Case Number: PSES214-15/16EC
Province: Eastern Cape
Applicant: Naptosa obo Archibald Msengi
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Mount Frere Department of Education district office in Mount Frere
Award Date: 29 March 2016
Arbitrator: Raymond Jonathan
Case Number: PSES214-15/16EC
Commissioner: Raymond Jonathan
Date of Award: 29 March 2016
In the ARBITRATION between:
NAPTOSA obo ArchibaldMsengi (Union/Applicant)
Department of Education – Eastern Cape (1stRespondent)
Dangwana Senior Secondary School: School Governing Body (2ndRespondent)
Department of EducationHead of Department – Eastern Cape (3rdRespondent)
Thembekhaya Mdondolo: Dangwana Secondary School Principal(4thRespondent)
Union / Applicant’s representative: Mr KS Dalasile
Applicant’s address: P.O.Box 365
Telephone: 043 722 4104
Telefax: 043 722 4089
1st 2nd& 3rd Respondents’ representative: Mr LN Mashoai
Respondents’ address: Private Bag X0032
Telephone: 040 608 4540
Telefax: 040 608 4313 / 086 255 1741
4thRespondent’s representative: Mr PW Ndagwana
Respondent’s address: Private Bag X0032
Telephone: 040 608 4540
Telefax: 040 608 4313 / 086 255 1741
DETAILS OF HEARING AND REPRESENTATION
1. An Unfair Labour Practice dispute relating to promotion was scheduled for Arbitration in terms of section 186(2) of the Labour Relations Act, No 66 of 1995, as amended (herein referred to as the ‘”LRA”). The hearing was concluded at the boardroom of the Mount Frere Department of Education district office in Mount Frere on 16 March 2016. The proceedings were digitally recorded. The applicant, National Professional Educator’s Organisation (NAPTOSA) obo Archibald Msengi was represented by Mr RS Dalasile a union official. The respondent, Department of Education – Eastern Cape, Head of Department of the Department of Education – Eastern Cape and Dangwana Secondary School: School Governing Body were represented by Mr LN Mashoai a Labour Relations Manager in the employ of the respondent.
Mr TT Mdondolo the incumbent was represented by Mr PW Ndagwana a union official from the South African Democratic Teachers Union of South Africa (SADTU). After conclusion of the arbitration proceedings the parties requested a 7 day extension for the submission of closing arguments. This request was acceeded to and all parties submitted their arguments within the agreed timeframe. The last date of submission was 23 March 2016.
ISSUE TO BE DECIDED
2. I am required to determine whether the Department of Education committed an unfair labour practice relating to promotion by not promoting the applicant to principal of Dangwana Senior Secondary School.
SURVEY OF ARGUMENTS
3. At the commencement of the proceedings the applicant and respondent submitted a joint bundle of documents,of which the applicant placed document A,C and Din dispute, the contents of the rest of the documents were agreed as what it purports to be. The following were agreed as common cause facts:
3.1 The applicant applied and was shortlisted for the post of PrincipalDangwana Senior Secondary School (post number 72, volume 5 of 2014, level 4 with closing date 14 November 2014)
3.2 The interview panel consisted of Mr G Nkushubana, Ms P Shusghu and Ms Buwa
3.4 Mr TT Ndondolo was recommended and appointed as PrincipalDangwana Senior Secondary School while the applicant was the second recommended candidate.
3.5 The applicant based his claim of an unfair labour practice dispute relating to promotion on the following grounds:
3.5.1 Ms Shushu, one of the interview panellists, wanted to recuse herself from the interview process due to the fact the she felt that she would be too subjective during the interview. Instead of recusing herself, she participated in the process and therefore she was biased towards the applicant.
3.5.2 Ms Majova the Circuit Manager exercised undue influence over the interview panel in favour of Mr TT Ndondololo, the successful candidate.
3.5.3 The School Governing Body did not ratify or make any recommendation for the appointment of the incumbent to the Head of Department Eastern Cape,instead the interview panel’s recommendation was used to make the appointment and therefore the appointment of the incumbent was irregular.
3.6 The outcome that the applicant seeks is for the appointment of Mr T Ndondolo to be set aside and the appointment process to be redone.
THE APPLICANT’S SUBMISSIONS
4. The applicant, Archibald Masengi testified that he was the Deputy Principal of Dangwana Senior Secondary School. He also acted as the principal off the school before the advertisement and filling of the post. An open bulletin was published wherein the post of principal of Dangwana Senior Secondary School was published. He applied for the position and submitted his application form before the closing date of 11 November 2014. He was informed by a staff member that the district office was going to conduct interview training for all school governing bodies at the Roman Catholic Church in Mount Frere on 25 February 2015. He took it upon himself to personally inform all the School Governing Body members telephonically of the scheduled training. On 25 February 2015the site shopsteward brought him a letter addressed to SADTU,which was written by Ms PP Vacu-Shushu, wherein she indicated that she wanted to withdraw from the interview panel since she did not believe that she would be an objective member of the interview panel. He called a meeting with Ms Shushu and his senior management team in order to discuss the content of the letter. He however advised Ms Shushu to raise the issue with the SGB. He later filed the letter for the SGB and did not hand it back to the SADTU site shopsteward.
5. The interviews were conducted on 11 March 2015 and he was the first candidate to be interviewed. He noted that Ms Vacu-Shushu was part of the interview panel and he did not object to her presence even though an opportunity was granted to him to mention anything in general. He remained at the school until about 15h00. He is of the view that the SGB never met with the interview panel in order to ratify the interview panel’s recommendations and therefore the appointment of Mr TT Ndondolo was irregular.
6. The second witness for the applicant Ms NontshumaleloSkrweqe testified that she is an educator at the Dangwana Senior Secondary School. She was an elected member of the SGB of the school. She was informed about the interview training session, which was held at the Roman Catholic Church in Mount Frere, by the applicant a few days before the training session. She could however not attend the session as she had family issues which she had to attend to in Pietermaritzburg. She was at school on11 March 2015 when the interviews wereconducted and she was not informed or invited to a SGB meeting to discuss the interview results.
7. The third witness for the applicant, Mr Simvumile Mbebe testified that he is employed as a security guard at Dingwnana Senior Secondary school and was also an elected SGB member. He normally gets informed about SGB meetings by the applicant. He was however was not informed about the interview panel training which took place on 25 February 2015 or about a SGB meeting which would take place after the interviews of 11 March 2015. He normally attended all meetings which he was informed off. On11 March 2015 he was aware of the interviews which were taking place but did not participate since he did not attend the training session.
8. The applicant’s fourth witness,, Mr Gamalendoda Nkushubana testified that he was the former Deputy Chairperson of the Dangwana Senior Secondary School SGB. He did not want to give evidence about the processes which were followed regarding the appointment of Mr TT Ndondolo. He was however part of the interview panel. The reason for his refusal was due to the fact that he received threatening phone calls from an unknown person.
THE RESPONDENT’S SUBMISSIONS
9. The respondent’s witness, Ms Princess Nomalanga Majova testified that she was employed as aCircuit Canager/ Education Development Officer (EDO). The Dangwana Senior Secondary School was one of the 26 schools for which she is responsible for in terms of administration. She informed the applicant about the interview panel training, which took place on 25 February 2015, in order for him to attend. She followed normal protocol when she phoned the applicant who was the acting principal at that stage. He was to inform the other SGB members about the training. There were 7 active members of the SGB at that stage and only 5 attended the interview panel training. 2 of the 5 SGB memberswho attended, recused themselves from the interview panel since they are related to the applicant and therefore had an interest in the matter. One of the SGB members who recused themself was Mr Ngonoto, who was the chairperson of the SGB. She however was not involved in the training session of the SGBas they were assisted by another EDO. She attended the interviews on 11 March 2015 as the resource person. The interview panel interviewed 4 candidates while the fifth did not attend. In her view no one was prejudiced during the interview process. The marks allocated were based on the individual panel member’s own opinion regarding the performance of each candidate. All candidates were given an opportunity to address the panel at the end of the interviews and the applicant did not raise any issue regarding the presence of Ms Shushu.
10. After the interviews she and the SADTU observer, Mr Manyela, were requested to excuse themselves from the interview panel’s deliberations and they waited outside the venue. They left Mr Nkoshubana, Ms Buwa and Ms Shushu in the room. She assumed that the applicant, as the acting principal, informed the other two members of the SGB about the meeting but they were not in attendance. She was however of the view that the SGBformed a quorum since 2 out of the 7 recused themselves from the process and the 3 out of the remaining 5 members formed a quorum. She however did not know who convened the SGB meeting since she was only called to the interview meeting. She also did not expect the applicant to have convened the SGB meeting after the interviews, since he was a candidate. After a while they were called back into the room and were given the SGB’s recommendations. She took the recommendations to the Human Resource department and the appointment was made. She did not read the minutes of the SGB since it was not meant for her but she was aware that the pack contained minutes. She went to the school and introduced Mr TT Ndondolo to the school and staff. She did not receive any complaints from the staff or SGB about the processes which were followed.
11. The fourth respondent, Mr TT Ndondolo declined to lead evidence or call any witnesses.
ANALYSIS OF EVIDENCE AND ARGUMENT
12. The dispute before me concerns an unfair labour practice relating to promotion. The applicant alleged that the Department of Education – Eastern Cape committed an unfair labour practice by not promoting him to principal of Dangwana Senior Secondary School. The applicant therefore bears the onus to establish the existence of the alleged unfair labour practice.
13. The applicant based his claim of an unfair labour practice on the following:
13.1 Ms Shushu, one of the interview panellists, wanted to recuse herself from the interview process due to the fact the she felt that she would be too subjective during the interview. Instead of recusing herself she still participated in the process and therefore she was biased towards the applicant.
13.2 Ms Majova the Circuit Manager exercised undue influence over the interview panel in favour of Mr TT Ndondololo the successful incumbent.
13.4 That School Governing Body did not ratify the recommendations of the interview panel for the appointment of the incumbent by the Department of Education - Eastern Cape and therefore the appointment of the incumbent was irregular.
14. The applicant suggested that Ms Vacu-Shushu submitted a letter to SADTU wherein she expressed her desire not to participate in the processes of appointing a principal at Dangwana Senior Secondary School. Ms Vacu-Shushu was an elected member of the SGB and represented the teacher’s component. The motivation for her reluctance to participate was that she was of the view that she would not be objective in the proceedings since she had been a victim of circumstances at the school. These circumstances, the applicant testified, emanated from the failure of the SGB to appoint her as the Head of Department in 2013. He had acted as the Resource person during that interview process. The applicant however on the same day of receipt of the letter and which was also the same day of the panellist training at the Roman Catholic church, had a meeting with Ms Vacu-Shushu. This meeting comprised of himself, the SADTU representative who gave the letter to him and his senior management team. The applicant stated that the meeting was concluded with a resolution that Ms Vacu-Shushu should discuss her intended recusal with the SGB. The applicant then filed the letter for the SGB.
15. The applicant was shortlisted and was the first candidate to be interviewed on 11 March 2015. He observed that Ms Vacu-Shushu was part of the interview panel and did not object to her presence. The interview took place 2 weeks after he took possession ofMs Vacu-Shushu’s letter. As the acting principal, the applicant had full access to the SGB including the EDO who normally would act as the resource person during the interviews when a principal post was contested. He could have raised this issue with the aforementioned parties even before the scheduled interviews but he failed to do that. If he had any objection to Ms Vacu-Shushubeing part of the interview panel then he also had an opportunity to raise this objection before the interviews commenced since he was the first interviewee. It is therefore clear from his inaction that he had no objection to Ms Vacu-Shushu interviewing him. He reconciled himself with the fact that Ms Vacu-Shushu, who previously was a reluctant participant, would be part of the forum who would determine who should be appointed in the position as principal which he also contested.
16. The applicant suggested that the marks allocation of Ms Vacu-Shushu compared with Mr Nkushubana’s, was a clear indication of the bias which she had towards him. Mr Nkushubana scored the applicant 50/50 while Ms Vacu-Shushu scored him 24/50. The third panellist, with whom the applicant did not have issues, scored him 18/50 (and 46/50 forMr Ndondolo the incumbent). The fact is that Ms Vacu-Shushu allocated more points to the applicant than Ms Buwa, the third panellist. It is therefore apparent that the score allocation of Ms Vacu-Shushu is in line with the third panellist and her scoring can therefore not be construed as subjective or biased. Given the fact that the applicant did not object to Ms Vacu-Shushu being part of the interview panel and the comparative score allocation, I find that the applicant failed to establish, on the balance of probabilities, that Ms Vacu-Shushu displayed bias towards him during the interviews. This argument should therefore stand to fail.
17. The second contention of the applicant was that the resource person, Ms Majova, exercised undue influence over the interview panel in favour of the incumbent. The applicant was relying on section 6(3)(1)(b)(v) of the Employment of Educators Act 76 of 1998. The applicant testified and conceded that he did not personally hear or witness any comments by Ms Majova, which could be construed as influencing the panel, since he was interviewed first and was not in attendance when the other interviewees was interviewed. He also did not indicate who of his witnesses would testify to the alleged undue influence. The 2 witnesses of the applicant did not testify on this allegation since they did not form part of the interview panel, The applicant did notput his case in this regard to Ms Majova when she testified. There is therefore no evidence to support the allegation of undue influence and accordingly I find that the applicant has failed to establish, on the balance of probabilities, that the recommendation for the appointment of Mr Ndondolo was arrived at based on undue influence from the EDO who acted as the resource person.
18. The third issue raised by the applicant was that the SGB did not ratify the recommendations of the interview panel. Therefore, according to the applicant, the decision of the Department of Education – Eastern Cape was based on a defect and should be regarded as irregular. At the commencement of the arbitration proceedings the applicant requested the respondent to make all documentation regarding the filling of the principal post available to him. This request was compliedwith by the respondent. The applicant however contended that the minutes which were supplied by the respondent could not be relied upon since theywere incoherent and there were differences in the handwriting and paper utilized by the scribe. Ms Majova however testified that the minutes contained in the bundle of documents were the minutes which she received from the SGB after the interview and which she submitted to the Human Resource Department. She was not the scribe and could not comment on its appearance or the paper utilized and could only speculate what might have happened. I agree with the applicant that the minutes submitted could have been presented better and compiled in a different format. However thesewere the minutes submitted by the “SGB” in support of their recommendation to the department. The disjointed minutes reflect the information contained on the recommendation form (HRA: Form C1) and I therefore accept the documents as the minutes of the shortlisting process and interviews.
19. The remaining question is whether the recommendation which was submitted for approval to the department was made by the SGB or the interviewing panel. It is undisputed that the same members of the SGB who were part of the interviewing panel were the only ones who made the recommendations to the department. It is common cause that the SGB consisted of 7 active members at the time of the commencement of the appointment proceedings and 2 recused themselves due to the fact that they were related to the applicant. The parties agreed that there were only 5 SGB members left after the 2 recusals. This number was made up of 2 educators, 2 parents and 1 non-teaching staff governor. The interview panel consisted of the remaining 2 parents and 1 educator. The shortlisting was done on 25 February 2015 and the interviews on 11 March 2015. The department witness, Ms Majova, testified that after the interviews she and the observer were requested to excuse the panel and that they should wait outside. She stated that the Chairperson of the panel, who was also the Deputy Chairperson of the SGB, informed her that they would convene a SGB meeting in order to ratify the recommendation. She was of the view that the 3 SGB members formed a quorum. She and the union observer were later called back and she was given a pack of documents which contained the minutes and recommendation form which they all signed.
20. The applicant argued that the meeting of the panel after the interview was not the SGB since the other 2 remaining members were not informed or invited to the meeting. This contention was confirmed by the applicant’s two witnesses, Ms Skrweqe and Mr Mbebe. The two however were at school on 11 March 2015 when the interviews took place and showed no interest in enquiring from the panel when the SGB meeting would take place to ratify the interview panel’s recommendations. In addition, the legislature, in the form of the Employment of Educators Act and PAM, envisaged that the parent component of the SGB should play a leading role in the employment of educators. In this instance, both parentsremained on the interview panel after the other 2 members recused themselves from the appointment procedures. They formed part of the interviewing panel and the subsequent SGB meeting which ratified their own recommendation. I agree with the applicant that there is no evidence that a SGB meeting was called by the SGB, but that does not mean that an SGB meeting was not convened. In the event that the remaining 5 SGB members attended the SGB then it would have meant that the parent component would have been outnumbered by the educators and non-teaching staff component. I am of the view that at least one of the three would have been required to abstain from voting or deliberating on the recommendations of the interview panel. I am not convinced that the additional SGB member would have been able to convince the interviewing panel to make changes to their recommendations. I earlier indicated that I accepted that the attached minutes to the recommendation form were compiled by the SGB members. The minutes indicate that the interview panel assumed the role of a convened SGB meeting after the EDO and the union observer were requested to leave the room and they ratified their own recommendations. The Chairperson of the interview panel and subsequent SGB meeting would have been the ideal person to explain why they continued with the SGB meeting after the interview, but he refused to participate in the proceedings. The applicant argued that I should arrive at negative assumptions in the refusal of Mr Nkushubana’s refusal to testify about the processes at the arbitration hearing. Mr Nkushubana however refused to indicate who made the alleged threats and did not supply me with any SAPS case number or interdict which would have indicated that he took the alleged threats seriously. I attempted to assist the applicant to convince Mr Nkushubana to testify but the applicant chose to withdraw him as a witness. I therefore reject the applicant’s argument.
21. In order for me to grant the applicant the relief which he sought, he had to establish, on a balance of probabilities, that he was the best candidate and should have been appointed. I have already addressed the score allocation of the interview panel in paragraph 16 above. The panel decided to recommend the best candidate based on the score allocation. It is clear for the recommendation form that Mr TT Ndondolo received significantly better scores than the applicant. In addition, the applicant’s own witness, Ms Skrweqe, testified that Mr TT Ndondolo effected changes at the school which improved discipline amongst the teachers and the learners and that the atmosphere at the school improved significantly. She submitted that the school was a much better place than compared to when the applicant was the acting principal. The applicant’s main argument was based on the issues which I have already addressed and he failed to establish, on a balance of probabilities, that he was the best candidate. There might have been minor procedural issues which could have been dealt with better by the EDO but it was not so significant that it resulted in an unfair labour practice. I also considered the interest of the learners,in that the school is evidently better off after the appointment of Mr TT Ndondolo. I therefore find that the applicant failed to establish, on the balance of probabilities, that an unfair labour practice was committed against him when the Department of Education – Eastern Cape failed to appoint him as principal of Dangwana Senior Secondary school.
22. The applicant, Archibald Msengi failed to establish that the respondents committed an unfair labour practice against him.
23. The applicant’s dispute is dismissed.
Panelist: Raymond Jonathan