ELRC644-20/21 EC
Text
ELRC 316-19/20 KZN
Award Date:
14 October 2021
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN DURBAN
Arbitrator : Sandile Madikizela Commissioner: Sandile Madikizela
Case Number: ELRC 316-19/20 KZN
Dates of Hearing: Various
In the ARBITRATION between:
South African Democratic Teachers Union (SADTU) obo Vuyiswa Ngubelanga
(Union / Applicant)
and
Department of Education - KwaZulu Natal
(Respondent)
Ntombencane Ndlovu 2nd Respondent
Union/Applicant’s representative: Mbambeli Blose
Union/Applicant’s address: J 691 Umlazi
2Nkanyezi Avenue P O Umlazi
4031
Email : vuyiswangubelanga@ymail.com
Cell phone: 065 987 0819/079 484 1864
Respondent’s representative: Manjith Bejanath
Respondent’s address: Truro House
P Bag X 54323
: Durban 4060
Cell: 083 652 8201
Telephone: 031 360 6222
Email: manjith.bejanath@kzndoe.gov.za
Details of hearing and representation
1. The matter was heard at Dokkies and Durban Teachers Centre. Mr Mbambeli Blose, a SADTU representative appeared on behalf of the applicant, Ms Vuyiswa Ngubelanga. Appearing on behalf of KwaZulu Natal Department of Education, the respondent was Mr Manjith Bejanath. Mr B J Hadebe appeared on behalf of Mrs Ntombencane Ndlovu, the second respondent.
Preliminary Issue
2. One of the people who participated in the proceedings was Mr Velani Shazi. He claimed to have been deployed to observe the process. For some unclear reason, he did not complete the role he had undertaken to play. When he was contacted, he initially stated that his vehicle had a breakdown and undertook to make himself available at the next sitting.
3. He, however, failed to honour this undertaking even after being contacted. On that basis, his evidence shall be excluded. Further, the respondents wrote their closing statements jointly.
Issue in dispute
4. I am required to determine the validity of Ms Ngubelanga’s alleged unfair labour practice (S186 (2)(a) of the LRA (as amended) by the respondent regarding her non appointment. Further, I am required to issue an award that I deem appropriate.
Background to the dispute
5. When the respondent invited suitable Educator Post level 1 applications, Ms Ngubelanga became one of the applicants. During the interview, alleged the applicant, the interview committee (IC) treated her in a negative manner in terms of the time it afforded her to answer interview questions.
6. Such conduct, she alleged affected her performance as the panel put her under unnecessary pressure. She alleged that despite being informed that a time keeper would ring a bell when her time was up, the IC did not honour this undertaking, thereby prejudicing her. The remedy she requires is that the appointment of the second respondent Mrs Ntombencane Ndlovu be withdrawn.
Summary of Evidence and Arguments
Applicant’s case
7. Ms Ngubelanga alleged that on March 23, 2019, she attended a HOD post interview where she was a third candidate to be interviewed in which she was required to answer five questions. Before the interview began, Ms Fikile Mbhele explained to her that the time would be regulated through the ringing of a bell. However, Ms Bonakele Mngadi rang the bell once, only for the first question. She spent four minutes on question 2; five minutes on question 3; four minutes in questions 4 and 5.
8. In line with the arrangement, on question one, she spoke until Ms Bonakele Mngadi rang the bell. However, when she paused on the second question, the chairperson, Ms Fikile Mbhele said “Thank you, next question”. The chairperson did the same when she answered the second question. On the third question, she stopped her when she paused. The time keeper did not ring the bell for the next four questions.
9. Following this conduct, the applicant lodged a grievance whose hearing no one attended from the school. During cross-examination, the applicant conceded that she did not know how the second respondent answered the questions. She argued that the outcome would have been different had she not been cut off before she finished her answers.
10. During cross-examination, she conceded that she would not know how the second respondent performed during the interview. She also conceded that the Head of Department and not the SGB appoints. When asked who uttered the words “Thank you, next”, she said the scorer, Ms Fikile Mbhele. She said she could not prejudice herself by complaining. However, she admitted that performance separates candidates at an interview.
11. When asked what she possesses that the second respondent lacks for the position, she stated that apart from management skills, she has experience academically. She took an initiative to bring resources to the school. She claimed to be in possession of good communication skills and a fluent speaker. In addition to her ten years of teaching experience, she ensures that children have home work when they leave.
12. She claimed to have been indefinitely employed in 2014. When asked if there was any indication that she was pausing, she claimed that she should have been asked if anyone found pausing meaning something else. She said she was not given an opportunity to respond at the end of the interview session. The chair said “Thank you, can you take her out?”. During re-examination, she denied ever being told that pausing was not allowed nor did the chair ask her if they could move to the next question.
Respondent’s case
13. The respondent had as its first witness the principal, Mr Patrick Mphiwa Dlamini. Mr Dlamini denied being aware that the applicant was under duress. He alleged that she did not indicate that something was wrong. He said, had she complained, he would have talked to the IC to see if the matter could be resolved.
14. He denied that the time had been influenced by anyone. He claimed that Ms Ngubelanga was shaking and stopped before her time was up. He claimed the chairperson asked her if she had finished and she said yes. He also denied that the union representative observer expressed some concern. He further claimed that the SGB had been trained in handling promotion matters. Responding to cross-examination questions, he claimed he was not sure if interview questions were documented.
15. When it was put to him that the resource person should not invite members to a meeting, Mr Dlamini said he was not sure but was of the view that anybody can invite. He claimed not to have been invited to the grievance hearing. He conducted the training for the post interview. He could not comment when it was put to him that the minutes did not reflect what happened at the interview. He conceded that it was not recorded how much time each candidate spent in each question.
16. He did not know whose signature was on the grievance hearing meeting schedule. He vouched that the school was not invited. His response was negative when, during re-examination he was asked if all SGB members were present at ratification.
17. The respondent’s second witness was Ms Muriel Fikile Mbhele, whose role was the chairing of the interview committee. When asked to comment regarding the allegation that the applicant was not afforded enough time, she said “I am surprised that Ms Ngubelanga alleges she was not afforded enough time”. She did not know how the applicant knew there was not enough time in the absence of both a cell phone and a watch.
18. She alleged that when she asked her the first question, she stopped and kept quiet for a second until she asked her if she could proceed. On the second question, she also had a break and on the third one, the time keeper rang the bell. The witness expressed disappointment at the applicant’s allegation. She claimed that she did not have any comment after the interview and thanked the panel. The applicant did not complain.
19. During cross-examination, she again denied that the applicant was rushed. She acknowledged that some candidates become nervous during an interview and the environment should not be hostile. She claimed not to remember when asked how time was allocated per question other than claiming that mark allocation varied between five and seven. When asked if she was basing her question to resolution 11 of 1997, she said she did not know. She conceded when asked that a candidate cannot respond immediately a question is asked as they need to think it through.
20. Another concession she made was that the reason her question had more marks meant that a lot was expected of the applicant to say in response to that particular question. She could not respond when it was put to her that the time she consumed to pause was hers and the witness had no right to interfere before her time was up, an allegation she denied. She further claimed that she asked her to determine if she needed more time to think. To this, the applicant said the panel could continue, said Ms Mbhele.
21. When it was put to her that when she asked the applicant if she (Ms Mbhele) could continue, she was distracting the applicant’s thoughts, she responded “I did not force her, she had a long pause and she said yes”. She could not respond when asked how she measured her pause in the absence of a watch and a cell phone. Ms Mbhele at some point alleged that the applicant paused for so long that she, as the chairperson thought about other candidates. She alleged that there was a question (which she could not remember) that the applicant answered until the bell rang.
22. She responded in the affirmative when asked if she had been informed during the training that a candidate might lodge a grievance. She also admitted that the panel was not an appropriate forum to grieve. Regarding the grievance hearing, Ms Mbhele denied having signed on behalf of the SGB. She denied having deliberately and wilfully undermined the grievance process by not attending. She confirmed that ratification was done on the same day interviews were conducted.
23. The respondent’s last witness was the timekeeper, Ms Barbara Bonakele Mngadi who regulated the time by ringing the bell. She claimed to have attended training at Amanzimtoti and had further training by the principal. She denied that Ms Ngubelanga was not given enough time during the interview. She alleged that she did not complain. She responded in the affirmative when asked if there was a question the applicant did not utilise all her time on and said it was when she kept quiet.
24. She said the chairperson would ask her if the panel could proceed when she stopped. When asked if she as time keeper rang the bell when the applicant said continue, she said no. When asked during cross-examination what her training actually entailed, she alleged that she was trained to ring a bell during interview intervals. She claimed she rang the bell for the first question only. When she was asked what she could say to the allegation by Ms Mbhele that the applicant paused, she said “My role was to keep time”.
25. She responded in the affirmative when asked if she was not paying attention to questions and answers. She alleged there were 3 questions in which the applicant said the panel could proceed. She angrily claimed that they were at the hearing because Ms Ngubelanga had not been appointed. She alleged that the panel had taken a decision that when a candidate paused, it would be asked if the panel could proceed. She could not remember when asked if the applicant was explained to what would happen when she paused but alleged that the chairperson explained the process to candidates.
Analysis of Evidence and Arguments
26. In analysing the testimony of the parties, I have taken into consideration some instruments among which are the Constitution of the Education Labour Relations Council of 1999, the Labour Relations Act 66 of 1995, Constitution of the Republic of South Africa 108 of 1996, South African Schools Act 84 of 1996, Promotion of Administrative Justice Act, Case law and whatever instrument I deemed useful and appropriate to refer to.
27. It is necessary to mention that before this arbitration began in September 2019, in line with the Labour Relations Act, the Commissioner proposed a conciliation to resolve this dispute. This, Mr Hadebe dismissed outright without even considering it and insisted on arbitrating. He must be commended that two years later, in his closing statements, he stated “The Constitutional Court has held that section 28(2) of the Constitution imposes an obligation on all those who make decisions concerning a ....protecting and advancing interest of children.
28. The actual quotation of s28 (2) provides “A child’s best interests are of paramount importance in every matter concerning the child”. The respondents are correct in alleging that the onus was on Ms Ngubelanga to prove unfair labour practice. However, once she has made that allegation, the onus shifts to the other party, namely the respondent. The respondent disputes that the applicant was rushed, however, during cross-examination, Ms Mbhele alleged that she was concerned about other candidates who were waiting.
29. She could not think about the candidates who were waiting on the one hand and still be patient towards a nervous and shaking candidate on the other. The respondents claim “If Ms Ngubelanga felt that she was rushed, she had the right to inform the Chairperson......”. this observation does not seem logical in light of the fact that Mr Dlamini alleged that Ms Ngubelanga was shaking. Was it realistic to expect a candidate that was so nervous that she was shaking to ask the chairperson to intervene?. If she was shaking in front of the chairperson, what did the chairperson do about it?.
30. There was a contradiction between Ms Mbhele’s testimony and Ms Mngadi’s. Ms Mbhele claimed that Ms Mngadi rang the bell once for the third question while in her testimony, Ms Mngadi alleged that she rang it once for the first question. Ms Mngadi’s version makes sense as Ms Mbhele claimed that the first question had more marks. In fact Ms Mbhele contradicted herself. She submitted that “In some questions, Ms Ngubelanga would talk and pause and I would ask her if I could continue. In others (questions), she would pause until the time keeper rang the bell”.
31. This allegation is not in line with the testimony of the witnesses regarding the number of times Ms Mngadi rang the bell. Both stated that the bell was rung once for the first and third according to Ms Mngadi and Ms Mbhele respectively. During cross-examination, Ms Mbhele claimed when asked if she asked the applicant if she (Ms Mbhele) could continue responded “Yes, I asked her to determine if she needed more time to think”.
32. This allegation is irrational in light of the fact that Ms Mbhele had earlier alleged that she was concerned about other candidates who were waiting. The cross-examination question she was responding to was “You also said she had a long pause such that you thought about other candidates, remember” “Yes”. The respondent further alleged that “Ms Ngubelanga commented that she appreciated the time given, appreciates the opportunity to be interviewed.
33. She never complained for not being given sufficient time to answer or that she was rushed”. There is no merit in this argument. Thanking the panel cannot necessarily have been a reflection of how she was treated. This is nothing more than a courtesy any reasonable candidate would express to a panel after the interview. “It would be wrong if she was accorded more time than the other candidates to answer the questions”, correctly submits the respondent.
34. This brings me to the lack of courtesy and interview skills on the part of Ms Mbhele. She alleged that if Ms Ngubelanga had brought to her attention that she did not get enough time, she would have given her more time later. The implication is that Ms Ngubelanga would, contrary to the principle of parity have been afforded preferential treatment. Any person who understands that candidates should be treated fairly and equally (a concept Ms Mbhele does not seem to know she had a duty to uphold) would have cringed at this allegation from a chairperson.
35. The other aspect which reflected lack of suitability on the part of Ms Mbhele to chair a panel was her appalling conduct during a hearing. On the day Mrs Ndlovu did not attend when a close relative had passed away, while the Commissioner was talking to her, Ms Mbhele stormed out of the venue alleging that the person on whose behalf she had come to testify was not available. Mr Bejanath had to follow her to ask her to return to the venue. This is a person the respondent expects to have treated all the candidates fairly.
36. Every panel member is expected to treat all candidates fairly. If Ms Mbhele did not know that she had been invited to testify on behalf of the respondent and not for a particular individual, how could she have been expected to treat other candidates like Mrs Ndlovu?. Not only did I find this conduct quite embarrassing but it also demonstrated an absolute lack of a primary characteristic of a panel member which is objectivity and an independent mind.
37. Both ladies deserve to be educated regarding responsibilities of the SGB. They were both angry at the applicant due to ignorance which could not enable them to distinguish between their roles as SGB members and their individual capacity. They felt personally challenged and did not understand that it was the respondent department that Ms Ngubelanga challenged. As stated above, Ms Mngadi alleged that she was at the hearing because the applicant had not been appointed.
38. Another point of particular concern was the role Mr Dlamini played during preparations for the interviews. When Mr Blose reminded Mr Dlamini that he did not have authority to call the ratification meeting, his response was “I am not sure”. There is a reason why an SGB has a secretary. It is deliberate that roles are separate to avoid unnecessary overstepping of each person’s roles. I find that this role fell outside of Mr Dlamini’s job functions as his mandate was an HR person.
39. Another concern relating to the role Mr Dlamini played was mentioned by Ms Mngadi. When Mr Blose asked her about training, she alleged to have been trained at Amanzimtoti and by Mr Dlamini. The South African Schools Act does not authorise principals to train SGBs for interviews. Again, when Parliament drafted the statute, it consciously aimed to avoid a conflict of interest. Principals are human beings and cannot be objective when it comes to appointments. Based on this, I again find that Mr Dlamini had no authority to train the SGB. This was an unfortunate and undue interference in an area over which he had no authority.
40. The respondent claimed “She failed to show that she has the minimum advertised qualifications and experience that the appointed candidate does not possess. She failed to show that she has the necessary skills and she failed to show that Ms Ndlovu the appointed candidate does not possess the same or same level of skills.” This allegation is incorrect. When Mr Blose led the applicant during evidence-in-chief, she mentioned her skills, knowledge and the contribution she had made towards the school.
41. It was the responsibility of the respondents to call Mrs Ndlovu to the witness stand so she could demonstrate that she was worthy the appointment. This was particularly necessary because only the SGB and the principal know about her qualifications. However, they chose not to use that opportunity when it mattered in light of the fact that Ms Mbhele had been open about favouring Mrs Ndlovu.
42. Finally, I turn on the person whose role I believe was important, the Grievance Committee Chairperson, Mr I Pillay. In their submissions, the respondents had this to say about Mr Pillay “Mr Commissioner, the respondent did not call the chairperson of the grievance committee because the burden of proof rests with the applicant. The chairperson of the grievance, after having heard both sides of the presentation arrived at a decision which is on page 2 of bundle A”.
43. This allegation is not only incorrect but also outlandish for a few reasons. As stated earlier, after the applicant had discharged its onus, it shifted to the respondent. If that were not the case, the respondent would not have called any witnesses at all. Further, it is incorrect that the grievance chairperson heard both sides before arriving at the decision. It was not disputed that despite someone having signed on behalf of the school to attend the grievance hearing, no one attended.
44. Since this fact is not in dispute, it follows that Mr Pillay heard only Ms Ngubelanga’s version. The reason I asked Mr Bejanath to call Mr Pillay was that he, curiously upheld the decision of the SGB despite none of its members having attended. What could have been the basis and logic of deciding in favour of a party which, without even the courtesy of an apology failed to attend the grievance hearing. After asking Mr Bejanath a few times to call Mr Pillay, he finally, reluctantly agreed.
45. However, without any explanation, he changed his mind and said he had closed his case and was no longer calling Mr Pillay. I expressed a negative inference at this sudden change of heart but Mr Bejanath had made up his mind. Therefore, the respondent has failed to discharge this onus. On that basis, I find that Mr Pillay’s decision to uphold the SGB’s recommendation was arbitrary as he had not heard its oral submissions.
46. The respondents further alleged “Mr Commissioner before any relief is considered one must consider the effect the relief is going to have on the school the learners and the Department of Education”. When Mr Hadebe dismissed the Commissioner’s advice to conciliate, he knew about the effects an award is going to have on the respondent and learners in particular. The factors mentioned above demonstrate that the applicant was hosted in an unwelcoming interview environment based on how the Ms Mbhele treated her.
47. Further, the undue meddling of Mr Dlamini in training the SGB deserves absolute condemnation. Based on the above factors, I find that committed unfair labour practice during the applicant’s interview session.
Award
I accordingly make the following award:
48. The first respondent, Department of Education committed unfair labour practice against the applicant, Ms Vuyiswa Ngubelanga.
49. The appointment of the second respondent, Mrs Ntombencane Ndlovu is hereby set aside. The first respondent is ordered to repeat the recruitment and selection process from the interview stage.
50. The respondent shall invite only the candidates who participated in the interview process to the second interview.
51. Naturally, the interview panel is expected to conduct the interviews with integrity in an even handed manner towards all the candidates.
Sandile Madikizela
ELRC Commissioner
Arbitrator : Sandile Madikizela Commissioner: Sandile Madikizela
Case Number: ELRC 316-19/20 KZN
Dates of Hearing: Various
In the ARBITRATION between:
South African Democratic Teachers Union (SADTU) obo Vuyiswa Ngubelanga
(Union / Applicant)
and
Department of Education - KwaZulu Natal
(Respondent)
Ntombencane Ndlovu 2nd Respondent
Union/Applicant’s representative: Mbambeli Blose
Union/Applicant’s address: J 691 Umlazi
2Nkanyezi Avenue P O Umlazi
4031
Email : vuyiswangubelanga@ymail.com
Cell phone: 065 987 0819/079 484 1864
Respondent’s representative: Manjith Bejanath
Respondent’s address: Truro House
P Bag X 54323
: Durban 4060
Cell: 083 652 8201
Telephone: 031 360 6222
Email: manjith.bejanath@kzndoe.gov.za
Details of hearing and representation
1. The matter was heard at Dokkies and Durban Teachers Centre. Mr Mbambeli Blose, a SADTU representative appeared on behalf of the applicant, Ms Vuyiswa Ngubelanga. Appearing on behalf of KwaZulu Natal Department of Education, the respondent was Mr Manjith Bejanath. Mr B J Hadebe appeared on behalf of Mrs Ntombencane Ndlovu, the second respondent.
Preliminary Issue
2. One of the people who participated in the proceedings was Mr Velani Shazi. He claimed to have been deployed to observe the process. For some unclear reason, he did not complete the role he had undertaken to play. When he was contacted, he initially stated that his vehicle had a breakdown and undertook to make himself available at the next sitting.
3. He, however, failed to honour this undertaking even after being contacted. On that basis, his evidence shall be excluded. Further, the respondents wrote their closing statements jointly.
Issue in dispute
4. I am required to determine the validity of Ms Ngubelanga’s alleged unfair labour practice (S186 (2)(a) of the LRA (as amended) by the respondent regarding her non appointment. Further, I am required to issue an award that I deem appropriate.
Background to the dispute
5. When the respondent invited suitable Educator Post level 1 applications, Ms Ngubelanga became one of the applicants. During the interview, alleged the applicant, the interview committee (IC) treated her in a negative manner in terms of the time it afforded her to answer interview questions.
6. Such conduct, she alleged affected her performance as the panel put her under unnecessary pressure. She alleged that despite being informed that a time keeper would ring a bell when her time was up, the IC did not honour this undertaking, thereby prejudicing her. The remedy she requires is that the appointment of the second respondent Mrs Ntombencane Ndlovu be withdrawn.
Summary of Evidence and Arguments
Applicant’s case
7. Ms Ngubelanga alleged that on March 23, 2019, she attended a HOD post interview where she was a third candidate to be interviewed in which she was required to answer five questions. Before the interview began, Ms Fikile Mbhele explained to her that the time would be regulated through the ringing of a bell. However, Ms Bonakele Mngadi rang the bell once, only for the first question. She spent four minutes on question 2; five minutes on question 3; four minutes in questions 4 and 5.
8. In line with the arrangement, on question one, she spoke until Ms Bonakele Mngadi rang the bell. However, when she paused on the second question, the chairperson, Ms Fikile Mbhele said “Thank you, next question”. The chairperson did the same when she answered the second question. On the third question, she stopped her when she paused. The time keeper did not ring the bell for the next four questions.
9. Following this conduct, the applicant lodged a grievance whose hearing no one attended from the school. During cross-examination, the applicant conceded that she did not know how the second respondent answered the questions. She argued that the outcome would have been different had she not been cut off before she finished her answers.
10. During cross-examination, she conceded that she would not know how the second respondent performed during the interview. She also conceded that the Head of Department and not the SGB appoints. When asked who uttered the words “Thank you, next”, she said the scorer, Ms Fikile Mbhele. She said she could not prejudice herself by complaining. However, she admitted that performance separates candidates at an interview.
11. When asked what she possesses that the second respondent lacks for the position, she stated that apart from management skills, she has experience academically. She took an initiative to bring resources to the school. She claimed to be in possession of good communication skills and a fluent speaker. In addition to her ten years of teaching experience, she ensures that children have home work when they leave.
12. She claimed to have been indefinitely employed in 2014. When asked if there was any indication that she was pausing, she claimed that she should have been asked if anyone found pausing meaning something else. She said she was not given an opportunity to respond at the end of the interview session. The chair said “Thank you, can you take her out?”. During re-examination, she denied ever being told that pausing was not allowed nor did the chair ask her if they could move to the next question.
Respondent’s case
13. The respondent had as its first witness the principal, Mr Patrick Mphiwa Dlamini. Mr Dlamini denied being aware that the applicant was under duress. He alleged that she did not indicate that something was wrong. He said, had she complained, he would have talked to the IC to see if the matter could be resolved.
14. He denied that the time had been influenced by anyone. He claimed that Ms Ngubelanga was shaking and stopped before her time was up. He claimed the chairperson asked her if she had finished and she said yes. He also denied that the union representative observer expressed some concern. He further claimed that the SGB had been trained in handling promotion matters. Responding to cross-examination questions, he claimed he was not sure if interview questions were documented.
15. When it was put to him that the resource person should not invite members to a meeting, Mr Dlamini said he was not sure but was of the view that anybody can invite. He claimed not to have been invited to the grievance hearing. He conducted the training for the post interview. He could not comment when it was put to him that the minutes did not reflect what happened at the interview. He conceded that it was not recorded how much time each candidate spent in each question.
16. He did not know whose signature was on the grievance hearing meeting schedule. He vouched that the school was not invited. His response was negative when, during re-examination he was asked if all SGB members were present at ratification.
17. The respondent’s second witness was Ms Muriel Fikile Mbhele, whose role was the chairing of the interview committee. When asked to comment regarding the allegation that the applicant was not afforded enough time, she said “I am surprised that Ms Ngubelanga alleges she was not afforded enough time”. She did not know how the applicant knew there was not enough time in the absence of both a cell phone and a watch.
18. She alleged that when she asked her the first question, she stopped and kept quiet for a second until she asked her if she could proceed. On the second question, she also had a break and on the third one, the time keeper rang the bell. The witness expressed disappointment at the applicant’s allegation. She claimed that she did not have any comment after the interview and thanked the panel. The applicant did not complain.
19. During cross-examination, she again denied that the applicant was rushed. She acknowledged that some candidates become nervous during an interview and the environment should not be hostile. She claimed not to remember when asked how time was allocated per question other than claiming that mark allocation varied between five and seven. When asked if she was basing her question to resolution 11 of 1997, she said she did not know. She conceded when asked that a candidate cannot respond immediately a question is asked as they need to think it through.
20. Another concession she made was that the reason her question had more marks meant that a lot was expected of the applicant to say in response to that particular question. She could not respond when it was put to her that the time she consumed to pause was hers and the witness had no right to interfere before her time was up, an allegation she denied. She further claimed that she asked her to determine if she needed more time to think. To this, the applicant said the panel could continue, said Ms Mbhele.
21. When it was put to her that when she asked the applicant if she (Ms Mbhele) could continue, she was distracting the applicant’s thoughts, she responded “I did not force her, she had a long pause and she said yes”. She could not respond when asked how she measured her pause in the absence of a watch and a cell phone. Ms Mbhele at some point alleged that the applicant paused for so long that she, as the chairperson thought about other candidates. She alleged that there was a question (which she could not remember) that the applicant answered until the bell rang.
22. She responded in the affirmative when asked if she had been informed during the training that a candidate might lodge a grievance. She also admitted that the panel was not an appropriate forum to grieve. Regarding the grievance hearing, Ms Mbhele denied having signed on behalf of the SGB. She denied having deliberately and wilfully undermined the grievance process by not attending. She confirmed that ratification was done on the same day interviews were conducted.
23. The respondent’s last witness was the timekeeper, Ms Barbara Bonakele Mngadi who regulated the time by ringing the bell. She claimed to have attended training at Amanzimtoti and had further training by the principal. She denied that Ms Ngubelanga was not given enough time during the interview. She alleged that she did not complain. She responded in the affirmative when asked if there was a question the applicant did not utilise all her time on and said it was when she kept quiet.
24. She said the chairperson would ask her if the panel could proceed when she stopped. When asked if she as time keeper rang the bell when the applicant said continue, she said no. When asked during cross-examination what her training actually entailed, she alleged that she was trained to ring a bell during interview intervals. She claimed she rang the bell for the first question only. When she was asked what she could say to the allegation by Ms Mbhele that the applicant paused, she said “My role was to keep time”.
25. She responded in the affirmative when asked if she was not paying attention to questions and answers. She alleged there were 3 questions in which the applicant said the panel could proceed. She angrily claimed that they were at the hearing because Ms Ngubelanga had not been appointed. She alleged that the panel had taken a decision that when a candidate paused, it would be asked if the panel could proceed. She could not remember when asked if the applicant was explained to what would happen when she paused but alleged that the chairperson explained the process to candidates.
Analysis of Evidence and Arguments
26. In analysing the testimony of the parties, I have taken into consideration some instruments among which are the Constitution of the Education Labour Relations Council of 1999, the Labour Relations Act 66 of 1995, Constitution of the Republic of South Africa 108 of 1996, South African Schools Act 84 of 1996, Promotion of Administrative Justice Act, Case law and whatever instrument I deemed useful and appropriate to refer to.
27. It is necessary to mention that before this arbitration began in September 2019, in line with the Labour Relations Act, the Commissioner proposed a conciliation to resolve this dispute. This, Mr Hadebe dismissed outright without even considering it and insisted on arbitrating. He must be commended that two years later, in his closing statements, he stated “The Constitutional Court has held that section 28(2) of the Constitution imposes an obligation on all those who make decisions concerning a ....protecting and advancing interest of children.
28. The actual quotation of s28 (2) provides “A child’s best interests are of paramount importance in every matter concerning the child”. The respondents are correct in alleging that the onus was on Ms Ngubelanga to prove unfair labour practice. However, once she has made that allegation, the onus shifts to the other party, namely the respondent. The respondent disputes that the applicant was rushed, however, during cross-examination, Ms Mbhele alleged that she was concerned about other candidates who were waiting.
29. She could not think about the candidates who were waiting on the one hand and still be patient towards a nervous and shaking candidate on the other. The respondents claim “If Ms Ngubelanga felt that she was rushed, she had the right to inform the Chairperson......”. this observation does not seem logical in light of the fact that Mr Dlamini alleged that Ms Ngubelanga was shaking. Was it realistic to expect a candidate that was so nervous that she was shaking to ask the chairperson to intervene?. If she was shaking in front of the chairperson, what did the chairperson do about it?.
30. There was a contradiction between Ms Mbhele’s testimony and Ms Mngadi’s. Ms Mbhele claimed that Ms Mngadi rang the bell once for the third question while in her testimony, Ms Mngadi alleged that she rang it once for the first question. Ms Mngadi’s version makes sense as Ms Mbhele claimed that the first question had more marks. In fact Ms Mbhele contradicted herself. She submitted that “In some questions, Ms Ngubelanga would talk and pause and I would ask her if I could continue. In others (questions), she would pause until the time keeper rang the bell”.
31. This allegation is not in line with the testimony of the witnesses regarding the number of times Ms Mngadi rang the bell. Both stated that the bell was rung once for the first and third according to Ms Mngadi and Ms Mbhele respectively. During cross-examination, Ms Mbhele claimed when asked if she asked the applicant if she (Ms Mbhele) could continue responded “Yes, I asked her to determine if she needed more time to think”.
32. This allegation is irrational in light of the fact that Ms Mbhele had earlier alleged that she was concerned about other candidates who were waiting. The cross-examination question she was responding to was “You also said she had a long pause such that you thought about other candidates, remember” “Yes”. The respondent further alleged that “Ms Ngubelanga commented that she appreciated the time given, appreciates the opportunity to be interviewed.
33. She never complained for not being given sufficient time to answer or that she was rushed”. There is no merit in this argument. Thanking the panel cannot necessarily have been a reflection of how she was treated. This is nothing more than a courtesy any reasonable candidate would express to a panel after the interview. “It would be wrong if she was accorded more time than the other candidates to answer the questions”, correctly submits the respondent.
34. This brings me to the lack of courtesy and interview skills on the part of Ms Mbhele. She alleged that if Ms Ngubelanga had brought to her attention that she did not get enough time, she would have given her more time later. The implication is that Ms Ngubelanga would, contrary to the principle of parity have been afforded preferential treatment. Any person who understands that candidates should be treated fairly and equally (a concept Ms Mbhele does not seem to know she had a duty to uphold) would have cringed at this allegation from a chairperson.
35. The other aspect which reflected lack of suitability on the part of Ms Mbhele to chair a panel was her appalling conduct during a hearing. On the day Mrs Ndlovu did not attend when a close relative had passed away, while the Commissioner was talking to her, Ms Mbhele stormed out of the venue alleging that the person on whose behalf she had come to testify was not available. Mr Bejanath had to follow her to ask her to return to the venue. This is a person the respondent expects to have treated all the candidates fairly.
36. Every panel member is expected to treat all candidates fairly. If Ms Mbhele did not know that she had been invited to testify on behalf of the respondent and not for a particular individual, how could she have been expected to treat other candidates like Mrs Ndlovu?. Not only did I find this conduct quite embarrassing but it also demonstrated an absolute lack of a primary characteristic of a panel member which is objectivity and an independent mind.
37. Both ladies deserve to be educated regarding responsibilities of the SGB. They were both angry at the applicant due to ignorance which could not enable them to distinguish between their roles as SGB members and their individual capacity. They felt personally challenged and did not understand that it was the respondent department that Ms Ngubelanga challenged. As stated above, Ms Mngadi alleged that she was at the hearing because the applicant had not been appointed.
38. Another point of particular concern was the role Mr Dlamini played during preparations for the interviews. When Mr Blose reminded Mr Dlamini that he did not have authority to call the ratification meeting, his response was “I am not sure”. There is a reason why an SGB has a secretary. It is deliberate that roles are separate to avoid unnecessary overstepping of each person’s roles. I find that this role fell outside of Mr Dlamini’s job functions as his mandate was an HR person.
39. Another concern relating to the role Mr Dlamini played was mentioned by Ms Mngadi. When Mr Blose asked her about training, she alleged to have been trained at Amanzimtoti and by Mr Dlamini. The South African Schools Act does not authorise principals to train SGBs for interviews. Again, when Parliament drafted the statute, it consciously aimed to avoid a conflict of interest. Principals are human beings and cannot be objective when it comes to appointments. Based on this, I again find that Mr Dlamini had no authority to train the SGB. This was an unfortunate and undue interference in an area over which he had no authority.
40. The respondent claimed “She failed to show that she has the minimum advertised qualifications and experience that the appointed candidate does not possess. She failed to show that she has the necessary skills and she failed to show that Ms Ndlovu the appointed candidate does not possess the same or same level of skills.” This allegation is incorrect. When Mr Blose led the applicant during evidence-in-chief, she mentioned her skills, knowledge and the contribution she had made towards the school.
41. It was the responsibility of the respondents to call Mrs Ndlovu to the witness stand so she could demonstrate that she was worthy the appointment. This was particularly necessary because only the SGB and the principal know about her qualifications. However, they chose not to use that opportunity when it mattered in light of the fact that Ms Mbhele had been open about favouring Mrs Ndlovu.
42. Finally, I turn on the person whose role I believe was important, the Grievance Committee Chairperson, Mr I Pillay. In their submissions, the respondents had this to say about Mr Pillay “Mr Commissioner, the respondent did not call the chairperson of the grievance committee because the burden of proof rests with the applicant. The chairperson of the grievance, after having heard both sides of the presentation arrived at a decision which is on page 2 of bundle A”.
43. This allegation is not only incorrect but also outlandish for a few reasons. As stated earlier, after the applicant had discharged its onus, it shifted to the respondent. If that were not the case, the respondent would not have called any witnesses at all. Further, it is incorrect that the grievance chairperson heard both sides before arriving at the decision. It was not disputed that despite someone having signed on behalf of the school to attend the grievance hearing, no one attended.
44. Since this fact is not in dispute, it follows that Mr Pillay heard only Ms Ngubelanga’s version. The reason I asked Mr Bejanath to call Mr Pillay was that he, curiously upheld the decision of the SGB despite none of its members having attended. What could have been the basis and logic of deciding in favour of a party which, without even the courtesy of an apology failed to attend the grievance hearing. After asking Mr Bejanath a few times to call Mr Pillay, he finally, reluctantly agreed.
45. However, without any explanation, he changed his mind and said he had closed his case and was no longer calling Mr Pillay. I expressed a negative inference at this sudden change of heart but Mr Bejanath had made up his mind. Therefore, the respondent has failed to discharge this onus. On that basis, I find that Mr Pillay’s decision to uphold the SGB’s recommendation was arbitrary as he had not heard its oral submissions.
46. The respondents further alleged “Mr Commissioner before any relief is considered one must consider the effect the relief is going to have on the school the learners and the Department of Education”. When Mr Hadebe dismissed the Commissioner’s advice to conciliate, he knew about the effects an award is going to have on the respondent and learners in particular. The factors mentioned above demonstrate that the applicant was hosted in an unwelcoming interview environment based on how the Ms Mbhele treated her.
47. Further, the undue meddling of Mr Dlamini in training the SGB deserves absolute condemnation. Based on the above factors, I find that committed unfair labour practice during the applicant’s interview session.
Award
I accordingly make the following award:
48. The first respondent, Department of Education committed unfair labour practice against the applicant, Ms Vuyiswa Ngubelanga.
49. The appointment of the second respondent, Mrs Ntombencane Ndlovu is hereby set aside. The first respondent is ordered to repeat the recruitment and selection process from the interview stage.
50. The respondent shall invite only the candidates who participated in the interview process to the second interview.
51. Naturally, the interview panel is expected to conduct the interviews with integrity in an even handed manner towards all the candidates.
Sandile Madikizela
ELRC Commissioner