

3.2 AD Paragraph 3.1

3.2.1 The selection processes i.e. the interviews for the various posts were done “simultaneously”. What was in fact meant hereby was that interviews for a large number of posts, including the two disputed posts were held on 13 March 1999. The principal, Mr Batyi, explained that the SGB had been running late with the process and had therefore decided to hold all interviews on that particular day. It was put to him that the could have applied to the Department for an extension and it was also argued by Mr Christians on behalf of the disputants that it was unfair to schedule all the interviews for one day. It would not have been possible, he contended, for the interviewing committee members to have properly applied their minds to the merits of all the applicants for the five or so posts for which interviews were held. Although the arrangements might not have been ideal I do not believe that the governing body can be faulted for holding all the interviews on one day. One has to bear in mind that both the lay and the educator members of the governing body were giving up a full day of their weekend and furthermore that the arrangements for interviews, if they were held over a number of days or week day evenings, would have become all the more complicated. It is not an uncommon practice to hold interviews together since in this way the merits of the various candidates for various posts can be directly compared thus facilitating discussions and decisions.

3.3 AD Paragraph 3.4

3.3.1 Mr Sigudla applied for two posts but was only interviewed for one. It will be recalled that the allegation here was that since two HOD posts were involved Mr Sigudla should have been interviewed twice. The evidence from the Department’s witnesses was that Mr Sigudla was considered for one HOD post. In my view even if he had been considered for both HOD posts it would have been unnecessary if not absurd for the governing body to have interviewed Mr Sigudla twice on the same day for very similar posts. There was some confusion surrounding these two posts. Mr Sigudla testified that an pre-interview stage the principal had indicated that both HOD posts were senior primary posts. In the event it appeared that only one of these posts were set aside for the senior primary section whilst the other was allocated to the junior primary. There was much criticism of this decision since it allegedly resulted in an imbalance with the one HOD post for the senior primary school but four for the junior primary school. Mr Batyi, the principal, as well as the deputy, Mr Kene, both testified that the special needs of the school, which had a preponderance of pupils in the junior primary section, indicated that it would be a better dispensation for the HOD’s to be concentrated in that section. Not only am I not qualified to determine whether there was an imbalance of HOD posts but no expect evidence was led in this regard. Furthermore the education bulletin itself, in which the posts were advertised, did not stipulate that they were confined to either the junior or the primary school. In the circumstances it seems to me that the management of the school i.e. the principal, deputy principal and his governing body were within their rights in allocating one of these posts to the junior primary school even though this resulted in only one HOD post at the senior primary level. I am inclined to accept that the principal did indeed tell Mr Sigudla that both of the posts would be in the senior primary school since his evidence i.e. that of the principal, was that he could not remember such a conversation. I would not expect such an equivocal answer if the position had been that he had not in fact said this to Mr Sigudla. This apparent change of course does not in itself invalidate the decision to allocate one of these posts to the junior primary school and the process of interviewing and nomination cannot be said to have been rendered unfair by this fact alone.

3.4 AD Paragraph 3.5

3.4.1 The criteria used during nominations Paragraph 3.6.1 of clause 3 of Resolution number 5 of 1998 which deals, inter alia, with the advertising and filling of educated posts provides that the criteria which an interview committee uses “must be fair, non-discriminatory and in keeping with the Constitution of the country”. According to the official minute of the governing body the criteria for the HOD and the Deputy Principal posts were various combinations of the following : an understanding of either the senior and junior phases of the school, experience of teaching in either phase, the necessary qualifications and an understanding of Xhosa. These criteria were criticised by the disputants’ representatives, Mr Christians. They are perhaps more weighted towards the qualifications for the posts and the experience of candidates but it does not seem to me that they are either unfair or discriminatory bearing in mind that the school caters predominantly if not exclusively for Xhosa speaking children. In my view the interviewing process for the two disputed posts can thus not be said to have been rendered unfair by the use of these criteria.

3.5 AD Paras 3.2 and 3.3

3.5.1 Information was leaked by Mrs Mdluli, a governing body member, prior to the interviews and the secretary of the governing body told Mr Robo that Mr Sigudla had been nominated. As I have indicated previously the true complaint in regard to this grounds of the dispute was that the interviewing and selection process was a charade, the result having been decided beforehand. I have set out in some detail the evidence of the disputants and their witnesses regarding these allegations and in particular the three incidents involving Mrs Mdluli. In response the Department called four witnesses viz the principal and deputy principal, Mr Batyi and Mr Kene respectively, the secretary of the governing body who was also a member of the interviewing committee on that day, Mr Mnqanqeni, and Mrs Mdluli herself. All of these witnesses stated that in their view the process had been a fair one, that all candidates had been treated equally and that no one had been disadvantaged as a result. The evidence raised a number of factual disputes but to my mind the key question is whether the incidents involving Mrs Mdluli took place or not. Here the evidence for the Department was less than satisfactory. Mr Batyi, the principal, was not involved in any of these incidents and thus could cast no light on them. The same applied to Mr Mnqanqeni. Mr Kene was alleged to have been present in his office when Ms Matai was in the strongroom and Mrs Mdluli made her remarks stating that it was an accomplished fact that Ms April would be nominated as deputy principal and Ms Nginto as one of the HOD’s. Mr Kene commenced his evidence on this point by stating that he could not recall any such conversation in his office. When pressed he stated that no such conversation had taken place. I find it significant however that his first reaction was to state that he could not recall any such conversation. He confirmed that the strongroom did adjoin his office and further that Mrs Mdluli had a strong personality and was generally a person of influence. Although he did state that she had no influence at the school I find this unlikely. When I questioned Mr Kene he also stated that he could not remember the various parties who were alleged to have been present on that day as being present in his office but then stated that the incident had never taken place. Mrs Mdluli’s evidence was a blanket denial of all and any such remarks attributed to her. She stated that she had a good relationship with the educators who had testified against her in this regard viz the two disputants, Mr Motsana and Ms Matai. This raises the question as to why they would potentially incur her wrath by giving false evidence against her on this score. It seems to me to be unlikely that the mere prospect of overturning an interviewing and nomination process would spur them to doing so. They stand to lose more than they gain by such conduit. All of them testified without hearing the evidence of earlier witnesses or the disputants. Apart from the fact that any candidate who is not nominated is obviously disappointed and quite often believes that they were a better candidate that the successful one, there was no reason that the disputants should fabricate the accounts which they gave in evidence regarding Mrs Mdluli’s remarks and conduct. This applies with even more force to their witnesses who gave clear and cogent evidence. No reason was suggested why they should single out and perjure themselves regarding Mrs Mdluli’s role even taking into account that Ms Matai was the girlfriend of Mr Sigudla and might well be biased in his favour. I was also struck by the fact that Mrs Mdluli’s denials were rather low key and mutes, not the reaction I would expect from someone confronted with four witnesses each fabricating a false story concerning her. Mrs Mdluli confirmed that she was a member of a Development Forum in Bloekombos and a member of SANCO which lends support to the view that she is indeed an influential person in the community. I noted from her evidence that she was first appointed as a member of the governing body and then later appointed as a clearer at the school. On the probabilities I find that Mrs Mdluli was indeed a person of considerable influence at the school through her position as a member of the governing body, her position in the community and her full-time presence at the school. On the probabilities I prefer the evidence of the disputants and their witnesses to the effect that Mrs Mdluli had in fact arrived at her choices for the posts well before the interviewing process was conducted and had made this known to both of the (eventually) successful candidates and to the disputants. For the Department Mr Esau argued that even if Mrs Mdluli had expressed herself in the manner to which the disputants and their witnesses testified, this did not taint the process since all she had done was proclaim a bias which other governing body members in similar situations might have had but might not necessarily express. I do not think that this argument can be sustained. In the first place it ignores the effect of these pronouncements upon the candidates themselves. In Mr Sigudla’s case he heard of it to his face before the interview and testified that this made him “depressed”. One can appreciate that a candidate who feels that she/he is being interviewed for a post where the result is pre-determined is unlikely to give of his/her best in the interview. Secondly there is significance in the fact that Mr Mdluli expressed her views in the presence of another member of the governing body, Mr Kene, who did not disavow her views. Although he did not take part in the scoring and the voting Mr Kene was a member of the interviewing committee and in a position to influence it. I find the fact that at least two members of the interviewing committee were associated with a pre-determined decision most undesirable and an irregularity which tainted the process. Although Resolution 5 does not spell it out explicitly the interviewing and nomination process is clearly governed by the principles of fair administrative action. Where nominations and appointments to posts by the Department follow statements by a member of the interviewing committee that the interview process is no more than a formality I do not believe that unsuccessful candidates can be said to have enjoyed fair administrative action, a right entrenched in the Constitution’s Bill of Rights. In arriving at this conclusion, I take into account that it is inevitable that in certain circumstances the members of an interviewing Committee may already know some of the candidates and have a preference for a particular candidate. However it is imperative in my view that the interviewer maintains an open mind in the selection process. The words which I find to have been uttered by Mrs Mdluli indicate that she has closed her mind to whatever merits other candidates might have had. I take into account here moreover that Mrs Mdluli was an influential member of the governing body and he view may well have significantly have affected those of Mr Qetswana and Mr Mnqanqeni, the only other voting members of the interviewing Committee. There was also a factual dispute as to whether Mr Sigudla was nominated for the HOD post or not. I find it unnecessary to make an finding in this regard and in any event even if he was initially so nominated and at some point there was a change and another candidate was officially nominated, this is not necessarily an irregularity invalidating the process. There was considerable evidence and argument over whether Mrs April’s appointment was justified on merit. That decision, even if “incorrect”, was the prerogative of the SGB provided it followed the provisions of Resolution 5 suitably informed by the principles of just administrative action. In the view I take of this matter it is neither desirable nor necessary for me to express my view on this particular question.

3.5.2 The alleged non-observance of SADTU at the interviewing and nominating process. The evidence revealed that there was a SADTU observer, Mr F Shagangu, present at the interviewing and nominating process. He was delegated this duty by his principal. The question of whether he was mandated or not was not raised in evidence and in any event is a matter internal to the union and cannot affect this arbitration. That disposes of the grounds of the dispute as initially determined between the parties. When regard is had however to the provisions of clause 3 of Resolution 5 of 1998 there appear to be further shortcomings in the process held at Bloekombos Primary School. Clause 3.2 requires that, apart from members of the school governing body, the interviewing committee shall comprise one departmental representative as an observer and resource person and the principal of the school. The principal can also act as the departmental representative. In the present case Mr Batyi the principal was present but chose not to vote. On behalf of the Department Mr Esau stated that Mr Batyi was present on the committee in his capacity as principal. This however left the committee short of a departmental representative and the wording of the clause “the interview committee shall comprise” indicates that the presence of a departmental representative, if this was not the principal, was obligatory and is thus not a shortcoming that can be overlooked. There are several other disquieting features which I will touch upon briefly. Two educator members of the governing body were excluded from the process without their consent and indeed in their absence by reason of the fact that they had applied for two of the posts. I would have expect that these governing body members would at least have been given an opportunity to have expressed their views as to whether they should be excluded from the interviewing and nomination process for which they had not applied. Mr Batyi and Mr Kene, the deputy principal, chose not to score or vote for the candidates for the posts. This left in my view a rather small and unbalanced committee comprising of three parent members of the governing body. Again I would have expected that there would at least be some formal input, in the form of a vote from either the principal or the deputy principal who knew the internal applicants and their capabilities better than the parent members. I accept that there may be circumstances in which it is not appropriate for the principal, deputy principal or other educators to vote, but in the present situation it left, as I have said, a very small interviewing committee comprising Mrs Mdluli whose impartiality and open mindedness cannot be accepted and only two others. In relation to these latter points Mr Esau argued they had not been taken by the disputants and did not form part of the dispute. On a strict approach he may well be correct. I am far from certain however that adopting such an attitude is the correct approach for me to adopt given for example the fact that the minutes of the proceedings were only made available to the disputants’ representatives on the morning of the arbitration despite that fact that they had been sought for some time. Be that as it may, even without reliance on these last mentioned irregularities, I am satisfied, on the evidence, that the interviewing and nomination process was tainted by irregularity more particularly in that one member thereof, Mrs Mdluli had publicly proclaimed her choice of candidates on a number of occasions prior to the interviews and thus her participation in the interviewing process was no more than a charade.


Insofar as the Department appointed candidates to these posts after a flawed interview and selection process, the disputants suffered an unfair labour practice. In the circumstances I rule that it is incumbent upon the Department to conduct the interviewing and nomination process for two of the disputed posts viz the Deputy Principal’s post and the HOD post (No 1537) for the senior primary section, in full compliance with the provisions of Resolution 5 of 1998. Given the findings which I have made concerning Ms Mdluli’s conduct prior to the interview, she should not be part of a new interviewing committee and a Departmental representative, other than Mr Batyi, should be involved at all appropriate stages.

Date : 4 November 1999







Insofar as the Department appointed candidates to these posts after a flawed interview and selection process, the disputants suffered an unfair labour practice. In the circumstances I rule that it is incumbent upon the Department to conduct the interviewing and nomination process for two of the disputed posts viz the Deputy Principal’s post and the HOD post (No 1537) for the senior primary section, in full compliance with the provisions of Resolution 5 of 1998. Given the findings which I have made concerning Ms Mdluli’s conduct prior to the interview, she should not be part of a new interviewing committee and a Departmental representative, other than Mr Batyi, should be involved at all appropriate stages

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