ELRC598-20/21GP
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Award Date:
28 July 2021
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Case Number: ELRC598-20/21GP
Arbitrator: Livhu Nengovhela
Date of Award: 28 July 2021
In the MATTER between
Miemie Semetsing
(Union/Applicant)
and
Education Department of Gauteng
(Respondent)
Union/Applicant’s representative: Ms. Pexie Jafta, SADTU Official
Union/Applicant’s address: SADTU
Glenvista
Telephone: 079 884 8269
Telefax:
E-mail: semetsingmiemie@gmail.com
Respondent’s representative: Ms. Emily Magadla
Respondent’s address: Provincial Department of Education: Gauteng
06 Hollard Street
Johannesburg
2000
Telephone: 016 594 9114 / 072 350 3145/ 071 350 3145
Telefax:
E-mail: Emily.Magadla@gauteng.gov.za
Patrick.Selowa@gauteng.gov.za Patrick.Selowa@gauteng.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
1. This is the award in the arbitration between Semetsing Miemie, the applicant, and the Department of Education – Gauteng, the respondent. The arbitration was held under the auspices of the ELRC in terms of section 191(5)(a) of the Labour Relations LRA 66 of 1995 as amended (the LRA) and the award is issued in terms of section 138(7) of the LRA.
2. The arbitration was held virtually, through the Zoom platform. The applicant was present, and she was represented by Ms. Pexie Jafta, an official from SADTU. The respondent was represented by Ms. Emily Magadla, the Deputy Chief Education Specialist (Labour Relations) of the respondent.
3. The parties submitted their bundle of documents to the ELRC Case Management Officer (CMO). The applicant’s bundle was in the main, the outcome of the District Grievance Committee dated 06 October 2020, and the outcome of the appeal by the Director Dispute Management dated 21 October 2020. The respondent submitted to the hearing the Collective Agreement No.2 of 2005, and the minutes of the interview panel dated 26 August 2020.
4. At the end of the hearing, the parties agreed to submit written closing arguments on or before Tuesday 8 June 2021. The applicant did not submit closing arguments, but the respondent submitted its closing arguments on 08 June 2021.
BACKGROUND TO THE DISPUTE
5. The applicant had applied for a deputy principal position at Job Rathebe Secondary School. The interviews for this position took place on 26 August 2020. The applicant ended been second best after the recruitment process with Mr. Ndlovu JS being the successful candidate. Mr Ndlovu was an internal candidate. The applicant was not pleased about this, lodged a grievance which triggered the establishment of the District Grievance Committee (DGC) to hear the matter.
6. The applicant wanted the DGC to set aside the decision of the selection committee. The DGC sat on the 17 September 2020 and its decision was communicated to the parties on 6 October 2020. In summary the DGC agreed with the applicant, and decided that the interview process be redone by an independent panel appointed by the Director.
7. The School Governing Body (SGB) was not pleased with the DGC decision and appealed the decision with the Directorate Labour Relations at Head Office. The SGB wanted the decision by the selection committee, to appoint Mr Ndlovu JS to be upheld. The details of the appeal letter by the SGB to the Director was dated 16 October 2020.
8. The appeal decision came out in favour of the SGB confirming the applicant as the second best and proceeded to confirm the appointment of Ndlovu JS as deputy principal.
9. The applicant was unhappy with the appeal decision and decided to refer the matter to the ELRC on the basis of section 186 (2)(a) of the LRA regarding promotion. The matter was set-down for arbitration before me on 28 April 2021, proceeded on 31 May 2021, and was finalised on 1 June 2021.
ISSUE TO BE DECIDED
10. I am to determine whether the respondent’s failure to appoint the applicant to the post of deputy principal at Job Rathebe Secondary School amounts to an unfair labour practice (promotion) contemplated in terms of section 186(2) (a) of the LRA.
11. As it is only required that an award with brief reasons be issued, following is a summary of the relevant evidence tendered under oath:
APPLLICANT’S CASE
Mr Chris Sambo
12. Mr Chris Sambo testified under oath that he was a high school principal and secretary of SADTU Soweto East Branch. He participated in the interviews on 26 August 2020 for the selection of the deputy principal at Job Rathebe and his role was being an observer. It is an important criterion on questions that all candidates are treated the same. Panelist should not move out and in of the room during interviews.
13. The witness indicated that that his invite for the interviews was for 10:00. When he arrived just before 10:00 he realised that the meeting started at 08:00 already. He was not happy with this since he should have been informed about the proper starting time.
14. Scores are not to be changed after an individual had scored. Changing of marks amounts to fraud. He realised the marks of candidates have been changed. The new marks were changed to as follows:
1. Semetsing: 95
2. Ndlovu JS: 96
3. Ngobeni was the third one.
15. Two members of the panel went out with the score sheet, discussed and came back. The resources person, never told the two members of the panel not to go out and not to temper with the marks. The agreed criterion was the scores and recommendations.
16. The witness further indicated that he was not comfortable with this as an observer and he decided to submit a grievance that led to the convening of the DGC. The submissions made to the DGC were incomplete since Ndlovu JS’s scoring sheet was not submitted to be considered by the DGC. He referred to item 5 of the DGC report that confirmed that the DGC did not receive Ndlovu’s scoring sheet.
17. The outcome of the DGC was that the interviews should be redone. He had no knowledge about the appeal that was lodged until he received its outcome.
18. Under cross examination the witness indicated that the original scores were as follows:
1. Semetsing: 81
2. Ndlovu JS: 76
3. Ngobeni: 73
19. The witness however not explain the write up confirming these scores and at what stage he actually saw these numbers.
20. The DGC agreed with the witness at the end of the hearing that the scores were tempered with. He referred to items 3.3 and 3.4 of the report that confirmed that the scores were tempered with.
21. When asked if he saw the two panel members changing the scores to 96 for Ndlovu, 95 for Semetsing and 85 for Ngobeni, the witness stated that he saw them tearing off the first sheet when he was looking at them through the window. They later submitted the new changed score sheet after the discussions.
22. When asked on several occasions and referring selection committee minutes where he was given an opportunity to make comment and observations (Page 8 item 1.1.4 of the selection committee minutes), the witness consistently said that his role was that merely of an observer and not a panellist or resource person.
23. The witness further indicated that he agreed to proceed with the interviews despite that he only arrived at 10:00 as he was informed. It was then put to him that he could not now revers his decision on the day to allow the interviews to proceed.
24. He concluded by stating that it was the responsibility of the resources person to guide and not mislead the SGB.
THE RESPONDENT’S CASE
Mr Sabelo Ndlovu
25. Mr Sabelo Ndlovu took oath and stated that he was a cluster leader for circuit 1 cluster. His main job is to support schooling and assist with appointments. He was requested to go and assist with the recruitment at Job Rathebe since the Institutional Development and Support Officer (IDSO) of the school was not there.
26. The witness knew both Semetsing and Ndlovu JS since his SADTU days some few years back. He was playing a role of being a panellist and a resources person at the selection committee. The role of the resources person is to guide the panel so that they conduct themselves within the policies of the respondent.
27. The witness testified that the two School Governing Body (SGB) members never went outside. He further indicated that it was not true that the SGB member tore a score sheet and replace it with another one. The score sheet that had 81 for Semetsing, 76 for Ndlovu and 73 for Ngobeni never existed. The only score sheet they had was 96 for Ndlovu, 95 for Semetsing and 85 Ngobeni. The scores were never changed.
28. The witness further indicated that if Sambo had observed unbecoming conduct, he should have raised it immediately since this was the role of the observer.
29. The witness further indicated the minutes of the recruitment panel clearly shows that there were seven (7) candidates (3.1). The summary responses by each candidate were summarised (3.2). The summary of all candidate scores per panellist are on page 7 of the minutes (3.2.7.6)
30. The observer and the secretary were asked for their comments at the end of the interview as per item 1.1.4 of the minutes on page 8. The observer indicated that he had no concerns. He did not raise an issue of two panel members going out. He did not raise an issue of scores being changed.
31. During cross examination, it was put to him on few occasions that the two other panellists went out. He responded by saying no on all the occasions. He explained that he could have seen it if they went out since he was there all the time.
32. The witness further indicated that he had to attend the interviews since the principal’s husband was hospitalised and the relevant IDSO was not available. That was why he was called to help.
Ms Rhulani Makhubela
33. Ms Makhubela took oath and indicated that she was the Assistant Director: Dispute Management for Gauteng. She has been doing the job for the past 10 years. She deals with the Johannesburg North area and her responsibilities, include drafting charges, appeals, grievances and discipline in general terms.
34. When appeals are submitted, she would liaise with the HR office and use all the information available for her to make up her mind. Thereafter she would do recommendations to the Director.
35. In this instance, she received the appeal, thereafter contacted HR for the file and all the information relating to the matter. She did not contact the applicant since she was going to make a decision on papers only.
36. The witness received the score sheet of Mr Ndlovu JS who was the preferred candidate of the panel. She did not understand why the DGC did not have it since it was in the file. There was one mark different between Semetsing and Ndlovu JS.
37. The witness was the one who authored the appeal letter that was since signed by the Director. There was no correction on the score sheet and there was no amendment. She also did not see any prejudice suffered by the applicant and decided to grant the appeal.
38. While answering the question from the panellist she conceded that she should have received the version of the applicant and/or Sambo. She was not aware that the applicant and /or Sambo did not receive a copy of appeal by the SGB.
39. Under cross-examination the witness indicated that that her findings differed with that of the DGC since she had an opportunity to go through all the documents including the scoring sheet of Ndlovu JS.
40. The role of the observer is to check and ensure the process was managed properly. Observers do not have decision making powers.
Witness Called by The Panellist
Mr Denvor Manas
41. Mr Manas took oath and confirmed that he was the Labour Relations officer of the respondent based at Joburg North District Office. He was the chairperson of the DGC on this matter. He did not remember the other colleague’s names in the DGC since it was sometime back, it would had been easier if he had an opportunity to collect the file. The minutes were however taken by Eulenda Ramaru, the senior personnel officer of the respondent.
42. I wanted to understand his explanation on the issues that the DGC identified in item 3, 4 and 5 of the GDC outcome report:
3.1 The DGC recognised the error was made by the scribe and the arrival of the observer meant he missed setting questions and possible answers.
3.2 The witness picked it up from the file that Semetsing was recommended as No1 candidate, Ndlovu JS No2 and Ngubeni No 3
3.3 He also saw that the scores were adjusted from the file.
3.4 That after the score adjustment, Ndlovu JS became No1 candidate. That was also established from the file.
3.5 What the selection committee members scored did not tally on the file. He however could not explain what was the other source except the selection committee minutes since these were tallying.
3.6 The witness indicated that IDSO was wearing the too many hats: Panellist, Resources Person and Chairperson. He however could not refer to a particular provision of the collective agreement that did not allow that.
3.7 On item 4 it was because of the above mentioned points that the panel showed that it was biased and had vested interest.
3.8 The submission was incomplete without Ndlovu’s scoring sheet submission.
The
43. The DGC subsequently decided to have the process be redone by an independent panel appointed by the Director.
44. Under cross examination the witness conceded that especially an IDSO could be a resource person and a panellist at the same time in line with item 3.2.1 of Collective Agreement Number 2 of 2005.
45. The witness could also not come with the initial score before the changes. He also could not explain which numbers where not tallying particularly compared with the minutes. He concluded by saying that there was no document that showed that Semetsing was the number 1 candidate except the claim by Sambo.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
46. This matter started when selection committee recommended Ndlovu JS to be appointed the deputy principal of Job Rathebe Secondary School. The SADTU observer, Sambo launched a grievance that triggered the establishment of a DGC that it was later established was chaired by Manas. The outcome of the DGC was that another panel be established to re-interview the candidates since the selection panel was biased in favour of the internal candidate. The SGB was not happy about this, and appealed the decision. The appeal outcome agreed with the outcome of the selection committee that Ndlovu JB should be appointed.
47. The selection committee generated minutes which explained the committee’s decision making process. This was a properly done document indicating the names of role players, candidates that were interviewed, the scoring by each panellist against each candidate etc. It was signed by each panel member. It was a well structure document.
48. The DGC generated its report which in my view was not detailed enough and sometimes confusing to a third party reader. The report did not indicate who were the members of the DGC, the chairperson and the scribe. It would be important that the respondent standardises this document internally particularly to be able to identify who the members were, people who appeared before it and what they presented, actual documents considered DGC and the value thereof, etc.
49. The appeal outcome was a well written document. My concern is of its failure to hear the other party, but will deal with it later in detail.
50. In this hearing I heard evidence from four witnesses. I found no reason not to believe the evidence tendered by the two witnesses that testified on behalf of the respondent. I found particularly Sabelo Ndlovu an honest witness, his version of events from the start of the interviews to the end to be more probable. He did not contradict himself throughout his testimony and he was consistent with the documents in the bundle and his explanation of how the selection committee works. He answered each question earnestly without any contradictions.
51. In regard with Rhulani Makhubela, I also found her an honest witness. She immediately conceded regarding the weakness of the process she took in considering the appeal. I however did not use her evidence in making my determination on this matter since the key decision was made at the selection committee and turned down by the DGC.
52. The appeal process is part of the dispute resolution process contemplated in the Collective Agreement. It is not an ordinary investigation by the respondent. If the respondent wanted to take this approach it should have been done probably earlier on even before the DGC. Being part of the dispute resolution process, the respondent is bound to follow the rule of natural justice (the audi alteram partem rule) that requires the other side to be heard before a decision is made. This principle is inherent in our labour law and should be observed all the time.
53. In this instance the applicant or /and Sambo did not receive the appeal letter from the SGB. Makhubela should have ensured that they received this letter since the SGB clearly did not send it to all the interested and affected parties. The second thing is that she should have given them the right to reply. Since she had opted the papers route, she should have given them reasonable time to respond. Thereafter she would be entitled to recommend a decision to the Director for implementation.
54. However, I am not of the view that such error was fatal since the main focus is if the decision of the selection committee to appoint Ndlovu JS constituted an unfair labour practice against the applicant or not. From my analysis thus far I have already started to indicate that my decision is a no, and am still going to provide further reasons in this regard.
55. Denvor Manas was the witness I decided to call since neither the respondent nor the applicant were calling any member of the DGC to testify. The hearing needed to understand how the DGC came to its conclusion. I would have preferred two witnesses from this committee but was convinced that Manas sufficiently detailed the reasoning of the committee particularly since he was the chairperson. He was also an honest witness. He conceded all the errors the DGC made in coming to its conclusions.
56. I however found the witness on behalf of the applicant, Chris Sambo to be evasive when testifying on various issues including why he told no one that the two SGB panel members tore the score sheet and replace it with another. He suddenly came with scores of 81,76, and 73 that could not be substantiated or how/where he saw these initial numbers. The minutes clearly showed that he was given an opportunity to speak at the end of the interviews, he decided not. But about eight days later he submitted a grievance on the same matter. In the hearing he kept on saying he was an observer as if an observer is not allowed to speak. The only limitation of an observer is decision making, but could have raised his concerns there if they were in existence.
57. It was also clear from the evidence of Manas that the DGC did not have any further evidence that it was exposed to, to conclude that the scorings were changed. The DGC just took the complaint as it was and not evaluate against any other evidence. It would be important for the respondent to capacitate potential members of the DCG’s with skills to be able to analyse and evaluate evidence and understand as who has the onus. This committee is key to ensure fairness at early stage of the dispute.
58. I am however concerned about the unavailability of Ndlovu’s scoring sheet at the DGC. This was an important document for them to consider. The committee should even have paused the meeting if the human resources support staff did not submit all the required information. The training of all potential members of this committee and the HR key staff members can never be over emphasised since this might lead to further and unnecessary delay of the respondent in filling its positions.
59. The version presented by the applicant that the two SGB panellist went out, tore the score sheet and replaced it with another one is improbable. If this had happened, Sambo could have complained immediately he appeared knowledgeable about the policies of the respondent particularly regarding recruitment and selection. His version of events was not even corroborated by any other witness or documents that was presented.
60. In light of the above I find that, there was no basis of challenging the decision of the selection committee in appointing Ndlovu JS as the deputy principal at Job Rathebe Secondary School. The claim by the applicant for unfair labour practice in terms of section 186(2)(a) of the LRA is therefore dismissed.
AWARD
61. The application is dismissed.
ELRC Panellist
LIVHU NENGOVHELA
Arbitrator: Livhu Nengovhela
Date of Award: 28 July 2021
In the MATTER between
Miemie Semetsing
(Union/Applicant)
and
Education Department of Gauteng
(Respondent)
Union/Applicant’s representative: Ms. Pexie Jafta, SADTU Official
Union/Applicant’s address: SADTU
Glenvista
Telephone: 079 884 8269
Telefax:
E-mail: semetsingmiemie@gmail.com
Respondent’s representative: Ms. Emily Magadla
Respondent’s address: Provincial Department of Education: Gauteng
06 Hollard Street
Johannesburg
2000
Telephone: 016 594 9114 / 072 350 3145/ 071 350 3145
Telefax:
E-mail: Emily.Magadla@gauteng.gov.za
Patrick.Selowa@gauteng.gov.za Patrick.Selowa@gauteng.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
1. This is the award in the arbitration between Semetsing Miemie, the applicant, and the Department of Education – Gauteng, the respondent. The arbitration was held under the auspices of the ELRC in terms of section 191(5)(a) of the Labour Relations LRA 66 of 1995 as amended (the LRA) and the award is issued in terms of section 138(7) of the LRA.
2. The arbitration was held virtually, through the Zoom platform. The applicant was present, and she was represented by Ms. Pexie Jafta, an official from SADTU. The respondent was represented by Ms. Emily Magadla, the Deputy Chief Education Specialist (Labour Relations) of the respondent.
3. The parties submitted their bundle of documents to the ELRC Case Management Officer (CMO). The applicant’s bundle was in the main, the outcome of the District Grievance Committee dated 06 October 2020, and the outcome of the appeal by the Director Dispute Management dated 21 October 2020. The respondent submitted to the hearing the Collective Agreement No.2 of 2005, and the minutes of the interview panel dated 26 August 2020.
4. At the end of the hearing, the parties agreed to submit written closing arguments on or before Tuesday 8 June 2021. The applicant did not submit closing arguments, but the respondent submitted its closing arguments on 08 June 2021.
BACKGROUND TO THE DISPUTE
5. The applicant had applied for a deputy principal position at Job Rathebe Secondary School. The interviews for this position took place on 26 August 2020. The applicant ended been second best after the recruitment process with Mr. Ndlovu JS being the successful candidate. Mr Ndlovu was an internal candidate. The applicant was not pleased about this, lodged a grievance which triggered the establishment of the District Grievance Committee (DGC) to hear the matter.
6. The applicant wanted the DGC to set aside the decision of the selection committee. The DGC sat on the 17 September 2020 and its decision was communicated to the parties on 6 October 2020. In summary the DGC agreed with the applicant, and decided that the interview process be redone by an independent panel appointed by the Director.
7. The School Governing Body (SGB) was not pleased with the DGC decision and appealed the decision with the Directorate Labour Relations at Head Office. The SGB wanted the decision by the selection committee, to appoint Mr Ndlovu JS to be upheld. The details of the appeal letter by the SGB to the Director was dated 16 October 2020.
8. The appeal decision came out in favour of the SGB confirming the applicant as the second best and proceeded to confirm the appointment of Ndlovu JS as deputy principal.
9. The applicant was unhappy with the appeal decision and decided to refer the matter to the ELRC on the basis of section 186 (2)(a) of the LRA regarding promotion. The matter was set-down for arbitration before me on 28 April 2021, proceeded on 31 May 2021, and was finalised on 1 June 2021.
ISSUE TO BE DECIDED
10. I am to determine whether the respondent’s failure to appoint the applicant to the post of deputy principal at Job Rathebe Secondary School amounts to an unfair labour practice (promotion) contemplated in terms of section 186(2) (a) of the LRA.
11. As it is only required that an award with brief reasons be issued, following is a summary of the relevant evidence tendered under oath:
APPLLICANT’S CASE
Mr Chris Sambo
12. Mr Chris Sambo testified under oath that he was a high school principal and secretary of SADTU Soweto East Branch. He participated in the interviews on 26 August 2020 for the selection of the deputy principal at Job Rathebe and his role was being an observer. It is an important criterion on questions that all candidates are treated the same. Panelist should not move out and in of the room during interviews.
13. The witness indicated that that his invite for the interviews was for 10:00. When he arrived just before 10:00 he realised that the meeting started at 08:00 already. He was not happy with this since he should have been informed about the proper starting time.
14. Scores are not to be changed after an individual had scored. Changing of marks amounts to fraud. He realised the marks of candidates have been changed. The new marks were changed to as follows:
1. Semetsing: 95
2. Ndlovu JS: 96
3. Ngobeni was the third one.
15. Two members of the panel went out with the score sheet, discussed and came back. The resources person, never told the two members of the panel not to go out and not to temper with the marks. The agreed criterion was the scores and recommendations.
16. The witness further indicated that he was not comfortable with this as an observer and he decided to submit a grievance that led to the convening of the DGC. The submissions made to the DGC were incomplete since Ndlovu JS’s scoring sheet was not submitted to be considered by the DGC. He referred to item 5 of the DGC report that confirmed that the DGC did not receive Ndlovu’s scoring sheet.
17. The outcome of the DGC was that the interviews should be redone. He had no knowledge about the appeal that was lodged until he received its outcome.
18. Under cross examination the witness indicated that the original scores were as follows:
1. Semetsing: 81
2. Ndlovu JS: 76
3. Ngobeni: 73
19. The witness however not explain the write up confirming these scores and at what stage he actually saw these numbers.
20. The DGC agreed with the witness at the end of the hearing that the scores were tempered with. He referred to items 3.3 and 3.4 of the report that confirmed that the scores were tempered with.
21. When asked if he saw the two panel members changing the scores to 96 for Ndlovu, 95 for Semetsing and 85 for Ngobeni, the witness stated that he saw them tearing off the first sheet when he was looking at them through the window. They later submitted the new changed score sheet after the discussions.
22. When asked on several occasions and referring selection committee minutes where he was given an opportunity to make comment and observations (Page 8 item 1.1.4 of the selection committee minutes), the witness consistently said that his role was that merely of an observer and not a panellist or resource person.
23. The witness further indicated that he agreed to proceed with the interviews despite that he only arrived at 10:00 as he was informed. It was then put to him that he could not now revers his decision on the day to allow the interviews to proceed.
24. He concluded by stating that it was the responsibility of the resources person to guide and not mislead the SGB.
THE RESPONDENT’S CASE
Mr Sabelo Ndlovu
25. Mr Sabelo Ndlovu took oath and stated that he was a cluster leader for circuit 1 cluster. His main job is to support schooling and assist with appointments. He was requested to go and assist with the recruitment at Job Rathebe since the Institutional Development and Support Officer (IDSO) of the school was not there.
26. The witness knew both Semetsing and Ndlovu JS since his SADTU days some few years back. He was playing a role of being a panellist and a resources person at the selection committee. The role of the resources person is to guide the panel so that they conduct themselves within the policies of the respondent.
27. The witness testified that the two School Governing Body (SGB) members never went outside. He further indicated that it was not true that the SGB member tore a score sheet and replace it with another one. The score sheet that had 81 for Semetsing, 76 for Ndlovu and 73 for Ngobeni never existed. The only score sheet they had was 96 for Ndlovu, 95 for Semetsing and 85 Ngobeni. The scores were never changed.
28. The witness further indicated that if Sambo had observed unbecoming conduct, he should have raised it immediately since this was the role of the observer.
29. The witness further indicated the minutes of the recruitment panel clearly shows that there were seven (7) candidates (3.1). The summary responses by each candidate were summarised (3.2). The summary of all candidate scores per panellist are on page 7 of the minutes (3.2.7.6)
30. The observer and the secretary were asked for their comments at the end of the interview as per item 1.1.4 of the minutes on page 8. The observer indicated that he had no concerns. He did not raise an issue of two panel members going out. He did not raise an issue of scores being changed.
31. During cross examination, it was put to him on few occasions that the two other panellists went out. He responded by saying no on all the occasions. He explained that he could have seen it if they went out since he was there all the time.
32. The witness further indicated that he had to attend the interviews since the principal’s husband was hospitalised and the relevant IDSO was not available. That was why he was called to help.
Ms Rhulani Makhubela
33. Ms Makhubela took oath and indicated that she was the Assistant Director: Dispute Management for Gauteng. She has been doing the job for the past 10 years. She deals with the Johannesburg North area and her responsibilities, include drafting charges, appeals, grievances and discipline in general terms.
34. When appeals are submitted, she would liaise with the HR office and use all the information available for her to make up her mind. Thereafter she would do recommendations to the Director.
35. In this instance, she received the appeal, thereafter contacted HR for the file and all the information relating to the matter. She did not contact the applicant since she was going to make a decision on papers only.
36. The witness received the score sheet of Mr Ndlovu JS who was the preferred candidate of the panel. She did not understand why the DGC did not have it since it was in the file. There was one mark different between Semetsing and Ndlovu JS.
37. The witness was the one who authored the appeal letter that was since signed by the Director. There was no correction on the score sheet and there was no amendment. She also did not see any prejudice suffered by the applicant and decided to grant the appeal.
38. While answering the question from the panellist she conceded that she should have received the version of the applicant and/or Sambo. She was not aware that the applicant and /or Sambo did not receive a copy of appeal by the SGB.
39. Under cross-examination the witness indicated that that her findings differed with that of the DGC since she had an opportunity to go through all the documents including the scoring sheet of Ndlovu JS.
40. The role of the observer is to check and ensure the process was managed properly. Observers do not have decision making powers.
Witness Called by The Panellist
Mr Denvor Manas
41. Mr Manas took oath and confirmed that he was the Labour Relations officer of the respondent based at Joburg North District Office. He was the chairperson of the DGC on this matter. He did not remember the other colleague’s names in the DGC since it was sometime back, it would had been easier if he had an opportunity to collect the file. The minutes were however taken by Eulenda Ramaru, the senior personnel officer of the respondent.
42. I wanted to understand his explanation on the issues that the DGC identified in item 3, 4 and 5 of the GDC outcome report:
3.1 The DGC recognised the error was made by the scribe and the arrival of the observer meant he missed setting questions and possible answers.
3.2 The witness picked it up from the file that Semetsing was recommended as No1 candidate, Ndlovu JS No2 and Ngubeni No 3
3.3 He also saw that the scores were adjusted from the file.
3.4 That after the score adjustment, Ndlovu JS became No1 candidate. That was also established from the file.
3.5 What the selection committee members scored did not tally on the file. He however could not explain what was the other source except the selection committee minutes since these were tallying.
3.6 The witness indicated that IDSO was wearing the too many hats: Panellist, Resources Person and Chairperson. He however could not refer to a particular provision of the collective agreement that did not allow that.
3.7 On item 4 it was because of the above mentioned points that the panel showed that it was biased and had vested interest.
3.8 The submission was incomplete without Ndlovu’s scoring sheet submission.
The
43. The DGC subsequently decided to have the process be redone by an independent panel appointed by the Director.
44. Under cross examination the witness conceded that especially an IDSO could be a resource person and a panellist at the same time in line with item 3.2.1 of Collective Agreement Number 2 of 2005.
45. The witness could also not come with the initial score before the changes. He also could not explain which numbers where not tallying particularly compared with the minutes. He concluded by saying that there was no document that showed that Semetsing was the number 1 candidate except the claim by Sambo.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
46. This matter started when selection committee recommended Ndlovu JS to be appointed the deputy principal of Job Rathebe Secondary School. The SADTU observer, Sambo launched a grievance that triggered the establishment of a DGC that it was later established was chaired by Manas. The outcome of the DGC was that another panel be established to re-interview the candidates since the selection panel was biased in favour of the internal candidate. The SGB was not happy about this, and appealed the decision. The appeal outcome agreed with the outcome of the selection committee that Ndlovu JB should be appointed.
47. The selection committee generated minutes which explained the committee’s decision making process. This was a properly done document indicating the names of role players, candidates that were interviewed, the scoring by each panellist against each candidate etc. It was signed by each panel member. It was a well structure document.
48. The DGC generated its report which in my view was not detailed enough and sometimes confusing to a third party reader. The report did not indicate who were the members of the DGC, the chairperson and the scribe. It would be important that the respondent standardises this document internally particularly to be able to identify who the members were, people who appeared before it and what they presented, actual documents considered DGC and the value thereof, etc.
49. The appeal outcome was a well written document. My concern is of its failure to hear the other party, but will deal with it later in detail.
50. In this hearing I heard evidence from four witnesses. I found no reason not to believe the evidence tendered by the two witnesses that testified on behalf of the respondent. I found particularly Sabelo Ndlovu an honest witness, his version of events from the start of the interviews to the end to be more probable. He did not contradict himself throughout his testimony and he was consistent with the documents in the bundle and his explanation of how the selection committee works. He answered each question earnestly without any contradictions.
51. In regard with Rhulani Makhubela, I also found her an honest witness. She immediately conceded regarding the weakness of the process she took in considering the appeal. I however did not use her evidence in making my determination on this matter since the key decision was made at the selection committee and turned down by the DGC.
52. The appeal process is part of the dispute resolution process contemplated in the Collective Agreement. It is not an ordinary investigation by the respondent. If the respondent wanted to take this approach it should have been done probably earlier on even before the DGC. Being part of the dispute resolution process, the respondent is bound to follow the rule of natural justice (the audi alteram partem rule) that requires the other side to be heard before a decision is made. This principle is inherent in our labour law and should be observed all the time.
53. In this instance the applicant or /and Sambo did not receive the appeal letter from the SGB. Makhubela should have ensured that they received this letter since the SGB clearly did not send it to all the interested and affected parties. The second thing is that she should have given them the right to reply. Since she had opted the papers route, she should have given them reasonable time to respond. Thereafter she would be entitled to recommend a decision to the Director for implementation.
54. However, I am not of the view that such error was fatal since the main focus is if the decision of the selection committee to appoint Ndlovu JS constituted an unfair labour practice against the applicant or not. From my analysis thus far I have already started to indicate that my decision is a no, and am still going to provide further reasons in this regard.
55. Denvor Manas was the witness I decided to call since neither the respondent nor the applicant were calling any member of the DGC to testify. The hearing needed to understand how the DGC came to its conclusion. I would have preferred two witnesses from this committee but was convinced that Manas sufficiently detailed the reasoning of the committee particularly since he was the chairperson. He was also an honest witness. He conceded all the errors the DGC made in coming to its conclusions.
56. I however found the witness on behalf of the applicant, Chris Sambo to be evasive when testifying on various issues including why he told no one that the two SGB panel members tore the score sheet and replace it with another. He suddenly came with scores of 81,76, and 73 that could not be substantiated or how/where he saw these initial numbers. The minutes clearly showed that he was given an opportunity to speak at the end of the interviews, he decided not. But about eight days later he submitted a grievance on the same matter. In the hearing he kept on saying he was an observer as if an observer is not allowed to speak. The only limitation of an observer is decision making, but could have raised his concerns there if they were in existence.
57. It was also clear from the evidence of Manas that the DGC did not have any further evidence that it was exposed to, to conclude that the scorings were changed. The DGC just took the complaint as it was and not evaluate against any other evidence. It would be important for the respondent to capacitate potential members of the DCG’s with skills to be able to analyse and evaluate evidence and understand as who has the onus. This committee is key to ensure fairness at early stage of the dispute.
58. I am however concerned about the unavailability of Ndlovu’s scoring sheet at the DGC. This was an important document for them to consider. The committee should even have paused the meeting if the human resources support staff did not submit all the required information. The training of all potential members of this committee and the HR key staff members can never be over emphasised since this might lead to further and unnecessary delay of the respondent in filling its positions.
59. The version presented by the applicant that the two SGB panellist went out, tore the score sheet and replaced it with another one is improbable. If this had happened, Sambo could have complained immediately he appeared knowledgeable about the policies of the respondent particularly regarding recruitment and selection. His version of events was not even corroborated by any other witness or documents that was presented.
60. In light of the above I find that, there was no basis of challenging the decision of the selection committee in appointing Ndlovu JS as the deputy principal at Job Rathebe Secondary School. The claim by the applicant for unfair labour practice in terms of section 186(2)(a) of the LRA is therefore dismissed.
AWARD
61. The application is dismissed.
ELRC Panellist
LIVHU NENGOVHELA
ELRC 302 -20 /21 NW
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