ELRC644-20/21 EC
Text
PSES540-20/21KZN
Award Date:
30 November 2021
ARBITRATION
BETWEEN:
Goba “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the First Respondent”
and
SIMANGELE PRECIOUS HLONGWA “the Second respondent
ARBITRATION AWARD
Case Number: PSES540-20/21KZN
Last date of arbitration: 19 October 2021
Date of award: 30 November 2021
Closing Arguments: 27 October 2021
NOZIPHO B KHUMALO
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
7. The matter was set-down for arbitration in terms of Section 182(a) of the Labour Relations Act (LRA) at the offices of the Department of Education in Durban, on the 18 March 2021, 10 June 2021, 03 August 2021 and 15 October 2021. Mr Itumeleng Makhooe appeared for the First Respondent. Mr Pat Chamane an official of SADTU represented the Second Respondent at the first seating on the 10 June 2021. The Applicant, Ms Nqobile S Goba was represented by Mr Dean Caro an attorney.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
8. The Applicant is employed by the Respondent as an educator at Sacred Heart Secondary in January 2000. A post for principalship was advertised by the Respondent on the 28 February 2020, at Sacred Heart Secondary in terms of HRM13/2020.
9. The Applicant was short listed and was interviewed for the post. She scored second at the interview and was amongst the three (3) candidates that were preferred by the SGB. The Second Respondent, Ms Smangele Precious Hlongwa was appointed in the position on the 07 December 2020.
10. The Applicant seeks that the appointment be set aside because the interview scores were altered which put her second and the Second Respondent first.
11. The Applicant handed in Annexure “A”.
12. I have to decide whether the Respondent’s failure to appoint the Applicant was fair or not.
PRELIMINARY ISSUES
13. The parties requested a postponement on the 10 June 2021 due to bundles not received timeously. The Application was granted.
SUMMARY OF EVIDENCE AND ARGUMENTS
Applicant’s case
14. The Applicant testified and called one (1) witness, Eliajah Mavela Ngcobo, “Ngcobo”. Their evidence is summarised as follows. The Applicant was a pupil at Sacred Heart Secondary School from 1989 to 1993 before she commenced employment in 2002. Her highest level of qualification is a honours degree in natural sciences which she obtained in 2014. In 2006 she was appointed as HOD for maths and life skills and is currently acting as a deputy principal.
15. The shortlisting scores were altered by the chairperson of the interview committee (IC), Ngcobo, which place the Second Respondent in first place and the Applicant in second place as recorded in “A”45-48. The interview scores were also altered as recorded in “A”57 – 64 which placed the Applicant second and the Second Respondent first. This alteration in the scores was done upon the instruction of Naidoo who was the resources person. Had it not been for this alteration in the scores, the Applicant would have scored higher that the Second Respondent and appointed in the post.
The Respondent’s case
16. The Respondent did not lead any oral evidence but submitted closing arguments.
SUMMARY OF ARGUMENTS
17. The Respondent argued that the evidence of the Applicant was that there was nothing illegal with what the chairperson of the IC did by changing the scores. It was done transparently in consultation with the union observers. It happened on both occasions, the shortlisting and the interview. The process of changing the scores on both occasions was transparent and the chairperson was not biased against anyone. The Chairperson also authenticated the amendment by his signature. There was therefore nothing for the Respondent to rebut in this case.
18. The Applicant argued that not only was she the best candidate, by virtue of her long and successful association with the school, but her initial average score was far higher than that of the Second Respondent. The alteration in the scores is not a true reflection of the chairperson’s perception of the Second Respondent but was done in order to avoid future justification, should a need arise. Furthermore, common sense dictates that where a candidate has a long standing relationship especially within a schooling system and environment, the school would look to the appointment of individuals to senior posts from within its ranks to ensure as far as possible continuity and stability. The Applicant therefore seeks appointment in the post of principalship with full retrospective back pay and the appointment of the Second Respondent to be set aside.
ANALYSIS OF EVIDENCE AND ARGUMENT
19. It is trite law that in an unfair labour practice dispute, it is the Applicant party which bares the onus of proving the claim on the balance of probabilities. It is trite law that when an employee complains that another was employed instead of him/her, he/she must show that he/she possesses the necessary skills and the appointed candidate does not possess the same level of skills. The Applicant must also demonstrate that there was conduct that denied her a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason or that the successful candidate was dishonest and misled the interview panel or the employer.
20. In this case the Applicant relied on the argument that firstly she is more qualified than the Second Respondent and secondly that she was prejudiced by the alteration in the scores by the chairperson. There was no evidence lead to suggest that the Applicant was the best of all the candidates that applied for the post and that the appointed candidate did not have the necessary skills.
21. The role of the chairperson among others is to manage the shortlisting as well as the appointment process. The scorers were altered in both the shortlisting as well as the interview process. It is evident that it was not only the scores of the Applicant that were altered but that of the Second Respondent as well. The alteration in the scores was done as a result of a deliberation among IC members and the resources person. There were no objections raised regarding the alteration in the scores. Furthermore, the alteration was not done to favour the Second Respondent.
22. The role of the SGB in the recruitment process is to make recommendations, without which will render the process as flawed. The decision to promote or not to promote falls within the prerogative of the employer. The employer is however not bound by the recommendation of SGB and may deviate from their recommendations where there are sound reasons for doing so. In this case the SGB recommended three (3) candidates among which the Applicant was one of them and the HOD preferred the Second Respondent.
23. Based on the above, I find that the Applicant failed to prove on a balance of probabilities that she was not appointed in the post as a result of the alteration in the scores. I further find that the alteration was not done to favour the Second Respondent.
FINDING
24. I therefore find that the conduct of the Respondent did not constitute any unfairness.
AWARD
25. The application of the Applicant is dismissed. I make no order as to costs.
Commissioner: Nozipho B Khumalo
Date 30/11/2021
BETWEEN:
Goba “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the First Respondent”
and
SIMANGELE PRECIOUS HLONGWA “the Second respondent
ARBITRATION AWARD
Case Number: PSES540-20/21KZN
Last date of arbitration: 19 October 2021
Date of award: 30 November 2021
Closing Arguments: 27 October 2021
NOZIPHO B KHUMALO
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
7. The matter was set-down for arbitration in terms of Section 182(a) of the Labour Relations Act (LRA) at the offices of the Department of Education in Durban, on the 18 March 2021, 10 June 2021, 03 August 2021 and 15 October 2021. Mr Itumeleng Makhooe appeared for the First Respondent. Mr Pat Chamane an official of SADTU represented the Second Respondent at the first seating on the 10 June 2021. The Applicant, Ms Nqobile S Goba was represented by Mr Dean Caro an attorney.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
8. The Applicant is employed by the Respondent as an educator at Sacred Heart Secondary in January 2000. A post for principalship was advertised by the Respondent on the 28 February 2020, at Sacred Heart Secondary in terms of HRM13/2020.
9. The Applicant was short listed and was interviewed for the post. She scored second at the interview and was amongst the three (3) candidates that were preferred by the SGB. The Second Respondent, Ms Smangele Precious Hlongwa was appointed in the position on the 07 December 2020.
10. The Applicant seeks that the appointment be set aside because the interview scores were altered which put her second and the Second Respondent first.
11. The Applicant handed in Annexure “A”.
12. I have to decide whether the Respondent’s failure to appoint the Applicant was fair or not.
PRELIMINARY ISSUES
13. The parties requested a postponement on the 10 June 2021 due to bundles not received timeously. The Application was granted.
SUMMARY OF EVIDENCE AND ARGUMENTS
Applicant’s case
14. The Applicant testified and called one (1) witness, Eliajah Mavela Ngcobo, “Ngcobo”. Their evidence is summarised as follows. The Applicant was a pupil at Sacred Heart Secondary School from 1989 to 1993 before she commenced employment in 2002. Her highest level of qualification is a honours degree in natural sciences which she obtained in 2014. In 2006 she was appointed as HOD for maths and life skills and is currently acting as a deputy principal.
15. The shortlisting scores were altered by the chairperson of the interview committee (IC), Ngcobo, which place the Second Respondent in first place and the Applicant in second place as recorded in “A”45-48. The interview scores were also altered as recorded in “A”57 – 64 which placed the Applicant second and the Second Respondent first. This alteration in the scores was done upon the instruction of Naidoo who was the resources person. Had it not been for this alteration in the scores, the Applicant would have scored higher that the Second Respondent and appointed in the post.
The Respondent’s case
16. The Respondent did not lead any oral evidence but submitted closing arguments.
SUMMARY OF ARGUMENTS
17. The Respondent argued that the evidence of the Applicant was that there was nothing illegal with what the chairperson of the IC did by changing the scores. It was done transparently in consultation with the union observers. It happened on both occasions, the shortlisting and the interview. The process of changing the scores on both occasions was transparent and the chairperson was not biased against anyone. The Chairperson also authenticated the amendment by his signature. There was therefore nothing for the Respondent to rebut in this case.
18. The Applicant argued that not only was she the best candidate, by virtue of her long and successful association with the school, but her initial average score was far higher than that of the Second Respondent. The alteration in the scores is not a true reflection of the chairperson’s perception of the Second Respondent but was done in order to avoid future justification, should a need arise. Furthermore, common sense dictates that where a candidate has a long standing relationship especially within a schooling system and environment, the school would look to the appointment of individuals to senior posts from within its ranks to ensure as far as possible continuity and stability. The Applicant therefore seeks appointment in the post of principalship with full retrospective back pay and the appointment of the Second Respondent to be set aside.
ANALYSIS OF EVIDENCE AND ARGUMENT
19. It is trite law that in an unfair labour practice dispute, it is the Applicant party which bares the onus of proving the claim on the balance of probabilities. It is trite law that when an employee complains that another was employed instead of him/her, he/she must show that he/she possesses the necessary skills and the appointed candidate does not possess the same level of skills. The Applicant must also demonstrate that there was conduct that denied her a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason or that the successful candidate was dishonest and misled the interview panel or the employer.
20. In this case the Applicant relied on the argument that firstly she is more qualified than the Second Respondent and secondly that she was prejudiced by the alteration in the scores by the chairperson. There was no evidence lead to suggest that the Applicant was the best of all the candidates that applied for the post and that the appointed candidate did not have the necessary skills.
21. The role of the chairperson among others is to manage the shortlisting as well as the appointment process. The scorers were altered in both the shortlisting as well as the interview process. It is evident that it was not only the scores of the Applicant that were altered but that of the Second Respondent as well. The alteration in the scores was done as a result of a deliberation among IC members and the resources person. There were no objections raised regarding the alteration in the scores. Furthermore, the alteration was not done to favour the Second Respondent.
22. The role of the SGB in the recruitment process is to make recommendations, without which will render the process as flawed. The decision to promote or not to promote falls within the prerogative of the employer. The employer is however not bound by the recommendation of SGB and may deviate from their recommendations where there are sound reasons for doing so. In this case the SGB recommended three (3) candidates among which the Applicant was one of them and the HOD preferred the Second Respondent.
23. Based on the above, I find that the Applicant failed to prove on a balance of probabilities that she was not appointed in the post as a result of the alteration in the scores. I further find that the alteration was not done to favour the Second Respondent.
FINDING
24. I therefore find that the conduct of the Respondent did not constitute any unfairness.
AWARD
25. The application of the Applicant is dismissed. I make no order as to costs.
Commissioner: Nozipho B Khumalo
Date 30/11/2021