Award  Date:
11 July 2017
Case Number: PSES785-16/17NW
Province: North West
Applicant: Moepi M.W.
Respondent: 1st Respondent Department of Education and Sport Development-North West and 2nd Respondent Seetane L.S.
Venue: the North West Department of Education Offices of the Dr Kenneth Kaunda District Office at Teemane Building in Potchefstroom.
Award Date: 11 July 2017
Arbitrator: Shaku Landela
Case Number: PSES785-16/17NW
Panellist: Shaku Landela
Date of Award: 11 July 2017

In the MATTER between:

Department of Education and Sport Development – North West 1ST RESPONDENT

Parties Representatives
Schőltze Attorneys Inc. for the Applicant: Mr Wimpie Schőltz
Labour Relations Practitioner for the 1st Respondent: Mr Pule Meje
SADTU Official Representing 2nd Respondent: Ms C.N. Cindi and Mr L.J. Molefe

This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and herein after referred to as the LRA.
This award is not intended to be a verbatim transcript of the evidence led at the arbitration hearing but rather a determination with brief reasons for such determination. Evidence relevant to the determination or to support any of the elements of fairness as required may be referred to. This however does not mean that I have failed to consider other evidence or ignored such evidence in coming to my conclusion.
[1] The arbitration hearing was set down over 2 days on 13 June 2017 and 20 June 2017 at 10h00 on both days at the North West Department of Education Offices of the Dr Kenneth Kaunda District Office at Teemane Building in Potchefstroom.
[2] On the second day of this arbitration, 20 June 2017, SADTU representative Mr L.J. Molefe, stood in for Ms C.N Cindi.
[3] Ms Cindi, representing the 2nd Respondent, indicated from the beginning of this matter on 13 June 2017 that they will be relying entirely on the first Respondent’s representative’s presentation of evidence and will not be leading any evidence themselves. She also indicated that she understood the consequences of not calling a witness that an inference could be drawn. Mr Molefe confirmed this on 20 June 2017.
[4] Both parties recorded their 100% attendance throughout the proceedings on both arbitration scheduled dates. The Interpreter, Mr Thulane Maluleke, was also present at scheduled arbitration proceedings on both dates.
[5] Parties concluded their Pre-Arbitration Minutes on 11 May 2017 and agreed to exchange their bundles of documents 14 days before the scheduled arbitration. The Applicant submitted its 46 paginated bundled named ‘A’ while a 57 page bundle of documents named ‘R’ was submitted by the Respondent.
[6] Parties further agreed that the documents were accepted at face value for what they purported to be.
[7] Only one witness from each party testified.
[8] Digital recordings were made and I kept hand written notes.
[9] I am tasked to determine whether there was any unfair act or omission by the Employer (1st Respondent) in not promoting the Applicant, as the best candidate, for the advertised principal’s post No. 2016/081 at Gontse Primary School.
[10] The Applicant is currently in the employ of the 1st Respondent as a Deputy Principal at Gontse Primary School.
[11] The vacant principal’s post of Gontse Primary School (Post No. 2016/081), which the Applicant had been appointed on an acting capacity from 26 June 2015 to 17 January 2017, was advertised as per Circular No.5 of 2016 dated 11 February 2016.
[12] The Applicant tendered his application for the post as advertised and was shortlisted to be interviewed on 11 June 2016. During this process, the interview panel scored him the highest candidate and recommended him as such to the School Governing Body (SGB).
[13] The SGB of Gontse Primary School and SADTU lodged a dispute complaining about the manner in which the interviews were conducted.
[14] On 21 July 2016 the District Review Panel (DRP), which consists of members from employer and labour and whose main function is to review all complaints or disputes pertaining to interviews in the district, took a decision to nullify the interview process held on 11 June 2016 and agreed to appoint a new independent interview panel with SGB members as observers.
[15] On 22 July 2016, the district director Dr .Motara, as a delegated authority, ratified the decision of the DRP and duly appointed an independent panel.
[16] The four shortlisted candidates were invited to the interviews set for 05 August 2016. The Applicant was the only candidate who attended the interview and as a result the interview process could not proceed.
[17] The interview for this post was then set for the 09th and 13th of December 2016. The Applicant was invited and he participated accordingly but the 2nd Respondent was scored the highest and appointed to the principal’s post No. 2016/081 at Gontse Primary School.
[18] The Applicant then lodged an unfair labour practice based on promotion with the ELRC. He is challenging the failure of the employer for not appointing him, given the length of his service, his qualifications and over and above, his experience as acting principal for a considerable period of time, which created an expectation and as such was unfair. He also challenges the process how the interview was undertaken.
[19] The Applicant is seeking protected promotion as the prayed for relief.

Applicant’s Version
[20] The Applicant, Mosimanegape Webster Moepi, testified under oath to the following:
[21] The Applicant was referred to pages 8, 9, 10 and 11 of bundle ‘A’ and gave an account of what qualifications he holds as follows:
21.1 Obtained his three-year Secondary Education Diploma with Vista University in 1994, he was also awarded the Vice-Chancellor’s University Merit Award for obtaining the highest percentage(s) in the first year course in History 1 from 8 different universities during this academic period in 1991.
21.2 Advance Certificate in Education awarded to the Applicant cum laude by the North West University in 2005.
21.3 Honours Bachelor of Education in Education Management, Law and Systems awarded to the Applicant with distinction in 2013, meaning he performed beyond the threshold which was an exceptional performance.
[22] He testified that he was appointed by the Respondent on 12 January 1994 and has 22 years of service with the same employer. He was promoted to the position of Head of Department (School based) in 2010 and further promoted to the Deputy Principal post in 2012.
[23] It is the Applicant’s testimony that he was appointed to act in the principal’s post at Gontse Primary School from 26 June 2015 until 18 January 2017, a total of 19 months. The policy of the Department provides that a person may act in a post for a maximum period of 3 months.
[24] The longer period he acted created an expectation that, should the principal post be advertised, he would be considered for appointment.
[25] The post was advertised in February 2016, after Applicant had been in the principal acting position for one year. He applied for the post and was invited to the interview on 11 June 2016. There were four candidates invited for an interview namely, the Applicant (himself), Mr Seetane, Mr Mofokeng and Mr Pholo.
[26] The outcome of the 11 June 2016 interview was that the Applicant scored the highest final average selection committee score at 56.3 (referred to page 19 of the Respondent’s bundle) and the 2nd Respondent, Mr Seetane, who scored 43. A complaint was filed which went to the District Review Panel of which he was not aware of.
[27] The second interview was then scheduled to be held on 05 August 2016. The Applicant attended and found that he was the only candidate that showed up for that scheduled interview. The 2nd Respondent was also not in attendance. He waited for almost 2 hours and at around 10h00 he was told that the interviews could not take place because other candidates were not present and the one candidate withdrew. Other candidates did not answer the calls as their phones were on voicemail.
[28] The third interview was set for 09 December 2016 and the Applicant again attended and this time around Mr Seetane, Mr Mabaso and Miss Seokolo attended the interviews.
[29] The Applicant testified that he did not know the outcome of that interview until the 2nd Respondent was introduced to his school as the newly appointed principal of the school.
[30] When the Applicant was referred to a document on page 40 of the ‘R’ bundle (Acknowledgement of Presence in Interviews for Promotional posts (PL1 – 4), he stated that he had never seen the document before. From his understanding, the document was about recommending that Mr Seetane be appointed and that he became second.
[31] In the final interview score sheet, Moepi M.W. – the Applicant scored 119 while Seetane L.S. – 2nd Respondent, scored 123. This is a big difference as reflected on page 19 of the Respondent. The difference could have emanated from the panel or may be a reflection of an element of unfairness.
[32] The Applicant testified that he was appointed to the position of a deputy principal in 2015 and Mr Seetane came from Tiang Primary School as a deputy principal but he was not aware of any experience that the 2nd Respondent had. He was asked about his experience in the interview and told the panel that he acted as a principal and he has relevant experience and during his acting term he performed well.
[33] Still on the performance aspect, the Applicant was led to page 26 of the ‘A’ bundle which he explained was the Template for monthly visits by Departmental Officials and Other Stakeholders 2014. The purpose of the documentation is to provide monitoring and support for the Implementation of the School Improvement Plan (SIP). These officials normally come as and when and unannounced. His school was applauded for the detailed, comprehensive School Improvement Plan (SIP). In subsequent visits it was found that the feedback the Applicant received was that there was consistency in the SIP.
[34] The Computer-Test Tool assessment to determine the competency of the candidates that was used as criteria was not used in the interviews. There were 3 panellists who asked him a total of 12 questions among them and one was about the Computer-Task Tool. The Applicant testified that he possessed considerable advance knowledge computer and he is able to do graphic designing and was proficient with many different software in computers. The panel did not try to establish his skills in computers and communications
[35] Led to page 35 of the ‘R’ bundle, the legal representative explained that it was an appointment to serve in the independent panel for recruitment and selection for post no. 2016/081 principal of Gontse Primary School made by the district director, Mr H. Motara, on 22 July 2016. The Applicant had no knowledge of the document. Mr Mogaki was appointed as the chairperson of the panel and Mr Botes as the resource person. Also appointed into the panel was Ms M.N. Seokolo – Circuit Manager; Mrs C. Melela – School Principal; Rec L. Mokwena – School Principal; and Mrs N. Mashiqa – Principal. The Resource Person would advise the panel on Departmental Policies and ensure that the interview process ran smoothly without any hiccup. He is not necessarily a panellist but rather assists the panel.
[36] The Applicant testified that the Panel for the December 2016 Interviews was not properly instituted referring to page 35 reading in conjunction with page 39 of the ‘R’ bundle (the Attendance Register – Short Listing/Interviews), dated 13 December 2016 where in M. Mogaki was the Chairperson; T. Tselane was the Secretary; C. Botes was the panel member; M.N. Seokolo was also a panel member; and W.M. Mawela was now the resource person.
[37] Mr C. Botes no longer appeared as the resource person. The only legitimate member of the panel was Mr Mogaki in terms of the appointment made by the District Director.
[38] The Applicant was further led to page 1 of the ‘R’ bundle which is the Departmental Circular N0. 5 of 2016 dealing with the advertising of posts, the Applicant was again led to page 2 of ‘R’ paragraph 4 dealing with the requirements of post level 4.
[39] Reference to page 3 paragraph 6.2 of the ‘R’ bundle was read into the record as follows: Other members of the committee should be experts (at least two in the panel of three). Now as per page 35 of ‘R’ there were three experts appointed, Mrs C. Melela; Rev. L. Mokwena; and Mrs Mashiqa. Going back to page 41 of the same bundle the Applicant argued that Mogaki, Mawela, and Botes are not experts by virtue of their positions as circuit managers and that according to him they are not involved in the day to day running of the school like principals.
[40] The employer did not comply with own procedures and requirements.
[41] Page 37 – 12 Job specifications (Inherent requirements of the job) Applicant testified that there was one question asked from the each category and the questions were not difficult. The Applicant further testified that he was not given an indication as to how he was going to be marked before or after the interview.
[42] The Applicant is seeking to be appointed to the principal’s post level 4.
The Respondent’s Version
[43] The Respondent called one witness, Hasimbhay Motara, who testified under oath as follows:
[44] He is the district director in the Dr Kenneth Kaunda District of the Respondent.
[45] He is aware that the District Review Panel, sat on 21 July 2016, to hear a dispute lodged by the SGB and SADTU.
[46] The role of the District Review Panel is to hear any grievances, disputes, objections; any complaints whatsoever from the candidates who feel disheartened or even disempowered in terms of what came out from the interview process run by the Department of Education being the SGB etc. The District Review Panel is made up of the CES in the office of the director as chairperson as well as three managers and other stakeholders. The objective is to give a fair opportunity to all the parties concerned to adjudicate whether there was a valid grievance or not.
[47] His understanding is that there cannot be any appointment that can take place while there was a pending dispute and before the DRP had taken a decision. In terms of the decision taken, an appointment could be made or there might not be any appointment.
[48] After the DRP had listened to the submissions from both parties they would then make a decision which would thereafter be taken to the director who will decide whether to uphold or dismiss the decision.
[49] A lot of discussions go into the process and he is not personally involved when the DRP deliberates and makes such decisions.
[50] Page 35 of ‘R’ is the letter written by the district director on 22 July 2016 sent to Ms. Yssel, Area Manager and Mr M. Mogaki, to serve on the independent panel for recruitment and selection for post no.2016/081 Principal Gontse Primary School – Maquassi Hills Area Office.
[51] With regard to the levels of the members of the panel appointed he said they are as follows: Mr Mogaki, and Ms Seokolo are post level 5 – Circuit managers and the post advertised was a post level 4.
[52] Page 41 – A final panel was made up of Mogaki, Mawela and Botes while Seokolo was the new resource person
[53] Regarding the testimony of the Applicant that the panel appointed to conduct the interviews in December 2016 was not legitimate because the people who served on it were not experts, Motara said: “the running of the school, management of the school, guidance of the school”, is all done by the circuit manager. The Circuit manager is the person who is responsible for a number of schools, not just one school and has an overview of a host of issues at various schools. They are above the post and are better placed to adjudicate principals’ post than if it were principals.
[54] Page 56 – A communiqué from the Acting Superintendent General, Dr I.S. Molale, dated 25 February 2013, which indicated that the Department has observed a number of challenges related to recruitment and selection of employees. The most competent people that can run an interview of a principal post are circuit managers.
[55] Page 56 paragraph 2.3 states that the chairperson of the panel must be at least one level higher than the post being interviewed.
[56] For this principal post it is imperative for the panel interviewing candidates to look for administrative skills, management skills, situation capacity, and make sure that the person has the skill to run a school.
[57] Page 37 – The final interview score sheet is used as criteria to interrogate the inherent requirements of job, to test the skills of candidates and eventually determine on the recommendation of the suitable candidate.
[58] A maximum of 5 candidates may be short listed and it can also happen that 3 candidates may be short listed. Normally, if one candidate appears, interviews cannot be conducted or proceed.
[59] The possibility of 2 candidates can be considered in a situation of scare skills.
[60] Page 11 of ‘A’ – The Applicant’s Honours Bachelor of Education in Education Management, Law and Systems, He was asked whether the qualification could be of an advantage over other candidates, Motara stated that such a qualification might not relate to the school environment or management.
[61] Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (as amended), stipulates that ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving – unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissal for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
This is the dispute referred by the Applicant on 23 February 2017 to the ELRC and, it is the dispute to be determined under the above authority.
[62] I am required to determine whether the Applicant was the best suitable candidate as per the pre-arb minute concluded and signed by parties on 11 May 2017 at Potchefstroom.
[63] Establishing a final decision not to promote
[64] It is common cause that the Applicant was not promoted to a Principal post number 2016/081. The 1st Respondent made a final decision to appoint the 2nd Respondent, L.S. Seetane
Substantive fairness
[65] The promotion disputes in unfair labour practice within the education sector hinges around three frames to determine substantive fairness as outlined hereunder.
1. Compliance with the minimum requirements of the post
Qualifications, Experience and Competencies
[66] In Ndlovu v CCMA (2000) 21 ILJ 1653 (LC), it was held that an employee who refers a promotion dispute must do more than just demonstrate that he has the minimum advertised qualifications and experience. He or she must allege and prove that the decision not to appoint him or her was unfair.
[67] The Applicant presented his qualifications (including Honours Bachelor of Education in Education Management, Law and Systems), that he acted as a school principal for 19 months from 26 June 2015 until 18 January 2017 more than the alleged required 3 months in the principal post and that he was very competent in that Gontse Primary School was applauded for the detailed School Improvement Plan (SIP) on 18 August 2015. He also testified that the school maintained consistency beyond the 18 August 2015.
[68] The Respondent on the other hand rebutted the issue of qualification as not being a determining factor because the Applicant might be qualified and obtained his degree cum laude but that might not be what the Employer was looking for. In regard to experience the Respondent could not successfully rebut the Applicant’s experience as acting principal for 19 months as not considerable. Neither could the Respondent rebut the competency of the Applicant during his tenure as acting principal or at any given period as a deputy principal or educator in the education sector.
[69] On the one hand the Applicant could not prove that he was the most suitable candidate to be appointed to the position of a principal as he could not show that the qualifications, experience as well as the competencies of other candidates or the incumbent, 2nd Respondent, where of a lower standard than his. In the last interview, the 2nd Respondent scored higher than the Applicant before a different interviewing panel.
[70] I find in the circumstances that the Applicant failed to prove that he was the most suitable candidate to be appointed to the post.
2. Reasonableness of the Employer’s decision
[71] In Goliath v Medscheme (Pty) Ltd (1996) 17 ILJ 760 (LC) at 768 referred to with approval in PAWA (Department of Health and Social Services v Bikwani & others (2002) 23 ILJ 761 (LC), the Court held that the emphasis is not on the correctness of the employer’s decision, but on the reasonableness of the decision. Provided that a decision by the employer to appoint one candidate instead of another is rational, no question of unfairness can arise.
[72] The above authority shifts the onus of proof to the employer to show reasonableness in appointing the 2nd Respondent to the advertised post of principal No.2016/081 at Gontse Primary School. It is common cause to parties that here were 3 dates scheduled for interview whereby the first interview held on 11 June 2016 was nullified by the office of the district director after a dispute was declared. The Applicant scored higher during this interview but after a legal process was followed due to the dispute that arose, the process was nullified. It therefore means to the Applicant that the scores he and other candidates scored during that interview were no longer valid. This further meant that when the candidates attended the 9 December 2016 interview they had no carried over credit and came with a clean slate.
[73] The Applicant argued that he attended one interview in August 2016 where he was the only candidate who attended. He was told that one candidate had withdrawn and the others could not be found and therefore he could not be interviewed alone. The district director testified that it was against the employer’s policy to conduct an interview for one candidate other than in exceptional cases where scare skills are at play and they can allow two candidates to be interviewed.

3. Casual Connection
[74] In National Commissioner of the SA Police Service v Safety and Security Sector Bargaining Council and others (2005) 26 ILJ 903 (LC) para 10-12 the Applicant must show that not only was she or he better qualified and suited for the job, but also that she or he was the best of all the candidates who applied for the position.
[75] The Applicant did not present this evidence in attempting to prove substantive fairness. The Applicant also failed to establish a casual connection between irregularity and unfairness on the part of the First Respondent.
[76] I also find that the Applicant failed to prove that he was the best of all the candidates who applied for the position.
[77] I find in the above circumstances, that the Applicant failed to discharge its onus, on a balance of probabilities.
[78] The Applicant’s case is hereby dismissed.
[79] The appointment of the 2nd Respondent, L.S. Seetane, to the position of Principal post No. 2016/081, by the 1st Respondent, Department of Education and Sport Development – North West, is upheld
[80] I further order that this file be closed.
[81] I make no order as to costs.

Panellist: Shaku Landela
261 West Avenue
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