Award  Date:
7 October 2020
Case Number: PSES922-19/20LP
Province: Limpopo
Applicant: Cukumetani Danson Ndleve
Respondent: Department of Education Limpopo
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 7 October 2020
Arbitrator: MN Masetla
Commissioner: MN Masetla
Case number: PSES922-19/20LP
Date of the award: 07/10/20

In the Arbitration between
Cukumetani Danson Ndleve Employee
Department of Education – Limpopo Employer

1. This is an award in the arbitration between Cukumetani Denson Ndleve, the employee and the Department of Education - Limpopo, the employer.

2. The arbitration was held under the auspices of the Education Labour Relations Council in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (LRA) and the award is issued in terms of Section 138(7) of the LRA.

3. The arbitration process commenced on 20 March 2020 and was finalised on 25 September 2020.

4. The employee was present and represented by Joseph Munengwane, a union official from the Professional Education Union ( Peu).

5. The employer was represented by Mr Matlou, its Labour Relations Officer.

6. I have to determine whether or not the employer acted unfairly towards the employee when it promoted Ms Mavangwa T.P instead of the employee

7. To order appropriate relief.

8. The employee referred an unfair labour practice dispute relating to promotion.

9. The employee submitted his bundle of document and was marked “NCD C”.

10. The proceedings were mechanically recorded.

Employee’s case
11. Cukumetani Danson Ndleve testified under oath and stated that he applied for the Principalship position at Hawuka Secondary School. He was shortlisted and interviewed together with the other candidates. Ms Mavangwa TP was eventually appointed as the Principal of Hawuka High School.

12. He has never seen the Employment Equity Plan contained in pages 74 -83 of the bundle of documents. He stated further that Clause 3.3. of the respondent’s circular dated 08 July 2019 provides as follows:
“The employment of Educators Act 1998 provides for the governing bodies to consider constitutional principles of equity, redress and representatives when considering application for appointment of Educators (section 6 (3) (b) (i) and section 7 (1). If the governing body fails to comply with these constitutional principles, the Head of Department must reject their recommendations in terms of section 6 (3). Section 7 (1) of the Employment of Educators provides that: in the making of any appointment of the filling of any post on any educators established under this Act due regard shall be had to equality, equity and other democratic values and principles which are contemplated in section 195 (1) of the Constitution of the Republic of South Africa 1996, and which include the following factors; namely:
(a) the ability of the candidates

(b) the need to redress the imbalances of the past in order to achieve broad representation

13. He stated that the rejection of the Governing Body’s recommendation did not address the constitutional principles of equity and redress as well as his performance at the interview. The appointment of Ms Mavangwa T.P contravened the ELRC Guidelines: Promotion Arbitrations Collective Agreement. In terms of Page 30. Of Bundle “NCD”, he was ranked first (1) by the panel and employer was expected to appoint the best candidate. There were no reasons given for deviating from the recommendations of the panel and the SGB.

Employer’s case
14. Isaiah Matsobane Mhlongo testified under oath that he is the Acting Deputy Director Corporate Services based in Mopani District and has been acting as such from January 2019. Amongst his duties, he manages the appointment of educators and public services staff.

15. He stated that the employer did not commit any unfair labour practice in relation to disregarding the recommendations of the School Governing Body and the employee’s performance in the interview. He stated that Collective Agreement 3 of 2016 provides that there is no general right to promotion and only a right to be fairly considered. While the Head of Department (HOD) places right on the recommendations of the SGB, the employer may also deviate where there are sound reasons to do so.

16. This is an unfair labour practice dispute relating to promotion. The employer advertised Principalship posts in terms of vacancy lists No 1 Volume 1/2019 on 17 July 2019. The employee was one of the shortlisted and interviewed candidates for the Principal position at Hawuka Secondary School in Mopani District in Limpopo. The interview committee ranked the candidates so that the School Governing Body could make recommendations to the Head of Department. The rankings were as follows:
16.1. Ndleve C.D 87.6
16.2. Nkuna M.E 74.8
16.3. Mavangwa T.P 67.4
16.4. Masingi T.M 59.4

17. The employee, being the highest scored candidate, by the interview committee and subsequently recommended for appointment by the SGB was not appointed. Ms Mavangwa T.P was appointed. It is this appointment which precipitated the filing of this dispute by the employee.

18. The basis of the employee’s complaint relating to his non-appointment was twofold, firstly, that he scored the highest marks as opposed to the appointed candidate, secondly it was based on the fact that the employer does not have the Employment Equity Plan.

19. The employee submitted bundle “NCD C” which is an Employment Equity Plan. In addition to this plan, the employer submitted pages 82 and 83 of the bundle which is Department Profiles for Educators in Promotion posts. The profiles reflected representivity in Principalship positions. In relation to African males, there were 2078 principals as opposed to 1174 females. The plan was signed by the Head of Department on 4 August 2015. I therefore could not find any basis for the employee to indicate that the employer does not have an employment equity plan.

20. Was the employer correct in appointing Ms Mavangwa to the position as opposed to the employee? In my view yes. Though the employee was the highest scored, the employer laid the basis of its deviation from SGB recommendations. It was not disputed by the employee that males are more represented in the positions of principals as reflected on the profiles submitted. In any case, the employee did not challenge the fact that affirmative action was applied unfairly or incorrectly. His contention was that the employer does not have an affirmative plan.

21. Further to this, the HOD issued a circular on 05 July 2019, Circular no 116 of 20129 which provides for guidelines for the implementation of the 2015/2020 employment equity plan in the appointment of employees in Limpopo Department of Education. Paragraph 5 of the circular provides as follows:
5.1. The Head of Department or the Delegated Official shall always strike to appoint any qualifying candidate from the under-represented groups as guided by the statistics of the employment Equity profile of the province and Economically Active Population regardless of scores that could be attained by the candidates from the over-represented groups.

22. It is my view that whilst the employer was expected to appoint the best candidate such an expectation will always be subjected to the employer’s right to appoint a weaker candidate in the name of affirmative action in order to address the imbalances of the past. Guided by the decision of the Supreme Court of Appeal in Head, Western Cape Education – Department and Others v Governing Body, Point High School and Others 2008 (5) SA 18 (SCA) where the court said that the employer is not bound by the recommendation of the SGB and may deviate from their recommendation where there are sound reason for doing so, it is therefore my finding that no basis has been laid to find that the employer acted unfairly in appointing Ms Mavangwa instead of the employee. The none appointment was clearly informed by the Employment Equity process presented and Circular 116 of 2019.

23. The employer, Department of Education - Limpopo did not act unfairly towards the employee, Cukumetani Denson Ndleve when it promoted Ms Mavangwa T.P to the position of Principal at Hawuka Secondary School.

24. The employee’s referral is hereby dismissed.

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