Case Number: PSES 337-18/19 KZN
Applicant: Dumisani Ndlovu
Respondent: Department of Education: KwaZulu-Natal and Nokuthula Portia Nkabane
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Durban Teachers Centre, Durban
Award Date: 26 November 2020
Arbitrator: J.D. Vedan
Arbitrator: J.D. Vedan
Case Reference No.: PSES 337-18/19 KZN
Date of hearing: 26 November 2020
In the arbitration between:
Dumisani Ndlovu Applicant/Employee party
Department of Education – KwaZulu-Natal First Respondent/Employer party
Nokuthula Portia Nkabane Second Respondent/Joinder party
Applicant’s representative: S. Zondi
Tel: 071 907 2170
First Respondent’s representative: C. M. Folkard
Tel: 073 153 0930
Second Respondent’s representative:
Tel: 082 534 4480
DETAILS OF HEARING AND REPRESENTATION
1. The matter was held at the Durban Teachers Centre, College Road, Durban on 27 February 2020 and concluded on 27 November 2020 at ELRC Provincial Office, Problem Mkhize Road, Durban.
2. The Applicant was represented by S. Zondi, a Union Official.
3. The First Respondent was represented by C. M. Folkard, its representative.
4. The Second Respondent appeared in person.
BACKGROUND TO THE DISPUTE
5. The Applicant was an applicant for post number 223 of HRM Circular No. 70 of 2018 that is a Head of Department post at Mjoji Primary School.
6. The Applicant was shortlisted for the above post.
7. The candidates were interviewed, and the Applicant was placed number one in terms of the schedule of short-listed applicants. However, thereafter the School Governing Body recommended the Second Respondent, Nokuthula Portia Nkabane, for the post and she was appointed.
8. The Applicant stated that the First Respondent prejudiced her, as he was the highest scored candidate, but was not appointed to the post. He stated that all relevant forms were signed, and these forms indicated that he was the highest scoring candidate. He further stated that there was no ratification process followed during the procedure.
9. The Applicant sought relief in the form of the first preference being adhered to, which would result in his appointment to the post.
10. The First Respondent on the other hand stated that the School Governing Body had a right to recommend the Second Respondent for the post as this is allowed in terms of Section 16 of HRM Circular No. 70 of 2018. The Respondent further stated that the Department ultimately appoints a candidate to the post, based on the Head of Department’s prerogative.
11. The Second Respondent stated that the processes were conducted correctly. She further stated that she was interviewed, and was thereafter given the appointment letter.
ISSUE TO BE DECIDED
12. Whether the First Respondent committed an unfair labour practice, in terms of Section 186 (2) (a) of the Labour Relations no 66 of 1995 (as amended) (LRA) against the Applicant relating to a promotion?
SURVEY OF EVIDENCE AND ARGUMENTS:
13. The first witness for the Applicant, Dr Thobile Sithole, testified that she was a co-opted member of the School Governing Body, and she was also co-opted as a member of the Interview Committee. She stated that she is a departmental official in the ILembe District, within the Community Education and Training unit.
14. She was a part of the Interview Committee while shortlisting and interviews were conducted. She stated that the interviews went well, and she only met the Applicant on the day of the interviews. The Applicant was placed first, due to being the highest scoring candidate. She further stated that the second highest scoring candidate was an individual from the same school. Dr Sithole stated that she does not remember the individual, as she only met her on the same day.
15. According to Dr Sithole, shortlisting was done in March 2019, and there were no issues during the interview process, and one observer from SADTU was present. All documents were signed on that day, in the presence of the entire interview committee. She stated that she was not aware that there was a ratification process after the interviews. She further stated that she was never called again, and she did not have any meeting with the resource person, who is the Principal.
16. Dr Sithole added that no one had grievances about the interviews, and the number one candidate was agreed upon. She stated that they agreed that the scoring and positions would remain the same, and this was reiterated twice before they signed in agreement. She further stated that the SADTU member also signed. Dr Sithole stated that this was noted in the minutes, which was signed by the interview committee.
17. She stated that there were two members co-opted. The second meeting entailed the planning process, and during the third meeting, the CVs were read and the interviews were conducted. Five people were shortlisted for interviews.
18. According to Dr Sithole, the Union observer did not raise any issue about the scoring during the interviews. However the Union representative did raise a concern based on Mr H. L. Hlophe’s scoring. This was discussed, agreed upon and the process continued. She stated that somebody had been scoring very high and very low, which was a cause for concern.
19. Dr Sithole stated that she was not aware of Section 16 of HRM Circular No. 70 of 2018, but she was aware that the rank order can be changed. However she stated that the rank order was not changed on that day.
20. She further stated that she was not aware of the ratification, nor was she a part of same. She was not even aware of the chosen candidate.
21. With reference to the EHR11 Form signed by her, which places the Second Respondent as the number one candidate, Dr Sithole stated that she did not know of the form, and she does not remember signing it. She did however concede that it was her signature affixed to the form. She stated that she suspected that the form in question was the one that the Principal had brought to her home for her to sign after stating that there was a form that was not signed. She read the document, but stated that it was not the same document. She was not aware of the Applicant being second and the Second Respondent being first.
22. The second witness for the Applicant was Lungisani Jerome Shange. He was a SADTU observer during the interview process at Mjoji Primary School, but was not part of the shortlisting. He stated that he is an Educator.
23. Mr Shange stated that he raised the issue of scores on the first candidate at the beginning of the interview. He asked the Chairperson, Mr Hlophe, to justify his scores. Mr Hlophe failed to justify his scores. Mr Shange then advised Mr Hlophe that he should be consistent in his scoring.
24. According to Mr Shange, the Applicant was placed first after scoring, and the Second Respondent was placed second. M. Buthelezi was third and M. I. Ngcobo was fourth. The fifth candidate failed to attend the interviews. Mr Shange signed the forms, as the process had been declared a free and fair one. This is in the minutes. He stated that he was not called for ratification.
25. He stated that he did sign the EHR11 Form, but his signature was not there.
26. Further, he stated that it is the prerogative of the School Governing Body to change the rank order, but a process must be followed.
27. Mr Shange denied being confrontational to Mr Sikhakhane and further denied not answering his phone calls. He stated that Mr Sikhakhane did not contact him in any way.
28. Mr Shange stated that he did not know why the order was changed, and he had expected the Applicant to be appointed.
FIRST RESPONDENT’S EVIDENCE
29. The first witness for the First Respondent, Sizwe Wiseman Sikhakhane, testified that he is the Principal of Mjoji Primary School, and has been in the position for three years. He stated that he was a resource person during the selection process, and was responsible for calling the candidates, and introducing them to the panel. He gave a member of the Interview Committee the responsibility of introducing the panel. He observed the entire process.
30. According to Mr Sikhakhane, the post was advertised, and he was called to fetch the applications from the Circuit Office. This remained in a container until the day of shortlisting. Two members were co-opted onto the interview committee, Mr C.P. Mthiyane and Dr T.P. Sithole. The members of the Interview Committee were selected. The co-opted members were co-opted based on their expertise in the field of education and the experience with interviews.
31. At the shortlisting process, the Union observer, Mr T.A. Zungu was present, and produced an appointment letter.
32. Mr Sikhakhane stated that there were twenty-three candidates, and two applications had been rejected. Therefore twenty-one remained for assessment. He stated that he reminded the panel that the names of the candidates will only be revealed after the assessment, and applications were given numbers. It was agreed that scores for question one and three would be multiplied. After he explained this to the panel, the process began.
33. Mr Sikhakhane was tasked with contacting the shortlisted candidates for interviews. He added that there were issues during shortlisting, despite these issues not being recorded. He stated that the observer was interfering with the scoring of the applications. He questioned the Chairperson’s scoring. The Chairperson became irritated, and even refused to proceed with the observer interrupting the process. It was decided on that day that scores would remain the same.
34. He stated that the interviews took place on 14 March 2019. During the process, Ms Rubiana Manilal withdrew from the interview, and due to her late withdrawal, she could not be replaced by another candidate. He further added that the scoring was conducted according to a seven point scale, and the first and third questions were multiplied by two.
35. M. Buthelezi was the first to be interviewed, followed by the Applicant, M. I. Ngcobo, and then the Second Respondent. This was done in alphabetical order. According to the scores, the Applicant was the highest scored candidate.
36. Mr Sikhakhane stated that the observer also intervened on the process with the very same questions which were asked by the first observer. When the Interview Committee was scoring, Mr Shange raised the issue that the scores given to the Second Respondent were not in line with her answers. Mr Shange told the Chairperson to withdraw those scores, and they were torn and thrown away. Mr Shange told the Chairperson to lower the scores, as he raised questions on the Second Respondent’s high scores, and the Second Respondent was thereafter rescored. This interference was recorded in the isiZulu version of the minutes. Mr Hlophe was not happy about the way he was treated. After the interview, all the Interview Committee members signed.
37. He stated that an observer had no right to interfere in the process, as he was only there to observe the fairness of the process. According to Mr Sikhakhane, Dr Sithole reprimanded the observer and advised him that he was only there to observe. Further he added that Mr Zungu and the Applicant were from the same school, which made his position as an observer irregular.
38. Mr Hlophe, the Chairperson, advised them that ratification would be at 16:30 pm, but this did not happen on the same day, as some School Governing Body members were old and ill, and had to leave before it got late. They then set another meeting for 21 March 2019 for ratification. Mr Sikhakhane wrote the letters and telephoned them after the meeting to arrange the date.
39. Mr Sikhakhane further stated that during the interviews, one of the Interview Committee member checked the experience of the candidates about to be interviewed, and stated that one candidate with twenty-eight years of experience was about to expire. Mr Hlophe was not happy with this.
40. On the ratification process, Mr Sikhakhane advised the School Governing Body of the procedure to be followed in terms of ratification according to HRM Circular No. 70 of 2018. They put forth reasons in support of their recommendation of the Second Respondent, and changed the order.
41. Mr Sikhakhane took all the documents to the Circuit Office for submission, and was advised that if the recommendation is for candidate number two, the ranking must be changed to place the second candidate as the first candidate without interfering with the scores. He then went to the members of the Interview Committee to have this document signed, and explained the document to them. He added that he explained the document to Dr Sithole, and she did not sign a blank form. He thereafter submitted this form at the Circuit Office.
42. He said that he received no queries regarding this document, except for the queries from the Union members, which were lodged before he got the appointment letter for the Second Respondent.
43. He stated that he received several calls recommending the Applicant for the position, and therefore stopped taking calls. He was even approached by Union members Mr Pravesh and Mr Bheki Khumalo, who told him that they should give higher positions to the acting members of the Union. He advised them that he was not a part of it, and that the power to appoint was vested in the School Governing Body and the Head of Department.
44. He added that the decision to change the candidates was not predetermined, and it was a matter to be discussed at the ratification meeting. At the ratification, the CVs of the four candidates were reread, and they discovered that M. Buthelezi and M. I. Ngcobo did not have acting experience. They further found that the Applicant had no foundation phase experience. The Second Respondent did have the necessary experience.
45. The Second Respondent had nothing to add, other than that she had gone for the interview and was thereafter appointed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
46. Any appointment, promotion or transfer to any post on the educator establishment of a public school, may only be made on the recommendation of the Governing Body of that public school. In Kimberly Junior School v Head of Northern Cape Education Department  4 All SA 135 (SCA), the Court held that a recommendation by a School Governing Body is essential for the appointment of an educator in a departmental position. If the Head of Department makes an appointment without such a recommendation, the Head of Department acts ultra vires, and such an act is unlawful.
47. The Applicant’s complaint is that he was first on the recommendation of the Interview Committee, and that the School Governing Body had acted unfairly in recommending the Second Respondent, Nokuthula Portia Nkabane, as first in preference order.
48. Further he asserted that no ratification had taken place. However the First Respondent proved that a ratification process had taken place by submitting the minutes of the ratification process, which was held on 21 March 2019 at the school.
49. It is trite law that the ELRC does not have jurisdiction over the School Governing Body, but only has jurisdiction over the Department of Education, and that the Head of Department, although he has a specified discretion to disregard the School Governing Body’s motivation, and even its recommendation, must “exercise this discretion in a manner which conforms to the statutory requirements of fair administration in the Constitution, and in PAJA, and also in general with the Department’s policy”. This was confirmed in Head, Western Cape Education Department and Others v Governing Body, Point High School and Others 2008 (5 SA 18 SEA para 10).
50. Unfair labour practice must arise between an employer and an employee, and the employee bears the onus of proving the claim on a balance of probabilities. In this case the School Governing Body had ratified the list in accordance with Section 16 of the HRM Circular No. 70 of 2018, which allows for the recommendation of a lower scoring candidate, and the existence of the ratification process was in dispute. The Respondent maintained that the ratification did take place, and during this process it was discovered that the Second Respondent possessed more experience. This resulted in the Second Respondent being recommended for the post.
51. A careful analysis of the evidence would seem that the witness for the Applicant, Dr Thobile P. Sithole, demonstrated a certain amount of biasness in that evidence was led, which evidence I accept, that she made a comment during the interviews that the Second Respondent who had twenty-eight years of experience, as an Educator, is about to expire. This did not sit well with the School Governing Body Chairperson, Mr H.L. Hlophe.
52. Although Dr Sithole indicated that she had full knowledge of selection processes in the Department, she was unable to elucidate on what ratification meant. Her initial statement that everything went well in the interview process was later corrected by her when the disagreement between the observer, Lungisani Shange, and the Chairperson, Mr Hlophe, was put to her.
53. Taking the above into consideration and weighing the evidence of the Principal and herself, her assertion that the Principal would come to her house to get her to sign a blank EHR11 Form cannot be believed. She has a Doctorate, and one would not expect a person who is highly educated to sign a blank document.
54. A perusal of the EHR11 Form clearly indicates her signature thereon. The document was also signed by other members of the Interview Committee, although the scoring remained the same.
55. Assessing the evidence of Lungisani Jerome Shange, who was the Union observer, it would seem that there was a degree of biasness on the part of Mr Shange as well. Mr Sikhakhane’s version was that it would seem that the Union’s preferred candidate was the Applicant, because it was felt that higher positions should be given to active members of the Union.
56. This is confirmed by the fact that Mr Sikhakhane also received calls from two other members of the Union, namely Mr Pravesh and Mr Bheki Khumalo, recommending the Applicant for the position. Mr Sikhakhane also gave evidence that he was approached at a local bank by one of the Union members wanting an explanation why the Applicant was not given the position.
57. Further indication of biasness on the part of Mr Shange was that there appeared to be an altercation between Mr Shange and the now late Chairperson of the School Governing Body. Since the events taking place Mr Hlophe has passed away.
58. It would seem uncontested evidence that Mr Hlophe was forced to change his scoring of the Second Respondent, and after pressuring from Mr Shange. Mr Shange therefore did not conform to his role, as set out in Section 14 of HRM Circular No. 70 of 2018, in that he was merely there to observe the process. He in fact interfered with the scoring.
59. The evidence of Mr Sikhakhane was clear and credible. He was merely a resource person during the entire process, and was a conduit between the School Governing Body and the Department. He was able to attest to the Second Respondent’s character, as he knew her quite well. However he did not have any part to play in the scoring and recommendation.
60. One must be aware that one cannot expect absolute perfection in the process followed, and case law has set out that although there may not have been strict compliance with procedures, as set out in Section 16 of HRM Circular No. 70 of 2018, sufficient compliance will be adequate. The Courts have held that strict compliance in conformity with the procedure set out for appointments in the PAM Agreement and the ELRC Collective Agreement is not a prerequisite for appointments, and would not cause the appointment to be set aside, as long as there is substantial compliance with the requirements.
61. When informed that the Interview Committee has to sign the EHR11 Form as well by Dr Naidoo, the Principal, Mr Sikhakhane, diligently and at an early hour set out to obtain the necessary signatures, and I have no reason to believe that Dr Sithole’s signature was obtained in an improper manner.
62. It was up to the School Governing Body in the ratification process to decide on who should be the preferred candidate. However it was the Head of Department who made the final decision after studying all the documents.
63. The School Governing Body had valid reasons for changing the order based on experience, the personality and service to the school rendered by the Second Respondent. The First Respondent then properly exercised its discretion in the matter, and I find that the First Respondent committed no unfair labour practice.
65. The Applicant’s dispute referral is dismissed.
66. There is no order as to costs.