Case Number: PSES124-18/19EC
Province: Eastern Cape
Applicant: AMOS BESTER
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Respondent’s offices in King Williams Town and East London
Award Date: 10 February 2020
Arbitrator: Ncumisa Bantwini
Panelist: Ncumisa Bantwini,
Case Number: PSES124-18/19EC
Date of Award:10 February 2020
IN THE ARBITRATION BETWEEN
Nolitha Mancoko :Union/Applicant
Department of Education - EC: Employer/Respondent
DETAILS OF HEARING AND REPRESENTATIONS
1. This arbitration was partheard on 15 October, 16 October 2019, 14 January 2020, and was finalized on 15 January 2020 in the respondent’s offices in King Williams Town and East London. The dispute 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. Mr Sikhumbuzo Manzi appeared for the applicant while Mr Thandabantu Hena appeared for the respondent, the Department of Education-Eastern Cape. Parties agreed to submit written closing arguments on 27 January 2020. All arguments have been considered in the preparation of this award.
ISSUE TO BE DECIDED
3. The issues to be decided is whether the respondent’s conduct of not appointing the applicant to a position of a Deputy Principal at Hector Peterson High School in King Williams Town was fair or not.
4. I have considered all the evidence and arguments, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons. I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and determination of the dispute.
BACKGROUND TO THE DISPUTE
5. The applicant referred a dispute to the ELRC regarding an alleged failure by the respondent to appoint her for the position of a Deputy Principal at Hector Peterson High 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 Manzi‘s opening statement, the dispute relates to unfair labour practice based on promotion. The applicant applied for a Deputy Principal position at Hector Peterson High School and was not appointed. The ratification and recommendation processes were not done correctly. The respondent’s officials took over from SGB function without a letter from the SGB requesting their function to be taken over. Marks awarded by interviewing panel are not correct and the applicant was prejudiced as she felt she was the best candidate for the position in terms of qualifications and experience.
7. The remedy sought is 12 months financial compensation.
8. The applicant, Mrs. Nolitha Mancoko testified under oath as follows:
9. She works for the respondent as a Deputy Principal. She applied for a Deputy Principal position which was advertised for Hector Peterson High Shool for mathematics and physical science before she occupied her current position. She is in SMT and has been working for the respondent since 1990 and has been a senior teacher for more than 5 years, monitoring Mathematics and Physical science teachers. She also majored in mathematics and physical science and posseses managerial qualifications and experience.
10. Under cross-examination, the applicant testified as follows;
11. She does not know if she was recommended as the best candidate or not but she is aware that the SGB had no say in the appointment of the Deputy Principal as their powers were taken. The applicant did not respond when it was put to her that SGB requested assistance of the respondent as there were internal problems and that no powers were taken.
12. Under re-examination, the applicant stated that it is not fair that the SGB gave its powers to the respondent.
13. The first witness Ms Nosipo Komani, testified as follows;
14. She works for the respondent as a Circuit Manager in Zwelitsha schools and King Williams Town. She is responsible for 30 schools by giving support and motivation to principals, teachers and scholars. She also give support to SGB in trainings and appointment of educators in her circuit. She was also trained in recruitment processes hence they are responsible for training of School Governing Bodies.
15. She was appointed as a panelist when the position of a Deputy Principal for Mathematics and Physical Science was advertised at Hector Peterson High School. She was appointed by the Chief Education Specialist (CES). During the shortlisting process, a confidentiality form was completed.
16. The panelists shortlisted 3 candidates who all met the requirements of the position in terms of qualifications and managerial experience. All the 3 candidates were interviewed. Observers were from NAPTOSA and SADTU unions.
17. After the scores were calculated , 2 candidates (the applicant and Mr Ntantiso) tied. According to the training she attended, the tie was supposed to be broken by looking at the merit and qualification. The Chairperson led the panel to voting and the panel came out with the name of Mr Ntantiso. She (the witness) did not vote because she thought merit and qualification was supposed to be considered in order to break the tie.
18. The wtness testified further that she did sign the route form number.8 agreeing to the shortlisting of the 3 candidates. The position, according to further testimony of the witness was not supposed to be filled, in her opinion, the panelists performed the duty of the SGB. The SGB was involved when the recommendation was made as they signed. In her opinion, there were flaws in the process and that it has to be reviewed.
19. Under cross-examination, the witness testified as follows;
20. The witness was referred to a letter which confirmed that the SGB requested assistance from the District Manager with dealing with the recruitment and appointment of the Deputy Principal (page 15 of bundle A). The witness stated that she was not aware about the letter written by the SGB requesting for assistance and intervention of the district office and that the reasons were not clarified. The process followed when breaking the tie between the applicant and the incumbent was not followed correctly.
21. Under re-examination, the witness stated that the applicant was the best candidate in terms of qualifications.
22. In closing, Mr Manzi argued as follows;
23. The applicant is challenging procedural and substantive fairness in the appointment of Mr Ntantiso for the position of Deputy Principal as advertised in bulletin vol.4/2014.
24. The appointment of the panel of interviews was flawed and was illegally constituted. The interview panel was not authorized by the Head of Department to carry the SGB function. No evidence was subumitted to prove the withdrawal of the SGB. Ms Mancoko is more qualified than Mr Ntantiso and the appointed interview panel prejudiced her by disregarding her qualifications. The applicant seeks 12 months financial compensation as a remedy.
25. Mr Hena stated in his opening statement that the minutes of the interview process reflect that ratification was done by the panel to the SGB. The panel called the entire SGB and made a recomendation of the successful candidate. The respondent will prove that the applicant was not prejudiced. The district office was requested by the SGB to assist in the process of appointment of the Deputy Principal based on the internal problems they had at the time. There was no need for the SGB to withdraw its powers.
26. The witnesses will testify that when there was a tie between Mr Ntantiso and the applicant, they checked as to who obtained more marks in order to break the tie and Mr Ntantiso obtained more marks from 2 panellists hence he was appointed
27. The first respondent’s witness Mr. Patrick Andries Hanekom testified as follows;
28. He works for the respondent as a Circuit Manager since 2001. One of his responsibilitity is to assist schools, management in governance issues. He was the chairperson of the interview when the Deputy Principal position at Hector Peterson was advertised.
29. The SGB had some internal conflicts and they requested the District Office to handle the appointment of the Deputy Principal. The witness was referred to letter dated 09 March 2018 confirming the same facts from the District office official, Mrs Swarts.
30. The witness stated further that the SGB powers were never withdrawn because they (SGB) requested interviews to be conducted by external officials.
31. After the scores were added, 2 candidates obtained the same scores. Each panel has its own scoring technique and there is no guiding policy on how to break a tie. The panel can go on secrete ballot, by show of hands, or by flipping a coin,or go through scores and do comparison. The panel went through the scores and found that Mr Ntantiso got more scores from two panelists and he was the preferred candidate.
32. The witness made reference of the minutes of the panel which appear from page 28 to 32 of bundle. No objection was raised and the duly signed recommendation of the SGB appears on page 27 of bundle A. After the finalization of the interview porcocess, he (the witness) submitted all the documents to his line manager to liase with the SGB.
33. The applicant was not prejudiced during the appointment process of the Deputy Principal as the treatment of the candidates was the same. The District Director approved the recommended candidate (Mr. Ntantiso).
34. Under cross-examination, the witness testified as follows;
35. The powers of the SGB were not taken, the SGB requested assistance with the appointment of the Deputy Principal. When the scores were added the panel could not reach consensus until he directed the panelists to go through the scores. The SGB endorsed the recommendation of Mr Ntantiso as the best candidate.
36. The SGB endorsed the the recommendation of the panelists. All the candidates met the requirements of the position.
37. The second witness, Ms Babalwa Kalimashe testified as followed;
38. She works for the respondent as a Circuit Manager since 1992. She was the panel of the interview of the position of the Deputy Principal. After the scores were added, there was a tie btween the applicant and Mr Ntantiso. The tie was resolved when the chairperson suggested that scores be added the highest scoring candidate from 2 panelists was Mr Ntantiso.
39. The witness testified that there is no policy which deals with resolving of the tie and the process followed did not prejudice the applicant.
40. Under cross-examination, the witness testified as follows;
41. . The chairperson used the scores in resolving the tie. No objection was raised neither by unions or panelists. The 3 candidates who were interviewed met all the requirements for the position.
42. There is no policy which dictates as to how a tie is resolved. After the fianlisation of the process, the chairperson submitted all the documents to his line Manager (Mrs Swarts). She did not sign the minutes of the interview and it was just an omission.
43. Ratification of the process was done by Mrs Swarts and the SGB. The chairperson explained to the panelists that the SGB requested assistance with the appointment of the position due to the internal problems in the school.
44. In closing Mr Hena argued as follows;
45. The respondent did not commit an unfair labour practice by not appointing the applicant to the position of Deputy Principal at Hector Peterson High School. Mr Hanekom, who was the chairperson of the interview testified that SGB powers were never withdrawn and it (SGB) was not dysfunctional but it requested an assistance from the District office due to its internal challenges.
46. All the witnesses testified that the panel utelised scores to break the tie and checked which candidates received more scores from the majority of panelists, Mr Ntantiso obtained more scores from Mr Hanekom and Ms Kalimashe.
47. Mr Hena finally submitted that the applicant failed to prove her case on a balance of probabilities that the respondent did not comply with the prescripts and that her case must be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
48. The issues of common cause that relates to this matter are as follows:
• That the applicant applied for an advertised position of Deputy Principal at Hector Peterson High School in King Williams Town.
• That the applicant was shortlisted and interviewed but was not appointed to the position.
• That the applicant and the incumbent meet the requirements of the position as per the advertisement.
• That Mr Ntantiso was recommended and appointed as the best candidate for the position.
49. While it is the applicant’s case that the whole process of appointment of the Deputy Principal was flawed as the SGB was dysfunctional or its powers were taken, the respondent disputes the allegation.
50. It is the respondent’s case that the selection process was fairly conducted in terms of the prescripts of the respondent (PAM and ELRC CA 5 of 1998 as well as PELRC CA 2of 2002).
51. It is not disputed that during the interview process there was a tie between the applicant and the incumbent.
52. All respondent’s witnesses testified that there is no prescribed rule/policy on how to break a tie instead the interview panel uses its discretion and in this case, scores were used to break the tie.
53. Although the applicant’s witness was adamant that the merit, relating to qualifications and experience should have been used, she failed to cite the relevant prescript/policy to corroborate her version.
54. It must also be noted that the 3 candidates who were shortlisted and interviewed qualified for the position as they all met the minimum requirements.
55. I concur with the respondent’s representative’s contention to the fact that the applicant was not prejudiced when the tie was broken.
56. It is also my view that none of the candidates were prejudiced when the district office took a responsibility of assisting the SGB in dealing with the appointment of the Deputy Principal due to their (SGB) internal challenges at the time (page 15 bundle A).
57. It must also be noted that none of the affected parties objected to this decision even from the initial stages of shortlisting and interviews.
58. It appears from the party’s evidence that the respondent followed a fair procedure in appointing the best candidate for the position of a Deputy Pricipal at Hector Peterson High School and as such did not exercise its prerogative in a biased, unfair, capricious and unjust manner in appointing Mr Gerald Ntantiso to the position.
59. The applicant has failed to discharge the onus to prove the claim of unfair labour practice based on promotion by the respondent.
60. I therefore make the following award:
61. The appointment of the incumbent, Mr Gerald Ntantiso by the respondent, the Department of Education – Eastern Cape was both procedural and substantively fair.
62. The respondent, the Department of Education –Eastern Cape cannot be compelled to nullify the appointment of Mr. Ntantiso and cannot be compelled to compensate the applicant, Mrs Nolitha Mancoko, the applicant.
63. The applicant, is therefore not entitled to any relief.
64. The application is dismissed.
65. There is no order as to costs