Case Number: PSES585-18/19
Applicant: NATU obo Ntini TS
Respondent: 1st Respondent Department of Education Mpumalanga and 2nd Respondent Edward Thabang
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education, Riverside, Mbombela, Mpumalanga.
Award Date: 12 February 2020
Arbitrator: Piet Shai
Panellist/s: Piet Shai
Case No.: PSES585-18/19
Date of Award: 12-Feb-2020
In the ARBITRATION between:
NATU obo Ntini TS
(Union / Applicant)
Department of Education - Mpumalanga
(1 st Respondent)
Union/Applicant’s representative: Ms Simangele Shusha
Union/Applicant’s address: P.O.Box 1134
Telephone: 031 332 1342
1st Respondent’s representative: Mr Sifiso Khoza
Respondent’s address: Private Bag x 1014
2nd Respondent’s representative: James Chibi
DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard on various dates that are properly captured on record at the Department of Education, Riverside, Mbombela, Mpumalanga.
2. Both parties were present. The employee was represented by Ms. S.S Shusha, NATU official, whereas the employer / 1st Respondent was represented by Mr Sifiso Khoza and the 2nd Respondent, Mr Thabane M.E was represented by Mr Chibi J.N. a Sadtu official.
3. The proceedings where mechanically recorded. Further that at the end of the proceedings, both parties filed closing arguments and same were taken into account in arriving at the conclusions herein.
ISSUE TO BE DECIDED
4. I am called upon to determine whether the employer by not appointing the employee, committed unfair Labour Practice or not. If I find that the employer has committed unfair Labour practice I will further determine an appropriate remedy for her.
BACKGROUND TO THE ISSUE
5. The employee and the successful candidate are employed by the Mpumalanga Department of Education as educators. The employer advertised the position of a principal in which the employee was appointed acting principal and the successful candidate as acting deputy principal. The employee alleges that the process of filling the position was biased and unfair in that certain individuals failed to disclose certain interest and this then led to unfair filling of the position. The involved individuals are Mr Phiri, Ms. Lucky Ngomane, Dumisani Ngomane and Eunice Mqwamba.
6. Mr Phiri is friend with the appointed candidate. Ms. Eunice Mqwamba is a friend of the sister of the appointed candidate.
7. Further that, there was intimidation of the applicant/employee by Mr Lucky Ngomane. Further that, Mr Dumisani Ngomane sent sms to the applicant about the outcome of the interview of the concerned position.
8. The employer on the other hand denies commission of any unfair Labour Practice and that the interview panel was not influenced by external films.
SURVEY OF EVIDENCE FOR THE EMPLOYEE:
MS TEMBESILE PORTIA NTINI TESTIFIED UNDER OATH AS FOLLOWS:
9. She is employed by the employer as an educator and she has nineteen (19) years’ experience. She is currently a deputy principal of Khaliphane Secondary School. She acted in the positon of acting principal from January 2018, when the position was advertised she was one of the applicants. She remembers that herself, Mr Mdluli and Thabane were shortlisted. The position was both internally and externally advertised.
10. She lodged a dispute because she felt that the process was unfair. This started on the 8th June 2017 when she received an sms from Mr Dumisani Ngomane, the was chairperson of the ANC Youth league. The sms read as follows: “Thursday 8th June 2017, Hi, its Dumisane Ngomane, the chairperson of the youth league at ward 20, the one who’s leading the late coming team of Khaliphone. I did try to call you but was answered mistakenly while you chatting with other women, in short I have good news for you with the position of being a principal politically we need a female like you in order to work together bringing better future for the students. As a comrade you will know that everything its needs influence but you need to see me today after 7o’clock, but you must come with your husband when we discuss the terms and conditions of your employment. Please keep it secretly until we win it”. She did not respond to the sms. She was shocked and did not know where Dumisani got the information. After 10 minutes he phoned but she did not pick up and later she blocked his number.
11. When the position was advertised she did apply. In June 2018 she was appointed acting principal. On the 11th September 2018, they had called a parents meeting. The purpose of the meeting was to inform the parents about the performance of the school. Later they informed the parents to prepare for the election of the school governing body. The meeting was peaceful until they came to the finance part of the report.
12. Dumisani Ngomane raised a hand and proposed that the meeting be held outside the hall. Dumisani participated in the school affairs as parent of one Sonnelle Magagula. Dumisani Ngomane and his group prevented Ms. Shongwe to report on the finance because according to them there was no school governing body. She noticed that it was Lucky Ngomane, Raymond Shabangu, Shololo Ngomane and Ms Mjebo who were the cause of the chaotic situation. This group then told her that she can’t be a principal because; there are veterans like Maine Mkhabela and Mr Thabane. Someone in the group said to her, ‘look at your back, there is the principal’. At her back was Mr Thabane. Some said Mr Thabane will be the principal. She did not see the person who said so, the group then went to Mr Ncwane to demand the minutes and also told him that as they were new, they could not get any promotion as there are veterans at the school who could take over. The meeting could not be concluded. She then reported the matter to the circuit manager Ms. Mhlongo. This was followed by the student uprising protesting about what had happened the day before. The new teachers reported to the circuit office but students demanded their return. The circuit office addressed the matter and the situation was normalized. She was one of the new comers.
13. Page two and three f employee bundle show the election of none teacher component of the school governing body. On the day when Ms. Lukhule fought with general worker, Ms. Thembi when asked why, she said they want her, the applicant. One of them Ms. Twala, said the committee will resolve the issue of the principal as Mr Thabane will be appointed one, because he has taught them. That would happen on the 11th March 2018. On the 11th March 2018 the meeting did not sit because of the quorum. The meeting could quorate on the 18th March 2018.
14. According to the procedure, eligible members must appear on the voters roll. The roll is informed by administration register of the school. The administration register is informed by the registration form of the learner; the relevant person must appear as a parent on the form.
15. The day following the election day, the circuit office called requesting for a report of the elections. See page 14-15 of bundle A. According to the report, Mr Segage is not a parent, but took part in the election of the SGB. Mr Raymond Shabangu also does not have a child at the school but signed next to the child Thabo Segage. The investigation report revealed that that Mr Raymond Chabangu is not a legal guardian but participated in elections and was elected as SGB member. Mr Phiri was also found not be a legal guardian but took part in elections and was elected to the SGB and was also a panelist in the disputed interviews. Besides that he is a known friend of the appointed candidate. Further that, Ngomane Shololo is also not a legal guardian of Molefe Sibongile. Her concern is that ineligible people took part in the nominations of SGB members.
16. Ms. Babone Thabang is also not a legal guardian of a child at school but took part in the nominations viz she nominated Eunice Nqwamba who is her friend. Ms. Ngwamba should have disclosed her friendships with Babone Thabang who is the sister of the successful candidate.
17. Mr Dumisani Ngomane had an interest in the appointment of the principal as shown is his sms to her. He sat in a meeting in which it was said she will not be appointed but Thabang will be.
18. Following the two events she asked the chairperson of the NATU to ask for an independent panel to conduct the interview, see page 21 of employee bundle. The panel was selected but was partly independent. According to the minutes the panel was asked to put their interests aside. This meant that employer was aware of the interest but that they should put them aside. This also meant that these interests had the capacity to influence the independent panelist. She wanted a full independent panel. Mr Phiri did not have a child at the school; Mr Nkuna attended the same church with Thabang.
19. On or about 24th April 2018 one Raymond Chabangu, Lucky Ngomane and two (2) other ladies visited her and requested if they could help with the admin of the school. They also said her that they are aware that she is contesting the position with Mr Thabang. She did not respond to them but referred them to the circuit office. She got a report that they indeed went to the circuit office but does not know what was discussed. Lucky Ngomane was an observer during the interviews. She does not know the role he played on the SGB was represented by Mr Phiri, Nkosi, Nkuna. He however, may have influenced the panel members. Further that, she is not sure whether the scores represent the actual performance, because Mr Thabang was qualified as being general while she was said to be specific. She feels that a person who was specific in answering questions is better than one who did so in general.
MR MLUNGISI VINCENT MDLULI TESTIFIED UNDER OATH AS FOLLOWS:
20. He is teacher at Khaliphani Secondary school. He is also a SGB member at the school. He knows the applicant in the matter. He was one of the applicants in the post. He was approached by Mr Dumisani Ngomane, an SGB member who invited him to visit him. When he visited him, he asked him if he was really interested in the post. His answer was yes. He offered to help him secure position as he has connections. In exchanged he needed to give him cold drink. He asked him how much he wanted. His answer was that he was still going to consult the relevant people. Later he came and said with ten thousand rand (R10 000.00), he can do the facilitation. He told him he will come back to him. This was unusual. He then called him and told him that he is no longer interested in the matter of facilitation and he will approach the matter in the normal way.
21. He confirmed in the main what the applicant testified about what happened at the parents meeting. When he offered to assist with the financial report at the parents meeting he was declined and called a liar. He confirmed that other members said the applicant can’t lead them but Thabane will do so. Amongst others who were saying this were Dumisani Ngomane, Shololo Ngomane, Raymond Chabangu, Lucky Ngomane, Sabelo Mbongani. These were not parents at the time.
22. At the time the main issue was who was going to be the principal. At the same time a new SGB was to be elected.
23. During the election Siphiwe Sekgakge signed next to her child Sanelle, Raymond Chabangu also signed next to Thabo Sekgakge but was not parent. Because this was delaying the progress they decided to continue but verify later. The verification found that Shololo Ngomane, Raymond Shabangu, and Phiri MJ did not have children at the school. The matter was reported to the circuit office.
24. The investigations found that Shololo Ngomane, Raymond Shabangu were not eligible to be members of SGB.
25. The nominations by the group were intended to have an influence on the outcome of the school’s principal position.
26. Mr Dumisani Ngomane did not name the people he approached, he does not know if Thabane was approached.
27. Mr Phiri was unqualified to be a member of the SGB. The registration form of the learner indicated the parents of the child Mondlane as Sibongile Zulu, when the department did verification it was now said Phiri and Zulu. To quality he needed to be a parent/ guardian.
28. He does not know the role played by Dumisani Ngomane in the shortlisting and interview.
MR ABEDNICO NQOBO TESTIFIED UNDER OATH AS FOLLOWS:
29. He is a teacher at Khaliphani Seconadry School. He confirmed the chaotic situation that took place on the 11th February 2018 and the role played by Shololo Ngomane, Lucky Ngomane, Dumisani Ngomane, the fight between Ms Lukhele and a general worker, the incident wherein Raymond Chabangu signed next to child Thabo Sekgakge. On the day Ms Sekgakge the mother did not sign. He further confirmed the complaint about Phiri, Raymond Shabangu and Shololo not having children at the said school. This was confirmed by the report of the investigation.
30. After the constitution of SGB he requested the SGB not to take part in the shortlisting. This was so because they all had interest in the matter of appointment of the principal. During the meeting, one Priscilla said to Phiri, we are pinning our hope on you to get us a principal. However, the head office gave them options.
31. During the meeting they were told that newcomers cannot be principals hence they had interest in the matter of appointment.
32. Given the score Phiri gave to both applicant and successful candidate he can’t say he had a motive.
33. According to him, the shortlisting, interview panel and SGB had an interest in the matter.
MR THAMSANGA ERIC SIBANDA TESTIFIED UNDER OATH AS FOLLOWS:
34. He is a general worker at Khaliphane Secondary school. He knows the applicant. He represents employees in the school governing body. He confirmed a meeting of the SGB called by the circuit manager to discuss the way forward in the appointment of the principal. The circuit manager gave them a number of options to constitute a shortlisting and interviewing panel. The SGB elected to adopt a partially outsourced panel. In his view this was intended to ensure that a person of their choice is appointed as the principal.
35. From the interviews three names were recommended, thus Mr Thabane ,and Apllicant; he cant remember the other name. Ms Mgwamba said during the deliberations that they have Mr Thabane and they always wanted that him. During the delibrations the parent component refused to be recorded and said that itn should be recorded that mr Thabane is recommended. The recommendation was then sent to the circuit office. He admitted that during the deliberations the employee component was outnumbered.
MR MUZI VILAKAZI TESTIFIED UNDER OATH AS FOLLOWS:
36. He is teacher at Elaria Secondary School. He is also a secretary of NATU. He wrote a letter of dispute regarding the post arising out of incidents that took place on the 11th February 2018, that it was chaotic. The reason for the complaint was that the member of the parents meeting said that the post should be filled by veteran at the school and not by new teachers. During the period the position had to be filled, a new school governing body had to be constituted. The constitution of the school governing body was followed by shortlisting and interviews. The purpose of the letter was to ask for independent panel to avoid the conflict of interests. He did not get a response. After shortlisting process he wrote another letter. The circuit office asked him to withdraw it but he refused saying that there concern still remains.
37. During the interview, Lucky Ngomane, an observer participated in the deliberations and he is the one who has shown interest in having veterans appointed. He continued even after he was reprimanded.
SURVEY OF EVIDENCE FOR THE EMPLOYER:
MR EDWARD THABANE, 2nd RESPONDED, TESTIFIED FOR THE EMPLOYER UNDER OATH AS FOLLOWS:
38. As at 20th March 2018, he was the deputy principal at Khaliphani Secondary school. He was appointed acting deputy by the applicant.
39. He was the one who was running the election of SBG. At the time there were complaints that some members of the community did not qualify. As a results, three of them Shololo Ngomane, Phiri and Raymond Shabangu had to be verified. It was determined that the three of them did not appear on voters roll.
40. The finding was that Shololo Ngomane was not eligible because she did not have a child at the school. Mr Raymond Shabangu also did not have a child at the school. Mr Phiri’s form was missing and it was searched for and found he is a guardian of a child at the school. Although the minutes indicated that he is not a legal guardian, it was found that he was a legal guardian. This qualified him to be elected to the SGB.
41. When shown a nomination form where he was nominated by Thabane Babone Lucia, he said he bears no relations with her.
42. He confirmed the chaotic meeting of the 11th February 2018. He did not hear when others said they cannot be led by the new comers.
43. The participation of the members who were not found illegible was not nullified but their names removed. He admitted that the same SGB that was elected in this fashion is the one that conducted shortlists and interviews. He admitted that Mr Phiri at the beginning of the school year he did not appear in the administration book but that he was not in charge of the process.
44. He denied that Lucia Thabane, regards him as, a brother and they have no relatives, they just happen to have same surname.
MS NOMSA MHLONGO TESTIFIED UNDER OATH AS FOLLOWS:
45. She is the circuit manager for Mgwenya circuit; Khalipani Secondary School and Thandeka are under her supervision. She monitored the elections of the SBG. She is aware of complaints that there were people participating as parents whereas it was not the case. Her advice was that they will investigate after the elections which they did. It was found that Shololo Ngomane and Raymond Shabangu were not eligible to be elected and removed but there was no comment about Phiri in the report.
46. She gave the SGB 3 options viz the SGB could do the interviews, constitute partially independent panel, or constitute a fully independent panel. The SGB elected a partially independent panel and the said panel was constituted. The shortlisting and interview were done and three members were recommended. She recommended Mr Thabane ME and the employer accepted to the recommendation.
47. At the time of the shortlisting and interview she had already received a complaint from the applicant, she was aware of the dynamics of the situation. The report of the investigation talks about Raymond Shabangu and Ngomane Shololo but silent on Mr Phiri. She further admitted that she ordered that the elections continue even though there were complaints. She admitted that people who were not eligible participated in the process of nominations.
48. In addition to the letter of complaint there was a grievance lodged about the dispute.
MR MEDIAN CIZEN PHIRI TESTIFIED UNDER OATH AS FOLLOWS:
49. He is a teacher at Maminza Primary School. He knows the child Nomtune Mondlane, he stays with her. Zulu Phiri is his wife, and Nomtune is the child with who he stays and supports.
50. He confirmed largely the process followed for shortlisting and interviews. He was one of them who were scoring the interviews. He knows Mr Thabang as a teacher but are not friends.
51. He confirmed that he is married to Zulu and because they are staying with Nomfundo and supports her, he takes it he is the legal guardian. However there is he legal appointment.
52. He confirmed that Phiri did not appear in the administration book but does so in the registration book.
53. He admitted that Shololo is the one who nominated him and that Shololo was later disqualified.
54. If his role was to ensure approval of Thabane, he would have ensured that he given him high scores.
ANALYSIS OF EVIDENCE AND ARGUMENTS
55. In this matter, National Teachers Union (NATU) lodged a referral on behalf of the employee, Ms Thembesile S.P Ntini. It was lodged following the appointment of the 2nd respondent, Mr Thabang, as principal at Khaliphani Secondary School ( PRINCIPALSHIP POST, POST NO: 621047180)
56. The dispute centered around the argument that the shortlisting and interview process was unfair and biased as certain School Governing Body members were said to have interest in the post that was not disclosed. The argument went further that the SGB which some of the individuals were later to form part of the interview committee was not legitimate as it consisted of individuals who were not eligible to participate in the process or be selected as SGB members. Reference was also made under influence.
57. On the other hand and in brief the employer argued that there was no unfairness or bias in that the selection and interview was conducted by a partially independent panel (then a panel consisting of SGB members and independent members.) further that the allocation of points by the SGB part of the panel does not show any biase as they gave both candidates Ms. Ntini and the successful candidate Mr Thabang similar scores.
58. A vacancy of principalship was created when the principal resigned. Ms Ntini was appointed acting principal and the second respondent appointed acting principal. The position was advertised and the two applied. This coincided with the end term of the then SGB. A new one had to be elected.
59. A parents meeting was held on the 11th February 2018. The meeting went well until the financial report was to be discussed. Some of the members objected to the person who was mandated to deal with the report. The evidence shows that the meeting ended in chaos. Evidence further shows that there was a group of ‘parents’ amongst them, Dumisani Ngomane, Raymond Ngomane, Shololo Ngomane and Raymond Shabangu who were vocal and causing disruptions. Amongst things they said are that the school cannot be led by new comers of which Ms Ntini was one of them, but should be led by veteran and in particular Mr Thabang.
60. In the following meeting where the SGB was elected, the same group was active and vocal. The elections were observed by Ms Mhlongo, the circuit manager. Evidence shows that she received information that there are people who are participating in the election but were not parents, thus not eligible. She directed that the meeting proceeds and investigations would follow. The report of the election was sent to her office, it cited three people, Lucky Ngomane, Shololo Ngomane and Mr Phiri as not being eligible. Investigation was done and the report showed that both shololo Ngomane and Lucky Ngomane were not eligible parents because they did not have children at the school. The report was silent on Mr Phiri. Evidence shows that on the day of the elections, Mr Phiri did not appear on learner’s administration registration form, only her mother Zulu appeared. Subsequently when it was found, it now included Mr Phiri. It is not clear how it came about, nor does the investigation report make reference to this. Mr Phiri testified that he is the guardian of the child as he is staying with the mother. When I asked him to clarify me he said he is married customarily with Zulu. He took the child as the father had died and there was no one to look after her. When I asked him that was the case as the mother is alive, he could not explain himself properly. Nevertheless, there is nothing to show that he is the guardian of the said child given the disappearance and reappearance of the registration form and the fact that the report made no finding in his respect. This could have been cured by for example an affidavit by the natural guardian, the mother but this was not done.
61. Ms Mhlongo, the circuit manager conceded that there were individuals who took part in the election of the SGB, either by nominating or seconding nominations when they had no right to do so. She conceded that she allowed the process to continue as valid regardless. She further conceded that the report cited three people as aforesaid but there is no comment on Phiri as to the basis of his eligibility.
62. Ms Ntini testified that Mr Dumisani Ngomane offered to facilitate her appointment as the principal upon payment of ten thousand rand (R 10 000.00) which she declined. Further that she testified that Lucky Ngomane. Who was later removed from SGB, together with three other people visited her office and made reference to the appointment of the principal, which she regarded as unusual.
63. Ms Mhlongo conceded that she received letters of complaints about the above.
64. When the constitution of the shortlisting panel was done, she was aware of these issues. After the shortlisting there was a discussion between NATU and Ms Mhlongo who suggested that the complaint raised earlier be withdrawn since according to her the shortlisting went well. According to evidence NATU refused on the basis that the elements of this complaint of remains in the process. This meant that she was aware all the time of the complaint. With regard to shortlisting, the complaint remained and the observer Dumisani Ngomane who had interest in the appointment of the principal took part.
65. The shortlisting panel then conducted an interview and made a selection which was passed to the full School governing body which recommended Mr Thabang as the preferred candidate.
66. The employee complaints that the procedure followed and the reason for appointment was unfair due to bias and undue influence.
67. Looking at the procedure that was followed in constituting the shortlisting and the interview panel in the mist of plethora of allegations of interest in the appointment of the principal, it is clear to me that no fairness could be achieved in the circumstances. The SGB members and Dumisani Ngomane clearly had an interest in the appointment of the principal. Dumisani Ngomane had offered the employee the position on payment of ten thousand rand (R 10 000.00). The deal fell through. There can never be confidence that he can be fair in the circumstances. One could argue that he was a mere observer but given evidence that he was facilitating appointment of both applicant and another fellow teacher leaves one with many unanswered questions. With regard to Mr Phiri, as I said above there is no shred of evidence to show that he was legible to sit as SGB member. Further that the recommendation by the interview panel of three names was put to the same SGB which we know that some members were not legible to be elected and which people had shown interest in the appointment of the principal right from the general meetings through the selection, interview and recommedation. In brief I find that the procedure followed in the appointment was unfair.
68. Looking at the constitution of the selection and interview panel, that it was partly outsourced and the fact that SBG members part of the said panel scored both candidates more or less same on superficial level may give an impression that, that in itself shows that the appointment was fair. However this must be looked into in context. The context is that from the parents meeting through the election of the SGB at the center was appointment of the principal. With sentiments expressed publicly at the parents meeting and election meetings, that the new comers cannot lead the school and that it should be led by a veteran, specifically, Mr Thabang care should have been taken to ensure fairness to all candidates. Further that, the very group that was instrumental in aborting the first parent meeting, played a role in selection, interview and finally in the recommendation to the HOD. I must also mention that it was testified that during the deliberations in the full SBG meeting where recommendation was made Ms Nqwambe stated that ‘we now got the principal that we always wanted’. This is a clear indication of the conflict of interest.
69. I must state further that in this matter there is a very thin line between procedure and substance. It is further trite that justice must not only be done but must be seen to be done. I am of the view that the SGB as constituted was conflicted and could not have presided over a matter such as this. In the premise I find that the appointment of the second responded was substantively unfair.
70. I find that the appointment of the 2nd respondent was both procedurally and substantively unfair and is set aside.
71. I order that the process be redone by an independent body.