Case Number: PSES 575-09/10EC
Province: Eastern Cape
Applicant: NAPTOSA obo Sindiswa Eunice Mqungwana
Respondent: Department of Education – Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 31 August 2010
Arbitrator: Thobela Ncetezo
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Date of Award:
31 August 2010
In the ARBITRATION between
NAPTOSA obo Sindiswa Eunice Mqungwana Applicant
Department of Education – Eastern Cape First Respondent
Z Mabandla Second Respondent
Applicant/Union representative Mr. Khwezi Dalasile
First respondent’s representative: Mr. Tsiu Lipapang
Address: Private Bag x0032
Tel: 040-608 4540
Fax: 045-858 8906/040 608 4458/4313
Second respondent’s representative: Mr. Cekiso
DETAILS OF HEARING AND REPRESENTATION
The hearing took place on 2 June and 20 July 2010 in Mthatha. Mr. Khwezi Dalasile of NAPTOSA represented the applicant, Ms Sindiswa Eunice Maqungwana. Mr. Tsiu Lipapang, employed by the Department of Education as a, Labour Relations Practitioner represented the first respondent. Mr. Mzuvukile Cekiso, a representative of NAPTOSA, represented Mr. Mabandla, who was joined as the second respondent in the proceedings. The parties failed to submit closing arguments in writing for consideration as agreed.
ISSUE TO BE DEDIDED
Whether or not the interview process was procedurally fair and therefore prejudiced the applicant.
Whether or not the appointment of the second respondent in the position of Head of Department (English and Xhosa) amounted to unfair labour practice in terms of Section 186(2)(a) of the Labour Relations Amendment Act 12 of 2002 (hereinafter referred to as the Act).
BACKGROUND TO THE DISPUTE
4. The applicant is a Post level 1 educator at Ntshilini Senior Secondary School, which is under Libode Mega District. The applicant and the second respondent, including other five candidates applied for the Head of Department Post for English and Xhosa were shortlisted but only three candidates attended the interview. The second respondent was recommended by the SGB and appointed by the first respondent.
5. The applicant challenged the appointment of the second respondent on the grounds that the panel was bias against her and that she was a better candidate than the applicant.
SURVEY OF EVIDENCE AND ARGUMENT
SUBMISSION BY THE APPLICANT
The applicant testified that she has fifteen years experience within the teaching experience with academic qualifications in B.A (Education Honours), Ace (University of Transkei). She majored in Xhosa and passed Afrikaans as a language. Though she did not study English as a subject at tertiary level, she taught it in 2005 and 2006 and thereafter monitored it. She taught it again from March 2009 to date. Currently she is a Post Level 1 educator who is co-opted in management at Ntshilini Senior Secondary School where she applied for the position of HoD.
She further testified that she was appointed by the School Governing Body (SGB) to act as HoD for Xhosa and English and monitored language teachers at Ntshilini SSS, when the post became vacant in 2005. She acted in the position from 2005 to 2009. The Principal told her that the Chairman of the SGB, Ms Xamalayo was against her acting in the position but the SGB recommended her. At that time she attended HoD trainings and management workshops held by the respondent as part of her responsibilities.
When the HoD post was advertised in October 2005 she applied but later on the Principal told her that there would be no interviews because she did not qualify for the post. It was again advertised in 2008 after an ELRC arbitration award ordered the respondent to do so; and she applied again. However she felt that the interviews would not be conducted fairly as Ms. Xamlayo, who was still a member of the SGB, indicated that it was rampant the post was earmarked for the second respondent. At the time the second respondent was a temporary teacher. She called the Principal in a meeting before interviews but he was very angry.
She then wrote a letter to the first respondent on 10 December 2008 indicating that fairness of interviews was impossible and that the second respondent did not qualify for the post as he had less period of experience required for the post. She requested that an independent forum be appointed to conduct interviews. Ms. Xamlayo approached the Principal and instructed him not to allow her to act as HoD. Her request was not successful as she was appointed to act.
She further testified that shortlisting was done in March 2009 and only two out of eight candidates were shortlisted and she was not in the shortlist. She then wrote a letter to the first respondent and reported that the advertised post was earmarked for the second respondent who was a friend to the Principal and Ms Xamlayo. She also reported the situation to the trade union. She did not want Ms Xamlayo and other members of the SGB in the panel as they were already influenced by the former.
She was then informed that the interviews were placed on hold as a result of a letter that she wrote to the first respondent. She was then shortlisted and interviewed. The SGB panel was composed of Mesdames Nyathi, Gqibinkomo and Dindo (teacher component). She was of the view that she would not be recommended as the panel was not independent and could not have been neutral for the following reasons:
11.1Nyathi was an old SGB member.
11.2Ms Dindo has an affair with the second respondent. She also supervised her as they were complaints that she did not mark scripts, attend classes and workshops. She therefore had to monitor her and assist in marking her scripts. For this Ms Dindo hated her to the extent that she did not greet her. She these reasons she felt scores would not favour her as Ms Dindo had an interest in the interview and would favour her boyfriend.
11.3Gqibinkomo is a sister to the second respondent’s friend who was canvassing that the post be given to the second respondent.
At the end she was not happy with the interview process in that, the EDO, Ms Ncukana tore a score sheet because Ms Gqibinkomo said that she had made an error. She did not raise her concern with the panel but latter reported the matter to the trade union representative and wrote a letter to the first respondent about the incident.
Under cross-examination the applicant testified that she qualified for the post because she has more teaching and management experience than the second respondent. That the post was for English and Xhosa that she is currently teaching but the second respondent majored in History and Xhosa, which he was recommended for but was not trained as a specialist in languages.
She further testified that the second respondent was sifted by the first respondent because he qualified for the post and agreed that he also qualified in terms of experience as he had three years experience.
She admitted that she had done only English. She stated that the score could not be fair if the panel consisted of people who were not impartial. That at the interview NAPTOSA was not invited but on the day of the interview the trade union mandated a teacher to obverse the interviews. She stated that she did not complain about the process on the day of the interview but a day after when she informed the trade union and also wrote a letter to the first respondent.
She further stated that she attended the interviews even though the panel she complained about was not replaced because the first respondent did not want to comply with her request. That if interviews were conducted by an independent panel, she would have accepted the second respondent as the HoD. She further stated that Ms Xamlayo earmarked the post for the second respondent and also influenced members of the panel.
The first witness, Mr. Melikhaya Ntantiso who is an educator at Ben Mali Senior Secondary School testified that he got to know the applicant and second respondent when he was an educator at Ntshilini SSS and had unsuccessfully applied for the HoD post himself. He further testified that the second respondent and Ms Dindo have an affair and this was confirmed to him by the latter. Under cross examination he denied that he was bitter about not being appointed and stated that he knew about the affair between the two before the respondent was appointed to the position.
The second witness, Mr. Kula, who is an Educator at Ntshilini SSS, testified that Ms Dindo who is married still has an affair with the second respondent. He further testified that when the applicant was Acting HoD there was a problem between her and Ms Dindo because of marking and moderation. That Ms Xamlayo insisted that they should discuss the dispute about the HoD post at community meetings as she was tired of the applicant who was challenging the post. Under cross-examination he testified that the applicant had more experience than the second respondent in that she taught English and Xhosa and also acted in managerial position.
The third witness Mr. Richman Mbuyiselo Mava, a NAPTOSA representative for since 2007 testified that as a representative of NAPTOSA he was part of shortlisting to the said HoD post in 2008. Two applicants, the applicant and Mr. Ntantiso, raised concerns regarding one of the SGB members who had no child at the said school and that they had no confidence in the SGB. The process was reversed and the first respondent requested the said SGB member to terminate her membership in the SGB. In 2009 only two applicants were shortlisted though there were others who qualified. They complained and requested that an independent panel be appointed. It was also agreed that all interviews in the district would be conducted by an independent panel. In some schools the panel was changed but not at Ntshilini SSS in that an old SGB member who also participated in the 2008 interviews also participated in the 2009 regardless of the request to change the panel.
The representative of NAPTOSA during the interviews informed him of the conduct of the panel and he also received a complaint from the applicant. Thereafter they wrote a letter to the first respondent requesting that the first respondent should not proceed with the appointment of the second respondent because the union wanted to solve the problem first. However the first respondent did not heed to their request instead a letter of appointment was issued on 20 January 2010 yet the appointments were not made in other schools in the district facing the same situation. Mrs. Vikilahle who promised to meet with the union before the appointment was made, failed to so. She only met them after the appointment was made and informed them that she was not aware of the said appointment.
Under cross examination the witness testified that the applicant has Xhosa and Afrikaans, which is contrary to the requirements of the advert and that the second respondent has Xhosa and English. He further testified that Ms Xamlayo who was a member of the SGB had no child at the school, and informed the first respondent about this in writing on 11 December 2009. He also stated that the representative at the interviews did not complain because she was appointed on the spot and did not know that she could object. He denied that the union complained after it they heard that the second respondent was appointed.
He also stated that at the end of the interview the union representative signs a document and should there be a query the union representative is supposed to sign for the complainant. The witness never enquired from the representative who attended the interview or if the applicant signed. He further stated that the complaint was reported to the union a day after the interviews but they wrote the letter to the first respondent after six days.
The fourth witness, Mr. Nqenqa who is a member of NAPTOSA, testified that he had a meeting with Ms Vikilahle because of the appointment letter that was issued but the latter said she was not aware of the appointment and was of the view that the issue was still pending. She promised that she would call him after she had enquired about the issue. She further promised that there would not be any implementation until the meeting was held.
Under cross-examination he stated that the union can lodge a grievance as long as an appointment has not been made and that the first respondent should not have appointed someone in a post where there is a query.
The fifth witness, Ms. Nogolide Dalasa, an educator at Ntshilibe SSS, testified that on the day of the interviews Mr. Mhlauli requested her to represent NAPTOSA and observe on behalf of the union. She stated that SADTU was also represented and that it was her first time to observe interviews. After the interviews she gave a report telephonically to Mr. Mhlauli.
She testified that Ms. Gqibinkomo made an error in the score sheet, which she reported to Mrs. Ncukana, who tore it and replaced it with a new one. At that time five questions had been asked. She had no knowledge and did not enquire what mistakes Ms. Gqibinkomo had made in the score sheet.
Under cross-examination she stated that the only abnormality she observed was the tearing of the score sheet. That the reason for SADTU not to complain could be because they did not see anything wrong with tearing of the score sheet. She informed Mr. Mhlauli about the torn score sheet on the same day because it was an irregularity. She also stated that candidates were not asked whether or not they were satisfied with the process. She also stated that she signed at the end of the interview not as an indication that the interview process was fair but to confirm that she observed the interviews. She denied that her signature indicated that she was satisfied with the proceedings.
SUBMISSION BY THE FIRST RESPONDENT
The first respondent introduced three witnesses. The first witness Mr. Ntsikelelo Mlisa, who is the Principal at Ntshilini SSS, testified that the HoD post was advertised to replace a HoD, Mr. Vuyani Tsama, who was transferred to another school. The transferred HoD was teaching English and had academic qualifications in English and Xhosa.
They then looked for someone who qualified for the post as Mr. Tsama did. He further testified that the panel was aware of the requirements of the post as they were communicated to them in a meeting. He stated that he could not state the reason why the applicant was not appointed as he was not part of the recruitment and selection committee. That the applicant might have been shortlisted in order to give her an opportunity because she acted as HoD.
He further testified that in his knowledge a person can only teach a subject that they have majored in or done as part of their syllabus. That they were looking for an English teacher but who can manage both English and Xhosa. That he never received any complaints after interviews from unions or candidates.
He further testified that the second respondent is teaching English and supervising both languages as Mr. Tsama did. Those other candidates who applied for the post only had Xhosa. He also testified that the applicant once taught English in Grade 12 and lower grades for a year. Currently the applicant is teaching English in Grades 10 & 11.
Under cross-examination the witness testified that when the post was advertised in 2005 and candidates were selected, the SGB took a decision not to appoint anyone, as candidates who applied for the post did not possess English, which was one of the requirements stipulated for the post in the bulletin. He stated that the second respondent was not part of the decision making but Ms Xamalayo, who at the time was a member of the SGB. When the post was re-advertised in 2008 he was not part of the panel because the applicant and NAPTOSA requested that he recuse himself from the proceedings. This request was based on allegations that he might have an interest in the case. Ms Xamlayo was also no longer a member of the SGB
He stated that a meeting was held where teachers said he must agree that the post be earmarked for a particular candidate, and this he did not agree with as such would have interfered with the power of the SGB.
He further stated that in terms of the curricular needs the person appointed to the position must be able to manage both English and Xhosa. He stated that the fact that the applicant acted for both languages does not make her suitable for the job. He admitted that the applicant did teach English even though she did not qualify because learners could not be left unattended. However he stated that he never instructed the applicant to teach but approached all the teachers. The applicant took it upon herself to teach the language. He also admitted that the applicant was capable of managing both languages.
The second witness Olga Noluthando Dindo, who is a teacher at Ntshilibe SSS and a teacher component in the SGB from 2009 until May 2010. She admitted that when the applicant was Acting HoD once reported her to the first respondent in June 2009 in relation to her work performance. That even after this she still she has a good relationship with the applicant and still consults her on work related issues. She stated that she was not aware that the applicant objected to her being part of the panel
She stated that when interviews were conducted on 3 December 2009, she was no longer in a relationship with the second respondent as she got married in July 2009. She denied that she had a close relationship with Mr. Kula but that they only shared a clan name.
She further testified that interviews went well and that candidates were given an opportunity to comment but none of them complained including the applicant instead before leaving the room the latter said she was fine and comfortable. She stated that if candidates complained they would have dealt with the complaint and record such in the minutes. She also testified that she was not aware of any score sheet that was torn. That the second respondent has appropriate experience in that his experience was relevant to what they were looking for.
Under cross-examination she testified that the candidates were scored according to experience and knowledge as they focused more on English. She stated that her scoring was fair and that the applicant said that the interviews were conducted fairly. She further testified that she was not aggrieved by the fact that the applicant reported her to the first respondent and even when she later found out that she performed some her duties. She denied that in December 2009 she still had a relationship with the second respondent. She further stated that she consulted SADTU about recusing herself as a result of her previous relationship with the second respondent but the union said it was fine for her to participate in the interviews.
The third witness Mrs. Thandeka Caroline Vikilahle employed as Chief Education Specialist: institutional Development, Support and Governance and is also Acting CES: Curriculum. She testified that she received documents recommending the second respondent for the post and that the interview process went well. The signatures of teacher unions were testimony to that. That during the interview both the applicant and second respondent were represented by the same person.
She testified that Ntshilini SSS wanted a HoD for languages (English and Xhosa) and that if a candidate had only one of these languages he would not have qualified. She further testified that it was not incorrect to shortlist her because she met the basic requirements but was not the best candidate as she only possessed Xhosa.
She further testified that the first respondent never appointed her to act but such might have been an internal arrangement. That acting in a post does not automatically make the person suitable for the post and the panel was not compelled to give her more marks for the fact that she acted as HoD. That allowing a teacher to teach a subject that he or she does not specialises in is only in instances where the school does not have a specialist in that subject. That according to the advertisement the second respondent was the best qualifying candidate. That the panel does not appoint but recommends and if unsuitable candidate would be recommended the first respondent would then appoint a suitable candidate and inform the SGB of such.
Under cross-examination she testified that when she received a grievance letter from the applicant and a telephone call from NAPTOSA chairman, she referred the matter to the District Manager. The applicant later informed her that the first respondent had appointed the second respondent. She told her that she was not aware of the appointment as the letter was with the District Manager. After the letter she agreed with the District Manager that the applicant did not qualify for the job. She admitted that Ntshilibe SSS was not the only school with a grievance regarding appointments but stated that grievances are looked at and treated according to their merits.
She further testified that the matter was dealt with in 2005 and nothing knew came forth when the applicant applied again in 2008. At the time the applicant did not meet the requirements and interviews could not be conducted as there were not enough candidates who met the requirements. In 2008 the applicant only met the basic requirements but not all requirements needed by the school. The applicant was shortlisted because there were not enough candidates and she met the basic requirements.
She stated that if she was a preferred candidate she would have been appointed but the second respondent was appointed because the panel was satisfied with his presentation and was the best qualified candidate. That the second respondent did English at University and the applicant did not do the subject at any level of her training. She further stated that the applicant was never assessed and evaluated as HoD. That nothing prevents a person teaching at a junior school from applying for a post at a secondary school.
ANALYSIS OF EVIDENCE AND ARGUMENT
In terms of Section 186(2) of the Labour Relations Act 12 of 2002 (hereinafter referred to as the Act) uunfair labour practice means any unfair act or omission that arises between an employer and an employee involving (amongst other things)—
(a) unfair conduct by the employer relating to the promotion, 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;
In disputes relating to unfair labour practice an employee bears an onus to prove that an act or omission by the employer was unfair and was prejudicial on him or her. In this dispute the applicant alleged that the first respondent acted unfairly by appointing the second respondent and the process that led to the appointment of the latter was not conducted fairly. The following issues were common cause:
46.1That the applicant applied for the position of HOD Post Level 2 in 2008.
46.2The interviews were held on 3rd December 2009.
46.3Five candidates were short-listed but two did not turn up for interviews and one candidate by the name Mr. Zamile Mabandla was recommended and occupied the position on 19 January 2010.
The following issues were in dispute:
47.1That the applicant was not appointed into the position because the interviewing panel was biased against her and leaned more towards the appointed candidate.
47.2Though the preferred candidate met the minimum requirements, the applicant has more relevant and required experience and qualification for the position.
47.3That the appointed candidate is a language specialist.
47.4The respondent was inconsistent in handling the grievance lodged by the applicant.
47.5That the appointment of the preferred candidate was without the approval of the CES – Institutional Development, Support and Governance.
47.6That the applicant acted as HOD from 2005 to date.
In simple terms the applicant contends that she qualified for the post more than the second respondent and had an independent panel been appointed other than the one that conducted interviews she would have been appointed to the post. I am not satisfied that the applicant proved the biasness of the panel. In my view the applicant's contention was based on unreasonable suspicion. I believe that suspicion is unreasonable if it is only based on rumours that are unfounded and cannot be proved. The applicant testified that two members of the panel were biased against her because they had relations with the second respondent. I am not convinced of this testimony as the applicant had also testified that when Ms. Xamlayo influenced member of the SGB not to appoint her to act as HoD, her attempts failed as she was unanimously appointed to act.
It should be noted that initially the interviews were supposed to be conducted in 2008 but the applicant lodged a complaint about an unqualified member of the SGB, who was subsequently removed from the panel. This in my view indicated that the first respondent did not disregard the concerns of the applicant. I also agree with one of the respondent’s witness, who stated that both the applicant and the second respondent were represented by the same trade union representative yet the same union challenges the appointment of the other member. This gives an impression that even if the applicant was appointed, the trade union, which also represented the second respondent, would have challenged such appointment. The fact that the two employees have a right to be represented by a trade union representative does not escape me but the situation leaves much to be desired.
Both parties agreed that the minimum requirements for the post were specified in the bulletin. The applicant did not deny that she did not meet all the requirements in as far as academic qualifications are concerned but argued that she had more experience that the second respondent and had acted in the post. That she also taught English even though she did not possess an academic qualification in English. The respondent argued that if the applicant was appointed by the respondent to act she would have received an appointment letter and remuneration for acting. In my view this argument does not hold water as the school Principal confirmed that the applicant once acted as HoD. However the fact that an employee acted in a vacant position does not give him or her legal entitlement to the position or preference over other candidates. I am satisfied that the first respondent appointed the second respondent because he was a better if not best candidate for the post amongst candidates who were interviewed. In my view it was not without merit that the SGB recommended the second respondent and for the first respondent to appoint him because he met all the requirements of the job than the applicant. An employer cannot overlook a suitable candidate only for the fact that another employee acted in the job.
The applicant also objected to the submission that the second respondent was a language specialist and argued that he majored in Xhosa and possessed English at Level I only. Even though it was testified that the applicant taught English, this does not change the fact that she does not possess it and has never done it at tertiary level. I am therefore of the view that in appointing educators the first respondent has an obligation to serve the best interests of learners. I am not convinced that the first respondent would not have carried its mandate to the education of learners if it overlooked a person who academically qualified for the job and met all the requirements of the job in favour of a candidate who did not meet all the requirements of the job or just met the minimum requirements.
The applicant argued that the first respondent was inconsistent in handling her grievance. In my view the applicant failed to prove that the respondent was inconsistent as it could not be proved whether or not other grievances were the same or similar to the applicant’s case. The CES – Institutional Development, Support and Governance whom the applicant stated was not aware of the second respondent’s appointment, testified that she agreed with the District Manager that the applicant did not qualify for the job as she only met basic requirements. Thus the best candidate was appointed.
I am also of the view that appointment and promotion of employees is at the discretion of the employer and that can not be tempered with for as long as the process leading to such was fair, reasonable and objective. In this case I am not convinced that the respondent acted unfairly and therefore my view is that its decision to appoint the second respondent cannot be tempered with.
For the reasons stated above, I am of the view that the applicant failed to prove that the conduct of the first respondent amounted to unfair labour practice in terms of Section 186(2)(a) of the Act.
I find that the conduct of the respondent, Department of Education – Eastern Cape, does not amount to unfair labour practice as contemplated in Section 186(2)(a) of the Labour Relations Amendment Act 12 of 2002.
The interview process for the HoD Post at Ntshilibe Senior Secondary School was procedurally fair and did not prejudice the applicant and other candidates who applied for the post.
I make no order as to cost.