PSES295-16/17 EC
PSES295-16/17 EC
Award Date:
2 March 2018
Case Number: PSES295-16/17 EC
Province: Eastern Cape
Applicant: SADTU obo M. MBABA
Respondent: 1st Department of Education Eastern Cape & 2nd Respondent Z. MAKHOLWANE
Venue: Umtata District offices in Umtata
Award Date: 23 February 2018
Arbitrator: Malusi Mbuli
Case Number: PSES295-16/17 EC
Panelists: Malusi Mbuli
Date of Award: 23-02-2018
the ARBITRATION between
SADTU obo M. MBABA
(Applicant)
And
DEPARTMENT OF EDUCATION (EASTERN CAPE)
(1st Respondent)
Z. MAKHOLWANE
(2nd Respondent)
SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) – whether the appointment of the 2nd respondent and non – appointment of the applicant was unfair and constitutes an unfair labour practice as contemplated in section 186(2)(a) of the LRA.
The appointment of the 2nd respondent and the non – appointment of the applicant was substantively fair but procedurally unfair and constituted an unfair labour practice as contemplated by section 186 (2) (a) of the LRA.
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995. It was set down for arbitration hearing at the Umtata District offices in Umtata on the 06th of September 2017, 09th – 10th of November 2017 and the 12th & 13th of February 2018 before Commissioner M. Mbuli.
2. The applicant Mrs. N. Mbaba attended the hearing and was represented by Mr. A. Tyantsi a shop steward of the applicant’s trade union SADTU.
3. The 1st respondent, the Department of Education (Eastern Cape) was also present at the hearing and was represented by Mr. T. V. Liphapang, an official of the respondent. The 2nd respondent Mrs. Z. Makholwane was also present at the hearing and was represented by Mr. K. S. Dalasile an official of the 2nd respondent’s trade union NAPTOSA.
4. The matter was finalized on the 13th of February 2018 and the parties agreed to file their closing arguments not later than the 19th of February 2018.
ISSUE TO BE DECIDED
5. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so the appropriate remedy.
BACKGROUND TO THE ISSUE
6. The applicant, Mrs. Nontsasa Mbaba applied for the position of HOD – Foundation Phase at Thamsanqa Junior Secondary School in the Umtata District of the respondent. The applicant was shortlisted, interviewed and ranked as no 2 for appointment to the said position but was not appointed to the position.
7. Three candidates were recommended for appointment by the interviewing panel in terms of section 6 of the Employment of Educators Act including the 2nd respondent who scored the highest marks at the interviews. The Department of Education – Eastern Cape appointed the 2nd respondent Mrs. Z. Makholwane who is now occupying the position.
8. The applicant felt that the process that led to the appointment of the 2nd respondent and her non – appointment was unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the LRA.
9. It is not in dispute that both the applicant and the 2nd respondent qualified for the position but the issue in dispute is whether there was flouting of the process and undue influence by the Principal leading to the Department of Education appointing the 2nd respondent.
10. It is also not in dispute that the 2nd respondent was recommended as the no 1 candidate by the interviewing panel and approved by the School Governing Body but the issue is whether the process that led to the appointment was fair.
11. The parties are in dispute on whether there was a ratification meeting by the governing body before the decision to appoint was made and whether that constitutes procedural fairness and whether Mrs. Mkhiva was entitled to represent the teacher component in the interviews when she was not the member of a School Governing Body.
12. The parties agree that the decision or power to recommend a candidate to the department rests with the School Governing Body and that the decision to appoint rest with the Department of Education - EC.
13. The applicant also argues that the principal changed the interview scores and that this amounted to a procedural irregularity.
14. The applicant referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 13th of February 2017.
SURVEY OF EVIDENCE
15. Applicant’s submissions. Mrs. Nontsasa Mbaba testified to the following effect.
She applied for the position of H.O.D at Thamsanqa Junior Secondary School in the Umtata District of the 1st respondent and was short listed and interviewed.
She was an educator employed by the respondent before he applied for the said post, was shortlisted and interviewed for the said position of the H.O.D.
She did not register any objection in the conduct of the interviews, however the observer from her union (SADTU) observer raised an objection relating to the scoring by one panelist at the interviews and that objection was entertained and the scores were altered.
In her view, she had been unfairly treated and the interviews and the interviews procedurally irregular in that she was also scored by a person who was not an SGB member. Further that the Principal unduly interfered with the process by inviting a person to sit in the interview panel that was not an SGB member and provided no guidance.
The applicant concedes that both she and the 2nd respondent met the minimum requirements of the H.O.D post and that they were therefore both eligible for appointment to the said position but argues that she was the best candidate for the post because she had 26 years experience as an educator and a Masters Degree in Educational Management whilst the 2nd respondent had Bachelor of Education as her highest qualification.
She averred that she used to teach Fridays and Saturdays which has additionally equipped her, was a senior teacher and was already in management.
She stated that the 2nd respondent Mrs. Makholwane had 23 years service at the time of appointment and that she the applicant had taught in the intermediate phase. She stated that she participated in the Teacher Development Programme at the Walter Sisulu University from 2002 and that was similar to an H.O.D. post.
The applicant avers that the report of the interviewing panel was not referred to the SGB for ratification and to make a decision on whom to recommend for appointment to the post. After the interviews the matter was referred directly to the Department to make an appointment and in her view the Principal unduly interfered with the interview process because he had an agenda to have the second respondent appointed.
Applicant states that there was no ratification meeting held by the SGB before the matter was referred to the Department for appointment and that the SADTU representative Mr. Mbatana did not sign the interview minutes because he did not agree that the process was fair.
She stated that had been raised about the presence of Mrs. Mkiva sitting on the interview panel and conceded that the lowering of marks for Mrs. Makholwane advantaged her and disadvantaged Mrs. Makholwane.
The applicants 2nd witness Mrs. Princess Nomakhaya Mkiva testified to the following effect:
She works for the respondent as an educator at Tamsanqa Junior Secondary School and she knows the applicant Mrs. Mbaba because she is her colleague and also knows Mrs. Makholwane because she is an H.O.D. in the same school.
She stated that she is not friends with either the applicant or the 2nd respondent, was asked by the Principal to be a panelist in the interviews and was not aware that she cannot be a panelist if she was not a member of the SGB.
She confirmed that she was part of the short listing and when they conducted short listing they picked up that Mrs. Mbaba had a Masters degree in Education Management with 26 years experience and that Mrs. Makholwane had an Honours degree (B. Ed) with 23 years of service. She stated that Mrs. Mbaba also indicated that she was lecturing foundation phase pupils and was a member of the School Management Team.
She averred that both the applicant and the 2nd respondent met the minimum requirements of the post and were both eligible for appointment and her view were at the same level in so far as competing for the position is concerned.
Before the interview they drafted the interview questions and expected answers, did tossing and after Mrs. Makholwane was interviewed there was a complaint from SADTU that Mrs. Makholwane had been given a lot of 5s which is the highest mark by the parent component of the SGB.
She stated that the Principal did not comment and in her view, agreeing to the lowering of marks by the parent meant that she was not sure about what she was doing. She confirmed that the matter was discussed and resolved by lowering Mrs. Makholwanes scores from 5 to lesser scores.
She testified that Mrs. Mbaba was the best candidate for the job, the principal committed fraud because he completed the documents and signed on behalf of the panelists e.g. Mrs. Mkiva. During cross - examination she confirmed that she was co-opted to sit on the interview panel because she was part of short listing.
She disputed that she was co-opted to advantage Mrs. Makholwane and confirmed that the scores although not entered by her were correct and a true reflection of what happened at the interviews.
She later agreed that Mrs. Makholwane was the best candidate and she never registered any complaint at the interviews and that everything went well in her observation. She stated however that she was not part of the SGB meeting that dealt with recommendation and cannot say whether there was one or not.
She averred that the scores were only reduced for Mrs. Makholwane and did not know anything about the documents that were allegedly lost. She said the panelists were not forced to change the scores and stated that the signatures on the scores were similar but cannot say whether they belong to her or not.
The applicants 3rd witness Mr. Mziwekhaya Mbatani testified to the following effect.
- He stated that he attended as a SADTU observer at the short listing and the interviews. He confirmed that at the interviews questions and possible answers were prepared by the panelists, tossing was conducted and the first candidate was Mrs. Qwele followed by Mrs. Makholwane.
He averred that whilst the parents were scoring the candidates he noticed that one of the parents had scored Mrs. Makholwane 5s (which meant that she was scored at 100%). He raised an objection and Mr. White from Naptosa suggested that the scores should be lowered to 4 and the Principal was quiet about the whole issue.
In his view Mrs. Makholwane did not deserve 5s and accordingly he parents did not apply their minds when they were scoring. Mrs. Makholwane was not disadvantaged as a result of the lowering of marks.
He confirmed that the parents were not told or forced to lower the scores to 4 but if they were honest and correct in their scoring, they should have maintained their position of the scores of 5. In cross – examination he confirmed that Mrs. Makholwane was disadvantaged as a result of the lowering of the scores.
He could not dispute that there was an agreement / acceptance to the lowering of the scores and stated that he did not sign at the end of the interviews because he was not happy about how the scoring was done.
The applicants 4th witness was Mr. Fumanekile Mongewu testified to the following effect:
He stated that he is a teacher at Tamsanqa Junior Secondary School and represent the teacher component at the SGB together with Mrs. Ngeno. He confirmed that Mrs. Mkhiva was sent to represent the teacher component of the SGB even though she was not an SGB member and that it was not correct for her to represent the teacher component when she was not the SGB member.
He confirmed that he together with Mrs. Ngeno were not at school when the short listing was conducted and that the Principal did not say anything to them about the short listing. He stated that there was no ratification meeting and there was no record of the interviews and he had never heard anything about the lost documents.
He stated that the Principal entered the scores on the columns and signed for them and is saying that because he knows the hand writing of the teachers in their school together with that of the Principal and stated that the signature appearing on the scores sheets were not the signatures of Mrs. Mkiva.
He stated that there was no ratification meeting before the recommendation was forwarded to the Department and nothing was reported to him at any stage of the process. He stated that the recommendation must be made by the SGB and in this case confirmation was made after appointment
The applicant’s 5th and last witness Mrs. Noncedo Ngeno testified to the following effect:
She is an educator at Tamsanqa Junior Secondary School, and also a member and secretary of the SGB and was present when the panel was discussed and she and Mr. Khethelo were elected to the panel of interviews. She averred that despite them being elected the principal changed that and co-opted Mrs. Mkiva and does not know why the principal preferred Mrs. Mkhiva.
She averred that she was at school on the date of the interviews and was not invited to the interviews and that the co – option of Mrs. Mkhiva by the principal was contrary to the provisions of the Employment of Educators Act.
She stated that there was no teacher component in the interviews, no report about the outcome of the interviews and no ratification meeting by the SGB to recommend the candidate to be appointed to the position in question.
She testified that the minutes and documents are kept by the principal and there was no report about the missing documents. She stated that she does not know whether Mrs. Mkhiva was trained to conduct interviews but stated that she was not a member of the SGB and that she and Mr. Manyewu were sidelined and nothing was reported to them.
She only knew that the appointment was made when it was reported at the SGB meeting and does not know whether the changing of the scores prejudiced .Mrs. Mbaba or Mrs. Makholwane. The applicant did not call any further witnesses and closed their case.
The 1st Respondents submission: The respondents 1st witness Mrs. Nongenile Mzanywa testified to the following effect:
- She is the chairperson of the SGB and was present when the short listing and interviews for the post of H.O.D. were conducted. She stated that she was a panelist in the interviews and was scoring together with Nanzi, Khethelo and Mkhiva. There were also two observers from SADTU and Naptosa at the interviews.
- She confirmed that Mrs. Mkhiva was not a member of the SGB and that she was called to the interviews by the principal and they agreed that she can part take and the explanation that was given was that she was replacing Mrs. Ngeno and Mr. Manyewu because they were not present at school.
- She stated that she cannot remember the marks that were scored by Mrs. Makholwane but disputed that the intention of co – opting Mrs. Mkiva was meant to advantage Mrs. Makholwane. She confirmed that the SADTU observer in the interviews by the name of Mr. Mbathana objected to the scoring by the parent component saying that Mrs.Makholwane was allocated 5s only in her scores.
- She averred that the matter was discussed and it was agreed that the marks of Mrs. Makholwane should be lowered in order to address the issue but Mrs. Makholwane remained no 1 despite the changing and or lowering of the scores. According to her the matter was resolved.
- After the interview, the principal took the minutes, later sent them to the district office and the appointment was made by the department without the recommendation of the SGB as to who should be appointed to the said position. The principal stated that they were rushing the appointment because they did not have sufficient time.
- It was the later reported in the SGB meeting that the department had appointed Mrs. Makholwane and the SGB agreed to that appointment and congratulated Mrs. Makholwane on her appointment.
- She confirmed her signature in the scoring sheets and stated that the principal filled the sheets because the principal stated that the time was against them. She however disputed discussing preferences of the candidates together with the principal.
- She testified that before the interviews, they prepared questions and interviews and that Mrs. Makholwane was the best candidate and she was recommended as no 1 candidate by the panel of interviews.
- She stated that the SADTU observer left the interviews before closure and eating because he was rushing to look after his child who was in hospital. He did not sign the interview minutes because she had no time and not because he was objecting to the process.
The respondent’s 2nd witness Mr. Bonginkosi White testified to the following effect:
- He was present at the interviews that were conducted for the purposes of making the appointment of the H.O.D in question, was a NAPTOSA observer and that everything went well in those interviews and there were no formal objections registered. He stated that the principal acted as a resource person and at no stage interfered with the scoring of the candidates in questions.
- He stated that everybody was satisfied with the manner in which the interviews were conducted and even the manner in which the objection (that of Mbatana about the high scoring) was handled and resolved. He confirmed that he signed for the minutes because the process was fair, that Mbatana did not sign because he was rushing to hospital to attend to his child and he confirmed that the interviews were free and fair.
- He confirmed that both candidates in question met the minimum requirements but Mrs. Z. Makholwane outplayed all the candidates in the interview and that made her to be the preferred candidate over and above the others was recommended as no 1 candidate.
- He stated that the only objection referred to above was resolved by lowering the marks or scores of Mrs. Makholwane and in that way she was disadvantaged and that Mrs. Mbaba was never disadvantaged by the resolution of that dispute or objection.
- He averred that everyone was happy about the manner in which the matter was resolved including Mr. Mbathana. Mr. Mbatana did not sign because he was rushing to the hospital and had asked the principal to call him later for the signature and was there when the minutes were read. He also confirmed that Mrs. Makholwane was the best candidate for the job.
The respondents 3rd and last witness Mr. Zukile Qambela testified that the Principal of Tamsanqa Junior Secondary School testified to the following effect.
- He was the resource person (performing advice function) in the interviews. He confirmed that Mrs. Mkhiva was not part of the interview panel and was co-opted by him because the other teacher representing the teacher component at the SGB was not available.
- He confirmed that at the interview Mrs. Z. Makholwane scored the highest but that does not mean that she must be automatically appointed because the candidates are operating at the same level in so far as the recommendation and appointments are made.
- He confirmed that Mr. Mbatana raised an objection about the scoring of Mrs. Makholwane by the parent component of the SGB and that this matter was discussed and was resolved by lowering the scores of Mrs. Makholwane. He stated that the lowering of marks disadvantaged Mrs. Makholwane but even after the said marks were lowered, she still remained having the highest marks.
- He stated that after the matter was resolved everyone was happy and there is no other objection that was raised or dispute declared about the interviews. He confirmed that Mr. Mbatana could not sign the interview minutes because he was rushing to the hospital to see his child and had asked him to call later for signature.
- He tried to call Mr. Mbatana who did not pick up the call nor called back and confirmed that he did not report this to anyone and just referred the names to the department for appointment.
- He stated that after the interviews the names of the candidates were referred to the department for appointment without the ratification meeting by the SGB and that the appointment was later referred to the SGB and approved. He stated that this was done because they were rushing because they were running out of time in making the appointment.
- He disputed that he unduly interfered with the process of interviews and that he influenced the panelists to score Mrs. Makholwane high. He could not account about the documents that were lost or missing even though he the resource person and principal. He also disputed that panelists were called later to adjust score to favor Mrs. Makholwane.
- He stated that he left it to the panelists to decide for themselves and that no one interfered with their work. He stated that the process was free and fair and that everybody including the observers were satisfied with the manner in which the process was conducted.
- He confirmed that the recommendation was referred to the District Office without the convening of a ratification meeting but that was subsequently healed by the fact that such referral was referred back to the SGB for approval. He confirmed that he made an error when adding up the scores but Mrs. Makholwane was still the no 1 candidate.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.
17. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to appoint her.
18. The respondent appointed the 2nd respondent because she was ranked as no 1 by the interviewing panel and approved by the SGB and that both candidates meet the minimum requirements of the position of HOD in relation to all the attributes.
19. As indicated above the applicant contests the procedural fairness of the appointment of the 2nd respondent and her non - appointment. On the procedural aspect, the applicant feels that the failure by the respondent to appoint the applicant, who according to them was the best candidate, was due to the interference and favoritism of the principal.
20. The issue that this award has to deal with is whether there was undue influence on the part of the principal and whether the necessary recommendation was made by the appropriate body i.e. SGB before the appointment of the 2nd respondent by the department.
21. The substantive issue is not in dispute because both parties accept that the 2 candidates who are a subject of this dispute meet the minimum requirements for the said position and that both of them are or were eligible for appointment to the H.O.D post. The applicant’s representative led evidence of the applicant and Mrs. Mbaba which was to the effect that the principal interfered with the appointment of the 2nd respondent and non – appointment of the applicant.
22. They say the interference was at the level of interviews and when the recommendation was sent to the department without the ratification meeting. They further argue that the meeting of the SGB that was held after the appointment was not a ratification meeting.
23. It is interesting to note that the teacher component of the SGB was not at the interviews and that the other teacher Mrs. Mkhiva was co-opted without the knowledge and approval of these teachers. All the witnesses who were present at the interviews confirm that the process was credible, free and fair and without interference with the exception of Mr. Mbatana.
24. All the witnesses agree that the names of the recommended candidates was not referred to the full meeting of the SGB before the appointment was made but was referred to the SGB by the department for approval after an appointment had been made.
25. I am satisfied that the principal and the department did not do the right thing to appoint the candidate without recommendation by the SGB more especially when there is no satisfactory explanation for this flouting of the process.
26. In this regard the omission that happened can be regarded as a procedural irregularity because it was not healed at the stage of the recommendation. The last part contested by the applicant is that the ratification meeting did not recommend the appointment of Mrs. Makholwane to the position and no minutes are available to this effect.
27. It must also be noted that on a balance of probabilities it is highly unacceptable that the District Office would proceed with such appointment without referring the matter back to the SGB for recommendation and the same SGB commit the same mistake and not deliberate on the issue but approve such appointment.
28. It is not disputed that the applicant and the 2nd respondent met the requirements of the post as envisaged in Regulation 11 of the Employment of Educators Act 76 of 1998.
29. From the argument above it then follows that the decision by the respondent to appoint the 2nd respondent and not to appoint the applicant was procedurally and substantively unfair based on the evidence and argument advance in this matter.
30. The applicant has managed to demonstrate that there was an invalid, unreasonable and unfair reason why the respondent appointed the 2nd respondent. The applicants claim is simple as outlined above that the respondent did not follow a fair procedure in effecting that appointment. This claim emanates from the facts dealt with above that:
- The principal co-opted Mrs. Mkhiva to attend short listing and interviews and it is not clear why the Principal left the teachers who were appointed by the SGB to sit on the interview panel (teacher component) out of the interviews. The explanation that they were not at school at the time is unacceptable because they were not even informed,
- The principal made the whole recruitment process his show when he is just supposed to be a resource person, by filling in the forms and allocated scores on the score sheets. Even though it could not be proved that he signed on behalf of the panelists it is reasonable for the applicant to dispute the signatures on those sheets.
- The scores or marks were not properly added and even though this does not look as prejudice to the applicant, the question is why the scores were added by the principal and in adding them to that incorrectly. This supports the claim by the applicant that the principal unduly interfered with the process.
- The SADTU representative raised objections to the scores that were allocated by the parent component and parties resolved this. Even though this issue was resolved to the disadvantage of the 2nd respondent the applicant claims that the panelists did not apply their minds is a sound claim.
- There is no convincing reason why the principal would just refer the outcome of the interview to the department without ratification by the SGB. This supports the applicant’s claim that the principal unduly interfered with the recruitment process.
- I do not intend dealing with the qualifications and experience of the candidates as they both met the minimum requirements and eligible for appointment. The candidates will have a chance to compete again.
- The respondent, department is the custodian of documents and the loss of documents without a valid explanation is unacceptable and negative to the respondents case. Without adequate and proper explanation, the assumption that such documents were unreasonably withheld is the most probable inference that can be drawn.
31. Just on these points the process of appointment of the 2nd respondent cannot be said to be procedurally fair. The respondent has authority to appoint but has a responsibility to exercise such discretion reasonable and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion exercised by a party competent to exercise that discretion.
32. The reason for this is that is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed.
33. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The applicant in this matter has managed to demonstrate that the employer has not applied discretion fairly.
34. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a bias manner.
35. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to the Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.
- Whether the employer’s decision was arbitrary, or capricious, or unfair.
- Whether the employer failed to apply its mind to the promotion of the employee.
- Whether the employer’s decision not to promote was motivated by bad faith.
- Whether there were insubstantial reasons for the employer’s decision not to promote.
- Whether the employer’s decision not to promote was based upon a wrong principle.
36. If one looks at how the discretion was applied by the respondent, in this case it is clear that the SGB later applied its mind and approved the appointment and did not consider the candidates and recommend to the department. The power to recommend resides with the SGB and not the department. There are a number of procedural irregularities in this appointment and that justifies interference with the decision to appoint.
37. In Nutese v/s Technikon Northern Transvaal (1997) 4 BLLR 467 (CCMA) it was said that the employees have no right to promotion and as long the employer can provide rationale basis for its decision, appointment or promotion stand to be set aside. Similarly the applicant has no right to protective promotion.
38. Whilst I agree with this principle it must be noted that the applicants contention of this appointment is on procedural grounds and not substantive in nature and whilst the 2nd respondent maybe the best candidate for the position if she is, the procedural irregularities should not be of such a nature that other candidates are prejudiced.
39. I know of no authority and none has been cited for the proposition that the courts would not interfere at all with the exercise of discretionary power when they are unfair, arbitrary and unreasonable. The appointment of the 2nd respondent stands to be set aside because it was effected procedurally unfairly and unreasonable.
40. The appointment of the 2nd respondent and the non – appointment of the applicant was procedurally and substantively unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
41. The applicant has indicated that she would like the appointment to be set aside and be appointed to the said position but also amenable to compensation since Mrs. Z. Makholwane is already occupying the position.
42. The applicant obviously cannot be granted protective promotion on procedural grounds and I also don’t believe that compensation would be appropriate in the circumstances as that protective promotion and compensation would then be due to the other candidates as well.
43. In the circumstances I make the following award.
AWARD
44. The appointment of the 2nd respondent Mrs. Z. Makholwane is hereby set aside with effect from the 31st of March 2018.
45. The respondent Department of Education is ordered to re – advertise the position of the HOD at Tamsanqa Junior Secondary School (the position in question) not later than the 31st of March 2018 and advise the applicant and 2nd respondent specifically to apply for that position.
46. Nothing stops the respondent to appoint anyone including the applicant and the 2nd respondent to act in the said position from the 01st of April 2018 until the position is filled.
47. There is no order as to costs.
Signature:
Commissioner: Malusi Mbuli
Province: Eastern Cape
Applicant: SADTU obo M. MBABA
Respondent: 1st Department of Education Eastern Cape & 2nd Respondent Z. MAKHOLWANE
Venue: Umtata District offices in Umtata
Award Date: 23 February 2018
Arbitrator: Malusi Mbuli
Case Number: PSES295-16/17 EC
Panelists: Malusi Mbuli
Date of Award: 23-02-2018
the ARBITRATION between
SADTU obo M. MBABA
(Applicant)
And
DEPARTMENT OF EDUCATION (EASTERN CAPE)
(1st Respondent)
Z. MAKHOLWANE
(2nd Respondent)
SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) – whether the appointment of the 2nd respondent and non – appointment of the applicant was unfair and constitutes an unfair labour practice as contemplated in section 186(2)(a) of the LRA.
The appointment of the 2nd respondent and the non – appointment of the applicant was substantively fair but procedurally unfair and constituted an unfair labour practice as contemplated by section 186 (2) (a) of the LRA.
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995. It was set down for arbitration hearing at the Umtata District offices in Umtata on the 06th of September 2017, 09th – 10th of November 2017 and the 12th & 13th of February 2018 before Commissioner M. Mbuli.
2. The applicant Mrs. N. Mbaba attended the hearing and was represented by Mr. A. Tyantsi a shop steward of the applicant’s trade union SADTU.
3. The 1st respondent, the Department of Education (Eastern Cape) was also present at the hearing and was represented by Mr. T. V. Liphapang, an official of the respondent. The 2nd respondent Mrs. Z. Makholwane was also present at the hearing and was represented by Mr. K. S. Dalasile an official of the 2nd respondent’s trade union NAPTOSA.
4. The matter was finalized on the 13th of February 2018 and the parties agreed to file their closing arguments not later than the 19th of February 2018.
ISSUE TO BE DECIDED
5. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so the appropriate remedy.
BACKGROUND TO THE ISSUE
6. The applicant, Mrs. Nontsasa Mbaba applied for the position of HOD – Foundation Phase at Thamsanqa Junior Secondary School in the Umtata District of the respondent. The applicant was shortlisted, interviewed and ranked as no 2 for appointment to the said position but was not appointed to the position.
7. Three candidates were recommended for appointment by the interviewing panel in terms of section 6 of the Employment of Educators Act including the 2nd respondent who scored the highest marks at the interviews. The Department of Education – Eastern Cape appointed the 2nd respondent Mrs. Z. Makholwane who is now occupying the position.
8. The applicant felt that the process that led to the appointment of the 2nd respondent and her non – appointment was unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the LRA.
9. It is not in dispute that both the applicant and the 2nd respondent qualified for the position but the issue in dispute is whether there was flouting of the process and undue influence by the Principal leading to the Department of Education appointing the 2nd respondent.
10. It is also not in dispute that the 2nd respondent was recommended as the no 1 candidate by the interviewing panel and approved by the School Governing Body but the issue is whether the process that led to the appointment was fair.
11. The parties are in dispute on whether there was a ratification meeting by the governing body before the decision to appoint was made and whether that constitutes procedural fairness and whether Mrs. Mkhiva was entitled to represent the teacher component in the interviews when she was not the member of a School Governing Body.
12. The parties agree that the decision or power to recommend a candidate to the department rests with the School Governing Body and that the decision to appoint rest with the Department of Education - EC.
13. The applicant also argues that the principal changed the interview scores and that this amounted to a procedural irregularity.
14. The applicant referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 13th of February 2017.
SURVEY OF EVIDENCE
15. Applicant’s submissions. Mrs. Nontsasa Mbaba testified to the following effect.
She applied for the position of H.O.D at Thamsanqa Junior Secondary School in the Umtata District of the 1st respondent and was short listed and interviewed.
She was an educator employed by the respondent before he applied for the said post, was shortlisted and interviewed for the said position of the H.O.D.
She did not register any objection in the conduct of the interviews, however the observer from her union (SADTU) observer raised an objection relating to the scoring by one panelist at the interviews and that objection was entertained and the scores were altered.
In her view, she had been unfairly treated and the interviews and the interviews procedurally irregular in that she was also scored by a person who was not an SGB member. Further that the Principal unduly interfered with the process by inviting a person to sit in the interview panel that was not an SGB member and provided no guidance.
The applicant concedes that both she and the 2nd respondent met the minimum requirements of the H.O.D post and that they were therefore both eligible for appointment to the said position but argues that she was the best candidate for the post because she had 26 years experience as an educator and a Masters Degree in Educational Management whilst the 2nd respondent had Bachelor of Education as her highest qualification.
She averred that she used to teach Fridays and Saturdays which has additionally equipped her, was a senior teacher and was already in management.
She stated that the 2nd respondent Mrs. Makholwane had 23 years service at the time of appointment and that she the applicant had taught in the intermediate phase. She stated that she participated in the Teacher Development Programme at the Walter Sisulu University from 2002 and that was similar to an H.O.D. post.
The applicant avers that the report of the interviewing panel was not referred to the SGB for ratification and to make a decision on whom to recommend for appointment to the post. After the interviews the matter was referred directly to the Department to make an appointment and in her view the Principal unduly interfered with the interview process because he had an agenda to have the second respondent appointed.
Applicant states that there was no ratification meeting held by the SGB before the matter was referred to the Department for appointment and that the SADTU representative Mr. Mbatana did not sign the interview minutes because he did not agree that the process was fair.
She stated that had been raised about the presence of Mrs. Mkiva sitting on the interview panel and conceded that the lowering of marks for Mrs. Makholwane advantaged her and disadvantaged Mrs. Makholwane.
The applicants 2nd witness Mrs. Princess Nomakhaya Mkiva testified to the following effect:
She works for the respondent as an educator at Tamsanqa Junior Secondary School and she knows the applicant Mrs. Mbaba because she is her colleague and also knows Mrs. Makholwane because she is an H.O.D. in the same school.
She stated that she is not friends with either the applicant or the 2nd respondent, was asked by the Principal to be a panelist in the interviews and was not aware that she cannot be a panelist if she was not a member of the SGB.
She confirmed that she was part of the short listing and when they conducted short listing they picked up that Mrs. Mbaba had a Masters degree in Education Management with 26 years experience and that Mrs. Makholwane had an Honours degree (B. Ed) with 23 years of service. She stated that Mrs. Mbaba also indicated that she was lecturing foundation phase pupils and was a member of the School Management Team.
She averred that both the applicant and the 2nd respondent met the minimum requirements of the post and were both eligible for appointment and her view were at the same level in so far as competing for the position is concerned.
Before the interview they drafted the interview questions and expected answers, did tossing and after Mrs. Makholwane was interviewed there was a complaint from SADTU that Mrs. Makholwane had been given a lot of 5s which is the highest mark by the parent component of the SGB.
She stated that the Principal did not comment and in her view, agreeing to the lowering of marks by the parent meant that she was not sure about what she was doing. She confirmed that the matter was discussed and resolved by lowering Mrs. Makholwanes scores from 5 to lesser scores.
She testified that Mrs. Mbaba was the best candidate for the job, the principal committed fraud because he completed the documents and signed on behalf of the panelists e.g. Mrs. Mkiva. During cross - examination she confirmed that she was co-opted to sit on the interview panel because she was part of short listing.
She disputed that she was co-opted to advantage Mrs. Makholwane and confirmed that the scores although not entered by her were correct and a true reflection of what happened at the interviews.
She later agreed that Mrs. Makholwane was the best candidate and she never registered any complaint at the interviews and that everything went well in her observation. She stated however that she was not part of the SGB meeting that dealt with recommendation and cannot say whether there was one or not.
She averred that the scores were only reduced for Mrs. Makholwane and did not know anything about the documents that were allegedly lost. She said the panelists were not forced to change the scores and stated that the signatures on the scores were similar but cannot say whether they belong to her or not.
The applicants 3rd witness Mr. Mziwekhaya Mbatani testified to the following effect.
- He stated that he attended as a SADTU observer at the short listing and the interviews. He confirmed that at the interviews questions and possible answers were prepared by the panelists, tossing was conducted and the first candidate was Mrs. Qwele followed by Mrs. Makholwane.
He averred that whilst the parents were scoring the candidates he noticed that one of the parents had scored Mrs. Makholwane 5s (which meant that she was scored at 100%). He raised an objection and Mr. White from Naptosa suggested that the scores should be lowered to 4 and the Principal was quiet about the whole issue.
In his view Mrs. Makholwane did not deserve 5s and accordingly he parents did not apply their minds when they were scoring. Mrs. Makholwane was not disadvantaged as a result of the lowering of marks.
He confirmed that the parents were not told or forced to lower the scores to 4 but if they were honest and correct in their scoring, they should have maintained their position of the scores of 5. In cross – examination he confirmed that Mrs. Makholwane was disadvantaged as a result of the lowering of the scores.
He could not dispute that there was an agreement / acceptance to the lowering of the scores and stated that he did not sign at the end of the interviews because he was not happy about how the scoring was done.
The applicants 4th witness was Mr. Fumanekile Mongewu testified to the following effect:
He stated that he is a teacher at Tamsanqa Junior Secondary School and represent the teacher component at the SGB together with Mrs. Ngeno. He confirmed that Mrs. Mkhiva was sent to represent the teacher component of the SGB even though she was not an SGB member and that it was not correct for her to represent the teacher component when she was not the SGB member.
He confirmed that he together with Mrs. Ngeno were not at school when the short listing was conducted and that the Principal did not say anything to them about the short listing. He stated that there was no ratification meeting and there was no record of the interviews and he had never heard anything about the lost documents.
He stated that the Principal entered the scores on the columns and signed for them and is saying that because he knows the hand writing of the teachers in their school together with that of the Principal and stated that the signature appearing on the scores sheets were not the signatures of Mrs. Mkiva.
He stated that there was no ratification meeting before the recommendation was forwarded to the Department and nothing was reported to him at any stage of the process. He stated that the recommendation must be made by the SGB and in this case confirmation was made after appointment
The applicant’s 5th and last witness Mrs. Noncedo Ngeno testified to the following effect:
She is an educator at Tamsanqa Junior Secondary School, and also a member and secretary of the SGB and was present when the panel was discussed and she and Mr. Khethelo were elected to the panel of interviews. She averred that despite them being elected the principal changed that and co-opted Mrs. Mkiva and does not know why the principal preferred Mrs. Mkhiva.
She averred that she was at school on the date of the interviews and was not invited to the interviews and that the co – option of Mrs. Mkhiva by the principal was contrary to the provisions of the Employment of Educators Act.
She stated that there was no teacher component in the interviews, no report about the outcome of the interviews and no ratification meeting by the SGB to recommend the candidate to be appointed to the position in question.
She testified that the minutes and documents are kept by the principal and there was no report about the missing documents. She stated that she does not know whether Mrs. Mkhiva was trained to conduct interviews but stated that she was not a member of the SGB and that she and Mr. Manyewu were sidelined and nothing was reported to them.
She only knew that the appointment was made when it was reported at the SGB meeting and does not know whether the changing of the scores prejudiced .Mrs. Mbaba or Mrs. Makholwane. The applicant did not call any further witnesses and closed their case.
The 1st Respondents submission: The respondents 1st witness Mrs. Nongenile Mzanywa testified to the following effect:
- She is the chairperson of the SGB and was present when the short listing and interviews for the post of H.O.D. were conducted. She stated that she was a panelist in the interviews and was scoring together with Nanzi, Khethelo and Mkhiva. There were also two observers from SADTU and Naptosa at the interviews.
- She confirmed that Mrs. Mkhiva was not a member of the SGB and that she was called to the interviews by the principal and they agreed that she can part take and the explanation that was given was that she was replacing Mrs. Ngeno and Mr. Manyewu because they were not present at school.
- She stated that she cannot remember the marks that were scored by Mrs. Makholwane but disputed that the intention of co – opting Mrs. Mkiva was meant to advantage Mrs. Makholwane. She confirmed that the SADTU observer in the interviews by the name of Mr. Mbathana objected to the scoring by the parent component saying that Mrs.Makholwane was allocated 5s only in her scores.
- She averred that the matter was discussed and it was agreed that the marks of Mrs. Makholwane should be lowered in order to address the issue but Mrs. Makholwane remained no 1 despite the changing and or lowering of the scores. According to her the matter was resolved.
- After the interview, the principal took the minutes, later sent them to the district office and the appointment was made by the department without the recommendation of the SGB as to who should be appointed to the said position. The principal stated that they were rushing the appointment because they did not have sufficient time.
- It was the later reported in the SGB meeting that the department had appointed Mrs. Makholwane and the SGB agreed to that appointment and congratulated Mrs. Makholwane on her appointment.
- She confirmed her signature in the scoring sheets and stated that the principal filled the sheets because the principal stated that the time was against them. She however disputed discussing preferences of the candidates together with the principal.
- She testified that before the interviews, they prepared questions and interviews and that Mrs. Makholwane was the best candidate and she was recommended as no 1 candidate by the panel of interviews.
- She stated that the SADTU observer left the interviews before closure and eating because he was rushing to look after his child who was in hospital. He did not sign the interview minutes because she had no time and not because he was objecting to the process.
The respondent’s 2nd witness Mr. Bonginkosi White testified to the following effect:
- He was present at the interviews that were conducted for the purposes of making the appointment of the H.O.D in question, was a NAPTOSA observer and that everything went well in those interviews and there were no formal objections registered. He stated that the principal acted as a resource person and at no stage interfered with the scoring of the candidates in questions.
- He stated that everybody was satisfied with the manner in which the interviews were conducted and even the manner in which the objection (that of Mbatana about the high scoring) was handled and resolved. He confirmed that he signed for the minutes because the process was fair, that Mbatana did not sign because he was rushing to hospital to attend to his child and he confirmed that the interviews were free and fair.
- He confirmed that both candidates in question met the minimum requirements but Mrs. Z. Makholwane outplayed all the candidates in the interview and that made her to be the preferred candidate over and above the others was recommended as no 1 candidate.
- He stated that the only objection referred to above was resolved by lowering the marks or scores of Mrs. Makholwane and in that way she was disadvantaged and that Mrs. Mbaba was never disadvantaged by the resolution of that dispute or objection.
- He averred that everyone was happy about the manner in which the matter was resolved including Mr. Mbathana. Mr. Mbatana did not sign because he was rushing to the hospital and had asked the principal to call him later for the signature and was there when the minutes were read. He also confirmed that Mrs. Makholwane was the best candidate for the job.
The respondents 3rd and last witness Mr. Zukile Qambela testified that the Principal of Tamsanqa Junior Secondary School testified to the following effect.
- He was the resource person (performing advice function) in the interviews. He confirmed that Mrs. Mkhiva was not part of the interview panel and was co-opted by him because the other teacher representing the teacher component at the SGB was not available.
- He confirmed that at the interview Mrs. Z. Makholwane scored the highest but that does not mean that she must be automatically appointed because the candidates are operating at the same level in so far as the recommendation and appointments are made.
- He confirmed that Mr. Mbatana raised an objection about the scoring of Mrs. Makholwane by the parent component of the SGB and that this matter was discussed and was resolved by lowering the scores of Mrs. Makholwane. He stated that the lowering of marks disadvantaged Mrs. Makholwane but even after the said marks were lowered, she still remained having the highest marks.
- He stated that after the matter was resolved everyone was happy and there is no other objection that was raised or dispute declared about the interviews. He confirmed that Mr. Mbatana could not sign the interview minutes because he was rushing to the hospital to see his child and had asked him to call later for signature.
- He tried to call Mr. Mbatana who did not pick up the call nor called back and confirmed that he did not report this to anyone and just referred the names to the department for appointment.
- He stated that after the interviews the names of the candidates were referred to the department for appointment without the ratification meeting by the SGB and that the appointment was later referred to the SGB and approved. He stated that this was done because they were rushing because they were running out of time in making the appointment.
- He disputed that he unduly interfered with the process of interviews and that he influenced the panelists to score Mrs. Makholwane high. He could not account about the documents that were lost or missing even though he the resource person and principal. He also disputed that panelists were called later to adjust score to favor Mrs. Makholwane.
- He stated that he left it to the panelists to decide for themselves and that no one interfered with their work. He stated that the process was free and fair and that everybody including the observers were satisfied with the manner in which the process was conducted.
- He confirmed that the recommendation was referred to the District Office without the convening of a ratification meeting but that was subsequently healed by the fact that such referral was referred back to the SGB for approval. He confirmed that he made an error when adding up the scores but Mrs. Makholwane was still the no 1 candidate.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.
17. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to appoint her.
18. The respondent appointed the 2nd respondent because she was ranked as no 1 by the interviewing panel and approved by the SGB and that both candidates meet the minimum requirements of the position of HOD in relation to all the attributes.
19. As indicated above the applicant contests the procedural fairness of the appointment of the 2nd respondent and her non - appointment. On the procedural aspect, the applicant feels that the failure by the respondent to appoint the applicant, who according to them was the best candidate, was due to the interference and favoritism of the principal.
20. The issue that this award has to deal with is whether there was undue influence on the part of the principal and whether the necessary recommendation was made by the appropriate body i.e. SGB before the appointment of the 2nd respondent by the department.
21. The substantive issue is not in dispute because both parties accept that the 2 candidates who are a subject of this dispute meet the minimum requirements for the said position and that both of them are or were eligible for appointment to the H.O.D post. The applicant’s representative led evidence of the applicant and Mrs. Mbaba which was to the effect that the principal interfered with the appointment of the 2nd respondent and non – appointment of the applicant.
22. They say the interference was at the level of interviews and when the recommendation was sent to the department without the ratification meeting. They further argue that the meeting of the SGB that was held after the appointment was not a ratification meeting.
23. It is interesting to note that the teacher component of the SGB was not at the interviews and that the other teacher Mrs. Mkhiva was co-opted without the knowledge and approval of these teachers. All the witnesses who were present at the interviews confirm that the process was credible, free and fair and without interference with the exception of Mr. Mbatana.
24. All the witnesses agree that the names of the recommended candidates was not referred to the full meeting of the SGB before the appointment was made but was referred to the SGB by the department for approval after an appointment had been made.
25. I am satisfied that the principal and the department did not do the right thing to appoint the candidate without recommendation by the SGB more especially when there is no satisfactory explanation for this flouting of the process.
26. In this regard the omission that happened can be regarded as a procedural irregularity because it was not healed at the stage of the recommendation. The last part contested by the applicant is that the ratification meeting did not recommend the appointment of Mrs. Makholwane to the position and no minutes are available to this effect.
27. It must also be noted that on a balance of probabilities it is highly unacceptable that the District Office would proceed with such appointment without referring the matter back to the SGB for recommendation and the same SGB commit the same mistake and not deliberate on the issue but approve such appointment.
28. It is not disputed that the applicant and the 2nd respondent met the requirements of the post as envisaged in Regulation 11 of the Employment of Educators Act 76 of 1998.
29. From the argument above it then follows that the decision by the respondent to appoint the 2nd respondent and not to appoint the applicant was procedurally and substantively unfair based on the evidence and argument advance in this matter.
30. The applicant has managed to demonstrate that there was an invalid, unreasonable and unfair reason why the respondent appointed the 2nd respondent. The applicants claim is simple as outlined above that the respondent did not follow a fair procedure in effecting that appointment. This claim emanates from the facts dealt with above that:
- The principal co-opted Mrs. Mkhiva to attend short listing and interviews and it is not clear why the Principal left the teachers who were appointed by the SGB to sit on the interview panel (teacher component) out of the interviews. The explanation that they were not at school at the time is unacceptable because they were not even informed,
- The principal made the whole recruitment process his show when he is just supposed to be a resource person, by filling in the forms and allocated scores on the score sheets. Even though it could not be proved that he signed on behalf of the panelists it is reasonable for the applicant to dispute the signatures on those sheets.
- The scores or marks were not properly added and even though this does not look as prejudice to the applicant, the question is why the scores were added by the principal and in adding them to that incorrectly. This supports the claim by the applicant that the principal unduly interfered with the process.
- The SADTU representative raised objections to the scores that were allocated by the parent component and parties resolved this. Even though this issue was resolved to the disadvantage of the 2nd respondent the applicant claims that the panelists did not apply their minds is a sound claim.
- There is no convincing reason why the principal would just refer the outcome of the interview to the department without ratification by the SGB. This supports the applicant’s claim that the principal unduly interfered with the recruitment process.
- I do not intend dealing with the qualifications and experience of the candidates as they both met the minimum requirements and eligible for appointment. The candidates will have a chance to compete again.
- The respondent, department is the custodian of documents and the loss of documents without a valid explanation is unacceptable and negative to the respondents case. Without adequate and proper explanation, the assumption that such documents were unreasonably withheld is the most probable inference that can be drawn.
31. Just on these points the process of appointment of the 2nd respondent cannot be said to be procedurally fair. The respondent has authority to appoint but has a responsibility to exercise such discretion reasonable and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion exercised by a party competent to exercise that discretion.
32. The reason for this is that is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed.
33. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The applicant in this matter has managed to demonstrate that the employer has not applied discretion fairly.
34. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a bias manner.
35. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to the Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.
- Whether the employer’s decision was arbitrary, or capricious, or unfair.
- Whether the employer failed to apply its mind to the promotion of the employee.
- Whether the employer’s decision not to promote was motivated by bad faith.
- Whether there were insubstantial reasons for the employer’s decision not to promote.
- Whether the employer’s decision not to promote was based upon a wrong principle.
36. If one looks at how the discretion was applied by the respondent, in this case it is clear that the SGB later applied its mind and approved the appointment and did not consider the candidates and recommend to the department. The power to recommend resides with the SGB and not the department. There are a number of procedural irregularities in this appointment and that justifies interference with the decision to appoint.
37. In Nutese v/s Technikon Northern Transvaal (1997) 4 BLLR 467 (CCMA) it was said that the employees have no right to promotion and as long the employer can provide rationale basis for its decision, appointment or promotion stand to be set aside. Similarly the applicant has no right to protective promotion.
38. Whilst I agree with this principle it must be noted that the applicants contention of this appointment is on procedural grounds and not substantive in nature and whilst the 2nd respondent maybe the best candidate for the position if she is, the procedural irregularities should not be of such a nature that other candidates are prejudiced.
39. I know of no authority and none has been cited for the proposition that the courts would not interfere at all with the exercise of discretionary power when they are unfair, arbitrary and unreasonable. The appointment of the 2nd respondent stands to be set aside because it was effected procedurally unfairly and unreasonable.
40. The appointment of the 2nd respondent and the non – appointment of the applicant was procedurally and substantively unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
41. The applicant has indicated that she would like the appointment to be set aside and be appointed to the said position but also amenable to compensation since Mrs. Z. Makholwane is already occupying the position.
42. The applicant obviously cannot be granted protective promotion on procedural grounds and I also don’t believe that compensation would be appropriate in the circumstances as that protective promotion and compensation would then be due to the other candidates as well.
43. In the circumstances I make the following award.
AWARD
44. The appointment of the 2nd respondent Mrs. Z. Makholwane is hereby set aside with effect from the 31st of March 2018.
45. The respondent Department of Education is ordered to re – advertise the position of the HOD at Tamsanqa Junior Secondary School (the position in question) not later than the 31st of March 2018 and advise the applicant and 2nd respondent specifically to apply for that position.
46. Nothing stops the respondent to appoint anyone including the applicant and the 2nd respondent to act in the said position from the 01st of April 2018 until the position is filled.
47. There is no order as to costs.
Signature:
Commissioner: Malusi Mbuli