Case Number: ELRC 24-20/21 KZN
Commissioner: Nonhlanhla Dubazane
Date of Award: 03 March 2021
In the matter between
NAPTOSA obo Ndlovu
DEPARTMENT OF EDUCATION – KWAZULU NATAL
Union/Applicant’s address: P O Box 626
Telephone: 082 855 1796 / 079 800 8101
Respondent’s address: 228 Pietermaritzburg Street
Telephone: 033 – 846 5404
1. DETAILS OF HEARING AND REPRESENTATION
1.1The matter was heard on the 26th November 2020, 21, 22 & 28 January 2020 respectively under the auspices of the Education labour Relations Council. Proceedings were conducted on zoom on the 28 January 2020.
1.2The Applicant, Sthembiso Prince Ndlovu was present and represented by Mr S N Sihlezana, a NAPTOSA official. The First Respondent is KwaZulu Natal Department of Education (the department). The Second Respondent is Mr Yongama Tshingo. Both Respondents were represented by Mr Bheki Mkhanyawo.
2. ISSUE TO BE DECIDED
2.1I have to determine whether the Respondent committed an unfair labour practice relating to promotion by appointing the Second Respondent into post of Departmental Head at Batlokoa Senior Secondary School.
3. BACKGROUND TO THE ISSUE
3.1 The Applicant referred a dispute relating to promotion to the bargaining council on the 10th June 2020.
3.2 The matter was set down for conciliation on the 6th July 2020 when it was conciliated and remained unresolved. A certificate of non – resolution was issued.
3.3 Arbitration proceedings took place on the dates aforementioned.
3.4 The Applicant averred that the First Respondent unfairly treated him prior to and during the interview process; it is compulsory for the First Respondent to shortlist someone who has been acting in the position for more than 12 months; he was unfairly treated and discriminated against before and during the interview process; the relief he is seeking is that the process be started afresh.
3.5 The First Respondent stated that the appointment process was conducted fairly; the Applicant failed to produce evidence to support his claim even at his grievance hearing; the Second Respondent met the requirements for the post.
3.6 The Applicant handed in Annexure A whilst the First Respondent handed in Annexure B.
4. SURVEY OF EVIDENCE AND ARGUMENT
Common cause facts
4.1The Applicant started working for the First Respondent on the 21st of January 2015. He is receiving a monthly salary in the amount of R18 271.25. He is currently teaching Mathematics at Batlokoa Senior Secondary School “Batlokoa”.
4.2The Applicant met the requirements for the contested post of Departmental Head “HOD” at Batlokoa. He was acting as the HOD teaching Maths and Science for more than 12 months at the same school as at the date of the advert. He was shortlisted for the interviews, interviewed by the interview committee however he was unsuccessful.
4.3The Second Respondent also applied for the post of HOD and he was teaching Maths Literacy as at the date of the advert. He was shortlisted for interviews, interviewed and appointed to the disputed post.
4.4Five (5) candidates were interviewed and the Second Respondent was ranked first in terms of scoring and appointed to the contested post.
4.5The Applicant lodged a grievance complaining about the unfair procedure at the interviews. His grievance hearing took place and the outcome was in not in his favour.
4.6The Respondent’s HRM Circular No.36 of 2019 regulates the recruitment and appointment processes at the Respondent.
4.7 The Second Respondent’s appointment was with effect from the 1st of June 2020. He is currently teaching Maths Literacy and Social Science at Batlokoa.
The Applicant’s case
4.8Mr Ndlovu took an oath and gave the following evidence:- In summary and of importance in this case, he said:- he and Mr Tshingo are work colleagues who used to share information. Mr Tshingo arrived at Batlokoa in January 2018. Mr Tshingo said that it was his first appointment as a teacher at Batlokoa and prior thereto he was working at the district office. He (Mr Ndlovu) was not certain which position Mr Tshingo occupied at the district office however it was not related to teaching in the classroom according to Mr Tshingo’s statement made to him. Mr Tshingo is currently teaching Maths Literacy in grades 10 & 11 and Social Sciences in grade 8.
4.9In 2016 he (Mr Ndlovu) introduced Mathematics “Maths” in grade 10 class. In 2017 he taught Mathematics to learners in grades 10 & 11. In 2018 he taught Mathematics to grade 12 learners and Geography to learners in grades 10-12. He was also assisting, teaching Technology to grade 8 learners as well as Natural Science to Grade 9 learners.
4.10Before commencement of the interviews, three (3) members of the interview committee (IC), namely, Mrs B J Molefe, Mr M V Mhlophe and Mr JZ Zondi met outside Batlokoa premises whilst a community member by the name of Mr Tebogo Ndlovu was passing by. Tebogo Ndlovu overheard their conversation which was about him (Mr Ndlovu – the Applicant) and came and asked him if he (Mr Ndlovu) had an interview to attend on that day. Tebogo’s statement shocked him because he was invited to attend interviews on that day. Tebogo told him that Molefe said that he (Mr Ndlovu) should not participate in the interviews and he overheard them not talking good about him which led to him (Tebogo) coming to him to make him aware about what was going on. He (Mr Ndlovu) prepared himself for the interviews.
4.11 He saw Molefe as he (Mr Ndlovu) was approaching the computer lab. At the time he was on his way to check the venue where the interviews were to be conducted. Molefe was standing against the interview room and he overheard her saying to the people who were inside the room that he (Mr Ndlovu) should not be appointed to the contested post and they needed to manipulate the interview scores. Mrs Joyce Ndlovu was inside the interview room at the time.
4.12 He discovered that he had forgotten his ID card and he made a request to go and fetch it when it was his turn to be interviewed. The interview committee expressed the view that there was no need for him to go and fetch it because they knew him very well. The panel interviewed him. Mr Tshingo was next to be interviewed after him.
4.13 He (Mr Ndlovu) saw the usher by the name of Mrs Ndebele going to Mr Tshingo’s car and that surprised him and got him thinking if Mr Tshingo had decided not to attend the interviews. Mr Tshingo left the school premises without being interviewed and Ndebele went back inside the interview room. It took Mr Tshingo more than 30 minutes to return to school. He (Mr Ndlovu) thought that Mr Tshingo went home to fetch his ID document. It takes 3 - 4 minutes to drive to Mr Tshingo’s house from Batlokoa. The chairperson of the interview committee, namely, Mr MV Mhlophe came out of the interview room and he was talking on his cell phone. It surprised him (Mr Ndlovu) and got him suspicious, seeing Mr Mhlophe exiting the interview room, whilst the candidate had left and the interview process was still continuing. He (Mr Ndlovu) went to have lunch after his interview.
4.14Subsequent thereto he lodged a grievance with the department about the treatment he received before and during the interviews. The department said that he did not have enough evidence. He asked if he could go back and collect more evidence. The department allowed him but said that he could only lodge the dispute after the candidate was appointed to the post. The union lodged a dispute on his behalf after the appointment process was finalized.
4.15Other IC members were Mr Khanyile and Mrs Joyce Ndlovu. Mrs Hlophe was taking minutes of the interview and Joyce Ndlovu was a scorer.
4.16Under cross – examination he stated the following:- He believed that Mr Tshingo went to fetch his ID from his home. Ndebele is the one who told him that Mr Tshingo had left his ID at home. It took Mr Tshingo 30 minutes to fetch his ID.
4.17 When it was put to him that was answering an emergency call when he came out of the interview room, his response was that he was not sure about that but Mhlophe’s conduct made him to be suspicious.
4.18Tebogo was not a member of the interview committee. Tebogo assured him (Mr Ndlovu) that his statement was correct. He (Mr Ndlovu) told Tebogo that he was going to attend the interviews just to finish the process.
4.19 He (Mr Ndlovu) did not know why Molefe did not want her to get appointed to the contested post. He did not hold a grudge against her. He did not make a request for the recusal of Molefe until such time when he lodged a grievance. He did not make such request to the interview committee because he was still new at Batlokoa and he did not know that he had the power to do so. What appears under the sub-heading “summary of the dispute” in his referral form was a misprint because he had said in his grievance form that “perhaps Molefe should be removed if the interview process could be redone”.
4.20He wrote in the referral form that the dispute arose on 3 June 2020 acting upon the advice of the department. The department had rejected his grievance and told him that he could lodge a dispute after the appointment of the successful candidate.
4.21He did not see Mr Tshingo and Mhlophe talking or discussing on the day of the interviews. Their discussion took place whilst he was inside the staff room where lunch was prepared for the candidates.
4.22Mr Tshingo does not qualify for the post because it was a requirement that the applicant must have 2 years actual teaching experience. Reference is made to clause 188.8.131.52 of HRM Circular No.36 of 2019 in this regard.
4.23When it was put to him that clause 184.108.40.206 of HRM Circular No.36 of 2019 refers to the learning area and it is not stated in the bulletin on page 99 of Annexure A that Maths Literacy teacher does not qualify, his response was that he did not think that it is Maths Literacy teacher that the department wanted for the contested post. The school governing body “SGB” and the Principal of Batlokoa would confirm that they wanted someone who was qualified in Physical Science, Mathematics and Life Sciences and not in Maths Literacy.
4.24Mr Tshingo told him that he was officially appointed by the department in January 2018. He was not aware that Mr Tshingo worked for the department for a month in 2015.
4.25He (Mr Ndlovu) had 6 years relevant experience, he acted as the HOD in the department of Maths and Science for more than 12 months, he taught Maths and Science in Batlokoa since 2016 whilst Mr Tshingo joined them in 2018. Mr Tshingo had 1 year 8 months’ experience as at the date when the post was advertised hence he (Mr Ndlovu) still needed to be given a chance. He used to be Mr Tshingo’s mentor. There was still a lot for Mr Tshingo to learn.
4.26When it was put to him that Maths appears as one of the subjects Tshingo had taught in his application form, his response was that, in terms of the advert the department was looking for someone qualified in Mathematics, Physical Science and Life Sciences for Batlokoa and Mr Tshingo was qualified in Maths Literacy and only had one year teaching experience.
4.27He believed that the applicant who qualifies in one learning area will not succeed over a person qualifying in 3 learning areas.
4.28On re- examination he stated that a person who is qualified in Maths Literacy cannot teach Mathematics but someone who is qualified in Mathematics can teach Maths Literacy.
4.29His grievance appears on page 6 of Annexure A and it appears in the grievance outcome on page 10 of Annexure B that he had stated that “he wanted to be given a second chance and the IC member be excluded” as the relief.
4.30Tebogo Ndlovu testified as the Applicant’s first witness as follows:- It was in the morning of the day of the interviews when he saw Zondi, Molefe and Mhlophe. Molefe seemed to be angry and she was shouting. He overheard her saying that Mr Ndlovu must not be part of the interviews. He (Tebogo) was passing by the school at the time.
4.31He (Tebogo) went and asked Mr Ndlovu if there were interviews taking place at Batlokoa to which Mr Ndlovu answered in the affirmative. He told Mr Ndlovu what he overheard including his surname that was mentioned. Mr Ndlovu asked him for the name of the person who made the statement and he told him that it was Molefe. Mr Ndlovu was shocked to hear that and he (Tebogo) told him that he was just telling him what he had overheard. He knew that the IC members were speaking about Mr Ndlovu because he (Tebogo) knew that Mr Ndlovu was the one who was teaching at Batlokoa. No other Mr Ndlovu was known to him.
4.32Under cross – examination he stated the following:- He never heard of any fight between Molefe and Mr Ndlovu. Both come from the same community. He (Tebogo) was certain that Molefe was talking about Mr Ndlovu in their conversation. Molefe and the two IC members were outside the school gate at the time of their discussion.
4.33He (Tebogo) had no knowledge about the interviews when he overheard the IC members’ conversation.
4.34On re-examination he stated that he had no reason to lie, he just happened to hear the IC members talking to each other.
4.35Joseph Zondi testified as the Applicant’s second witness as follows:- In summary and of importance in this case, he said:- what he knew was that Molefe and Hlophe were talking outside Batlokoa school when Molefe said that they (including him Zondi) must not allow Mr Ndlovu to participate in the interviews. His (Zondi’s) response was that no one was going to be prevented from participating in the interviews because the department had called all the candidates to participate. Molefe said that the reason for her statement was that Mr Ndlovu was not in good terms with the Principal of Batlokoa. He (Zondi) reiterated that no one would be prevented from participating in the interviews because the department never called them and told them to prevent other participants from participating.
4.36Molefe said that they must reduce Mr Ndlovu’s scores when they went inside the school premises citing that the reason was that there would be no co-operation between the School Principal and Mr Ndlovu if Mr Ndlovu is appointed.
4.37It disturbed the IC members when they saw Mhlophe leaving the interview room whilst holding his phone to his ear. At the time Ndebele had gone to call the next candidate. He (Zondi) did not know whom Mhlophe was calling at the time. The IC members were trained about the process of conducting interviews and he (Zondi) knew that it is not allowed for IC members to go in and out of the interview room whilst interviews are proceeding. He saw Mhlophe’s conduct as some form of a disturbance because everyone’s phone must be switched off and no one must go in and out once interviews commence.
4.38The IC members asked Ndebele for the reason she did not come back to the interview room with Mr Tshingo after she had gone to fetch him. They also asked her for the reason Mr Tshingo was allowed to go and get his ID document when in fact Mr Ndlovu who also came without his ID document was not told to go and fetch his. The IC members said that they knew Mr Ndlovu and they also knew Mr Tshingo. Ndebele told them that she had asked Mr Tshingo if he had his ID document in his possession and Tshingo replied in the negative and that is when she said that he must go and fetch it. The interview committee waited for 35 minutes before Mr Tshingo came back with his ID document. They questioned the different treatment because both candidates were teaching in the same school and they knew them both.
4.39Under cross examination he stated the following:- he sat as the SGB representative in the interviews because he was the chairperson of the interview committee before Mhlophe took over as the chairperson.
4.40He (Zondi) was not a scorer at the interviews. Molefe said that Mr Ndlovu should not be allowed to enter the interview room. He knew the declaration form and he signed the one appearing on page 16 of Annexure B. The SGB members must sign the form to confirm their attendance at the interviews. There was no way that Molefe could mobilize him to stop Mr Ndlovu’s interview from continuing. His signature does not appear in the schedule of short-listed candidates appearing on page 17 of Annexure B because he was not one of the scorers. He was not going to stop the interviews from continuing even though he saw that that there were irregularities with regards to the procedure that was followed. He was not able to do that.
4.41He did not know that he was recommending Mr Tshingo’s appointment when he signed the document on page 12 of Annexure B. He signed it to confirm his attendance at the interviews.
4.42He did not know that Molefe and the Principal of Batlokoa Secondary School were not in good terms. SGB members were not called to a meeting to discuss that at Batlokoa. Mhlophe did not speak to anyone whilst he was on the phone. The SGB members were not told that they could go to the toilet or leave the interview room in case of an emergency. They were told to switch off their phones during the interview. The rule is that the IC member must excuse himself or herself when leaving the interview room.
4.43On re-examination he said that it was not break time when Mhlophe left the interview room. It means the IC member is getting a call from someone outside the interview committee if he answers a call during the interviews and that conduct is not allowed.
4.44When questioned by myself he said that he was a community member.
4.45Nomusa Joyce Ndlovu testified as the Applicant’s third witness as follows:- He could not recall the date but there was a lot that he noticed which went wrong on the day of the interviews. She and other SGB members were inside the office where they were going to prepare for the candidates to sit when one of the IC members stood near the door and said that Mr Ndlovu was not supposed to be interviewed and also they had to reduce his scores because he had already been allowed to attend the interviews. Zondi was also present in the office and they were not happy about that statement. Her (Nomusa Ndlovu’s) response was that they could not do that because of the reason that was put forward that Mr Ndlovu was not in good terms with Mhlophe. She also said that they do not employ staff for the School Principal but for the children and also they were not aware of the conflict between them.
4.46The interview committee proceeded with the interviews. They did not know whether Molefe reduced Mr Ndlovu’s scores at the interviews. Another person whom they trusted went outside the interview room with the phone. They did not know whether someone was calling him or he made the call to someone. Also Mr Ndlovu had forgotten his ID document and they agreed as the interview committee to interview him since they knew him. What confused her (Nomusa) is that Ndebele came alone to the interview room when the last candidate was about to be interviewed. They questioned her about that. Ndebele told them that the candidate had said that he did not have his ID document and she told him to go and get it. They told Ndebele that she was not supposed to do that because they knew the person. They waited for about 30 minutes before the candidate came back to be interviewed.
4.47Mr Ndlovu was not shortlisted for the post. He asked the resource person who came from the department if the person who was acting in the post would not be included in the interviews. The resource person went to enquire from the Principal and the Principal said that he must be interviewed.
4.48SGB members who form part of the IC committee must do what they have come to do in the interviews and not what they are told by another person. What happened worried her a lot. They (SGB members) did not receive much training about conducting interviews and therefore they trusted the resource person who came from the department during the interviews.
4.49Her role was that of a scorer at the interviews. She signed all the documents, being a rural woman trusting the person who had come from the department, and therefore, she could not be left out but sign when other IC members were signing the documents. The whole interview process did not go well.
4.50Under cross examination, she stated the following:- She was not related to Mr Ndlovu. They share a surname. She did not reduce Mr Ndlovu’s scores but did what she had to do at the interviews.
4.51The resource person from the department and the clerk discussed the scores during the interview process. It was the interview, unlike any other, as they (members of the SGB) were told to leave the interview room. She kept quiet and did not question what was happening because she trusted the resource person and the chairperson. Her knowledge is that they must do what they have to do and not override decisions of those in authority. She had no knowledge why it took so long for Mr Tshingo to come back to the interviews. It shocked her that Ndebele did not come back to the interview room with him and also what Ndebele told them.
4.52She disputed that she and Mr Ndlovu’s witnesses fabricated the story about the interview process.
4.53She and Mr Ndlovu do not stay in the same area. She told Ndebele that she was wrong in her actions as she was not supposed to tell Mr Tshingo to go and fetch his ID document.
4.54She (Nomusa) signed the document on page 12 of Annexure B. They were told that it is the interview committee that recommends the appointment of a teacher. The interview committee told them (SGB component) to sign the interview forms. Even SGB members who are not present in the interviews come and sign the forms when the School Principal tells them to come and sign. SGB members come from a rural area.
4.55She did not know that she was recommending the appointment of Mr Tshingo when she was signing the interview forms because the resource person from the department and the clerk took the forms, personally counted the scores and then gave them to sign at the end of the interviews. They learn by mistakes. They trusted a person whom they believed had more knowledge than them. The resource person from the department told them that they would see which candidate was going to be successful but they must also know that gender is also to be considered. Her understanding of that statement was that a female teacher was going to be appointed to the contested post.
4.56On re-examination she said that they normally look and see which candidate scored the highest marks and right down to the one who scored the lowest however it was different in this case as the forms were brought to them to sign.
4.57When questioned by myself, she said that she captures the important points and writes the scores when they are scoring candidates. The School Principal keeps the scores in case they are needed as per his statement.
4.58The Second Respondent took an oath and gave the following evidence:- In summary and of importance in this case, he said that he is a teacher at Batlokoa since 2018 and he knows Mr Ndlovu. Mr Ndlovu is his colleague.
4.59He applied for the HOD post and was shortlisted for the interviews. On the day of the interviews, he arrived at school and the lady who is the SGB member approached him and asked him to go inside the staff room which was a place organized for candidates to sit in. He asked if he could stay in his car since he still wanted to go through his notes. After that he could see the candidates going in and out of the interview room. He was the last candidate to be called inside the interview room.
4.60He was introduced to the panel when he went inside the interview room. The chairperson asked him if he had his ID document in his possession and his response was that it was in his car. He then asked to go and fetch it which he did. His car was parked outside but inside the school premises. He came back with and the interview process continued. He was asked if he had a question at the end of his interview. He thanked the interview committee for inviting him to the interviews. He was offered lunch and thereafter he left the school premises.
4.61One IC member unknown to him was introduced to him and he was delegated to oversee the interview process. Other members who were present in the interviews were SGB members of the school and they were known to him. He did not talk to any members of the SGB before the interviews.
4.62He was currently teaching Maths Literacy and Social Science at Batlokoa School since his arrival in 2018. He was not related to any of the SGB members. He did not bribe any of the members to give him high score marks at the interviews.
4.63He believed that he met the requirements for the post because of his teaching experience which he gained before his arrival at Batlokoa.
4.64His relationship with Mr Ndlovu was fine. They relate to each other as colleagues. They spend time together and sometimes even after school hours.
4.65Under cross – examination he stated the following:- He qualified to be an educator in 2016 according to the information stated in application form on page 54 of Annexure B.
4.66When he was asked if he qualified as the educator when he taught at Mlonde High School, his response was that he was not a qualified educator when he started teaching at Mlonde High School however he obtained teaching qualification whilst he was teaching thereat.
4.67When it was put to him that his teaching experience at Batlokoa cannot be counted because a teacher must have a qualification whilst he is teaching regardless of whether he is employed by the SGB or not, his response was that he qualified because he had experience.
4.68When it was put to him that he had 1 year 8 months experience and he was not qualified to apply for the HOD post at the time of submission of his application considering that the post was advertised on the 20th of September 2019, his response was that he qualified.
4.69He was 1 year 8 months at Batlokoa when the post was advertised. At the time he had 3 years’ experiential competency mentioned in the HRM Circular No.36 of 2019 appearing on page 37 of Annexure B. He also took into account the experience which he gained whilst he was teaching at Mlonde High School.
4.70When he was asked to explain how it was possible that he was employed in two places at the same time, according to the information appearing on the document on page 98 of Annexure B, his response was that the period mentioned on the document refers to his time at Mlonde High School. He was already a teacher at the time. He was approached by Mlonde High School Principal and the Mlonde School Governing Body members who informed him about SGB post that was to be advertised when his contract at Mlonde High School was about to end. They told him that they were going to advertise “his subject” if he was interested. He agreed to take the SGB post at Mlonde High School. The date 16/11/20 written on the letter appearing on page 100 is the date when he and the SGB reached an agreement.
4.71He conceded that there was a contradiction in the information he gave regarding the dates of his teaching experience.
4.72He never left the school premises when he fetched his ID document from the car on the day of the interviews. He was not certain how long it took for him to fetch the ID document but the car was parked a few metres away from the interview room. He did not think that the interview committee was going to allow him to leave the school premises and go and fetch his ID document from home.
4.73He was qualified in Maths Literacy which is stated in the advert on page 99 of Annexure B. There is a difference between Maths and Maths Literacy. He thought that a qualified Maths teacher can teach Maths Literacy. He was not sure if Maths literacy teacher can teach Maths because he was never given a chance to teach Maths.
4.74 It is written in the advert that the requirement for the post is experience in teaching “Mathematical”. It was not specified whether it was a teacher who is qualified in Mathematics or Maths Literacy that the department wanted for Batlokoa. Prior to the advert, he, (Mr Tshingo), Mr Ndlovu and Miss Motsukutsi were approached by the Batlokoa School Principal who encouraged them to apply for the post. Miss Motsukutsi withdrew her name. He and Mr Ndlovu applied for the position. The question he is asking himself is “why would the School Principal encourage him to apply knowing that he did not meet the requirements for the post.
4.75He did not apply for the acting position that was filled by Mr Ndlovu.
4.76Mr Mkhanyawo who is both Respondents’ representative is listed as one of his references in his application form on page 54 of Annexure B. Mr Mkhanyawo supervised him whilst he was the intern in a program. They are not related to each other. Their relationship ended when he completed internship.
4.77When he (Mr Tshingo) was asked for the reason he did not include, in his application form under “paragraph F”, the experience which he gained at Mlondi High School reflecting on page 100 of Annexure B, his response was that, at the time when he was applying for the post, he did not recall the period of his appointment at Mlonde High School as well as the termination date of his contract. He was certain that he worked the entire year in 2016.
4.78When it was put to him that the document on page 100 of Annexure B was fraudulent, his response was that he had not forgotten that he was teaching at Mlonde High School but he could not recall the dates of his appointment at Mlonde High School. He did not want to assume and risk being called a liar. He qualified for the post. He worked at Mlonde High School.
4.79On re-examination he stated that he fell under the category of educators who are listed under clause 4.2.1 in the HRM Circular No.36 of 2019 appearing on page 38 of Annexure B. He was teaching Maths Literacy at Mlonde High School. He had 2 years experience when the post was advertised.
4.80Ernest Vusumuzi Khanyile testified as the First Respondent’s first witness as follows:- He knew Mr Ndlovu. He was aware of the interviews which took place on the 6th December 2016. He was a scorer in the interviews. There were 3 scorers, an usher who was escorting interviewees, the chairperson, the advisor and Mr Zondi who was an observer since he was previously a member of the governing body.
4.81Some of the candidates were sitting in the staff room and others were waiting in their cars on the date of the interviews. Ndebele called each of them and the interviews continued without any issues. Mr Ndlovu was part of the candidates who attended the interviews.
4.82He did not recall Mr Ndlovu talking to one of the IC members. Mr Tshingo did not try and bribe IC members to give him high scores. Mr Ndlovu did not ask IC members to recuse themselves from the interviews.
4.83He (Khanyile) thought that the interviews were fair because the chairperson would check with the candidates if they were not satisfied with anything during the interviews. Nothing was raised as a concern with the interview committee. All the IC members signed confirming that everything went well. She knew that everything went well with the interviews.
4.84Mr Ndlovu’s Mother is his neighbour. He would not recommend someone who did not qualify for the post. His signature appears on the document on page 12 of Annexure A. He recommended Mr Tshingo because of the manner in which Mr Tshingo spoke during his interview. Scorers take points as the candidate is speaking and Mr Tshingo was leading in the scores. It was the scores that made him to be successful in his application. He answered the questions satisfactorily.
4.85Under cross – examination he stated the following:- there was no meeting which took place between the IC members before interviews commenced. Perhaps a meeting took place in his absence because he works inside the school premises and not outside. SGB members do not work inside the school premises.
4.86 Mr Ndlovu did not have his ID document with him at the interviews. He was not given time to fetch it because there was a copy of his ID in his application documents. They used his copy because he is someone whom the IC members knew. Mr Tshingo also did not have his ID document in his possession. He (Mr Tshingo) requested to go and fetch it from his car.
4.87He (Khanyile) was a member of the SGB but it was his first time participating in the interviews on the date of the interviews.
4.88He was aware of the requirement to treat all candidates equally during the interviews.
4.89When he was asked if it was fair that, one candidate was allowed to fetch his ID document, his response was that the decision was not taken by him. Mr Ndlovu should have also asked to go and fetch his ID document because Mr Tshingo did ask for permission to go and fetch his. Mr Ndlovu did not ask because the interview committee said that they knew him.
4.90The interview committee knew Mr Tshingo too. He (Khanyile) did not think that they would have refused if Mr Ndlovu asked to go and fetch his ID document.
4.91He did not dispute when it was put to him that the interview process was irregular because the interview committee were supposed to allow both candidates to go and fetch their ID documents.
4.92He disputed that the chairperson responded to a telephone call and left the interview room whilst the interviews were continuing.
4.93He did not look at the time to check how long it took Mr Tshingo to come back from fetching his ID document. There was no concern raised regarding the time Mr Tshingo was taking to fetch the ID document.
4.94Ndebele would go and fetch the candidates. He did not remember her saying that she could not find Mr Tshingo. Ndebele came with Mr Tshingo and the panel asked him to go and fetch his ID document. Tshingo went and came back with it.
4.95He (Khanyile) wrote the scores and the comments. It is the minute taker and the advisers who were collating scores to arrive at the conclusion as to who was the successful candidate to be appointed to the post.
4.96He did not dispute, when it was put to him, that he did not complete his job as a scorer and he was supposed to be part of the process of collating scores for all the candidates and that made the interview process to be unfair and unprocedural.
4.97When he was asked if he would confidently say that Mr Tshingo scored high marks at the interviews, his response was that he would if there was evidence of written scores of the candidates.
4.98He conceded that he did not know Mr Tshingo’s scores since he was not part of collating the candidates’ scores.
4.99On re-examination he stated that it is lies that the chairperson answered the call and left the room. The minute taker collated the candidates’ scores. It would be incorrect to say that he was supposed to calculate scores when the secretary of the interview was present.
4.100Maxwell Mhlophe testified as the Respondent’s second witness. In summary and of importance in this case, he stated the following:- On the 6th of December 2019 he played a role of a chairperson at the interviews and one member came from the department to participate in the interviews. The IC members set up questions and allocated marks to each and every question to save time. They agreed to interview the candidates and it was him (Mhlophe) who was asking questions to the candidates.
4.101He ensured that he welcomed each and every candidate and also they did not feel pressure during the interviews. He asked them how they felt about the interviews and the interview committee treated them equally. All candidates expressed their appreciation for having been invited to participate in the interviews and they said that everything that was to happen after the interviews would just be a bonus. He (Mhlophe) was surprised to be testifying at arbitration.
4.102It would be blatant lies to say that there were irregularities with regards to the procedure that was followed during the interviews. Training is given to IC members and they are not allowed to have a meeting with people outside the interview committee. There was no meeting which took place outside the interviews and no IC member came to him and said that he or she had been influenced by one of the candidates. Mr Tshingo did not influence him (Mhlophe) to give him high scores.
4.103His (Mhlophe’s) relationship with Mr Ndlovu is good. They go to the same church. He has no issues with him. Mr Tshingo met the requirements for the post. The interview process went well.
4.104Under cross– examination he stated the following:-he was not aware of the caucus that took place outside Batlokoa on the day of the interviews.
4.105He had no knowledge that he was influenced by Molefe not to appoint Mr Ndlovu. That issue should have been raised at the interviews.
4.106He did not leave the interviews until the process was finalized. It was lies that he left at any stage of the interviews. The IC members took a decision to allow Mr Tshingo to fetch his ID document which was in his car unlike in the case of Mr Ndlovu who was going to fetch his from his home. The interview committee followed a fair procedure.
4.107Mr Tshingo was required to possess 3 years relevant experience. He (Mr Tshingo) started teaching at Batlokoa on the 29th of January 2018. He did not have a qualification when the post was advertised. There was information, pertaining to the issue of qualifications, which he (Mhlophe) was not aware of but is known to the department.
4.108.Scorers collated scores of candidates and gave them to the secretary at the end of the interviews. Everyone was watching the process. He (Mhlophe) was not writing anything but listening to the scores.
4.109When questioned by myself, he said that he was part of the short-listing committee.
4.110Bheki Golden Mkhanyawo testified as the Respondent’s last witness as follows:- In summary and of importance in this case, he informed us that the document “Annexure C” is Mr Tshingo’s interview assessment form.
4.111He took us through the scores appearing in Annexure C.
4.112He said that Mr Tshingo got the highest score and all the IC members appended their signatures on the same document. The questions that were asked and the scores are clear.
4.113When it was put to him under cross examination that Mr Tshingo’s details do not appear on the documents in Annexure C unlike on the documents on pages 27 – 33 of Annexure A showing Mr Ndlovu’s details, his response was that the document is authentic as the surname and “first page details” are there.
4.114When it was put to him that there were no details on Annexure C and the scores were tampered with when the tippex was used and scores changed in the documents on pages 27 – 30 of Annexure A, which makes the documents to be invalid, his response was that the documents were valid, there was no manipulation of scores, mistakes do happen during the interviews and tippex can be used to correct mistakes, which is what happened in this case.
4.115 When it was put to him that the document was not authentic because there were no signatures next to the changes appearing on page 27 of Annexure A to indicate that there was a mistake which was corrected, his response was that the document was authentic and scores were not manipulated.
4.116The Applicant argued, amongst other things, that the Second Respondent did not qualify to be appointed to the Departmental Head post at Batlokoa High School.
4.117The documents in Annexure C are invalid and should be rejected.
4.118The interview process was flawed.
4.119Both Respondents argued, amongst other things the following:- the First Respondent acted fairly in appointing the Second Respondent to the HOD post in Batlokoa Senior Secondary School.
4.120There is no right to promotion however there is a right to be given a fair opportunity and the Applicant was given an opportunity to compete for the post. He must accept that he did not do well in the interviews and that is the reason why he was not appointed to the Departmental Head post.
4.121The interview committee correctly followed all the guidelines for selection of candidates as contained in HRM Circular No. 36 of 2019.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
4.122I have examined the evidence submitted by both parties and have duly perused submitted annexures. I am required to determine whether the First Respondent committed an unfair labour practice in not appointing the Applicant but appointing the Second Respondent to the post of Departmental Head: Batlokoa Senior Secondary School.
4.123The Applicant bears the onus of proving that the First Respondent committed an unfair labour practice.
4.124Central to appointments or promotion of employees is the principle that the courts and commissioners alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions.
4.125In deciding on an unfair labour practice the courts have clarified the test to be that of fairness. In Apollo Tyres SA (Pty) Ltd v CCMA and Others (DA/11 (2013 ZALAC 3, (2013) BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (21 February 2013) the Labour Court reiterated that unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
4.126My point of departure is to look at the advert to see what the requirements for the disputed post is and ascertain from the evidence which was presented whether the appointee who is the Second Respondent in this case met these requirements. A candidate ought to be short –listed only if he or she meets the necessary requirements for the post.
4.127It is also important to state at this stage that, at the time when candidates are shortlisted, what is before the panel, are documents and not the job applicant and the job applicant gets shortlisted based on what appears on the documents.
4.128 It was the evidence that the requirement for the post was that the candidate must have 3 years actual teaching experience, teaching “Mathematical” subject. Reference is made to the HRM Circular No.36 of 2019 appearing on page 37 of Annexure B in this regard.
4.129It was the evidence that the Second Respondent was qualified to teach Maths Literacy and was actually teaching Maths Literacy as at the date of submission of his application to the Respondent. I have checked the difference between Mathematics “Maths” and Maths Literacy.
4.130The Applicant argued that it is written in the advert on page 99 of Annexure B that the requirement for the post is “Mathematical” and it was not stated that a person qualified in Maths Literacy was not allowed to apply for the contested post. I have looked for the meaning of the word “Mathematical”. Both Oxford and Cambridge Dictionaries define the word “Mathematical” as the adjective and give examples such as, mathematical calculations / problems etc. Based on the evidence I am persuaded to conclude that the word “Mathematical” appearing in the advert actually refers to Mathematics and not Maths Literacy and this is based on the following:-. It does not make sense to me that the Respondent would intend to appoint someone qualified in Maths Literacy to fill the position of Departmental Head. My view is that it would not have been the intention of the drafter(s) of the advert to recruit a teacher who could only teach Maths Literacy especially when the evidence is that the person who was acting in the contested post was teaching Maths and not Maths Literacy. Both Respondents did not dispute the Applicant’s evidence that a person teaching Maths Literacy cannot teach pure Maths learners whilst a person who teaches Maths can teach Maths Literacy learners. This indicates to me that teaching Maths Literacy is low skill compared to teaching pure Maths and the question I ask myself therefore is:- “Why would the Respondent seek to appoint a person with low skill in Maths to fill the Departmental Head position?
4.131In the case of KwaDukuza Municipality v Logananthan Rajamoney and Others (D880/10 (2013) ZALCD 17 (13 June 2013) the Labour Court held the following:- “the setting of requirements for a post is the method by which the set aims of the applicant (in that case the Municipality) are achieved. In its considered wisdom, the applicant decided to have selection criteria which included the requirement of an EC driver’s license for the contested post. It was within its powers to make that decision. It remained open to the applicant to classify this requirement as a recommendation for the post, if the applicant wanted to retain a discretionary right on how to utilise this aspect.
4.132In this case it was open to the First Respondent to classify the requirement of Maths Literacy in the advert if its intention was to appoint someone who was qualified in Maths Literacy regardless of the fact that it had embarked on a process to fill the post that was occupied by a teacher who was teaching Maths on an acting capacity. It was also open to the First Respondent to amend the advert to reflect Maths Literacy subject, re-advertise the post and allow due process of selecting the right candidate for the post.
4.133Satisfactory evidence was presented that the Second Respondent did not qualify to teach Maths and he did not have 3 years actual teaching experience in Maths as at the date of submission of his application for the contested post. Satisfactory evidence was also presented that the Applicant had 3 years actual teaching experience in Maths and was teaching Maths at Batlokoa Senior Secondary school as at the date of the advert.
4.134The short-listing of a candidate who least meets the set selection criteria will ordinarily fly on the clear face of the objective of the Policy. Such short-listing would then be arbitrary and contrary to the selection criteria. The First Respondent set the requirements to be met for the contested post. The fairness of the selection process lay in the screening of all candidates against the set requirements. It has to be borne in mind that there would have been people who desired to apply for the contested post but did not submit their applications merely because they did not meet the set requirements. It would also be unfair to set all candidates who met all requirements against any candidates who lack any of the requirements.
4.135It is my view that, even if I am wrong in my analysis regarding which subject teacher the First Respondent was recruiting, the evidence that the Second Respondent had 3 years experience teaching Maths Literacy does not appear under the heading “work experience” in his application form on page 54 of Annexure B. I have calculated his length of service as the educator teaching Maths Literacy and it falls short of 3 years actual experience. Nowhere else in his application does it show that he had 3 years experience teaching Maths Literacy. He testified that he had the necessary experience however he did not write in his application form his experience gained whilst he was teaching Maths at Mlonde High School because he was not certain about the period when he taught thereat. I find this piece of the evidence bizarre and not plausible, especially because that experience together with the experience stated in his application form would have persuaded the short-listing panel to short-list him for the interviews.
4.136Both Respondents referred us to the contents of the letter appearing on page 100 of Annexure B and stated that the experience stated thereon as the Second Respondent’s experience gained whilst he was teaching Maths Literacy at Mlonde High School constitute the necessary experience for the post. The Applicant argued that the letter is not a valid document and it should be rejected. Even if one were to accept the document as authentic, it does not take the Respondents’ case further as the information stated thereon was not part of the information the Second Respondent revealed in his application form in relation to his actual teaching experience and the subject he was teaching at Mlonde High School is not stated either. Furthermore the period stated in the same document as the period when he was teaching at Mlonde High School contradicts that which is stated in the First Respondent’s official document appearing on page 98 of the same bundle showing his service history with the First Respondent. The explanation the Second Respondent gave regarding the contradiction was also not plausible.
4.137In the case of Letsogo v Department of Economy and Enterprise Development and Others (JR350/16) ZALC JHB 48; (2018) ILJ 851 (LC) the court held that the requirement of experience is specific and mandatory and further that no application without the required experience should have been accepted. It also held the following:- “In short, to compete in the process, to be shortlisted, or even considered for appointment an applicant for employment must possess the necessary qualifications........ The selection panel can only consider those candidates that so to say pass muster, that is, those that meet the minimum requirements as set out in the advertisement.”
4.138What the change, brought about by the short-listing panel members who short-listed the Second Applicant on the basis that he was qualified in Maths Literacy, did was to allow the Second Respondent to be in the running where he was not meant to be. The conduct was arbitrary and contrary to the selection criteria.
4.139It is also clear from looking, at both the Applicant’s and the alleged Second Respondent’s interview assessment forms “Annexure C” that interview scores were tampered with. Annexure C is riddled with some irregularities, such as, change of scores appearing in the documents on pages 27 & 29 of Annexure B and no explanation given for the changes; only the document on page 1 of Annexure C has the Second Respondent’s details written on it; summary of assessment is not completed yet the total score which is 38 is written on the same document; it also appears that another figure was written before tippex was used to remove it and the score written; only the surname “Tshingo” appears in the document on page 2; other details of the Second Respondent are not written on the same page which makes one wonder if the information stated thereon relates to the Second Respondent; the scores are different in the documents on pages 1 & 2 yet they are supposed to be the same if one were to accept the Respondents’ version as true that the document on page 2 relates to the Second Respondent; the scores appearing on pages 2, 3 & 4 look tampered with; it also appears that the four documents were signed by the interview panel members and the question I ask myself is:-“Which of the four documents is the correct interview assessment relating to the Second Respondent? Considering all the above, I agree with the Applicant’s contention that the documents in “Annexure C” are invalid and should be rejected.
4.140Satisfactory evidence was presented that the procedure that was followed at the interviews was unfair and inconsistent with the First Respondent’s Policy, namely, HRM Circular No.36 of 2019. Clause 10.12 of the same provides that all interviewees must receive similar treatment during the interviews. In this case the Applicant and the Second Respondent did not receive the same treatment. It is reasonable to expect that all discussions, deliberations and decisions on why candidates’ scores are changed during the interviews must be recorded to ensure that the selection process is transparent and fair in terms of clause 12.1.5 of the same. In this case there was no explanation given for the change in scores and nothing shows in the records of the interviews the reasons for the change.
4.141Furthermore the evidence which was presented by both Respondents regarding the Second Respondent’s qualification and experience he gained at Mlonde High School as well as the procedure which was followed during the interviews, was marked with numerous inconsistencies and / or contradictions to render it probable
4.142In the case of Noonan v Safety and Security Sectoral Bargaining Council and Others (PA 1/11) (2012) ZALAC 9; (2012) 9 BLLR 876 (LAC); (2012) 33 ILJ 2597 (LAC) concerning a promotion where the successful candidate had failed to disclose information which affected his suitability for the position, the LAC considered the “fairness of the process” as a whole, and came to the conclusion, that the employer had committed an unfair labour practice against the unsuccessful employee in that the successful candidate unfairly participated in the selection process.
4.143Considering all of the above, I conclude that the appointment process was flawed in this case. I therefore find, on the balance of probabilities, that the conduct of the Respondent, appointing the Second Respondent into the post of Departmental Head, constituted an unfair labour practice relating to promotion against the Applicant.
4.144 The Applicant sought that the appointment process be started afresh. It was the evidence that the Applicant met the essential requirements for the post. In circumstances where, the Applicant and the other applicants who met the essential requirements for the post, were set against the Second Respondent who did not deserve to be short-listed in the first place (he did not meet the requirements for the post) and the conduct of the Respondent, in its entirety, was unlawful, unfair and capricious, coupled with bias, I feel that the appropriate relief will be to order the removal of the Second Respondent from the position of Departmental Head and for the appointment process to be started afresh.
5.1The First Respondent, namely, Department of Education KZN committed an unfair labour practice against the Applicant, S P Ndlovu by appointing the Second Respondent into the post of Departmental Head at Batlokoa High School;
5.2The First Respondent is ordered to remove the Second Respondent from the position of Departmental Head: Batlokoa Senior Secondary School not later than 31 March 2021 and start the appointment process afresh.