Commissioner: VEESLA SONI
Case No.: ELRC 302-21/22 Date of Award: 4 MARCH 2022
In the ARBITRATION between:
TEACHERS UNION OBO CHRISTOPHER MAGWAZA APPLICANT
DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT
Union/Applicant’s representative: Mr Mtolo
Telephone: 078 368 3693
Respondent’s representative: Ms N A Ngonyama
Telephone: 082 627 1332
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the “ELRC”) in terms of Section 186 (2) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on 28 January, via zoom. The matter was part heard and was finalized on
2. The Applicant, Mr Christopher Magwaza was represented by the Teachers Union, Mr Mtolo. The Respondent was represented by Ms N A Ngonyama. The Appointee, Mr Jiyane was in attendance.
ISSUE TO BE DECIDED
3. The issue in dispute was whether the Respondent committed an unfair labour practice, in respect of promotion, when they failed to appoint the Applicant and appointed Mr Jiyane, instead.
BACKGROUND AND SURVEY OF EVIDENCE
4. The Applicant commenced employment in January 2001, as an educator. At the time of the dispute he was in a principal. He was based at Sikhonjwa Secondary School.
5. A post for a principal at Isibanisezwe Secondary School was advertised in terms of circular dated 20 September 2019.
6. The Respondents case was that in 2019 the post number 13 was advertised in HRM 36 and the management plan for that post directed that the process had to be finalized by 29 November 2019. The school governing body appointed the interviewing committee (IC) to conduct the process. The process was conducted. One member emerged from SADTU and was appointed. A grievance was lodged by NATU. The grievance committee declared that the IC must redo the process as one member was not allowed to be part of it. The process was redone. A second grievance emerged. In the second process the Applicant emerged as number one.
7. The SGB had divisions and the process was contaminated which led to the head of department taking over the process. It was the only school that failed to appoint in terms of circular 13. That hindered ILembe District to finalize the selection and recruitment process. The process was taken over by the Department of Education as the interest of the children were of importance. An independent panel was appointed, and consisted of: deputy chief education specialist, chief education specialist and people who were responsible for curriculum management in the district. As a result, Mr Jiyane was appointed to the post, as he ranked number 1. Respondent’s case was that the second process was nullified and the department took over the process. There were no irregularities and the appointment was procedurally and substantively fair.
8. The Applicant’s case was that the post was advertised in the HRM circular dated 20 September 2019. The Applicant applied for the post and at the interview he tied with another incumbent. The SGB chose the other incumbent. A grievance was lodge by NATU as to this decision. The appointment was set aside and the process started afresh. The Applicant applied for the second interview for the same post. He came first again and was not tied with anyone. That interview was ratified by the SGB and by the departmental representative. This process was then challenged by SADTU. That grievance outcome resulted in the appointment to be set aside and for the process to be redone. The department of education intervened and took over the process.
9. The Applicant, for the 3rd time applied, for the same post. In this application he was not shortlisted for the post. Mr Jiyane was appointed to the post. The SGB did not cede the process to the employer and their intervention was challenged. Their decision led to the current matter.
10. It was submitted that the outcome did not address the grievance raised by SADTU. NATU was invited as observers to the process were not invited or joined for the last grievance. In deciding the grievance, the employer did not obtain the views or opinion of its own representatives regarding whether it was flawed. There was no proof that the process was flawed.
11. Christopher Magwaza, the Applicant testified that he was a principal and had been teaching for 22 years. On 5 August 2020 he attended the interview for the post of a principalship at Isibanisezwe Secondary School. He ranked first with 40.2. Jiyane ranked third with 29.8. He applied for this same post on three occasions and attended two interviews. He was currently a principal at Sikhonjwa Secondary School.
12. Sbonisa Jali testified that on 5 August 2020 he was invited to an interview at Isibanisezwe Secondary School, as a union observer for NATU. He signed the document for the recommended candidate, who was the Applicant and confirmed that his signature thereto meant that the procedure was substantively and procedurally fair. The Applicant was preferred for appointment. A grievance was lodged and as an observer he was not invited to the grievance hearing. He confirmed that no issues were raised by SADTU with the interview committee.
13. Moses Cele testified he was the chairperson of the SGB Isibanisezwe Secondary school. He confirmed that the governing body was trained in conducting interviews. He was trained by the departmental nominee, Ms Dube. No issues were raised after the interviews and the first time he became aware of it was at the grievance hearing.
14. F V Xulu testified he was the departmental head at Isibanisezwe Secondary School. There was a position advertised for a principal. He was a member for the SGB (School Governing Body) and IC (interviewing committee). He was not part of the shortlisting and was elected for the second set of interviews. There was no shortlisting done for the second one as the same candidates were used. There were three nominated scorers and the IC was not happy with some of the scorers. For several hours the IC was deliberating the issue regarding consensus of the scorers. A ruling was made by the chairperson of the SGB that only five IC members would be scorers. SGB chairperson Cele selected Ms V Ntuli to be IC chairperson but she objected on the basis that she was new to SGB and could not handle the process. She was forced to take the position by Cele.
15. The interviews commenced under tensed conditions and instead of starting at 9am it started at 1pm. The chairperson, Ntuli, failed to perform her duties in that she failed to introduce the panel to the incumbents or refer to the questions and their order. The candidate was questioned without further information. A union representative from SADTU raised concern about the way the first candidate was handled. The treatment towards the first candidate was therefore unfair. The chairperson also could not perform optimally for the second candidate as she was unfamiliar with the process. After each candidate she was reminded by the IC of what she was required to do. This resulted in her losing confidence. She was not competent and she admitted same.
16. X S Dube testified she was deputy chief education specialist and circuit manager from 2015. She was aware of the post in dispute and the school fell under her circuit. Her role was that of a resource person and worked with the IC and SGB in filling the position. The first sitting attracted a grievance and the process had to be redone. She conducted a mini workshop before the second sitting, which was only in 2020, a year after the advert and first sitting. Some members were no longer qualified to sit on the SGB and elections were held to fill the positions of those that left.
17. During the second interview the IC elected members to fill the positions of: chairperson, secretary and scorers. The chairperson was elected and she stated that she was not comfortable to take that position. The members of the interview committee convinced her to take it on the basis that they will assist her. There were issues that arose with regard to the scorers and all wanted to score. This took a considerable amount to time to resolve. The chairperson displayed signs of inability and lack of knowledge. She erred in the process. Irrespective of being workshopped the chairperson was not competent. The fact that she was workshopped did not ratify her decisions.
18. L S Khanyile was the chief education specialist for four years. He engaged with the SGC to ascertain if they wished to continue with the post or whether it be taken over by the department. He explained the procedure of the Department taking over the process. Some of the members indicated that they could no longer continue with the process. The SGB was not in consensus although majority agreed that it be taken over by the department. There were clear signs of divisions.
19. Thabani Welcome Buthelezi was employed Illembe district as the chief education specialist and supervised the staff on subjects. His main task was the support of curriculum delivery based on the needs of the schools. He was acting from 2008 to 2015 and was officially appointed in 2015. He was the chairperson of the interview committee for the second round of interviews. He drew a management plan that guided the process. He had to ensure that the process was according to the prescription.
20. He explained that they agreed on the process for the interviews and no person was earmarked. All profiles were treated in an unbiased manner. He said the shortlisting was procedurally and substantively fair and the Applicants CV was not lifted. He further confirmed that CV’s had codes and were not referred to by name. He had no grievance against the Applicant.
21. Siyathokoza Mchunu was called to testify by the Appointee, Jiyane. He was the branch secretary for SADTU and was deployed as an observer for both interviews. He observed about 50 to 60 posts but only lodged 3 grievances. This was one of them. For the first time in nine years he saw such a divided SGB. The three members that were elected were not trusted and the SGB wanted all the members to score. There were quarrels and arguments and mistrust. The SGB was considerably divided. The scores were glaringly different and the chairperson was inexperienced and not knowledgeable of the process.
ANALYSIS OF EVIDENCE
22. The matter was referred as an unfair Labour Practice: In terms of section 186 (2) (a) of the Labour Relations Act:
‘ unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relation to the 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.’
23. In the case of Buffalo City Public Fet College / Commission For Conciliation, Mediation And Arbitration, Commissioner Bongani Mbali And Khaya Lurwengu , Labour Court Port Elizabeth, Case Number: P372/12, the court found in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the Employee to prove that he / she is a suitable and better candidate for the position. The Applicant herein therefore bore the onus to establish that the Respondent committed an unfair labour practice.
24. In establishing such unfairness, the test to be adopted in promotion disputes are set out hereunder. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC), the case related to the failure of the municipality to promote one M to an advertised post in which he had been acting for five years. M met all the requirements for the post but was not short listed for an interview because he had failed an assessment test. Nobody was appointed to the post and M continued to act in the post. The arbitrator found that it constituted an unfair labour practice not to have promoted M and ordered the municipality to promote him. On review it was argued that there was no evidence that the municipality acted in breach of its own policies or that it acted bad faith, with an improper motive, malice or grossly unreasonably. It further argued by reference to SAPS v Safety & Security Sectoral Bargaining Council & others (2010) 31 ILJ 2711 (LC),  8 BLLR 892 (LC) that it is not the place of an arbitrator to instruct an employer to promote a candidate into a position.
25. In confirming the arbitrator’s award, the Review Court re-evaluated the approach followed in a number of earlier judgments including Arries v CCMA & others (2006) 27 ILJ 2324 (LC) a decision which had been followed in a number of CCMA arbitration awards. In Case Law for Commissioners at paragraph 1804 it was suggested that promotions should be assessed, not according to the grossly unreasonable/male fide test referred to in Arries, but against a test of fairness taking into account inter alia the following factors referred to in Arries:
• whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer or
• whether the employer’s decision was arbitrary, or capricious, or unfair; or
• whether the employer failed to apply its mind to the promotion of the employee; or
• whether the employer’s decision not to promote was motivated by bad faith;
• whether the employer’s decision not to promote it was discriminatory;
• whether there were insubstantial reasons for the employer’s decision not to promote;
• whether the employer’s decision not to promote was based upon a wrong principle;
• whether the employer’s decision not to promote was taken in a biased manner.
26. That the overall test is one of fairness. The Court followed Gcaba v Minister for Safety & Security & others (2010) 31 ILJ 296 (CC) and found that that a failure to promote which had no direct consequences for other citizens was not administrative action subject to the review test of unreasonableness:
“The wholesale adoption of review tests, and notions of ‘setting aside’ an employer’s decision and sending it back to the employer for decision anew, thus appears misplaced. Rather the yardstick of fairness to both parties…is in fact apposite. This does not mean that when a selection process is unreasonable, it should not be identified as such, but that such irrationality goes to the issue of fairness. The clear wording of s 186 (2) of the LRA supports such an approach…
In this matter the fairness yardstick… has been used by the commissioner. He has found that in a situation where the applicant’s post (In which he had been acting for five years) remained vacant after his non-appointment, and where the city did not proffer any rationale for the pass mark in respect of the written assignment, nor explain the method of allocation of marks, it had been unfair not to appoint him.”
27. In applying the tests laid out in the above cases I now assess the evidence of the current matter to determine whether the decision of the employer measured the fairness yardstick. Magwaza was a forthright and candid witness. He gave his evidence in an honest manner. He applied for the disputed post on three occasions and attended two interviews. He ranked first in the second interview with the appointee ranking third. He scored 40.8 in the first interview. He explained that he was not aware of the grievance against the process at the time, but was made aware at a later date. It was put to the Applicant that the reason the second interview was set aside was due to the fact that the chairperson was not familiar with the process, hence there was a grievance. The outcome of the grievance was that the second process was set aside. The Applicant could not dispute same. He went further to admit that if there were discrepancies in the process the procedure could be challenged. In this case the procedure was not challenged on the day of the interview as there were divisions in the SGB. The Applicant was not invited to the grievance hearing as he was not a grievant in the matter. He lacked the locus standi to be present. There was nothing improper or male fides about this decision.
28. I now turn to the assessment of the evidence of Jali. He was invited to the second interview as an observer for NATU. He confirmed that his signature to the document for recommended candidates implied that the process was fair. He too was not invited to the grievance hearing. At the time of the interview no issues were raised by SADTU regarding the interview committee. This does not prevent SADTU from filing a grievance thereafter. Jali claimed that it was unfair that two observers were invited to the interview process but only one was invited to the grievance, which was not him. I take guidance from the Collective Agreement (2008) where it states that only the grievant could attend the grievance hearing and not observers as they were not a party to it. HRM 36 of 2019, where the post was advertised, guided the panel to their duties and responsibilities at interviews. It stated:
29. Accordingly, there was no duty on the grievance committee to invite observers hence it did not render the process unfair. Jali said he did not observe that the chairperson was incompetent. I was not impressed with him as he embellished his evidence to support the Applicant. He said the Applicant was scored low because his curriculum vitae was typed. This evidence lacked any logic as most CV’s were typed. In any event Jali could not be familiar with the person’s name as they were referred to by number. I find him to be mendacious and do not place much weight on his testimony.
30. I accept that the recommendation form was signed by observers as well as the departmental nominee and none of them noted any irregularities. There were three parties: the department, SADTU and NATU. In terms of the HRM they had the opportunity to raise concerns, but failed to do so. This was not a bar from lodging a grievance, even though no concerns were raised. I further take guidance from clause 22.1;
Based on the above the appointment can only be finalised after the grievance was handled.
31. Cele was the chairperson of the SGB and confirmed that no issues were raised at the interview. He only became aware of it at the time of the grievance. Again, I accept that there were no issues raised on the day, but that did not alter the fact that a grievance was filed in writing. Under cross examination it was put to him that Ms Ntuli was the chairperson of the IC under his persuasion. He denied same. He further denied her submission on the day that she was not competent to be the chairperson. I was not convinced as there was no reason for this version to be fabricated. I believe the reason for his emphatic denial was to demonstrate that the process was fair, because if it was not, then it would be set aside.
32. Xulu was part of the second interview and there were three scorers. He said there were deliberations for several hours regarding the scorers. They finally reached agreement and SGB chairperson Cele selected Ms V Ntuli to be IC chairperson. He recalled that she emphatically objected due to lack of experience. She was forced by the SGB chairperson to take the position. He said Ntuli was clearly out of her depth and did not know the process. He provided explicit examples, for instance; the panel was not introduced and no reference was made to the questions when the candidates were interviewed. This persisted for the second candidate and throughout the day.
33. The HRM 36 of 2019 had prescripts and required the chairperson to be competent and familiar with the rules, regulations and processes. Xulu said she was not competent as there were numerous errors in the interview process and she admitted her shortfalls in the process. I accept that they were workshopped on the interview process, but attending same did not amount to being competent.
34. There was a challenge on the ratification process that was signed by Xulu. He responded to this by saying that he was accused of having a personal interest. As a result, he claimed he signed the form to indicate the contrary. This was an error on his part but I have no doubts that there was serious conflict and the proceedings for the day were tainted by this conflict and the inexperience of Ntuli. Xulu’s version does not stand alone and it was corroborated by Dube. She too stated that the chairperson was not comfortable to sit as such as she was unfamiliar with the process and her duties. This was articulated but she was assured that she would be assisted by the IC. Like Xulu, she said the issues regarding the scorers took hours and instead of starting at 9, they only started at midday. She re-affirmed that chairperson displayed signs of inability and required assistance. She went to the extent where she rated her 5 out of 10. Like Dube, she signed off the process, but this was not a sanction that the procedure was flawless. It was merely done to note the completion of the process.
35. I am convinced and satisfied that there was no ulterior motive in setting aside the second interview based on the evidence discussed here above. I am also satisfied that the grievance hearing was properly concluded and the outcome was fair and just.
36. I have not touched on the evidence of Khanyile, who played a more formal role in the process. There were issues with the SGB, which all the witnesses have concurred. The department was of the view that they should take over the process and this was discussed with the SGB. Khanyile said the majority of the members agreed that the department should take over the process as there were serious divisions in the SGB. As a result, the taking over of the process was not done with malice or in violation of any rules or policy. It was based on rational, cogent and sensible grounds.
37. I now turn to Buthelezi and the final process that led to the appointment of Jiyane. He was accused of lifting the Applicants CV during the shortlisting. He was the chairperson of the IC, during the last interview, and he convincing denied this allegation and submitted that he did not know the Applicant. In any event all CV’s were coded in numbers and not names, hence the Applicant was not treated unfavourably. No names were discussed and there was no undue inference. His evidence was forthright and he did not aggrandise his testimony. There was no evidence produced to demonstrate that the appointment of Jiyane was based on favoured or preferential treatment.
38. I have no evidence that the Respondent acted unfairly, subjectively or unethically to in the appointment of Jiyane and not the Applicant. The decision was rational, reasonable and independent of any prejudice towards the Applicant. In other words, the appointment was not based on arbitrary and/or irrational grounds.
39. Jiyane did not testify but called the branch secretary of SADTU, Mchunu. He was an observer for both processes. There was glaring division in the SGB which led him to lodge a grievance. I must consider that he sat for about 50 to 60 matters and was not a compulsive grievant as in all those processes he only filed three grievances. In this case the division in the SGB led to him to file a grievance. He did not believe the process was fair as there were continuous arguments and disagreements that persisted for the entire day. Mchunu emphatically said that the SGB and IC was so divided that it appeared to have been 2 sides in a conflict. He also confirmed the chairperson, Ntuli, was highly inexperienced, and confused to the extent that the first candidate was not given the questions. He also stated that the scoring was glaringly different and it was evident from the scores that it was biased to certain camps. This reinforced the position of the Respondent that the process was set aside due to the inconsistencies.
40. Interestingly, he did not sign the EHR 11 for the interviews as he was not happy with the way it was handled but added that signing thereof did not imply the process was acceptable. He was adamant that any signature to the documents was not an approval of the process.
41. In the circumstances I am satisfied that there were valid and justifiable reasons for the second set of interviews to be set aside. The final interviews that led to the appointment of Jiyane was done appropriately and independent of any persuasion. The test was whether the department acted in breach of its own policies or that it acted bad faith, with an improper motive, malice or grossly unreasonably. By reference to SAPS v Safety & Security Sectoral Bargaining Council & others (2010) 31 ILJ 2711 (LC),  8 BLLR 892 (LC) the court said that it is not the place of an arbitrator to instruct an employer to promote a candidate into a position. The onus was on the Employee to prove that he was not only a suitable candidate, but a better one than competing candidates. I approach this matter with the principles in SAPS v Safety & Security Sectoral Bargaining Council & others  8 BLLR 892 (LC) (review application) the Court held that:
(i) decisions on promotion should be made in a manner that does not constitute an unfair labour practice; (ii) the definition of unfair labour practice covers only disputes concerning promotion, and does not extend to disputes over whether employees deserved to be promoted; (iii) the decision whether or not to promote falls within an employer’s discretion, which should not be interfered with in the absence of gross unreasonableness or bad faith; (iv) arbitrators should not usurp the discretion of employers by deciding who is the best candidate; (v) the mere fact that an employee has been acting in a post does not give the employee a right to be permanently appointed to it; (vi) in deciding on whether decisions not to promote constitute unfair labour practices, arbitrators must strike a balance between the employer’s prerogative and employees’ right to be treated fairly.
42. In this case the decision to promote was done in a fair and unbiased manner. The Applicant has not demonstrated gross unreasonableness or bad faith hence it is not my decision as to who was the best candidate but rather whether such a decision was fair. Accordingly, I find that the decision to promote Jiyane was not unfair or unreasonable, hence there was no unfair labour practice committed.
I make the following award:
43. The application is dismissed
ELRC Commissioner : VEESLA SONI
Date : 4 March 2022