ELRC22-21/22GP

Panelist : Alta Reynolds

Case Number : ELRC22-21/22GP

Date of Award : 6 October 2021


In the ARBITRATION between:


Magwaza,Sindisiwe Emma
(Union/Applicant)

and

Department of Education – Gauteng
(1st Respondent)


Lubambo, Ziphilele Wilson
(2nd Respondent)


DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down by the Education Labour Relations Council (ELRC) as an alleged unfair labour practice relating to promotion referred in terms of section 186 (2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was conducted virtually via Zoom Pro video conferencing over three sittings on 16 August 2021, 6 September 2021 and 7 September 2021.

2. Present for the referring employee (the Applicant) were Ms Amanda Moloto (Attorney with Moloto Moyo Attorneys as Representative) and Ms Sindisiwe Emma Magwaza (the Applicant). Present for the employer the Department of Education – Gauteng (the 1st Respondent) was Mr Zakhele Nawa (Deputy Chief Education Specialist: Labour Relations as Representative). Present too as joined in these proceedings as the 2nd Respondent were Mr Sipilele Wilson Lubambo (the successful candidate for the disputed post) and Mr Justice Ndlovu (SADTU Branch Chairperson as Representative). Legal representation of the Applicant was permitted due to the nature of the dispute. The 2nd Respondent was unrepresented at the first sitting held on 16 August 2021. He requested, and arranged, representation before the sitting of 6 September 2021 when the evidence of witnesses was to commence.

3. The proceedings were conducted in English, with digital and handwritten recordings made.

4. The parties did not require an explanation of the arbitration proceedings.

5. No preliminary issues required to be addressed.

6. Written closing arguments were requested and agreed to at the last sitting of the arbitration. It was agreed by both parties that they would submit their closing arguments to the ELRC’s Case Management Officer and copied to one another via e-mail, as follows:

The Applicant by not later than 13 September 2021
The 1st and 2nd Respondents by not later than 17 September 2021
The Applicant’s reply by not later than 20 September 2021

7. The parties were informed that the award due date would be amended accordingly. The parties’ written closing arguments were all received on the due dates.
ISSUE TO BE DECIDED

8. The purpose of this arbitration is to determine whether the 1st Respondent had committed an unfair labour practice relating to promotion in terms of section 186 (2)(a) of the LRA. The relief sought by the Applicant was to be appointed in the advertised post of Head of Department Post Level 2 at J S Malaza Primary School, or alternatively to be granted protected promotion if unfairness is found. It was confirmed that the onus of proof would be on the Applicant in this matter.

BACKGROUND TO THE DISPUTE

The following facts were established as common cause

9. The Applicant joined the 1st Respondent in 2000 and currently occupies a Post Level 1 Educator position at J S Malaza Primary School in Daveyton, Gauteng, which she joined in 2019. She applied for the advertised position of Head of Department Post Level 2 at the same school advertised under vacancy circular 3 of 2020 dated 1 February 2021 as post number GE0ED1038. The Applicant met all the requirements of the advertised post, was shortlisted and interviewed, and nominated as the recommended candidate for the post by the School Governing Body (SGB). She was however unsuccessful, with the 2nd Respondent, who was also a Post Level 1 Educator at the same school, being appointed in the post with effect from 1 April 2021. The Applicant’s Persal number is 18972527 and she earned a gross basic salary of R26856.69 per month. The 2nd Respondent’s Persal number is 14431963.

The following facts were in dispute:

10. Whether the Applicant was the most suitable candidate for the advertised post.

11. Whether the 2nd Respondent was appointed based on the 1st Respondent’s Employment Equity Plan.

12. Whether providing equity in the workplace can conflict with the best interests of the learner and the community at large.

13. Whether the 1st Respondent had committed an unfair labour practice by appointing the 2nd Respondent, and not the Applicant, in the advertised post.


SURVEY OF EVIDENCE AND ARGUMENT

14. Ms Sindisiwe Emma Magwaza (the Applicant) and Mr Ndumiso Mnguni (Chairperson of the SGB selection panel) testified under oath for the Applicant party.

15. Ms Malefu Mabunda, Deputy Director: Human Resources Administration, testified under oath for the 1st Respondent. Mr Sipilele Wilson Lubambo, the successful candidate joined as 2nd Respondent, elected not to testify in person but indicated that the Deputy Principal at J S Malaza Primary School would be called to testify on his behalf, which he elected not to do in the end.

16. Documents were handed in by the Applicant and the 1st Respondent, with the 2nd Respondent confirming that he would also be relying on the 1st Respondent’s documents, and were admitted as evidence.

17. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.

THE APPLICANT’S EVIDENCE

18. The Applicant party’s case was that the Applicant had applied for the advertised post of Head of Department at J S Malaza Primary School which was filled by the 2nd Respondent, Mr Lubambo. The Applicant believed that this appointment was unfair and would lead evidence that she was the best suited candidate in respect of experience and skills and met all the minimum requirements for the advertised post. They would also show that the Director’s decision was contrary to the Constitution and that at all times the interest of the learners must prevail in all decisions made by the 1st Respondent. They requested that the appointment of the 2nd Respondent in the advertised post of Head of Department be declared unfair and that the Applicant be appointed in this post, alternatively if such an appointment is not possible, that the Applicant be afforded protected promotion at the level of the advertised post.

19. Ms Sindisiwe Emma Magwaza, the Applicant, testified as follows under oath in her evidence in chief: She confirmed that she was currently a Post Level 1 Educator at J S Malaza Primary School. She started at this school in 2019 as a Mathematics and IsiZulu teacher for grades 6 and 7. She was previously a Head of Department Post Level 2 at Katledo Primary School from 2011 to 2014, teaching IsiZulu and Mathematics and was appointed, or acted, as Deputy Principal on Post Level 3 from 2014 until she resigned on 31 March 2017, whereafter she was appointed at J S Malaza Primary School in 2019. She was presently teaching Mathematics and Life Skills for grade 4 since 2020. She had applied for the advertised post of Head of Department (HOD) because she felt she met the requirements for the post. She referred to her qualifications and subjects that she was qualified to teach, which included English, IsiZulu, Mathematics and Health Education. The teaching language medium at J S Malaza Primary School was only English and IsiZulu. After she applied for the HOD post she was called for an interview on 1 December 2020. If she was successful she would have commenced in that post on 1 February 2021. She waited for the results and was surprised to be introduced to her colleague, the 2nd Respondent, by the IDSO (Institution Development Support Officer) as the new HOD since she knew he did not have Mathematics or IsiZulu as subjects and that his mother tongue was IsiXhosa. The 2nd Respondent was currently teaching English, Natural Sciences and Technology, but she knew he had not taught IsiZulu before. She had felt that she was the best candidate since she met all the requirements for the post. The 2nd Respondent was currently the HOD for Mathematics, which was functioning because she was there to assist him and the other Mathematics teachers. There were three HODs at the school, which included the 2nd Respondent. She felt that the appointment of the 2nd Respondent was unfair to her, the school and the community, because according to her, he did not meet the requirements for the post. She was only aware that she was the first recommended candidate for the post by the SGB when she saw the package (the bundle of documents). She was never provided with reasons why she was not the appointed candidate.

20. Ms Magwaza testified as follows under cross-examination by the 1st Respondent: She agreed that the SGB could only recommend candidates to the District Director and that the Director would appoint the most suitable candidate. She did not know how many candidates were recommended in order of preference, since there was no document before her to show that. She knew that the SGB can recommend three candidates in order of preference and that the Director can appoint any of the three candidates recommended by the SGB, that the 2nd Respondent was one of the three candidates recommended, but was not suitable with respect to Mathematics and IsiZulu. When she applied for the post she saw it needed Mathematics, English and IsiZulu, which subjects she possessed. She did not know how the criteria were done, but knew that a Head of Department (HOD) at a school must monitor specific learning areas and support Educators. The advertised post was not tailor made for her but for persons suitable to meet the post requirements. She understood that one could not put someone in a post who did not meet the requirements, which she knew she did possess. Meeting of all the requirements was part of making the selection of the suitable candidate. She agreed that the interview questions did cover Mathematics and not all the other learning areas, but she did not develop the questions, which was done by the selection panel. The fact that Mathematics was included in the questions meant that the school had a special need for Mathematics. She was not earmarked for the post and the question on Mathematics was not included for her specifically. She was not part of the SMT (School Management Team) who allocated teachers and could not say whether the 2nd Respondent could not teach Mathematics, but she knew he was not qualified in Mathematics, but Life Orientation. There were three HODs at the school, of which the other two are female. She knew it was not unfair for the 1st Respondent to do a gender balance, but she was against the suitability of the person and that the learners at large had to be considered since she questioned whether the appointed candidate would be able to assist Mathematics teachers with their Mathematics and teach learners Mathematics correctly, further whether the panel had considered this too when they recommended the 2nd Respondent as the second nominee. It was not wrong for the SGB to consider the principles of equity as set out in section 6(3)(b) of the Employment of Educators Act 76 of 1998 as amended (the EEA). She was also referred to section 20(3) of the Employment Equity Act 55 of 1998 as amended (the EEQA) and the factors contained in it, and that a person may be suitably qualified if any one or a combination of the identified factors applied, and responded that it would not be unfair to appoint a person on an equity basis if the person had the capacity to acquire the ability to do the job. The District Director was in line with the EEQA when she appointed the 2nd Respondent.

21. Ms Magwaza testified as follows under cross-examination by the 2nd Respondent: She confirmed her past teaching experience. It was the 1st and 2nd Respondents’ Representatives’ opinion that the advertised post was tailor made for her, but there was a post of HOD advertised at the school needing Mathematics and IsiZulu. She responded to the statement that she was complaining that the 2nd Respondent did not meet the curriculum of the school, that she did not also meet it because she did not take Mathematics in grade 12 whilst the school was underperforming in Mathematics, and that she did not write Mathematics for personal reasons in grade 12. She and the Principal did not tailor make the post requirements to suit her, nor changed the timetable so that she did not have a class allocated to her at present, since she was not a School Management Team (SMT) member who allocates the classes. From studying the bundle of documents the 1st Respondent’s Representative pointed out to her that she was not the only one who qualified for shortlisting and that there were two candidates more qualified than her, which again supported their view that the post was tailor made for her, to which she responded that such a statement should not be put to her but the selection panel on what transpired during the shortlisting and interviews. She did not know about that the SGB and the Principal informed her that she was the number one candidate and had grounds to lodge a dispute, and had not spoken to the SGB and Principal about that. She had experience teaching Mathematics at Foundation Phase and studied Mathematics at the University of the Witwatersrand. Her capabilities and experience put her where she was. She responded to the question on why the school was underperforming in Mathematics if she was an expert in Mathematics, that when the Deputy Principal who taught grade 4 Mathematics resigned it was found that the grade 3 learners did not have the basic knowledge of Mathematics, hence the poor results, and she was moved from teaching grade 6 to grade 4 to help them. She did not assist the 2nd Respondent on a daily basis, but on certain aspects only, whilst it was the duty of the Deputy Principal who was the previous Mathematics and IsiZulu HOD to monitor and support the 2nd Respondent, which was not her duty. She did not know if all the candidates who applied qualified for the post, since some qualified by default. She assumed that qualifying by default meant that the person may have acted in the post. She did not assume that she would automatically be given the post.

22. Ms Magwaza testified as follows under re-examination: When there is a vacancy the school and SGB will look at the curriculum information and establish what the needs of the school are, which is then signed off by various officials on the GDE79 form. After that the vacancy is gazetted and placed on a vacancy list. It is therefore not true that the post was earmarked for her. She confirmed the child’s best interests as contained in the Constitution. With respect to section 20(3) of the Employment Equity Act (the EEQA she felt that the 2nd Respondent only qualified with respect to factor (d) which was the capacity to acquire within a reasonable time the ability to do the job, but did not qualify with respect to the other three factors. She had assisted the 2nd Respondent to acquire some of the skills and had coached him on some of the questions that may be asked in the interviews for the post. When he saw her grievance letter he did not come to her again for assistance. When he was introduced to her as the new incumbent she congratulated him and had no problem to mentor him when he asked for assistance. The Deputy Principal would have to answer the question on whether the Mathematics at the school had improved since the 2nd Respondent’s appointment. She did not know whether the Mathematics will improve at the school if the 2nd Respondent did not have Mathematics. The two other candidates whom it was put to her were more qualified than her were both women. She could presume that if a more qualified woman was recommended, that she would also not be appointed because she was female. In terms of the EEA the SGB had executed its duties properly by recommending her as the preferred candidate according to the requirements of the post. The Head of Department had not met the requirements of the EEA because she did not appoint the most suitable candidate, which was herself, the Applicant, and had only applied the Employment Equity Plan (EEP). If she had been appointed she would have promoted the interests of learners.

23. Mr Ndumiso Mnguni, the Chairperson of the SGB selection panel, testified as follows under oath in his evidence in chief: He explained that he was the Chairperson of the shortlisting and interview process for the disputed post, as guided by the 1st Respondent. The Panel was chosen by the SGB of the school, with SADTU and NAPTOSA union representatives present as observers. The panel itself consisted of a resource person, a Chairperson, a Secretary and Panellists who were SGB members. He explained the process which was followed when the panel convened. The details are not repeated here, save that the panel agreed to only interview five of the shortlisted candidates and that the criteria for shortlisting were agreed based on the GDE79 submitted by the school and what the school was looking for, which included languages of English and IsiZulu and Mathematics. There were many applications received, which were screened by the District Office. Once the criteria for shortlisting had been set, the packages with the screened CVs were opened and the candidates were scored against the criteria in front of the Union observers. During the scoring process the panel felt that they needed to reward experience as the school felt they were not doing well in Mathematics. There was an exception to the scoring system since SADTU interfered and wanted persons who had also acted in the post to be recognised. These persons were indicated as having qualified by default, which included the 2nd Respondent. Default meant that the person who was or had been acting in a post must be given the opportunity to go for an interview. That is not what they expected from the Unions as their main interest as the panel was to include those who met the requirements. Educators normally acted in posts on a rotational basis for three months. If a person had acted more than 12 months they would be given the advantage to be shortlisted by default for the vacant HOD post. SADTU had applied undue pressure and insisted that their members who acted less than 12 months to also be shortlisted. All the candidates who qualified by default were from the same school as the advertised post. If these default candidates met the requirements of the advertisement their points/scores were low, but he did not think that some of them met the requirements, whilst all had to be scored. The panel did take gender equity into consideration. They tried to balance gender by considering gender when they scored the candidates. The Applicant performed very well in the interview and answered the questions well, not giving only dry answers but elaborating on the responses, which meant she was well informed. The 2nd Respondent also performed very well in the interview, but his answers to the questions were minimal and he did not elaborate on the answers, unlike the Applicant, which is why he was ranked second. The 2nd Respondent was recommended as the second candidate since his marks were better than the third candidate, with no other candidates interviewed that day. Although the 2nd Respondent qualified by default he was ranked second against the third candidate since he expressed himself better than that candidate. The panel had executed their mandate since the panel, not only himself, had recommended a candidate who had met all the requirements of the post, being the Applicant. The school wanted a HOD for Mathematics, English and IsiZulu because it was underperforming in English and Mathematics whereas most of the learners spoke IsiZulu. Although the 2nd Respondent had not taught IsiZulu and Mathematics they still recommended him as the second best candidate because of the way he was scored and the manner in which he answered the questions, but he was not what the school was looking for. The SADTU representative Mr Kubheka had interfered during the shortlisting process and he as the Chairperson had spoken outside to Mr Kubheka to say to him it was unfair by insisting that others be included and agreed then that those who had acted be given a chance. He was not aware if a grievance was lodged by the Unions after the process was completed. He was surprised to hear a dispute was lodged about the process, but not by the Unions.

24. Mr Mnguni testified as follows under cross-examination by the 1st Respondent: He was not a member of the school’s SGB but was co-opted for the particular purpose. It was indicated on the GDE79 form and in the vacancy circular that the post required Mathematics, English and IsiZulu, all of these subjects and not or any of these subjects. Anybody who did not have the subjects as advertised would get scored 0 and would get a 1 score if they did possess each of English, Mathematics or IsiZulu. The requirement was that they must have all three these subjects, although they did score candidates who did not have all three and had to score all the candidates, with some having a value and others a 0. The candidates who did not have all three subjects were not disqualified, but were still scored and shortlisted. The District Director did not know the criteria which were set by the school. He responded to why there were also no interview questions relating to the other two learning areas apart from Mathematics, that Mathematics could not be taught outside a language, and a HOD will engage teachers and students to communicate in a language well understood by them, which is why they did not specifically indicate this learning area as a question. He did not respond as to whether this interpretation was not contained in the questions. He was fully aware of the procedures contained in section 6 Powers of Employers of the EEA at the commencement of the process. He was also fully aware of undue influence as contained therein. He confirmed that all the candidates did not act for a period of 12 months. The resource person in the process was Mr N H J Msiza, the Principal, and he was also aware of this. He was not coerced into this but succumbed to the pressure of the Union for the sake of peace and progress, with no other interest but to carry out their mandate. He now saw a problem that the second nomination who qualified by default was appointed when he was called to arbitration after the nominated candidate was not appointed. The Applicant was not earmarked for appointment since they were not given any name, and were only interested in a person who could change the underperformance in the particular subjects. He had no interest in the post as it was not his school and it was his mandate to run the process in a fair and open way. The panel had no reservation to nominate the 2nd Respondent as the second recommendation since he outshone the other candidates behind him. He responded to the statement that the intention was to have the Applicant appointed which is why the process was not applied correctly to the other candidates, that this complaint did not come from the Union members observing the process, and that the aggrieved individual took the matter further, whilst all the other stakeholders were satisfied. With respect to gender balance, the candidates were scored and the issue of gender was also considered, which was done in front of the Unions, and they were content with that and would have been the first to complain. He however could not recall the detail of how this consideration took place at the time. He was familiar with the EEQA, that the 1st Respondent was a designated employer and that the EEA at section 6(b) contained a directive which must be considered when the school governing body perform their duties in the appointment and promotion process. He was not aware of the composition of the school’s School Management Team (SMT) at the time of the recruitment process. He understood the Employment Equity Plan (EEP) targets of the 1st Respondent and the equity principles, but questioned whether they are to address equity at the expense of an underperforming school when children are suffering. He would not know if the Applicant was part of the problem when she taught Mathematics at the school since one could not align it to one individual only. He agreed the Head of Department (HOD as delegated authority of District Director) had acted within the confines of the law but would not have been aware of the dynamics at that particular school when making her decision, with many children underperforming, making it difficult to accept that gender should override outcomes, when it is not what the school needs. Their mandate was to recommend a candidate who meets the requirements of the post and is suitably qualified to transform their schools. The EEQA should be applied based on the circumstances of what is happening on the ground at a school and the EEQA should not have been applied by the HOD, which resulted in a person being appointed who does not meet the requirements of the vacancy list. As to what prejudice would be suffered if the 2nd Respondent remained in the post, he would have a poor self-image, that he as a colleague and the children should be protected by the 1st Respondent since he did not understand things and as the person managing the Department must be confident in performing his duties. The learners would also be prejudiced since they will underperform and he had seen schools refusing to accept learners who are underperforming. The parents will also enquire from the school and it will be painful to discover that the person appointed is not qualified. The previous HOD was promoted to Deputy Principal but he would not know if the failure should be attributed to her since when a manager leaves a post there is always a vacuum and can lead to poor performance. He was not aware how the 2nd Respondent performed when he had acted as HOD at the school.

25. Mr Mnguni testified as follows under cross-examination of the 2nd Respondent: The SGB of the school co-opted him as Chairperson of the interview process. As to whether the parents or community of the school knew him, normally the SGB would decide who they want to invite or co-opt for any process. He stayed less than 30 kms from the school, not 80/90 kms from the school. He responded to the statement that the parents did not know him, that this was the second time that he had been appointed by the SGB. He would have remembered doing the interviews for the Deputy Principal post when the previous HOD was appointed. He had not acted like the Principal of the school, or a Director or had taken ownership of the school, nor that he had been co-opted because he was a friend of the Principal, but agreed to help the school based on his expertise when he received the letter of invitation, had no interest at all in the school and came in as a neutral person. If he had acted unscrupulously the Representative’s Union SADTU was present. It was not a crime professionally to offer services in another district and was not a violation of any work ethics. He was not recommended by the Principal but the letter came from the collective of the SGB for him to chair the panel. He had a gentleman’s agreement with Mr Kubheka of SADTU when Mr Kubheka insisted that the 2nd Respondent be included. In his view the whole process was flawed because a lot of compromises were made. He did not respond to the version that he was part and parcel of the tailor made process since he had expertise in shortlisting and interviewing.

26. There was no re-examination of this witness.

THE RESPONDENTS’ EVIDENCE

27. The 1ST Respondent’s case was that they would rely on the 1st Respondent’s Employment Equity Plan (EEP) as well as the prescripts of the Employment Equity Act (EEQA) given the fact that the 1st Respondent is a designated employer as stipulated in the EEQA. They would also rely on the employment statistics obtained from J S Malaza Primary School to show that the 2nd Respondent’s appointment was not a digression and that the provisions of the EEQA were implemented. The 2nd Respondent had nothing to add to the 1st Respondent’s submissions.

28. Ms Malefu Mabunda, Assistant Director: Human Resource Services with the 1st Respondent, testified as follows under oath in her evidence in chief: She confirmed her designation and that she in this position was also acting as Deputy Director at TRS Human Resources (HR) Services, managing conditions of service, performance management and HR provisioning. She read out the unclear document dated 17 February 2021 from Ms E S Chabalala the District Director: Gauteng East of which enquiries were to be directed to her, Ms Mabunda, in which it was stated that the SGB had not complied with Circular 9 of 2020 with respect to underrepresentation in making their recommendation. The contents did not only apply to J S Malaza Primary School but all schools in Gauteng East. It was correct that at present all the HOD (except for the vacant HOD post) and Deputy Principal posts at the school were occupied by females, apart from the Principal, who is male. The school had only one male and three female SMT members, hence did not comply with the 1st Respondent’s EEP. She was referred to Table 5(f) School Departmental Heads of Circular 9 of 2020 and confirmed that it stated below the table that it shows that school departmental heads have under presentation of males of all races, which was in line with the letter signed on 17 February 2021 by the District Director.

29. Ms Mabunda testified as follows under cross-examination by the Applicant: The GDE79 notice of vacancies document completed by a school if it wanted to advertise a post, would be based on the school’s needs at the time. She had no idea if the vacant post was tailor made for the Applicant. When they received the GDE79 from the school it only has the name of the school, so they have no idea whose post it is, since they only needed the post requirements for the post to be advertised, which for this post the learning areas of English, Mathematics and IsiZulu were identified. After they receive the GDE79 it is sent to Head Office for the post to be advertised on the open vacancy list, to which all have the right to apply for. If the post requirements state English, Mathematics and IsiZulu the candidate must meet those requirements. It was correct to assume that IsiZulu was also a language medium at the school based on the post requirements. Since she was office based she did not know what was happening at J S Malaza Primary School and whether all 770 learners at the school spoke IsiZulu. The list of candidates is sent to her office before the Director makes an appointment. As Acting Deputy Director her role is to verify according to a checklist whether the documents in the package for a candidate are correct, whereafter it is routed to the office of the Director. The Director will check whether the candidates in the file meet the post requirements and whether the school complies with the EEP in accordance with Circular 9 of 2020. In the letter that she was referred to, it stated that the first recommendation for the HOD post could not be considered because the District Director felt that the SGB had not complied with that circular as the SMT of the school only had one male and three females. As to whether the implementation of the EEP is absolute when considering other factors and statutes in implementing it, the mandate is from the office of the HOD. She did not appoint the 2nd Respondent to reply as to why he was appointed since the District Director makes the appointments and she would have appointed him since according to the EEP males are unrepresented in SMTs. The 2nd Respondent had met all the post requirements of Mathematics, English and IsiZulu and they and the Director check all the qualifications of candidates who are appointed. Aside from the 2nd Respondent’s senior certificate which was in the bundle of documents, there was a tertiary qualification for the 2nd Respondent which the Director would have checked, but she did not have that copy with her. As to the interest of learners being taken into account by the Director, she herself was not a curriculum specialist and the Director knows what is needed in schools. She did not know that the 2nd Respondent had not taught Mathematics and did not have a tertiary qualification in Mathematics, and doubted if the Director would have accepted his nomination if he did not possess these. She was referred to the Applicant’s qualifications and experience as contained in the documents, which she noted. She would not know if the 2nd Respondent never taught Mathematics and IsiZulu and had no qualification in Mathematics, as she was office based and not at the school. She agreed that the most suitable candidate for the advertised post must be appointed. She did not know how the school was performing in Mathematics. She responded to the question on whether it was fair to appoint a candidate based on gender without taking into consideration he does not meet the requirements for the post, that the shortlisting is done by the SGB and ratified by them before three nominations are recommended to the Director, who can appoint any one of the three. It was noted that the documents of the three nominees were not in the bundle of documents for Ms Mabunda to comment on. After being informed that Mr Mnguni had testified that the 2nd Respondent did not have Mathematics and IsiZulu, she questioned how the SGB could have shortlisted and recommended a candidate who did not meet the post requirements. She could not comment on the assertion by Mr Mnguni that candidates qualified by default due to the undue influence of the Union, since she was not part and parcel of the selection process. With respect to the interest of learners, the SGB and District Director take this into consideration, not her office, as they are HR and do administration, but she agreed that the Director must take into consideration the interest of learners in every appointment made. In her opinion it would not be in the interest of learners to be taught Mathematics by somebody who did not have the subject and could not converse in their language. She was referred to the permanent appointment letter as Deputy Principal of Ms M S Makhanya effective from 1 January 2021 at B B Myataza Senior Secondary School and agreed that the school fell within Gauteng East District, but did not know if the EEP was applied to Ms Makhanya’s appointment since she did not have the SMT composition for the school, which the Director would have considered in appointing a female Deputy Principal. With reference to the statistics in Table 5(f) of Circular 9 of 2020, she did not know if males were unrepresented at BB Myataza school, and agreed that the circular applies to all schools in Gauteng Province, not only Gauteng East.

30. Ms Mabunda testified as follows under cross-examination by the 2nd Respondent: The vacancy list for J S Malaza School was an open vacancy list where people from other provinces could also apply for the advertised post. The main focus for the post on the vacancy list was not only Mathematics, but for Mathematics, English and IsiZulu.

31. Ms Mabunda testified as follows under re-examination: Circular 9 of 2020 did not on only apply to Gauteng East, but the whole Province, with 15 District offices in the Province. The EEP would also have been considered in the appointment of the female Deputy Principal at B B Myataza School. They always considered the best interests of the child when making appointments, even if it was not stated in a motivation. An appointment decision cannot be changed based on what another person said. She had no idea that the Applicant did not also have Mathematics in her senior certificate, similar to the 2nd Respondent.

CLOSING ARGUMENT

32. Written closing arguments were presented by the parties as agreed to at the conclusion of the arbitration. These closing arguments are not repeated here for the sake of brevity, but have been referred to and taken into account in arriving at the award.

ANALYSIS OF EVIDENCE AND ARGUMENT

33. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the 1st Respondent, the Department of Education – Gauteng, had committed an unfair labour practice relating to promotion by appointing Mr Sipilele Wilson Lubambo, the 2nd Respondent, into the advertised position of Post Level 2 Head of Department at J S Malaza Primary School and not the Applicant, Ms Sindisiwe Emma Magwaza. Mr Lubambo was joined in the proceedings as the 2nd Respondent due to him having a substantial interest in the subject matter of the proceedings.

34. The relevant provisions in terms of section 186 (2)(a) of the LRA are the following:
(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

35. It was common cause that the Applicant currently occupies a Post Level 1 Educator position at J S Malaza Primary School, met all the requirements of the advertised post, was shortlisted and interviewed, and was nominated as the first recommended candidate for the post by the School Governing Body’s (SGB) selection panel.

36. It became common cause during the proceedings that the 1st Respondent’s District Director: Gauteng East (presumed to be the delegated authority for the Provincial Head of Department for Education) did not ratify the Applicant’s appointment due to the requirements of the Employment Equity Plan (EEP) for the school, which required more African Males to be appointed at the level of Head of Department, whereby the second nominee, Mr Sipilele Wilson Lubambo, who had also occupied a Post Level 1 Educator position at the same school, was appointed instead.

37. The Applicant party’s version and argument was that the 2nd Respondent did not meet the requirements for the advertised position, such as being qualified in and with experience in teaching IsiZulu, English and Mathematics, whereas the Applicant met all those requirements and was on that basis recommended by the SGB as the most suitable candidate for the post. The 2nd Respondent in their view did not qualify to be appointed in the post by default either since he did not have Mathematics nor IsiZulu as subjects and was furthermore an IsiXhosa speaking person in an exclusively IsiZulu speaking institution. Since his appointment he had also sought the Applicant’s and Deputy Principal’s assistance with Mathematics and IsiZulu activities and had previously only acted in the post for three months, whereas he should have acted in the post for more than 12 months. Mr Mnguni, the Chairperson of the SGB selection panel had also testified that there was pressure from the union SADTU that certain candidates who did not qualify by default, which included the 2nd Respondent, should be included on the shortlist of candidates. The 2nd Respondent’s failure to testify at the arbitration further confirmed that he knew that he was not suitable for the post and did not possess the required qualifications for the post. M Mnguni’s assertion that all the shortlisted candidates qualified was also unfounded based on the scores that were allocated to the candidates on the shortlist criteria. The Deputy Director, who Ms Mabunda for the 1st Respondent testified had the final decision to make the appointment, was not called upon to testify as to what she based her decision on, apart from solely on equity, although Ms Mabunda believed the District Director would not appoint a candidate who did not meet the post requirements. Case law was also referred to highlighting the responsibility of SGBs to make a reliable comparison of the various candidates and their suitability for appointment and to make well-motivated and reliable recommendations to the HOD, and that the HOD must also conform to statutory requirements of fair administration when exercising his/her discretion to accept or reject a SGB’s preferred recommendation.

38. The Applicant party argued further, and presented evidence, that Ms M S Makhanya was appointed as female Deputy Principal at B B Myataza Senior Secondary school, which meant that the 1st Respondent’s Circular 9 of 2020 should not be considered in isolation, and demonstrated that an exception had been already been made with respect to the prescripts of the Circular. Section 28 of the Constitution and section (6)(3)(f) of the Employment of Educators Act 76 of 1998 (the EEA) should also be considered when making appointments of Educators, which state that whilst the District Director/Head of Department has the authority to appoint any of the three recommended candidates, suitability and not gender exclusivity must be considered. It was regarded as irrational to appoint a male just because there are too many female Heads of Department at a school, who does not have the required learning areas, which may be detrimental to learners and a violation of section 28 of the Constitution of the Republic which purports to put the interests of the child first in any matter concerning the child. Reference was also made to the ELRC guidelines provided in Collective Agreement 3 of 2016 relating to promotion arbitrations, which are not repeated here. They concluded that the appointment of the 2nd Respondent was irrational and unfair because unacceptable reasons were provided for the appointment of a candidate only because he is male, irrespective of the lack of the required qualifications, which was regarded as prejudicial to learners, the Applicant and the community at large.

39. The 1st Respondent’s version and argument in turn was that the 1st Respondent appointed the 2nd Respondent according to the prescripts in Circular 9 of 2020. Mr Mnguni, the Chairperson of the SGB selection panel, had indicated under cross-examination that no candidates were disqualified and had all therefore met the requirements for the post. The scorings showed that certain candidates did not have all three the learning areas of Mathematics, English and IsiZulu. Mr Mnguni had testified further that the panel had recommended three candidates in order of preference, of which the 2nd Respondent was the second nominee, and that the panel had not held any opinion on whether the 2nd Respondent was not suitable for the post, which only became an issue after the appointment was made.

40. With respect to equity, the 1st Respondent had submitted that the selection panel had in their minutes indicated that gender equality was considered in setting the selection criteria for the post, although this was not explained how this was implemented. Section 3 of the EEA was also referred to, which stated that in considering applications the governing body or the council must ensure that principles of equity, redress and representivity must be complied with and that they must adhere to the democratic values and principles referred to in section 7(1) of the EEA. The selection panel had intended to mislead the Head of Department (the District Director as delegated authority) and had acted in bad faith when it stated that they had considered equity when they had not done so, as required by them in terms of paragraphs 8.7 and 8.1(c) of circular 9 of 2020 which state, inter alia, that schools and SGBs must ensure that the selection and appointment of staff complies with the numerical targets and demographic goals informed by the Employment Equity Plan (EEP) as derived from the requirements of the Employment Equity Act 55 of 1998 (the EEQA). As a designated employer the 1st Respondent was obliged to comply with the prescribed legislation. The selection panel was also aware that the HOD could appoint any of the candidates that they recommended/nominated for the post and could not now argue that the 2nd Respondent was not suitable for the post.

41. The 1st Respondent contended further that their witness Ms Mabunda had explained that the 2nd Respondent’s appointment was based on the implementation of the 1st Respondent’s EEP in terms of Circular 9 of 2020, which applied not only to Gauteng East District, but the whole Province. She had also testified that the school had no males appointed at the level of HOD, only females, and that it would have been irrational to appoint a female under these circumstances. In their view the Applicant had not been prejudiced and failed to prove that the 1st Respondent had made a wrong appointment, nor had presented any evidence that the 2nd Respondent would not be able to perform as expected except for the opinion of the Applicant herself, who was part of the team who was responsible for poor results in Mathematics at the school.

42. The 2nd Respondent had made no submissions relating to the matter.

43. With respect to the parties’ aforementioned averments and the case at hand, I refer to the following extracts from the EEA, which are deemed as relevant to this dispute:

6. Powers of employers
(1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator –
(a) in the service of the Department of Basic Education shall be made by the Director-General; or
(b) in the service of a provincial Department of Basic Education shall be made by the Head of Department.
(2) Subject to the provisions of this Chapter, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, appointments in, and promotions or transfers to, posts on any educator establishment under this Act shall be in accordance with such procedure and such requirements as the Minister may determine.
(3) (a) Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are so in excess and suitable for the post concerned.
(b) In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or council, as the case may be, must adhere to –
(i) the democratic values and principles as referred to in section 7(1);
(ii) any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators;
(iii) any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators which the candidate must meet;
(iv) a procedure whereby it is established that the candidate is registered or qualifies for registration as an educator with the South African Council for Educators; and
(v) procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.
(c) The governing body must submit, in order of preference to the Head of Department, a list of –
(i) at least three names of recommended candidates; or
(ii) fewer than three candidates in consultation with the Head of Department.
(d) When the Head of Department considers the recommendation contemplated in paragraph (c), he or she must, before making the appointment, ensure that the governing body has met the requirements in paragraph (b).
(e) If the governing body has not met the requirements in paragraph (b), the Head of Department must decline the recommendation.
(f) Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list.
(g) If the Head of Department declines a recommendation, he or she must –
(i) consider all the applications submitted for that post;
(ii) apply the requirements in paragraph (b) (i) to (iv); and
(iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post.
And then at (l):
(l) A recommendation contemplated in paragraph (a) shall be made within two months from the date on which a governing body was requested to make a recommendation, failing which the Head of Department may, subject to paragraph (g) make an appointment without a recommendation.

7. Appointments and filling of posts
(1) In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195(1) of the Constitution of the Republic of South Africa, 1996 (Act No 108 of 1996), and which include the following factors, namely –
(a) the ability of the candidate; and
(b) the need to redress the imbalances of the past in order to achieve broad representation.

44. The foregoing confirms that the Provincial Head of Department, or his/her delegated authority, is authorised to make appointments of Educators and that due regard must be given to the principles of equality, equity and democratic values provided for in other statutes such as the EEQA and the Constitution in making such appointments.

45. Of particular relevance in this matter is also Circular 9 of 2020 dated 13 October 2020 issued by the Department of Education – Gauteng Province titled Circular on the Implementation of Employment Equity Plan which is stated in the introduction services to promote the implementation of the Employment Equity Plan (EEP) as mandated by the Employment Equity Act No 55 of 1998 as amended (the EEQA to distinguish it here from the EEA) which resulted from a consultative process by the employer with organised labour in accordance with the requirements of the EEQA. The circular stated that although it applied to all Gauteng Department of Education (GDE) employees it had special emphasis on designated groups, namely African, Coloured, Indian, Women and Persons with Disabilities.

The purpose of the circular was stating under paragraph 2 as being to –
2.1 promote equal opportunities and fair treatment in employment through the elimination of unfair discrimination;
2.2 ensure applicability of equitable representation in all occupational levels of the workforce;
2.3 guide the processes of implementing affirmative action measures to redress the past imbalances experienced by designated groups; and
2.4 promote transparency and collaboration with organised labour and school governors.

46. Tables were also contained in this circular reflecting the total GDE workforce in terms of occupational levels, gender and race as at 31 December 2019. These tables reflected for example that males of all races were unrepresented at the level of skilled employees such as teachers and department heads overall in the GDE workforce. The numerical targets to be achieved over three years were also contained in the circular. With respect to strategies to achieve the targets, the specific role and responsibility of the Head of Department under paragraph 8.1 was to also ensure that the selection and appointment of staff complies with numerical targets/demographic goals as informed by the Employment Equity (EE) policy and be accountable for the achievement of the Department’s EE goals/objectives.

47. The roles and responsibilities of schools and school governing bodies are detailed as follows under paragraph 8.7 of the Circular in that they shall-
(a) familiarize themselves with the EE policy, GDE’s numerical targets/goals and strive to assist the Department to achieve its targets/goal;
(b) adhere to the shortlisting and selection process, addressing the EE targets as per the Recruitment and Selection guidelines provided by the Department;
(c) ensure that all recommendations address the under-representation according to race, gender and occupational levels as indicated in this Circular; and
(d) attend the capacity building sessions that will be provided by the Department on the implementation of EE; and
(e) display a summary of the EEA (EEQA) and communicate the content of this circular to all staff members.

48. The provisions of section 20 of the EEQA were referred to by the 1st Respondent, of which the following extracts regarded relevant to this dispute are provided below:

20 Employment equity plan
(1) A designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in that employer’s workforce.
(2) An employment equity plan prepared in terms of subsection (1) must state –
(a) the objectives to be achieved for each year of the plan;
(b) the affirmative action measures to be implemented as required by section 15(2);
(c) where underrepresentation of people from designated groups has been identified by the analysis (conducted in terms of section 19 of the EEQA), the numerical goals to achieve the equitable representation of suitably qualified people from designated groups within each occupational level in the workforce, the timetable within which this is to be achieved, and the strategies intended to achieve those goals;………………………….
(3) For purposes of this Act, a person may be suitably qualified for a job as a result of any one of, or any combination of that person’s –
(a) formal qualifications;
(b) prior learning;
(c) relevant experience; or
(d) capacity to acquire, within a reasonable time, the ability to do the job.
(4) When determining whether a person is suitably qualified for a job, an employer must –
(a) review all the factors listed in subsection (3); and
(b) determine whether that person has the ability to do the job in terms of any one of, or any combination of those factors.
(5) In making a determination under subsection (4), an employer may not unfairly discriminate against a person solely on the grounds of that person’s lack of relevant experience.

49. The Applicant party had submitted that appointing a candidate who is not suitably qualified to perform the duties attached to the post would not be in the best interests of the child, learners in general and the community at large. The best interests of the child relate to the prescript that the child must be considered before a decision affecting his or her life is made, as provided for in section 28(2) of the Constitution of South Africa –Bill of Rights which at section 28(2) states that - “A child’s best interests are of paramount importance in every matter concerning the child” with a “child” meaning a person under the age of 18 years, as well as section 8 of the Childrens Act 38 of 2005 (the CA). Even if this was not pertinently raised by a party in an arbitration, which it has been in this case, I would have been obliged to consider the best interests of the child in arriving at the appropriate award. Prof Adriaan van der Walt in a paper titled The Principle of the Best Interests of the South African Child delivered on 9 September 2016 states as follows: “Taking into account that section 28(2) constitutes a right, all organs of state must respect, protect, promote and fulfil the best interest of a child or children in general”. Section 8 of the CA also provides as follows: “In all matters concerning the care, protection and well-being of the child the standard of the child’s best interests is of paramount importance and must be applied.” By stating that the child’s best interests are of paramount importance it means that they can trump the rights and interests of persons older than 18 years of age. Van der Walt continues to define the best interests of the child as follows: “Basic interests, for example [in] physical, emotional and intellectual care; developmental interests [in entering] adulthood as far [as] possible without disadvantage; autonomy interests, especially the freedom to choose a lifestyle of their own. “

FINDING

50. I have considered all the evidence and argument presented, but because section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute, with such findings made on the balance of probabilities. The following is accordingly found, on the balance of probabilities and in the circumstances of this case:

51. The position that the best interests of the child is paramount finds support in the Constitutional Court judgement in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) in which it was held that section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions.

52. These decision makers are not limited to an arbitrator in determining a dispute which affects the interests of children, but would apply to all decision makers within the echelon of professions such as the Education sector, which includes schools and school governing bodies, when they recommend candidates for appointment in Educator posts. The implication of appointing a person who does not meet the required qualifications and experience for an educational post would be tantamount to for example appointing a person in a nursing post or as a medical practitioner who does not possess the necessary qualifications and experience to minister to the wellbeing of patients entrusted to him/her. The nature of the sector and job to be performed should certainly be one of the factors to also be considered when making determinations on suitability for appointment in terms of sections 20(3) and (20)(4) of the EEQA. This is merely an observation, since it is not within the jurisdiction of this dispute to make any determination relating to the EEQA.

53. The EEA spells out the procedure and principles to be adhered to when promotional appointments are made, in particular that the school governing body (SGB) will make recommendations of suitable candidates to the Head of Department, who is the only authority who may ratify and make appointments. In making their decisions (by the SGB to recommend) and appoint (by the HOD), the best interests of the child and not only the EEQA and the designated employer’s EEP should be considered. It is inconceivable that appointing an Educator who does not possess the required qualifications and experience to competently teach specific subjects at a particular level will be in the best interests of children and learners in general.

54. It was common cause that the Applicant was the recommended first nomination for the post and that the 2nd Respondent as second nomination was appointed by the HOD based on the requirements of the 1st Respondent’s EEP. However, this would seem to have not been such a major issue in dispute if the 2nd Respondent had met the minimum requirements for the post in terms of qualifications and experience and was still deemed suitably qualified for the post. The evidence presented at this arbitration however supported that the 2nd Respondent did not meet the key requirements for the post in the learning areas of Mathematics and IsiZulu, which the 2nd Respondent, who had been joined in and was present in the proceedings, did not elect to refute by presenting supporting documents, his own testimony or that of witnesses. Ms Mapunda for the 1st Respondent had also confirmed that she was not aware of the qualifications and experience of both the Applicant and 2nd Respondent prior to these arbitration proceedings and was not aware if the Head of Department had access to that information, save to comment that the Head of Department would not have appointed a person who was not suitably qualified for the advertised post.

55. Another dimension associated with this matter is the undisputed evidence of Mr Mnguni, the Chairperson of the SGB selection panel, that the union SADTU had unduly influenced the selection panel to shortlist persons who would not normally qualify for shortlisting, which included the 2nd Respondent, and resulted in recommendations being made to the Head of Department that were obtained through undue influence during the selection process. Mr Mnguni had specifically stated in his evidence that the whole process was flawed because a lot of compromises were made.

56. Section (6)(3) of the EEA states pertinently as follows at subsections (d) and (e):

(d) When the Head of Department considers the recommendation contemplated in paragraph (c), he or she must, before making the appointment, ensure that the governing body has met the requirements in paragraph (b).
(e) If the governing body has not met the requirements in paragraph (b), the Head of Department must decline the recommendation.

The relevant requirements of the governing body in terms of section (6)(3)(b) inter alia includes (v) procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.

The evidence therefore supports that the SGB had not complied with the requirements of section (6) of the EEA in performing their functions in respect of recommending suitable candidates for appointment to the Head of Department.

57. I am fully aware that the onus of proof is on the Applicant in this matter, whom I do believe on this occasion has been able to discharge the onus of proof as required, on the balance of probabilities, to show that the 1st Respondent had committed an unfair labour practice relating to promotion, on the following grounds:

58. The District Director for Gauteng East is accepted to be the delegated authority by the Head of Department for Education for Gauteng Province for that District to make appointments in terms of section 6 of the EEA, since this was not disputed by the parties.

59. It was accepted that the District Director: Gauteng East has the discretion to make the final appointment for a post within the District, based on the recommendations of the relevant school governing body.

60. The Chairperson of the school governing body’s selection and interviewing panel for J S Malaza Primary School for the advertised post of Head of Department Post Level 2 had in his undisputed testimony conceded that the process had been compromised due to undue influence by one of the Union representatives on the panel, which primarily related to the other candidates recommended for appointment. Other irregularities were also identified during the arbitration such as that the 2nd Respondent (the successful candidate) may not have met the requirements for the post, but was nevertheless recommended as one of the three suitable candidates for the post.

61. It is unclear whether the District Director in making her appointment was aware that the school governing body (SGB) may not have met their procedural responsibilities and requirements in terms of section 6(3) of the EEA and it is probable that she may not have been properly informed of these circumstances by the SGB before she made her decision to appoint a candidate in the post.

62. Circular 9 of 2020 sets out the Employment Equity Plan (EEP) for Gauteng Province in the form of a collective agreement concluded between the 1st Respondent and organised labour, which the SGB and District Director are bound to consider when making appointments with regards to representivity of race, gender and disability.

63. The Constitution of the Republic of South Africa and the CA, supported by case law, state that the interests of the child are paramount and must be considered in all decisions affecting the child, which is of particular relevance in the Education sector, and would be expected to bear more weight than the principles of equity as contained in the EEQA. The competency of an Educator to perform his or her duties towards educating learners in particular subjects must therefore also be paramount, regardless of factors such as gender, when the race of a candidate is not an issue.

64. I am also guided by the ELRC Guidelines: Promotion Arbitrations contained in Collective Agreement Number 3 of 2016 dated 23 August 2016 and have considered these in making my award.

65. The Applicant’s issue was not that she was not recommended as the preferred candidate for the post (which she was) but because of affirmative action requirements as contained in the Respondent’s EEP, as a result of which the Director appointed the second nominee for the post, being the 2nd Respondent. The Applicant’s main concern however appeared to be that this appointee lacked the experience and qualification requirements to competently perform the functions associated with the post. This relates to the procedure which was adopted by the SGB’s selection panel in the manner in which candidates were shortlisted, assessed and recommended to the District Director. It was common cause that the Applicant was recommended as the most suitable candidate for the post by the SGB, which the evidence supported she was, despite the inferences that the post requirements may have been tailor made for her. It is however clear, and not disputed, that the District Director had the discretion to make an appointment based on the three candidates put forward to her, provided they met the post requirements, before considerations of equity and the best interests of the child came into play. From the evidence it is however probable that the other nominees, in particular the 2nd Respondent, did not meet the post requirements and that the SGB selection panel could have misled the District Director when they made their recommendations, since the process was already flawed as conceded to by the Chairperson of the selection panel.

66. It is probable that the Applicant may not have opposed the appointment of the 2nd Respondent if she regarded that he had also met the requirements of the post as a result of her experience of working with him as a colleague, since she conceded the 1st Respondent’s obligations in terms of the EEQA.

67. With respect to the appropriate relief, I am mindful of not interfering in the District Director’s decisions to appoint, as delegated by the Head of Department for the Province, but however I am of the view that there is sufficient evidence emanating from this arbitration to review the decision to appoint the 2nd Respondent in the advertised post, since there may have been other more suitable candidates to meet both the requirements of the post, the requirements of the 1st Respondent’s EEP and the best interests of the child, if the Director chose not to select the Applicant for appointment from the three nominations made by the SGB.

68. The evidence supported that the school governing body had not complied with the prescripts of subsection 6(3)(b) of the EEA in making their recommendations for appointment to the District Director, which the Director may not have been aware of at the time, or had enquired upon.

69. In the circumstances I will have to order to set aside the appointment of the 2nd Respondent in order that the selection process be repeated and properly conducted, commencing from the criteria establishment and shortlisting stage onwards, so that the most suitable candidates for appointment are recommended to the Head of Department (District Director), after due regard to the prescripts of the EEA, the EEQA and the best interests of the child.

AWARD

70. The 1st Respondent had committed an unfair labour practice relating to promotion with respect to the appointment of the Head of Department Post Level 2 at J S Malaza Primary School.

71. The appointment of the 2nd Respondent, Mr Sipilele Wilson Lubambo, into the post of Head of Department at J S Malaza Primary School is set aside with effect from 1 November 2021.

72. The 1st Respondent is ordered to repeat the selection and appointment process for the post of Head of Department Post Level 2 at J S Malaza Primary School from the criteria establishment and shortlisting stage onwards, for completion by not later than 31 October 2021.


Panelist: Alta Reynolds (Ms)