Panelist: Ncumisa Bantwini,
Case Number: ELRC639-19/20EC
Date of Award:16 March 2021
IN THE ARBITRATION BETWEEN
SADTU obo Sidima Mooi :Union/Applicant
Department of Education - EC : First Respondent
Mr Themba Tshume : Second Respondent
DETAILS OF HEARING AND REPRESENTATIONS
1. This arbitration was part heard on 15 February 2021 and was finalized on 26 February 2021 on virtual platform (Zoom). The dispute came before the ELRC in terms of Section 191 (1) (5) (a) read with section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended, (the LRA).
2. Mr Rodney Mtywaru of SADTU appeared for the applicant while Mrs Annelie Slabbert appeared for the first respondent, the Department of Education-Eastern Cape. Mr Anton Adams of NAPTOSA appeared for Mr Themba Tshume, the second respondent, who was also in attendance. Parties agreed to submit written closing arguments on 08 March 2021. All arguments have been considered in the preparation of this award.
ISSUE TO BE DECIDED
3. The issues to be decided is whether the respondent’s conduct of not appointing the applicant to the position of Principal at Masibambane Senior Secondary School was fair or not.
4. I have considered all the evidence and arguments, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons. I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and determination of the dispute.
BACKGROUND TO THE DISPUTE
5. The applicant referred a dispute to the ELRC regarding an alleged failure by the respondent to appoint him to the position of Principal at Masibambane Senior Secondary School although he was recommended by the SGB. When the dispute could not be resolved at conciliation level, the applicant filed a request for arbitration.
SURVEY OF EVIDENCE AND ARGUMENT
6. According to Mr Mtywaru ‘s opening statement, the dispute relates to unfair labour practice based on promotion. The applicant applied for a position of a Principal at Masibambane Senior Secondary School in KwaZakhele in Port Elizabeth and was not appointed. The issue of management and administrative requirement was only a requirement during shortlisting process. The appointment of Mr Tshume was procedurally and substantively unfair and therefore his appointment must be set aside and the applicant be appointed to the position.
7. The applicant, Mr. Sidima Mooi testified under oath as follows:
8. He works for the respondent as an Educator at Masibambane Senior Secondary School. He applied for a Principal position which was advertised for Masibambane School. He was involved when there were major renovations in the school. He also served as a chairperson of disciplinary committee for safety and security, assisting in fundraising and identifying projects in the school. He served as a Cricket board member and school committee as a vice chairperson across the board. He also served as a member of CPF fighting social ills in the area.
9. The EDO announced Mr Tshume as the successful candidate and he was part of the meeting wherein Mr Tshume was introduced at the school. He challenged the decision of the first respondent as he believes he is the best candidate and is the only person with the vision about the school.
10. Under cross-examination by Ms Slabbert, the applicant testified as follows:
11. He was a Post level 1 Educator when he applied for the position of a Principal in 2019 to date. Management and administration is one of the requirements of the position. When a question as to why he did not indicate that he possesses managerial experience in school was posed, his response was that in his resume, he indicated that with Life Orientation, he is the defacto head, responsible for everything from grade 8 to grade 12. He had mentioned that on the covering letter of his application (page 24).
12. The applicant disagreed that he did not meet the shortlisting criteria and has failed to mention his school managerial experience in the application form as required in item 21 to 24 of the application form. He further stated that one can accumulate management and administrative experience outside the school environment.
13. When it was put to the applicant that he (the applicant) does not have school managerial and administrative experience, his response was that he does have the experience as indicated in the advertisement. The applicant was referred to Mr Tshume’s application form (section 21 of page 33) wherein the school managerial and administrative experience is indicated as he (Mr Tshume) has been a Head Of Department (HOD) and has a Deputy Principal experience when he applied for the position. The applicant according to his application form is Post Level 1 Teacher with no managerial experience. The applicant’s response was that he was recommended by the SGB as the best candidate for the position.
14. Under cross-examination by Mr Adams, the applicant testified as follows:
15. He is aware that Messrs Tshume, Gidana and Rosana who are the second and third recommended candidates are better qualified than him (the applicant). Although the applicant does agree that the HOD has a discretion of choosing any recommended candidate, he stated that Mr Tshume was not chosen by the HOD and he was present when he was introduced at the school.
16. He further stated that he is the defacto head of Life Orientation in the school although he did not mention it in his application. He deals with cricket and this qualifies him as a leader in the school although he has never been a manager in the school. He has s been dealing with learners and he can manage the school.
17. The applicant testified also that he does agree that the HOD should make a decision to the best interest of the school and learners.
18. The first witness for the applicant, Mr Thembinkosi Majikela, testified as follows;
19. He has been the chairperson of the SGB at Masibambane school for 9 years. The SGB members were trained before the process of selection was conducted for the position of the Principal.
20. When another candidate other than the one which was recommended by the SGB was introduced, the SGB wrote a letter of complaint to the MEC but no response was received to date. The recommended candidate Mr Mooi was the SGB’s preferred candidate.
21. Under cross-examination, the witness testified as follows:
22. When reference was made to the applicant’s application form compared to Mr Tshume’s form, his (the witness) response was that the applicant does not have school administration and managerial experience (page 24). The respondent agreed with the SGB despite the fact that the applicant is Post Level 1Teacherr while the appointed candidate who was rated as the second preferred candidate was the Deputy Principal at the time.
23. The witness stated further that the applicant is a manager in his class, and this means that he does possess managerial experience. The SGB and or HOD had a right to chose any of the 3 recommended candidates as they are employable (page 6).
24. The witness disputed that the applicant did not meet the shortlisting criteria and that Mr Tshume was the second recommended candidate (page 6).
25. Under cross-examination by Mr Adams, the witness testified as follows:
26. The SGB only recommends and the HOD may approve or disapprove the recommendation. Mr Tshume is one of the appointable candidate but the respondent had to adhere to the SGB recommendation (clause 6.3) of appointing Mr Mooi.
27. Mr Mooi had managerial experience in cricket and in terms of the scores, he was the highest rated candidate than the other 2 candidates. The witness agreed that the SGB has no prerogative to appoint any of the candidates but to recommend.
28. Under re-examination, the witness stated that the EDO did not respond to the letter which was written by NAPTOSA.
29. In closing, Mr Mtywaru argued as follows:
30. The applicant is challenging procedural and substantive fairness in the appointment of Mr Tshume for the position of Principal as advertised at Masibambane Senior Secondary School. The basis upon which the HOD declined the SGB recommendation is not clear and it appears that the Resource Person unilaterally and arbitrarily decided to be the Referee and the Player on the SGB recommendation by recommending Mr Tshume who was the second recommended candidate by the SGB.
31. The SGB recommendation is an objective jurisdictional fact in any appointment of an Educator in any public school. The applicant was sifted at shortlisting stage because he meets the requirements of the Principal position. It is the applicant’s representative’s further argument that managerial and leadership experience can be gained and acquired in different sectors and not only in the school environment. The EDO had no right/powers to deviate from the SGB recommendation, instead she was biased towards the second respondent.
32. Mr Mtywaru finally argued that the appointment of Mr Tshume was procedurally and substantively unfair and therefore his appointment must be set aside and the applicant be appointed to the position.
33. Mrs Slabbert stated in her opening statement that the appointment of Mr Tshume was procedural and substantively fair and the applicant was not the right candidate for the job.
34. According to Mr Adams’s opening statement, the HOD has a prerogative to appoint and there was no undue influence by the EDO when a decision to appoint Mr Tshume was taken.
35. The respondent’s witness Ms Pumla Blossom Nyoka testified as follows;
36. Ms Mtulu who was the EDO in 2019 when the selection process of the position of the Principal at Masibambane Senior Secondary School has since retired. The SGB has a right to recommend (page 2 to 7) the best candidate for the position. The EDO submits the recommendation to CES for further recommendation which is taken to the HOD for approval (page 9). The second recommended candidate by the SGB is appointable.
37. Mrs Mtulu, the EDO did not support the SGB’s recommendation and based on reasons that the first chosen candidate had no proven managerial and administrative experience as required by the advertisement. She (the EDO) recommended Mr Tshume, the second rated candidate who is also appointable as per the SGB recommendation.
38. The witness stated further that she supported the EDO’s recommendation and she signed the recommendation on 25 May 2019. The respondent (HOD) has a right to go against the SGB recommendation by exercising its discretion to approve in terms of paragraph 6f of Employment of Education Act (EEA).
39. Pages 8 to 11 of the bundle contains a submission by the District office to the HOD to obtain approval of Mr Tshume’s appointment. The HOD approved the recommendation as indicated on page 11 hence an appointment was made. In comparing the first 2 recommended candidates, Mr Tshume was appointed due to the fact that he has proven experience in teaching (33 years), managerial and administrative experience as he had HOD, Deputy Principal and Acting Principal experience while the applicant is a Post Level 1 Teacher (had 26 years teaching experience) with no school managerial and administrative experience.
40. The witness testified further that Mr Tshume was appointed fairly and there was no undue influence by any union (NAPTOSA).
41. Under cross-examination, the witness testified as follows:
42. Ms Mtulu was the EDO/Resource Person and did not participate but was giving guidance to the selection process. She is aware of the deviation letter by the EDO (page 9 paragraph 2.2). Ms Mtulu motivated the selection of Mr Tshume as the best candidate on 17 July 2019.
43. The District office recommended Mr Tshume when they saw that the applicant had no proven school managerial and administrative experience. The HOD has a right to consider any recommended candidate. Mr Tshume assumed duties on 01 January 2020 as a Principal. There was no undue influence by any union or NAPTOSA. The EDO did not raise her concerns during the interview process in order to avoid undue influence to the panel.
44. There is no evidence suggesting any meeting between the EDO and NAPTOSA prior to her (EDO) writing the recommendation dated 20 May 2019. She (the witness) also did not have a meeting with NAPTOSA before supporting the EDO’s recommendation.
45. In closing, Ms Slabbert argued as follows:
46. The EDO, Ms Mtulu signed a recommendation for the appointment of Mr Tshume on 17 May 2019 and Mrs Nyoka, the CES appended her signature on 20 May 2019 and the HOD approved the recommendation.
47. Mr Tshume was already acting as a Principal and was holding a position of a Deputy Principal possessing school managerial and administrative experience when the position was advertised hence a deviation from the SGB recommendation was made.
48. Under cross-examination both the applicant and his witness Mr Majikela admitted that he (the applicant) is a Post Level 1 Teacher and no school managerial and administrative experience is mentioned (page 24 of er bundle). Ms Slabbert argued further that the respondent has proved that the HOD had an authority to appoint the second recommended candidate at Masibambane Senior Secondary School. She finally argued that the applicant’s case must be dismissed as no unfair labour practice against him (the applicant) was proved.
ANALYSIS OF EVIDENCE AND ARGUMENTS
49. The issues of common cause that relates to this matter are as follows:
• That the applicant applied for an advertised position of a Principal at Masibambane Senior Secondary School in Kwazakhele in Port Elizabeth.
• That the applicant was shortlisted, interviewed and was the first recommended candidate by the SGB but was not appointed to the position.
• That Mr Mooi was recommended as the best candidate for the position by the SGB.
49. It is the applicant’s case that the whole process of appointment of the Principal was flawed as the first respondent deviated from the SGB’s recommendation of appointing him as the best candidate for the position.
50. It is the first respondent’s case that the selection process was fairly conducted in terms of the prescripts of the respondent when appointing Mr Tshume to the disputed position.
51. It is also the first respondent’s case that the respondent’s reasons for deviating from the SGB recommendation was for the best interest of the school and the learners as Mr Mooi who was recommended by the SGB lacked proven school managerial and administrative experience as required by the advertisement.
52. It is undisputed fact that Mr Tshume, the incumbent as well as the third recommended candidates are appointable hence they were also recommended as second and third candidates by the SGB.
53. It is also undisputed evidence that Mr Tshume acquired his school managerial and administrative experience as he occupied a position of HOD, Deputy Principal and from acting as a Principal in the same school.
54. It is also common cause that the incumbent was holding a position of a Deputy Principal when the position of the Principal was advertised.
55. It is also undisputed evidence that the applicant was a Post Level 1 Teacher when the position was advertised to date.
56. Although it is the applicant’s evidence and argument that he had managerial and leadership experience acquired from being in the Cricket board, being involved in community activities (CPF) and that it should have been considered, he failed to cite the relevant prescript/policy to corroborate his version as this is a specific requirement in terms of the advertisement of the position.
57. It must be noted that the applicant under cross-examination conceded that he is aware that Messrs Tshume, Gidana and Rosana who are the second and third recommended candidates by the SGB are better qualified than him (the applicant).
58. It must also be noted that Mr Mooi as well as Mr Mjekula, his witness conceded to the fact that the HOD has a discretion of choosing any recommended candidate.
59. Both the applicant and his witness conceded also under cross-examination that the SGB only recommends and that any recommendation is subject to approval or disapproval by the HOD.
60. I concur with the respondent’s representative’s contention to the fact that there was no undue influence by the union or NAPTOSA which is being alleged by the referring party as the EDO submitted the motivation to the District Manager before the letter from NAPTOSA objecting to the appointment of Mr Mooi was received.
61. It is also my view that the EDO could have been liable for undue influence on the panel had she raised the issues/concerns she had about the SGB recommendation about the appointment of the applicant.
62. In IMATU obo Visagie v Mogale City Municipality (JR 86/15)  ZALC JHB 432 (handed down on 20 November 2017) it was held that the law requires the Employee to show the existence of the conduct or decision complained of. Therefore, the onus rests with the Employee. It follows that if the Employee is challenging the process and that if the decision of conduct by the Employer is not established by the Employee, then that is the end of the matter.
63. It appears from the party’s evidence that the respondent followed a fair procedure in appointing the best candidate for the position of a Principal at Masibambane Senior Secondary School and as such did not exercise its prerogative in a biased, unfair, capricious and unjust manner in appointing Mr Themba Tshume to the position.
64. In Arries v CCMA and others (2006) 27 (ILJ) the court held that there are limited grounds on which the commissioner, or a Court may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion or managerial prerogative, of an Employer, ought not to be curtailed. It ought to be interfered only to the extent that it can be demonstrated that the discretion was not properly exercised.
59. The applicant has failed to discharge the onus to prove the claim of unfair labour practice based on promotion by the respondent.
60. I therefore make the following award:
61. The appointment of the incumbent, Mr Themba Tshume by the respondent, the Department of Education – Eastern Cape was both procedurally and substantively fair.
62. The respondent, the Department of Education –Eastern Cape cannot be compelled to nullify the appointment of Mr. Themba Tshume and cannot be compelled to compensate the applicant, Mr Sidima Mooi.
63. The applicant, is therefore not entitled to any relief.
64. The application is dismissed.
65. There is no order as to costs