Case Number: PSES 737- 15/16EC
Province: Eastern Cape
Applicant: SADTU obo Tebekana Jongiwe
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 25 May 2016
Arbitrator: N. Bantwini
Case No.: PSES 737- 15/16EC
Date of Award: 25 May 2016
In the ARBITRATION between:
SADTU obo Tebekana Jongiwe Applicant/Employee
Department of Education: Eastern Cape First Respondent
Luzuko Dama Second Respondent
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration was heard on 16 May 2016 at the offices of the first respondent in Mthatha. It came before the ELRC in terms of Section 191 (1) (5) (a) read with section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA).
2.Parties agreed to submit written closing arguments on 23 May 2016. No arguments were received from the first and second respondent’s representatives. Closing arguments have been considered in the preparation of this award.
3. Mr Siyabonga Gashi, an official from SADTU appeared for the applicant while Mr Tsiu Liphapang appeared for the first respondent. The second respondent, Mr Luzuko Dama, the second respondent was present and was represented by Mr Tandekile Mlalandle of NAPTOSA.
ISSUE TO BE DECIDED
4. The issue to be decided is whether the first respondent’s conduct of not appointing the applicant for the position of a Principal at Mpindweni JSS constitutes unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended or not.
BACKGROUND TO THE DISPUTE
5. The applicant referred a dispute to the ELRC through her union, SADTU regarding an alleged refusal by the respondent to appoint her to a position of Principal at Mpindweni Junior Secondary School. When the dispute could not be resolved at conciliation level, the applicant filed a request for arbitration.
SURVEY OF EVIDENCE AND ARGUMENT
6. According to Mr Gashi’s opening statement, the dispute relates to unfair labour practice based on promotion. The applicant was not afforded a fair opportunity to compete for the position. She was prejudiced and she could have performed well at the interview as she possesses Masters in Education. The process was not concluded at the school but in the first respondent’s offices. Both unions, SADTU and NAPTOSA were in attendance.
7. The applicant seeks the appointment of the second respondent to be reversed and the position must be re advertised as a remedy.
8. The applicant, Ms Jongiwe Tebekana testified under oath as follows:
9. She was one of the candidates for the position of a Principal which was advertised by the first respondent at Mpindweni J.S S. She started teaching on 22 February 1993 at Mpindweni JSS and possesses Master’s Degree in Education. The interview for the position was conducted on 10 June 2015. On 11 June 2015, she was phoned by a community member, Mr Mncedisi Mpande telling her that she has won the interview and that the SGB members like her.
10. On the day before the interview, Mr Mpande told her that she (the applicant) will not be appointed to the advertised position. She thought that the information was leaked by Ms Phendu who was the Acting Principal at the time. The applicant further stated that the selection process was unfair and she was ignored.
11. Under cross-examination, the applicant testified as follows;
12. She knows the names of the panellists and the relations were good before the interview but she realised after the interview that the relations were not good. She could not report the issue to the EDO as the community member was going to come back to her with more information.
13. When it was put to her that her testimony is hearsay and whether she will call Mr Mpande to testify, the applicant stated that she will not call Mr Mpande to testify.
14. Under cross-examination by Mr Mlalandle, the applicant stated that the Headman and Mr Mpande wanted to appoint her as the Principal. She thought that panellists are bound by the confidentiality clause. She was shocked when she heard the rumours but she did not report the issue to the first respondent.
15. Under re- examination, the applicant stated that Ms Phendu’ s attitude was not good towards her on the day of the interview as she tried to disturb her by telling her that she is supposed to be in class on numerous occasions.
16. Mr Bongani Ntanjana, the applicant’ s witness testified as follows;
17. He was an observer during the selection process of the Principal position at Mpindweni JSS. The first shortlisting process held on 03June 2015 did not materialise due to the fact that the panel was not properly constituted and was not ready and had not training. The second sitting was on 05 June 2015 and the process was conducted successfully.
18. The resource person was Mrs Ntshangase. Although the resource person committed to train the panel, there were challenges with one of the panellist in that he allocated scores in a wrong column but that was rectified during the process. The scoring panellists were parents and the sitting arrangement was incorrect as the panellist who is a Teacher managed to see the scores as they were allocated. The resource person‘s response when this was raised as a concern was that the panellist who is a teacher was checking if the scores were allocated in the correct columns. His assessment was that the panel was not trained and as such they were unable to make a reasonable decision. The resource person insisted that the interviews should be conducted and finalised despite the challenges.
19. Both unions did not sign the interview documents as they both believed that the process was not fair. The resource person promised to refer the matter to her seniors.
20. He refused to go to the resources’ person office for the purpose of signing the document when she (the resources person) phoned him. The witness stated further that he was surprised to note that an appointment of the Principal was made.
21. Under cross-examination by Mr Liphapang, the witness testified as follows;
22. He did not know the applicant before the interview process and candidates were not informed about the observers’ union affiliations.
23. When it was put to the witness that NAPTOSA will dispute his evidence, his response was that it is recorded in the minutes of the meeting which was held after the interview. He also stated that although some of his concerns may not appear in the minutes, some have been indicated. The witness further stated that he advised the District Secretary of SADTU to write a letter objecting to the appointment of the second respondent as a result of the concerns he raised during the interview. The witness could not produce the letter instead he stated that he realise its importance when he was asked about it.
24. When it was put to the witness that the first respondent never received such a letter, the witness was surprised but indicated that he never saw the letter either. The witness stated further that he was not observing interviews for the first time. The behaviour of father resource person was questionable as she behaved as someone who was rushing everything. She also indicated that she was writing down all the concerns of the union. The disparity of the scores was strange as they were ranging from 30 to 87. Nobody changed the scores.
25. Under cross-examination by Mr Mlalandle, the witness testified as follows;
26. On the second day of the shortlisting the panel was ready as the resource person committed to train them. He was present at the interview and same questions were posed to the candidates.
27. When it was put to the witness that the interview was conducted fairly and that the SGB made a correct decision, the witness disputed that.
28. Under re-examination, the witness stated that he raised an objection and it appears on page 10 of the minutes.
29. In closing, Mr Gashi argued as follows;
30. The applicant holds a Master’s Degree in Education over and above the baseline minimum requirement, she is currently a PhD candidate at Walter Sisulu University, a matter that could have given her edge over other applicants. The panel was not trained and as such was not in a position to make a reasonable decision. The panel could not proceed with shortlisting on the first day (03 June 2015) as a result of lack of training.
31. The mistakes made by one of the scoring panelists led to the second respondent scoring abnormally high points above the rest of the candidates. The difference between the applicant and the second respondent is a whopping 50 points. It is inconceivable that a person of the applicant’s academic caliber would perform so “poorly “ in an interview that was conducted in vernacular. The remedy sought by the applicant is that the appointment of the second respondent be set aside, post be re-advertised and the interviews be conducted by an Independent Panel.
32. According to Mr Liphapang opening statement, the first respondent did not prejudice the applicant as the procedures were followed during the recruitment and appointment of a Principal at Mpindweni JSS.
33. According to Mr Mlalandle’s opening statement, Mr Dama was appointed fairly and the process was conducted in a fair manner.
34. Ms Neli Nomasawu Booi, the first respondent’s witness testified under oath as follows:
35. She was an observer during the interview representing labour and is affiliated to NAPTOSA. The first respondent followed a fair process during the shortlisting and at the interview. She never register any complaint. All the panellists could read and write. The only challenge that was experienced was that one of the panellists made a mistake of allocating scores in a wrong column but that issue was addressed by the resource person in the presence of the whole panel. She never had a problem with the resource person as she was guiding the panel throughout the process. She forgot to sign the interview document as it was already late when the process was finalised. She later signed the document when she was phoned by the resource person.
36. Under cross examination by Mr Gashi the witness stated that she was not part of the shortlisting process and only attended the interview. The panellists were trained and only one panellist had a problem with allocation of scores by writing them in a wrong column. This was rectified immediately by the resource person. She never had a problem with the interview process but she forgot to sign. She could have indicated her concerns if she had some.
37. Under cross-examination by Mr Mlalandle, the witness stated that candidates were treated equally and the process was conducted fairly. The results were fair.
38. The second witness, Mrs Mntwelizwe Ntombekhaya testified as follows;
39. She was a scoring panellist during the interview of the Principal’s position for Mpindweni JSS. The process was conducted fairly. One of the scoring panellists had a challenge of allocating scores in a wrong column. This was rectified immediately when the resource person raised it. The panellist was guided by other panellist member. Both unions did not sign at the completion of the process. The panel was trained before he selection process was conducted.
40. Under cross-examination by Mr Gashi, the witness testified that the first shortlisting process was postponed due to the fact that the panel was not incorrectly constituted as there was a Teacher who was not SGB member.
41. Both unions did not sign the document and the highest scorer was recommended for the position of a Principal. The SGB members were trained before the selection process was conducted.
42. Under re-examination the witness stated that the NAPTOSA representative did not say anything while the SADTU representative voiced concerns about the disparity of the scores when they were revealed.
43. Mrs Gloria Ntombovuyo Ntshangase, the third witness testified as follows;
44. She was the resource person during the interview and the process was conducted fairly. Four out of five candidates who were invited attended the interview process.
45. During the shortlisting process, the panel of the interview formulated criteria and candidates were allocated numbers so that they (the panel) are not influenced by the names and in order to apply fairness.
46. One parent made a mistake of entering scores in a wrong column but he was guided by other panellists and her. When the secretary announced the scores, the SADTU representative raised a concern citing the gap between the highest and the lowest scorer. NAPTOSA did not raise anything. She was shocked when SADTU representative refused to sign the final interview document.
47. All panellist members were able to write and were trained by the Circuit Managers at Holy cross before the selection process was conducted.
48. The witness also stated that she never interfered with the process of the interview and never changed scores.
49. Under cross-examination by Mr Gashi, the witness stated that she works for the respondent as the Education Development Specialist (EDO). She was the Resource Person during the recruitment process and her duty was to see to it that a fair procedure is adhered to. None of the unions interjected until the announcement of the scores when SADTU claimed that the gap is too wide between number 1 and number 4.
50. The witness stated further that she never rushed the process everybody was given enough time. She could not force SADTU to sign the interview document as the representative said he wanted an independent panel.
51. Under cross-examination by Mr Mlalandle, the witness stated that there was no change of score sheets and the panel was not influenced by anyone. The applicant was never prejudiced at any stage as the process was free and fair to all candidates.
52. Under re-examination the witness stated that SGB powers cannot be taken by unions. The incumbent, Mr Dama was the highest scorer while he applicant was the lowest scorer.
ANALYSIS OF EVIDENCE AND ARGUMENTS
53. The issues of common cause that relates to this matter are as follows:
That the applicant applied for an advertised position of a Principal at Mpindweni Junior Secondary school.
That the applicant was shortlisted and was interviewed for the position.
That the second respondent, Mr Dama was selected as the best candidate and was appointed to the position of a Principal.
54. It is the applicant’s evidence that she was told by a community member, Mr Phendu that she won the interview. The applicant did not call Mr Phendu to testify and he was not even part of the selection process.
55. It is also the applicant’s claim through her union that the panel of the interview was not trained hence the irregular allocation of scores by one of the scoring members.
56. All respondent’s witnesses, including the SGB member testified that the panel of the interview was trained. All witnesses also testified that the first shortlisting process was postponed for 05 June 2015 due to the fact that the panel was not properly constituted as it included a Teacher who was not a member of SGB.
57. In his closing Mr Gashi alleges that due to lack of training of the panel, one of the scorers scored whopping scores to the second respondent.
58. The respondent’s witnesses testified that the scoring parent who made a mistake of allocating scores in wrong columns was corrected immediately when the resource person noticed him at the commencement of the interview process.
59. It is undisputed evidence that Mr nnn Dama, the second respondent was appointed to the position based on the fact that he was rated as the best candidate for the position, being the highest scorer with 87 points while the applicant was rated number 4 with 30 points.
60. The respondent’s witnesses testified emphatically that the applicant was not prejudiced during the process of recruitment and selection of the Principal at Mpindweni JSS and that all candidates were afforded the same treatment. All witnesses testified that the same questions were posed to the candidates and no scores were altered.
46. In Department of Justice v CCMA & others (2004) 13 LAC 1.11.6 the Court found that the Labour Relations Act does not create a right to be promoted. It was however said that the employer has an obligation in terms of section 186(2) to act fairly towards the employee in the selection and promotion process.
61. It is evident from both party’s evidence that the first respondent did not exercise its prerogative in appointing the second respondent in a biased, unfair, capricious and unjust manner.
62. The applicant has failed to discharge the onus to prove the claim of unfair labour practice based on promotion by the first respondent.
63. I therefore make the following award:
64. The first respondent, the Department of Education – Eastern Cape cannot be compelled to nullify Mr Luzuko Dama’s appointment to the position of a Principal at Mpindweni Junior Secondary School.
65. The first respondent, the Department of Education-Eastern Cape cannot be compelled also, to appoint the applicant Ms Jongiwe Tebekana, to the position of Principal at Mpindweni Junior Secondary School.
66. The application is dismissed.
67. There is no order as to costs