PSES 875 18/19 KZN
Text
PSES 875 18/19 KZN
Text
Award Date:
13 April 2021
Text
Case : PSES 875 18/19 KZN
Award Date of Award: 13 April 2021
Panelist : Vuyiso Ngcengeni
Province :KwaZulu Natal
Employee : NATU obo Mathabela SV
Employer : Provincial Department of Education: KwaZulu Natal
Issue : Alleged Unfair Labour Practice - Promotion
Venue : Ulundi and also Virtual
In the ARBITRATION between:
NATU obo Grace Mathabela SV Employee
And
Department of Education; KwaZulu Natal Employer
Employee representative: Lungile Zibani
Tel / Cell : 060 393 6257 / 031 332 1343
Email : lungile.legal@natu.org.za
Employer representative: Mr Musa Mabaso
Tel : 033 846 5200
Email : Musawenkosi.Mabaso@kzndoe.gov.za
Joinder : Mr M Khumalo
Joinder representative : Mr Ntuli
Tel : 061 477 2599 / 082 810 0881
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an award in which I make a determination on the basis of the evidence and arguments presented before me.
2. The dispute was set down in terms of section 186(2)(a) of the Labour Relations Act as amended (the Act).
3. The matter first sat on the 10th of May 2019 at the Employer’s premises at Ulundi, under the auspices of the Education Labour Relations Council (the Council). It again was heard virtually on the 17th of March 2021.
4. The Employee was present and he was represented by Ms Lungile Zibani who is the union official.
5. The Employer was represented by Mr Musawenkosi Mabaso who is an official of the Department of Education.
6. Mr MA Khumalo was also present as a Joinder in the arbitration, as he was the successful candidate and was appointed to the post. He was represented by Mr Ntuli from SADTU.
7. The Employee submitted bundle A which includes the referral documents, HRM Circular no 39 of 2017, Grievance procedure, recommendation of candidates dated 08 February 2018, recommendation of candidates dated 22 August 2018 (he was ranked no. 2 on both) and minutes of both interviews.
8. The Employer submitted bundle B made of 21 pages and it includes a Grievance lodged by Mr SV Mkhize and a Grievance committee decision.
9. The hearing was conducted in English.
10. I received the final closing arguments on 04 April 2021.
ISSUE TO BE DETERMINED
11. I am required to determine whether the Employer committed an unfair labour practice when it failed to appoint the Employee to the post of Principal at Maqhingendoda High School. The school is based in the Zululand district.
12. The Employee wants the following as relief-
12.1 To uphold the results of the interviews that were held on 08 February 2018, in which he became the 2nd ranked candidate and Mr DS Mpanza was the 1st ranked candidate and declare the interviews held on22 August 2018 in which he again was ranked the 2nd and the Joinder was ranked the 1st preferred candidate null and void.
12.2 By so doing, set aside the appointment of the Joinder and appoint the Employee on the basis that in the interviews held on 08 February 2018, the four of them excluding Mpanza were untainted candidates and therefore he should have been appointed.
BACKGROUND TO THE DISPUTE AND THE COMMON CAUSE ISSUES
13. The Employee is employed as a Deputy Principal at Enkonjeni High School, within the Zululand district and in 2019, he had 14 years’ experience as an Educator.
14. He applied for the post of Principal at Maqhingendoda High School and he was unsuccessful.
15. A vacancy for the post of Principal at Maqhingendoda High School was advertised on Circular HRM29/2017 (pg4 of employee bundle).
16. He applied for the post and he attended an interview on 08 February 2018.
17. A grievance was lodged about the interviews, which was about the inclusion of Mr Mpanza in the interviews as an additional candidate.
18. The interview process was therefore nullified and another round of interviews conducted, in which Mr MA Khumalo emerged as the number recommended candidate.
19. The Joinder, MA Khumalo was appointed on 07 January 2019.
20. The Employee referred this dispute to the Council for conciliation on 05 February 2019. The matter was set down for conciliation on 27 February 2019 and a certificate of non-resolution was thus issued.
21. He then referred the matter for arbitration in March 2019.
22. The matter was then set down for arbitration on 10 May 2019.
23. The Employee and 4 other candidates were shortlisted for interviews. A 6th candidate was added in terms of paragraph 8.2 on page 19 of Bundle A. All these candidates were interviewed (p11-B)
24. A grievance was lodged, and it was discovered that the 6th candidate, Mr DS Mpanza should not have been added as he had not been acting in the post for 12 consecutive months (p 12-13-B)
25. The District Grievance Committee (DGC) recommended that the 6th candidate should be excluded, and that the School Governing Body (SGB) should redo the interviews of the remaining 5 shortlisted candidates (p14 – B).
26. The SGB wrote to the Employer requesting that it be allowed to start from the shortlisting phase as there were new members on the SGB. That was not acceded to by the Employer (p 52-53 – A).
27. The SGB then effected due process to conduct the recommended second interviews of the 5 remaining shortlisted candidates. The SGB then furnished the Employer with its statutory recommendation in order of preference. The Employee was ranked second from among the recommended candidates (p16-B)
28. The Employer then made an appointment to the post, namely, that of the Joinder to the arbitration proceedings (p17-18 – B).
29. During the interviews held on 22 August 2018, the Employee had since been appointed as the Deputy Principal at Ekudubekeni High School in June 2018 (p54-A).
SURVEY OF EVIDENCE
The Employee gave evidence under oath as follows:-
30. He applied for the position, and the Joinder also applied.
31. On 08 February 2018 he attended the interviews and they went well.
32. He is also a leader of a trade union and that allows him to receive reports of what happened during the shortlisting and interviews. It was reported to him that he was placed at no.2 (p 31) as per the (PAM) clause 10.13(p 14), the Joinder is placed at position no. 4.
33. He was the head of the department at the time.
34. Later on, he was informed by a NATU representative that there was a grievance lodged SV Mkhize against Mr DS Mpanza, not the rest of the candidates.
35. The basis of excluding Mpanza were that he did not complete 12 months period acting in a Principal ship post (pg. 12-13 – B).
36. They were then called by the Interview committee (IC) and told that following the grievance, the process will be re-done and that the interviews they attended were adjourned. They were not clear as to what next to do.
37. On 22 August 2018, they were again invited to the interviews, the first observer from NATU was NC Madlala. And this time around, it was Mr MH Mbatha (Mbatha).
38. The interviews continued despite the union observers not being happy. Mbatha told him that the IC wanted to redo the process from the shortlisting stage and the Employer refused (pg. 52-53 - A).
39. Mbatha told him that after the second interviews, he was ranked no. 2 and the Joinder was ranked no. 1 (p 31-32).
40. During the second interviews, he introduced himself as the Deputy Principal, not the Head of department, hence he is confused when he is given the title of Head of department. He was appointed as the Deputy Principal (p 54) so he would not have introduced himself as the Head of department.
41. When one looks at the report on p18 (B), it treats them as if they are on the same rank, whereas he was the most senior candidate to them all.
42. HRM Circular no 39 of 2017 (Procedure manual) on p18 (A) clause 22.1 which is titled APPOINTMENT states that “The HR component in the relevant District will, after validating the relevant documents from the School Governing Body, compile a schedule of recommendations, in post order, and forward it to the Directorate: Human Resources Services at Head Office....”
43. He is not sure if the mentioned clause was complied with, as if it was, the Employer could have detected that he was not the Head of department but a Deputy Principal, and that has prejudiced him as the Deputy Principal is next in line to Principalship and Head of department is not.
44. On pg30, Mpanza remains in the list. Again on p 31, Mpanza is included as the first candidate. If one looks at the members of the IC, they are the same people, that means they had expectations of what he said in the first interviews will be the same as in the second interviews.
45. They expected to meet him as the Head of department, but when one goes to 22 August interviews, the IC never read his CV, hence it referred to him as the Head of department. They could not even detect that he said he was the Deputy Principal, that is why he says they had no clue.
46. P 47 the 5th bullet from bottom in the minutes states that only 5 questions were asked, which indeed, means the IC had no information.
47. Mr Ntombela who represented the Employer explained that it was agreed that the secretary will read out all questions to the candidates (3rd bullet from the bottom).
48. It is clear that the IC of the second process had no clue and the above minutes supports that.
49. If consistency was to be preserved throughout the process, and the DGC did not exceed its powers by coming between the SGB and the Head Of Department (Employer), they should have allowed the process to flow.
50. If Mpanza did not tell the truth in the interviews, it suffices that he should have been removed and the list left intact.
51. For the process to be redone has led to the unfairness and the IC doing what it had no clue on.
52. Had Mpanza been removed, he (Employee) would have been appointed.
53. The appointment of the Joinder is based on an unclean process and falsification of information in that he (Employee) was given a wrong rank.
54. He believes that if the process was clean and was submitted to the HOD as such, the HOD would not have appointed the Joinder.
55. There are guidelines that show when the HOD could deviate from the SGB recommendations.
56. It cannot be fair that the HOD made an appointment on an unclean process.
57. The first recommendation list should have stood as there was no issues about him. The same panel members served on both interviews.
58. The HOD should only look at the names presented in terms of clause 10.13 on p 14 which says “At the conclusion of the interviews, the Interview Committee must rank the candidates in order of preference utilizing the scores as a guide and complete form HER 11 which must thereafter be submitted together with a brief motivation to the School Governing Body for their recommendation.”
59. If that was done in relation to the first interviews, he would have been appointed to the post.
60. He has been prejudiced by the second interviews, as it robbed him of the opportunity to be appointed. hence he seeks that the appointment of the joinder be set aside, the results of the second interview be nullified and the outcomes of the first interview be made to stand in terms of clause 10.13 (pg14).
61. Ntombela made the plea and it was rejected (pg. 52-53).
62. According to the grievance raised, if the issue was the inclusion of Mpanza, then the solution should have been the exclusion of Mpanza and nothing more.
63. Given the fact that the same candidates were called again, there is no reason for such and there was nothing flawed about the first interviews. If the second interview did not take place and the first interview was allowed to keep its recommendations, he would have been appointed as he would have become no.1.
64. He does not know why he was not appointed and kept at no.2, even in the second interviews.
65. The HOD should have looked at the rankings of candidates and proceeded to appoint him.
66. He believes that if one looks at the employment rank, one would at least consider that a Deputy Principal is closer to the Principal, as opposed to the Head of department. He would have been happy if the information was correctly captured, not wrongly as it is.
67. The inclusion of Mpanza in terms of the recommendations makes it is clear that the problem was with the shortlisting, not interviews.
68. Under cross examination – Mpanza was invited to the interviews, and he does not know if he qualified or not. He cannot answer on whether there was a candidate whom was shortlisted in terms of clause 10.2, so he cannot dispute that. He received a report from the office about the process. If one is not satisfied, they must lodge a grievance and he does not dispute that there was a grievance.
69. All candidates who are on the recommended list are recommended. The DGC is established in terms of a collective agreement and the procedural manual, so it has the powers to investigate and make recommendations.
70. He agrees that there was substance in the grievance regarding the inclusion of Mpanza.
71. The last two words on the recommendation are “Mpanza who was improperly shortlisted”, so there was nothing wrong with the process, except Mpanza’s shortlisting.
72. There is nothing wrong with the recommendation.
73. It is outrageous to say that the interviews were flawed, as it is part of the criteria normally to look at the candidates who were acting.
74. It would be very difficult for the IC to see something wrong with the interviews and not the shortlisting, if anything, corrections have been done to the shortlisting, not interviews.
75. The only anomaly in the first interviews was the inclusion of Mpanza.
76. He does not dispute that the grievance committee should have corrected that which was wrong, but it should not have interfered with the whole process. The complaint was about Mpanza’s inclusion, not the interviews.
77. He cannot recall any law that says the DGC can amend the recommendations of the SGB. The DGC has no powers to amend the SGB recommendations and also to interfere. He agrees that the DGC has the powers to recommend to the SGB, but in this case, the SGB was forced.
78. The SGB members had changed between the two processes.
79. He agrees that the SGB would have wanted to start the process from the shortlisting stage.
80. When he applied for the post in 2017, he was the Head of department and that is when he attended the first interviews. He told the IC twice that he was the Deputy Principal. Even though it may look as if there is nothing wrong with his rank, it was based on falsification of his rank.
81. The order of the ranking is important in terms of clause 10.13. The HOD made an appointment on the basis of distorted information.
82. Only Mpanza needed to be removed, not to nullify the whole process. Even in the second interviews, there were six candidates and one apologized and could not attend.
83. It is not in dispute that the recommendations of the DGC are reasonable and rational.
84. When he went to the second interviews, he was already aware that he was ranked no.2.
85. If he is called to the interviews, he subjects himself to such and if he has complaints, he raises such through a relevant platform. Also, they were told that there was a grievance lodged but not the details of the grievance, so there was no point on lodging a grievance on top of another.
86. If the grievance committee has already taken a position, there was no way in which he could have lodged a grievance as they are told that a DGC cannot review its own decisions. So he waited until someone got appointed, to lodge a grievance.
87. The second interview can only be correct if it referred to him as Deputy Principal, not Head of department.
88. They were not given any information regarding the shortlisting and interviews conducted by the old SGB.
Khangelani Michael Mdlalose testified on behalf of the Employee as follows:-
89. He is the Administrative Clerk and is also the Chairman of the SGB at Maqhingendoda High School.
90. He was the chairman of the IC and he signed the letter written by the SGB to the department, after they received a letter from the department saying they must redo the process from the interviews and only focus on the four names in the letter. The letter on p 53 was the response to p 52.
91. They wrote to the department and informed them that they would like to start at the shortlisting stage, as they were the new SGB. After receiving the response, they knew that their request was refused.
92. They needed to start at the shortlisting stage so that they would know that the candidates they would recommend would be the right candidates and would be someone they know.
93. He was present in the meeting (p 3rd para from the bottom36) and Ntombela said “the grievance committee stated the first decision by committee still stands even in the new IC/SGB….New SGB made a plea with the department of education to start the whole process from shortlisting and was rejected.”
94. This was at the interview stage hence Ntombela made the remarks.
95. Under cross examination – He became the chairman of the SGB in March 2018 and at that time, the post had already been dealt with by the old SGB. He cannot answer for the processes that were undertaken by the old SGB. There is nothing telling him that the process was already dealt with by the old SGB.
96. In relation to p 53-no 3 “Kindly note that the decision was not directed to the Old SGB or New SGB of the school. It is binding to any members of the SGB that will be operating at that particular time.” He cannot assume when he does not have something before him, as there could be misinterpretation.
97. He was aware that the old SGB interviewed candidates. He cannot remember why were the interview outcomes of the old SGB rejected.
98. He had no comment when the reason for the nullification of the interviews were put to him, and that is the inclusion of Mpanza. He had no comment on whether the decision of the grievance committee was reasonable and rational.
99. He had no comment when it was put to him that the actions of the old SGB were binding on them. They interviewed the candidates and did a good job. He participated and they recommended the Joinder to be appointed.
100. They did not ask the old SGB about the shortlisting and the interviews.
Employee arguments: -
101. The Employee was part of an interview process of post No:1737 of HRM39/2017 for a post of principalship and was the preferred candidate of the IC after the removal of the first ranked candidate due to falsified information at the shortlisting stage which resulted in him being added in the list of shortlisted candidates.
102. After the removal of the first candidate due to having been shortlisted wrongfully, the DGC ordered that the process of the interviews be redone and not the shortlisting stage which shortlisting was not the stage that was flawed.
103. The second interview stage prejudiced the Employee as he now ranked as second candidate, below the Joinder.
104. The Employee gave evidence that the first interview process was not flawed in fact it was the shortlisting stage which was undertaken by wrongfully shortlisting Mr Mpanza that was flawed.
105. The second interview prejudiced him because now the IC had now changed and the new IC had not participated in the shortlisting process.
106. In the second interviews the IC was clueless about the shortlisting process meaning they did not have the desired criteria for the post they were merely instructed (see Employees bundle page 36 para 12) by the DGC to simply start the interview process without any information of the shortlisting process.
107. Even the IC found fault in the process and made a plea and asked that they be allowed to start at shortlisting stage and such request was rejected by the employer. Such conduct made way for the prejudice of the Employee.
108. Mr Sibanyoni gave evidence that the processes of the shortlisting and interview must be able to get together and in the instance where the interview process is handed over to another interview committee, a report of the shortlisting stage should be handed over too. In this instance it was proven that such was not done.
109. From the facts of evidence given is it clear that the powers bestowed on the SGB/IC were taken by the employer who instructed them to proceed with the interview process without following the shortlisting process and that allowed for the prejudice of the Employee.
110. We therefore pray that the appointment of the second respondent be set aside and the Employee be retrospectively appointed, and the decision of the grievance committee be set aside.
Employer’s case
Muzuthini Churchil Sibanyoni gave evidence under oath as follows:-
111. He is the Deputy Director – Human Resources Management based in the Zululand District. He was part of the DGC in this matter and the grievance was about Mpanza, who was interviewed yet he did not qualify as he did not meet the threshold.
112. He dealt with the grievance and emerged with the following findings: that there were procedural flaws with respect to the process because Mpanza was added to the list on the pretext that he had acted for 12 consecutive months, whereas upon verification, it was found that such was not the case.
113. In terms of clause 8.2 (pg19), the list of candidates for interviews should not exceed 5, however, if there is someone who has been acting on the post for 12 consecutive months, such a person should be added and thus make the number to be 6.
114. There were two interviews, in the first one, Mpanza was interviewed hence they nullified it and recommended that it must be redone. They did not regard the fact that there was a new SGB as a problem because whenever a new structure comes to place, it inherits everything that was done by the old structure.
115. The new SGB firstly wanted to start the process from the shortlisting stage.
116. The interview panel only considers oral presentations from the candidates, not CVs as the CVs are considered at the shortlisting stage. The fact that the Employee is referred to as the Head of department would have no effect as scoring is done on the basis of answers given by the candidates.
117. By directing the SGB to start at the interview stage was a rational decision.
118. The information in the recommendation is taken from the procedure manual and it contains the application forms and the Employees’ biographical details. The rank that would be captured of the Employee as the Head of department would be in the application form.
119. Under cross examination – The procedure at the shortlisting stage was not flawed. Mpanza was added based on incorrect information, so if you remove him from the process of interviews, the process is corrected.
120. Mpanza was not shortlisted, he was added to the 5 candidates. When conducting shortlisting, candidates are scored and Mpanza was not part of that process. He had applied for the post.
121. Shortlisting was not flawed and the five candidates were correctly scored.
122. The recommendation from the SGB consists of a list, normally in a preferred order to the HOD, and the HOD can appoint anyone from the list, usually that will be the first recommended candidate.
Employer Arguments -
123. The Employee raised an issue that his position was incorrectly entered on page 16 of Bundle as he had been promoted to Deputy Principal. In this regard:
a. It was the testimony of the Employee that at the time of submitting the application for the post, he was a Departmental Head and not a Deputy Principal. The procedure manual does not deal with change in status of a candidate after submitting his/her application for a post. Also, there is no indication that he communicated the change to the Employer, not that it mattered as the Employer cannot change the information on an application form signed by an Employee. The Employer followed due process in submitting existing applications to the SGB.
124. The Employee cannot legitimately base his claim of unfair labour practice on an unspecified rule or a rule that is lacking or any act of omission/ contravention of stipulated provisions by the Employer. Arbitration is not the forum for considering a change in rules.
125. Regarding the claim that the omission of the candidate unqualified to be shortlisted would make Employee the person who ought to have been appointed:
a. Being the number one candidate does not guarantee an appointment. It is speculation as to whether the Employee would have been appointed as such appointment is subject to consideration of various factors as provided for in the legislation related to an appointment.
b. It was the testimony of the Employee’s witness, Mr Mdlalose, that the 2nd interviews were correctly done. There was no evidence to the contrary. There was also no evidence that the Employee ever lodged a grievance regarding his position during the interviews. This was just an after-thought after an appointment was made. The 2nd interviews did not materially prejudice him.
c. The DGC acted within the scope of its power to make a recommendation. The recommendation was reasonable with due regard to the circumstances. It may be that some other person or body may come to a different recommendation, but that does not make the Committee’s recommendation invalid.
d. It was common cause that there was a procedural flaw in that a candidate who did not qualify to be added in terms of paragraph 8.2 of Bundle A was interviewed. Shortlisting is an objective process and merely excluding a person who should not have been shortlisted due to not meeting the requirements for shortlisting is a logical and non-prejudicial step without a need to redo the entire shortlisting process. However, an interview is more a subjective process, depending on the assessment of individuals. Interviews of persons who qualify for a position may be coloured by consideration of an interview with a person who does not qualify for a position. Consequently, a repeat interview of only those who do qualify for the position would produce a fairer result. A truer worth of an individual is possible, considering that the same individual has a second chance, is not prejudiced in terms of worth and that there was a significant flaw by interviewing a person who ought not to have been interviewed. The Employee suffered no prejudice by the re-interviews.
e. The SGB has the right to make a recommendation, and its recommendation, aside from being a requirement, is a significant factor for appointment. The Employer cannot easily discard the final recommendation of an SGB especially when it has observed proper and reasonable processes.
f. The argument that the DGC should have removed the 1st recommended candidate would be unreasonable and not possible because the power to recommend the candidates to HOD in order of preference after proper process is vested with the SGB. It was, therefore, reasonable for the SGB to correct the flaws and make a final valid recommendation, rather than having its recommendation declined and the post being re-advertised or filled by the Employer itself. An SGB recommendation is the cornerstone of the school community participation in filling a post, and this is enforced by the legislation.
g. The process cannot be rendered as flawed whether interviews were dealt with by the “old” SGB or the “new” SGB. It was not disputed that the scoring in the interviews had nothing to do with the shortlisting. It must be mentioned that the election of the new SGB members would not nullify the actions of previous SGB members.
h. There was no unfair labour practice against the Employee and it is the Employer’s prayer that the application before you Commissioner be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
126. Promotions should be considered in light of the case of Apollo Tyres South Africa (Pty) v CCMA and Others [2013] 34 ILJ 1120 (LAC) where the court held that an employee who alleges a case of unfair labour practice relating to a promotion does not need to prove that he has a right to promotion. However, the employee still bears the onus of proving that the decision of the employer not to promote him is unfair.
127. The Court was dealing with an unfair labour practice relating to a benefit and quoted from Du Toit et al with approval on the meaning of unfairness as follows: “[53] ... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
What an applicant in an unfair labour practice dispute relating to promotion thus has to show, in the absence of a right to promotion being established, is that the conduct of the employer in failing to promote the employee was unfair. When deciding what constitutes unfair conduct in the context of promotions, the issue of management prerogative remains of critical importance.”
128. A number of facts as stipulated under the background section above are critical in the genesis of this matter.
129. I have also noted with interest that during cross examination, the Employee said it is not in dispute that the recommendations of the grievance committee are reasonable and rational, and also that the second interview can only be correct if it referred to him as Deputy Principal, not Head of department.
130. The Employee submitted that during the second interviews, he introduced himself as the Deputy Principal and was confused when he was given the title of Head of department. This, he said, prejudiced him as it means he was treated as though he held the same rank with the other candidates, whereas he was the most senior candidate to them all.
131. He further submitted that if consistency was to be preserved throughout the process, and the DGC did not exceed its powers by coming between the SGB and the Head Of Department (Employer), they should have allowed the process to flow. And that would mean if Mpanza did not tell the truth in the interviews, it suffices that he should have been removed and the list left intact.
132. He mentioned that for the process to be redone has led to the unfairness and the IC doing what it had no clue on.
133. Mdlalose testified under cross examination that they interviewed the candidates and did a good job. He participated and they recommended the Joinder to be appointed.
134. Sibanyoni mentioned that Mpanza was not shortlisted, but was added on the incorrect conclusion that he had acted for 12 consecutive months on the post. He further mentioned that on the issue of whether the capturing of the Employee’s post as the Head of department instead of a Deputy Principal, the interview panel only considers oral presentations from the candidates, not CVs as the CVs are considered at the shortlisting stage. So the fact that the Employee is referred to as the Head of department would have no effect as scoring is done on the basis of answers given by the candidates.
135. HRM Circular no 39 of 2017 (Procedure manual) on p18 (A) clause 22.1 which is titled APPOINTMENT states that “The HR component in the relevant District will, after validating the relevant documents from the School Governing Body, compile a schedule of recommendations, in post order, and forward it to the Directorate: Human Resources Services at Head Office. In the event a post is effected by a grievance it must not be submitted to Head Office for placement until the grievance is resolved. …”
136. The issue of clause 22.1 of the procedure manual was raised only to make the point that the decision to capture the Employee as the Head of department has prejudiced him, as the HOD when applying his mind into who to appoint would have considered the fact that the Employee was a Deputy Principal and the highest ranking candidate.
137. The Employer’s evidence in this regard is that the scoring was done on the basis of the answers to the questions asked, not on the basis of the candidate’s rank.
138. It is difficult to trace the argument made by the Employee into any policy or practice of the Department. It is a well-known phenomenon in the department to have educators from different rankings applying for a promotional post, and although it is a fact that a Deputy Principal post is closer to the Principalship post, there is however, nothing that says that when competing for a promotional post, the proximity to that post should be afforded a particular advantage. That is not the case. To that end, I do not see this issue of rank having had any impact on the lack of appointment of the Employee.
139. It is also worth mentioning that the SGB worked from the documents that were collated in February 2018, as they did not do the short listing afresh. So it is reasonable for them to have captured his rank as it appeared on the shortlisted candidates. This to me, does not qualify to be called a fabricated information, as it was information that was simply retrieved from the files and was used in its original form.
140. The Employee’s submission that the SGB had no clue on what they were doing sounds bizarre at the very least. Through the Employee’s own evidence, the interview panel was the same as that which conducted the February 2018 interviews. The Employee wants the February interviews to stand and those of August to be nullified. Surely, his rejection of the August outcomes on the basis of cluelessness of the interview committee, whist at the same time wanting to rely on the February interviews conducted by the same interview committee illustrate a huge contradiction on his part. This clearly means had he emerged as the successful candidate in August, he would not have held his unsatisfactory views about the interview committee.
141. Mdlalose held a completely different position, which is that they did a good job as the SGB. One also has to bear in mind that Mdlalose mentioned that the reason to seek to re-do the process from the shortlisting stage was that they needed to know whom they would end up appointing as the SGB. He never said anything about them not being adequately equipped or knowledgeable to conduct the interviews.
142. The submission in this regard by the Employee lacks merit.
143. The last argument is that the Department should have allowed the process to flow in terms of the recommendations made in February interviews. This would have meant that after Mpanza was disqualified, the second ranked candidate should have been appointed because there was nothing wrong with him and all the other three candidates interviewed.
144. In as much as I agree with the aforesaid, the issue of appointment is a responsibility that starts at the school level being conducted by the SGB. When there are engagements between the SGB and the Department, like in any normal engagements that seek to arrive at a particular agreement, once the two bodies reach an agreement, then that is it.
145. The Department accepted the recommendations of the DGC, and the Employee has agreed that the recommendations are rational. In terms of clause 22.1 above, once there is a grievance lodged, there must not be a submission made to the Head Of Department for placement. So the issue of a process flow at the hands of the Head Of Department did not even start as the processed was interrupted at the time when the grievance was recorded as per the procedure manual.
146. The Employee together with the SGB did not challenge the DGC recommendations. It is obvious that the SGB’s request to start the process at the shortlisting stage was a deviation from the recommendations of the DGC, which is a Collective Agreement.
147. Being guided by the Apollo case above, I am of the view that there is no unfair conduct committed by the Employer in this regard.
AWARD
148. The Employer, the Provincial Department of Education: KwaZulu Natal, did not commit an unfair labour practice when it did not appoint the Employee, Grace Mathabela, to the post of Principal at Maqhungendoda High School.
149. The application is dismissed.
Vuyiso Ngcengeni
Panelist / Commissioner
Award Date of Award: 13 April 2021
Panelist : Vuyiso Ngcengeni
Province :KwaZulu Natal
Employee : NATU obo Mathabela SV
Employer : Provincial Department of Education: KwaZulu Natal
Issue : Alleged Unfair Labour Practice - Promotion
Venue : Ulundi and also Virtual
In the ARBITRATION between:
NATU obo Grace Mathabela SV Employee
And
Department of Education; KwaZulu Natal Employer
Employee representative: Lungile Zibani
Tel / Cell : 060 393 6257 / 031 332 1343
Email : lungile.legal@natu.org.za
Employer representative: Mr Musa Mabaso
Tel : 033 846 5200
Email : Musawenkosi.Mabaso@kzndoe.gov.za
Joinder : Mr M Khumalo
Joinder representative : Mr Ntuli
Tel : 061 477 2599 / 082 810 0881
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an award in which I make a determination on the basis of the evidence and arguments presented before me.
2. The dispute was set down in terms of section 186(2)(a) of the Labour Relations Act as amended (the Act).
3. The matter first sat on the 10th of May 2019 at the Employer’s premises at Ulundi, under the auspices of the Education Labour Relations Council (the Council). It again was heard virtually on the 17th of March 2021.
4. The Employee was present and he was represented by Ms Lungile Zibani who is the union official.
5. The Employer was represented by Mr Musawenkosi Mabaso who is an official of the Department of Education.
6. Mr MA Khumalo was also present as a Joinder in the arbitration, as he was the successful candidate and was appointed to the post. He was represented by Mr Ntuli from SADTU.
7. The Employee submitted bundle A which includes the referral documents, HRM Circular no 39 of 2017, Grievance procedure, recommendation of candidates dated 08 February 2018, recommendation of candidates dated 22 August 2018 (he was ranked no. 2 on both) and minutes of both interviews.
8. The Employer submitted bundle B made of 21 pages and it includes a Grievance lodged by Mr SV Mkhize and a Grievance committee decision.
9. The hearing was conducted in English.
10. I received the final closing arguments on 04 April 2021.
ISSUE TO BE DETERMINED
11. I am required to determine whether the Employer committed an unfair labour practice when it failed to appoint the Employee to the post of Principal at Maqhingendoda High School. The school is based in the Zululand district.
12. The Employee wants the following as relief-
12.1 To uphold the results of the interviews that were held on 08 February 2018, in which he became the 2nd ranked candidate and Mr DS Mpanza was the 1st ranked candidate and declare the interviews held on22 August 2018 in which he again was ranked the 2nd and the Joinder was ranked the 1st preferred candidate null and void.
12.2 By so doing, set aside the appointment of the Joinder and appoint the Employee on the basis that in the interviews held on 08 February 2018, the four of them excluding Mpanza were untainted candidates and therefore he should have been appointed.
BACKGROUND TO THE DISPUTE AND THE COMMON CAUSE ISSUES
13. The Employee is employed as a Deputy Principal at Enkonjeni High School, within the Zululand district and in 2019, he had 14 years’ experience as an Educator.
14. He applied for the post of Principal at Maqhingendoda High School and he was unsuccessful.
15. A vacancy for the post of Principal at Maqhingendoda High School was advertised on Circular HRM29/2017 (pg4 of employee bundle).
16. He applied for the post and he attended an interview on 08 February 2018.
17. A grievance was lodged about the interviews, which was about the inclusion of Mr Mpanza in the interviews as an additional candidate.
18. The interview process was therefore nullified and another round of interviews conducted, in which Mr MA Khumalo emerged as the number recommended candidate.
19. The Joinder, MA Khumalo was appointed on 07 January 2019.
20. The Employee referred this dispute to the Council for conciliation on 05 February 2019. The matter was set down for conciliation on 27 February 2019 and a certificate of non-resolution was thus issued.
21. He then referred the matter for arbitration in March 2019.
22. The matter was then set down for arbitration on 10 May 2019.
23. The Employee and 4 other candidates were shortlisted for interviews. A 6th candidate was added in terms of paragraph 8.2 on page 19 of Bundle A. All these candidates were interviewed (p11-B)
24. A grievance was lodged, and it was discovered that the 6th candidate, Mr DS Mpanza should not have been added as he had not been acting in the post for 12 consecutive months (p 12-13-B)
25. The District Grievance Committee (DGC) recommended that the 6th candidate should be excluded, and that the School Governing Body (SGB) should redo the interviews of the remaining 5 shortlisted candidates (p14 – B).
26. The SGB wrote to the Employer requesting that it be allowed to start from the shortlisting phase as there were new members on the SGB. That was not acceded to by the Employer (p 52-53 – A).
27. The SGB then effected due process to conduct the recommended second interviews of the 5 remaining shortlisted candidates. The SGB then furnished the Employer with its statutory recommendation in order of preference. The Employee was ranked second from among the recommended candidates (p16-B)
28. The Employer then made an appointment to the post, namely, that of the Joinder to the arbitration proceedings (p17-18 – B).
29. During the interviews held on 22 August 2018, the Employee had since been appointed as the Deputy Principal at Ekudubekeni High School in June 2018 (p54-A).
SURVEY OF EVIDENCE
The Employee gave evidence under oath as follows:-
30. He applied for the position, and the Joinder also applied.
31. On 08 February 2018 he attended the interviews and they went well.
32. He is also a leader of a trade union and that allows him to receive reports of what happened during the shortlisting and interviews. It was reported to him that he was placed at no.2 (p 31) as per the (PAM) clause 10.13(p 14), the Joinder is placed at position no. 4.
33. He was the head of the department at the time.
34. Later on, he was informed by a NATU representative that there was a grievance lodged SV Mkhize against Mr DS Mpanza, not the rest of the candidates.
35. The basis of excluding Mpanza were that he did not complete 12 months period acting in a Principal ship post (pg. 12-13 – B).
36. They were then called by the Interview committee (IC) and told that following the grievance, the process will be re-done and that the interviews they attended were adjourned. They were not clear as to what next to do.
37. On 22 August 2018, they were again invited to the interviews, the first observer from NATU was NC Madlala. And this time around, it was Mr MH Mbatha (Mbatha).
38. The interviews continued despite the union observers not being happy. Mbatha told him that the IC wanted to redo the process from the shortlisting stage and the Employer refused (pg. 52-53 - A).
39. Mbatha told him that after the second interviews, he was ranked no. 2 and the Joinder was ranked no. 1 (p 31-32).
40. During the second interviews, he introduced himself as the Deputy Principal, not the Head of department, hence he is confused when he is given the title of Head of department. He was appointed as the Deputy Principal (p 54) so he would not have introduced himself as the Head of department.
41. When one looks at the report on p18 (B), it treats them as if they are on the same rank, whereas he was the most senior candidate to them all.
42. HRM Circular no 39 of 2017 (Procedure manual) on p18 (A) clause 22.1 which is titled APPOINTMENT states that “The HR component in the relevant District will, after validating the relevant documents from the School Governing Body, compile a schedule of recommendations, in post order, and forward it to the Directorate: Human Resources Services at Head Office....”
43. He is not sure if the mentioned clause was complied with, as if it was, the Employer could have detected that he was not the Head of department but a Deputy Principal, and that has prejudiced him as the Deputy Principal is next in line to Principalship and Head of department is not.
44. On pg30, Mpanza remains in the list. Again on p 31, Mpanza is included as the first candidate. If one looks at the members of the IC, they are the same people, that means they had expectations of what he said in the first interviews will be the same as in the second interviews.
45. They expected to meet him as the Head of department, but when one goes to 22 August interviews, the IC never read his CV, hence it referred to him as the Head of department. They could not even detect that he said he was the Deputy Principal, that is why he says they had no clue.
46. P 47 the 5th bullet from bottom in the minutes states that only 5 questions were asked, which indeed, means the IC had no information.
47. Mr Ntombela who represented the Employer explained that it was agreed that the secretary will read out all questions to the candidates (3rd bullet from the bottom).
48. It is clear that the IC of the second process had no clue and the above minutes supports that.
49. If consistency was to be preserved throughout the process, and the DGC did not exceed its powers by coming between the SGB and the Head Of Department (Employer), they should have allowed the process to flow.
50. If Mpanza did not tell the truth in the interviews, it suffices that he should have been removed and the list left intact.
51. For the process to be redone has led to the unfairness and the IC doing what it had no clue on.
52. Had Mpanza been removed, he (Employee) would have been appointed.
53. The appointment of the Joinder is based on an unclean process and falsification of information in that he (Employee) was given a wrong rank.
54. He believes that if the process was clean and was submitted to the HOD as such, the HOD would not have appointed the Joinder.
55. There are guidelines that show when the HOD could deviate from the SGB recommendations.
56. It cannot be fair that the HOD made an appointment on an unclean process.
57. The first recommendation list should have stood as there was no issues about him. The same panel members served on both interviews.
58. The HOD should only look at the names presented in terms of clause 10.13 on p 14 which says “At the conclusion of the interviews, the Interview Committee must rank the candidates in order of preference utilizing the scores as a guide and complete form HER 11 which must thereafter be submitted together with a brief motivation to the School Governing Body for their recommendation.”
59. If that was done in relation to the first interviews, he would have been appointed to the post.
60. He has been prejudiced by the second interviews, as it robbed him of the opportunity to be appointed. hence he seeks that the appointment of the joinder be set aside, the results of the second interview be nullified and the outcomes of the first interview be made to stand in terms of clause 10.13 (pg14).
61. Ntombela made the plea and it was rejected (pg. 52-53).
62. According to the grievance raised, if the issue was the inclusion of Mpanza, then the solution should have been the exclusion of Mpanza and nothing more.
63. Given the fact that the same candidates were called again, there is no reason for such and there was nothing flawed about the first interviews. If the second interview did not take place and the first interview was allowed to keep its recommendations, he would have been appointed as he would have become no.1.
64. He does not know why he was not appointed and kept at no.2, even in the second interviews.
65. The HOD should have looked at the rankings of candidates and proceeded to appoint him.
66. He believes that if one looks at the employment rank, one would at least consider that a Deputy Principal is closer to the Principal, as opposed to the Head of department. He would have been happy if the information was correctly captured, not wrongly as it is.
67. The inclusion of Mpanza in terms of the recommendations makes it is clear that the problem was with the shortlisting, not interviews.
68. Under cross examination – Mpanza was invited to the interviews, and he does not know if he qualified or not. He cannot answer on whether there was a candidate whom was shortlisted in terms of clause 10.2, so he cannot dispute that. He received a report from the office about the process. If one is not satisfied, they must lodge a grievance and he does not dispute that there was a grievance.
69. All candidates who are on the recommended list are recommended. The DGC is established in terms of a collective agreement and the procedural manual, so it has the powers to investigate and make recommendations.
70. He agrees that there was substance in the grievance regarding the inclusion of Mpanza.
71. The last two words on the recommendation are “Mpanza who was improperly shortlisted”, so there was nothing wrong with the process, except Mpanza’s shortlisting.
72. There is nothing wrong with the recommendation.
73. It is outrageous to say that the interviews were flawed, as it is part of the criteria normally to look at the candidates who were acting.
74. It would be very difficult for the IC to see something wrong with the interviews and not the shortlisting, if anything, corrections have been done to the shortlisting, not interviews.
75. The only anomaly in the first interviews was the inclusion of Mpanza.
76. He does not dispute that the grievance committee should have corrected that which was wrong, but it should not have interfered with the whole process. The complaint was about Mpanza’s inclusion, not the interviews.
77. He cannot recall any law that says the DGC can amend the recommendations of the SGB. The DGC has no powers to amend the SGB recommendations and also to interfere. He agrees that the DGC has the powers to recommend to the SGB, but in this case, the SGB was forced.
78. The SGB members had changed between the two processes.
79. He agrees that the SGB would have wanted to start the process from the shortlisting stage.
80. When he applied for the post in 2017, he was the Head of department and that is when he attended the first interviews. He told the IC twice that he was the Deputy Principal. Even though it may look as if there is nothing wrong with his rank, it was based on falsification of his rank.
81. The order of the ranking is important in terms of clause 10.13. The HOD made an appointment on the basis of distorted information.
82. Only Mpanza needed to be removed, not to nullify the whole process. Even in the second interviews, there were six candidates and one apologized and could not attend.
83. It is not in dispute that the recommendations of the DGC are reasonable and rational.
84. When he went to the second interviews, he was already aware that he was ranked no.2.
85. If he is called to the interviews, he subjects himself to such and if he has complaints, he raises such through a relevant platform. Also, they were told that there was a grievance lodged but not the details of the grievance, so there was no point on lodging a grievance on top of another.
86. If the grievance committee has already taken a position, there was no way in which he could have lodged a grievance as they are told that a DGC cannot review its own decisions. So he waited until someone got appointed, to lodge a grievance.
87. The second interview can only be correct if it referred to him as Deputy Principal, not Head of department.
88. They were not given any information regarding the shortlisting and interviews conducted by the old SGB.
Khangelani Michael Mdlalose testified on behalf of the Employee as follows:-
89. He is the Administrative Clerk and is also the Chairman of the SGB at Maqhingendoda High School.
90. He was the chairman of the IC and he signed the letter written by the SGB to the department, after they received a letter from the department saying they must redo the process from the interviews and only focus on the four names in the letter. The letter on p 53 was the response to p 52.
91. They wrote to the department and informed them that they would like to start at the shortlisting stage, as they were the new SGB. After receiving the response, they knew that their request was refused.
92. They needed to start at the shortlisting stage so that they would know that the candidates they would recommend would be the right candidates and would be someone they know.
93. He was present in the meeting (p 3rd para from the bottom36) and Ntombela said “the grievance committee stated the first decision by committee still stands even in the new IC/SGB….New SGB made a plea with the department of education to start the whole process from shortlisting and was rejected.”
94. This was at the interview stage hence Ntombela made the remarks.
95. Under cross examination – He became the chairman of the SGB in March 2018 and at that time, the post had already been dealt with by the old SGB. He cannot answer for the processes that were undertaken by the old SGB. There is nothing telling him that the process was already dealt with by the old SGB.
96. In relation to p 53-no 3 “Kindly note that the decision was not directed to the Old SGB or New SGB of the school. It is binding to any members of the SGB that will be operating at that particular time.” He cannot assume when he does not have something before him, as there could be misinterpretation.
97. He was aware that the old SGB interviewed candidates. He cannot remember why were the interview outcomes of the old SGB rejected.
98. He had no comment when the reason for the nullification of the interviews were put to him, and that is the inclusion of Mpanza. He had no comment on whether the decision of the grievance committee was reasonable and rational.
99. He had no comment when it was put to him that the actions of the old SGB were binding on them. They interviewed the candidates and did a good job. He participated and they recommended the Joinder to be appointed.
100. They did not ask the old SGB about the shortlisting and the interviews.
Employee arguments: -
101. The Employee was part of an interview process of post No:1737 of HRM39/2017 for a post of principalship and was the preferred candidate of the IC after the removal of the first ranked candidate due to falsified information at the shortlisting stage which resulted in him being added in the list of shortlisted candidates.
102. After the removal of the first candidate due to having been shortlisted wrongfully, the DGC ordered that the process of the interviews be redone and not the shortlisting stage which shortlisting was not the stage that was flawed.
103. The second interview stage prejudiced the Employee as he now ranked as second candidate, below the Joinder.
104. The Employee gave evidence that the first interview process was not flawed in fact it was the shortlisting stage which was undertaken by wrongfully shortlisting Mr Mpanza that was flawed.
105. The second interview prejudiced him because now the IC had now changed and the new IC had not participated in the shortlisting process.
106. In the second interviews the IC was clueless about the shortlisting process meaning they did not have the desired criteria for the post they were merely instructed (see Employees bundle page 36 para 12) by the DGC to simply start the interview process without any information of the shortlisting process.
107. Even the IC found fault in the process and made a plea and asked that they be allowed to start at shortlisting stage and such request was rejected by the employer. Such conduct made way for the prejudice of the Employee.
108. Mr Sibanyoni gave evidence that the processes of the shortlisting and interview must be able to get together and in the instance where the interview process is handed over to another interview committee, a report of the shortlisting stage should be handed over too. In this instance it was proven that such was not done.
109. From the facts of evidence given is it clear that the powers bestowed on the SGB/IC were taken by the employer who instructed them to proceed with the interview process without following the shortlisting process and that allowed for the prejudice of the Employee.
110. We therefore pray that the appointment of the second respondent be set aside and the Employee be retrospectively appointed, and the decision of the grievance committee be set aside.
Employer’s case
Muzuthini Churchil Sibanyoni gave evidence under oath as follows:-
111. He is the Deputy Director – Human Resources Management based in the Zululand District. He was part of the DGC in this matter and the grievance was about Mpanza, who was interviewed yet he did not qualify as he did not meet the threshold.
112. He dealt with the grievance and emerged with the following findings: that there were procedural flaws with respect to the process because Mpanza was added to the list on the pretext that he had acted for 12 consecutive months, whereas upon verification, it was found that such was not the case.
113. In terms of clause 8.2 (pg19), the list of candidates for interviews should not exceed 5, however, if there is someone who has been acting on the post for 12 consecutive months, such a person should be added and thus make the number to be 6.
114. There were two interviews, in the first one, Mpanza was interviewed hence they nullified it and recommended that it must be redone. They did not regard the fact that there was a new SGB as a problem because whenever a new structure comes to place, it inherits everything that was done by the old structure.
115. The new SGB firstly wanted to start the process from the shortlisting stage.
116. The interview panel only considers oral presentations from the candidates, not CVs as the CVs are considered at the shortlisting stage. The fact that the Employee is referred to as the Head of department would have no effect as scoring is done on the basis of answers given by the candidates.
117. By directing the SGB to start at the interview stage was a rational decision.
118. The information in the recommendation is taken from the procedure manual and it contains the application forms and the Employees’ biographical details. The rank that would be captured of the Employee as the Head of department would be in the application form.
119. Under cross examination – The procedure at the shortlisting stage was not flawed. Mpanza was added based on incorrect information, so if you remove him from the process of interviews, the process is corrected.
120. Mpanza was not shortlisted, he was added to the 5 candidates. When conducting shortlisting, candidates are scored and Mpanza was not part of that process. He had applied for the post.
121. Shortlisting was not flawed and the five candidates were correctly scored.
122. The recommendation from the SGB consists of a list, normally in a preferred order to the HOD, and the HOD can appoint anyone from the list, usually that will be the first recommended candidate.
Employer Arguments -
123. The Employee raised an issue that his position was incorrectly entered on page 16 of Bundle as he had been promoted to Deputy Principal. In this regard:
a. It was the testimony of the Employee that at the time of submitting the application for the post, he was a Departmental Head and not a Deputy Principal. The procedure manual does not deal with change in status of a candidate after submitting his/her application for a post. Also, there is no indication that he communicated the change to the Employer, not that it mattered as the Employer cannot change the information on an application form signed by an Employee. The Employer followed due process in submitting existing applications to the SGB.
124. The Employee cannot legitimately base his claim of unfair labour practice on an unspecified rule or a rule that is lacking or any act of omission/ contravention of stipulated provisions by the Employer. Arbitration is not the forum for considering a change in rules.
125. Regarding the claim that the omission of the candidate unqualified to be shortlisted would make Employee the person who ought to have been appointed:
a. Being the number one candidate does not guarantee an appointment. It is speculation as to whether the Employee would have been appointed as such appointment is subject to consideration of various factors as provided for in the legislation related to an appointment.
b. It was the testimony of the Employee’s witness, Mr Mdlalose, that the 2nd interviews were correctly done. There was no evidence to the contrary. There was also no evidence that the Employee ever lodged a grievance regarding his position during the interviews. This was just an after-thought after an appointment was made. The 2nd interviews did not materially prejudice him.
c. The DGC acted within the scope of its power to make a recommendation. The recommendation was reasonable with due regard to the circumstances. It may be that some other person or body may come to a different recommendation, but that does not make the Committee’s recommendation invalid.
d. It was common cause that there was a procedural flaw in that a candidate who did not qualify to be added in terms of paragraph 8.2 of Bundle A was interviewed. Shortlisting is an objective process and merely excluding a person who should not have been shortlisted due to not meeting the requirements for shortlisting is a logical and non-prejudicial step without a need to redo the entire shortlisting process. However, an interview is more a subjective process, depending on the assessment of individuals. Interviews of persons who qualify for a position may be coloured by consideration of an interview with a person who does not qualify for a position. Consequently, a repeat interview of only those who do qualify for the position would produce a fairer result. A truer worth of an individual is possible, considering that the same individual has a second chance, is not prejudiced in terms of worth and that there was a significant flaw by interviewing a person who ought not to have been interviewed. The Employee suffered no prejudice by the re-interviews.
e. The SGB has the right to make a recommendation, and its recommendation, aside from being a requirement, is a significant factor for appointment. The Employer cannot easily discard the final recommendation of an SGB especially when it has observed proper and reasonable processes.
f. The argument that the DGC should have removed the 1st recommended candidate would be unreasonable and not possible because the power to recommend the candidates to HOD in order of preference after proper process is vested with the SGB. It was, therefore, reasonable for the SGB to correct the flaws and make a final valid recommendation, rather than having its recommendation declined and the post being re-advertised or filled by the Employer itself. An SGB recommendation is the cornerstone of the school community participation in filling a post, and this is enforced by the legislation.
g. The process cannot be rendered as flawed whether interviews were dealt with by the “old” SGB or the “new” SGB. It was not disputed that the scoring in the interviews had nothing to do with the shortlisting. It must be mentioned that the election of the new SGB members would not nullify the actions of previous SGB members.
h. There was no unfair labour practice against the Employee and it is the Employer’s prayer that the application before you Commissioner be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
126. Promotions should be considered in light of the case of Apollo Tyres South Africa (Pty) v CCMA and Others [2013] 34 ILJ 1120 (LAC) where the court held that an employee who alleges a case of unfair labour practice relating to a promotion does not need to prove that he has a right to promotion. However, the employee still bears the onus of proving that the decision of the employer not to promote him is unfair.
127. The Court was dealing with an unfair labour practice relating to a benefit and quoted from Du Toit et al with approval on the meaning of unfairness as follows: “[53] ... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
What an applicant in an unfair labour practice dispute relating to promotion thus has to show, in the absence of a right to promotion being established, is that the conduct of the employer in failing to promote the employee was unfair. When deciding what constitutes unfair conduct in the context of promotions, the issue of management prerogative remains of critical importance.”
128. A number of facts as stipulated under the background section above are critical in the genesis of this matter.
129. I have also noted with interest that during cross examination, the Employee said it is not in dispute that the recommendations of the grievance committee are reasonable and rational, and also that the second interview can only be correct if it referred to him as Deputy Principal, not Head of department.
130. The Employee submitted that during the second interviews, he introduced himself as the Deputy Principal and was confused when he was given the title of Head of department. This, he said, prejudiced him as it means he was treated as though he held the same rank with the other candidates, whereas he was the most senior candidate to them all.
131. He further submitted that if consistency was to be preserved throughout the process, and the DGC did not exceed its powers by coming between the SGB and the Head Of Department (Employer), they should have allowed the process to flow. And that would mean if Mpanza did not tell the truth in the interviews, it suffices that he should have been removed and the list left intact.
132. He mentioned that for the process to be redone has led to the unfairness and the IC doing what it had no clue on.
133. Mdlalose testified under cross examination that they interviewed the candidates and did a good job. He participated and they recommended the Joinder to be appointed.
134. Sibanyoni mentioned that Mpanza was not shortlisted, but was added on the incorrect conclusion that he had acted for 12 consecutive months on the post. He further mentioned that on the issue of whether the capturing of the Employee’s post as the Head of department instead of a Deputy Principal, the interview panel only considers oral presentations from the candidates, not CVs as the CVs are considered at the shortlisting stage. So the fact that the Employee is referred to as the Head of department would have no effect as scoring is done on the basis of answers given by the candidates.
135. HRM Circular no 39 of 2017 (Procedure manual) on p18 (A) clause 22.1 which is titled APPOINTMENT states that “The HR component in the relevant District will, after validating the relevant documents from the School Governing Body, compile a schedule of recommendations, in post order, and forward it to the Directorate: Human Resources Services at Head Office. In the event a post is effected by a grievance it must not be submitted to Head Office for placement until the grievance is resolved. …”
136. The issue of clause 22.1 of the procedure manual was raised only to make the point that the decision to capture the Employee as the Head of department has prejudiced him, as the HOD when applying his mind into who to appoint would have considered the fact that the Employee was a Deputy Principal and the highest ranking candidate.
137. The Employer’s evidence in this regard is that the scoring was done on the basis of the answers to the questions asked, not on the basis of the candidate’s rank.
138. It is difficult to trace the argument made by the Employee into any policy or practice of the Department. It is a well-known phenomenon in the department to have educators from different rankings applying for a promotional post, and although it is a fact that a Deputy Principal post is closer to the Principalship post, there is however, nothing that says that when competing for a promotional post, the proximity to that post should be afforded a particular advantage. That is not the case. To that end, I do not see this issue of rank having had any impact on the lack of appointment of the Employee.
139. It is also worth mentioning that the SGB worked from the documents that were collated in February 2018, as they did not do the short listing afresh. So it is reasonable for them to have captured his rank as it appeared on the shortlisted candidates. This to me, does not qualify to be called a fabricated information, as it was information that was simply retrieved from the files and was used in its original form.
140. The Employee’s submission that the SGB had no clue on what they were doing sounds bizarre at the very least. Through the Employee’s own evidence, the interview panel was the same as that which conducted the February 2018 interviews. The Employee wants the February interviews to stand and those of August to be nullified. Surely, his rejection of the August outcomes on the basis of cluelessness of the interview committee, whist at the same time wanting to rely on the February interviews conducted by the same interview committee illustrate a huge contradiction on his part. This clearly means had he emerged as the successful candidate in August, he would not have held his unsatisfactory views about the interview committee.
141. Mdlalose held a completely different position, which is that they did a good job as the SGB. One also has to bear in mind that Mdlalose mentioned that the reason to seek to re-do the process from the shortlisting stage was that they needed to know whom they would end up appointing as the SGB. He never said anything about them not being adequately equipped or knowledgeable to conduct the interviews.
142. The submission in this regard by the Employee lacks merit.
143. The last argument is that the Department should have allowed the process to flow in terms of the recommendations made in February interviews. This would have meant that after Mpanza was disqualified, the second ranked candidate should have been appointed because there was nothing wrong with him and all the other three candidates interviewed.
144. In as much as I agree with the aforesaid, the issue of appointment is a responsibility that starts at the school level being conducted by the SGB. When there are engagements between the SGB and the Department, like in any normal engagements that seek to arrive at a particular agreement, once the two bodies reach an agreement, then that is it.
145. The Department accepted the recommendations of the DGC, and the Employee has agreed that the recommendations are rational. In terms of clause 22.1 above, once there is a grievance lodged, there must not be a submission made to the Head Of Department for placement. So the issue of a process flow at the hands of the Head Of Department did not even start as the processed was interrupted at the time when the grievance was recorded as per the procedure manual.
146. The Employee together with the SGB did not challenge the DGC recommendations. It is obvious that the SGB’s request to start the process at the shortlisting stage was a deviation from the recommendations of the DGC, which is a Collective Agreement.
147. Being guided by the Apollo case above, I am of the view that there is no unfair conduct committed by the Employer in this regard.
AWARD
148. The Employer, the Provincial Department of Education: KwaZulu Natal, did not commit an unfair labour practice when it did not appoint the Employee, Grace Mathabela, to the post of Principal at Maqhungendoda High School.
149. The application is dismissed.
Vuyiso Ngcengeni
Panelist / Commissioner
Text