PSES115-18/19WC
Text
ELRC423-21/22GP
Award Date:
06 May 2022
Commissioner: Grace Mafa-Chali
Case No.: ELRC423-21/22GP
Date of Award: 06 May 2022
In the ARBITRATION between:
DORCUS NAUME MOLEPO
(Applicant)
AND
DEPARTMENT OF EDUCATION-GAUTENG
( 1st Respondent)
AND
ROBERT NETSHIVHANGANI
( 2nd Respondent)
THE DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held on 07 February 2022, 11 April 2022 and finalized on 12 April 2022 on a Zoom virtual platform.
2. The Applicant was represented by SADTU Official, Mr Brian Moyo.
3. The First Respondent was represented by Ms Maropeng Morena on 07 February 2022 and on 11 February 2022 and 12 April 2022 represented by Mr Motsiri Hlapolosa.
4. The Second Respondent represented himself. The proceedings were manually and digitally recorded.
5. At the end of the proceedings, parties requested to submit their written closing arguments and were directed to do so by 19 April 2022. All the parties obliged with their submissions on time, which have been considered hereunder in my analysis and findings.
6. Parties submitted the joint bundles of documents marked Bundle “A”.
ISSUES TO BE DECIDED
7. I must determine whether or not the First Respondent committed unfair labour practice against the Applicant in terms of Section 186 (2) of the Labour Relations Act 66 of 1995, as amended (the LRA).
8. If so, to determine the appropriate relief.
BACKGROUND TO THE DISPUTE
9. The Applicant was employed on 01 January 2001 at Allanridge Secondary School as a Post Level 1 Educator. She was promoted to the Head of Department on 01 January 2006 and later appointed as Deputy Principal on 12 January 2017.
10. The Applicant earns a basic salary of R37 256.25 per month.
11. On 01 October 2020 to 31 December 2020 and 01 April 2021 to 30 June 2021, the Applicant was appointed in the position of Acting Principal at a salary notch of R700 782.00 per annum at Post Level 5.
12. The position of principal was advertised on 05 October 2020 and five (5) candidates were shortlisted. However, only four (4) candidates attended the interviews including the Applicant and the Second Respondent.
13. The Second Respondent was recommended by the interview panel for the appointment as the Principal at Allanridge Secondary School and subsequently appointed with effect from 05 July 2021.
14. It was common cause that the Applicant was interviewed but not appointed to the position.
15. The Applicant challenged her non-appointment on the basis that a Circular 09 of 2020 was not implemented in the recruitment process. Circular 09 of 2020, dated 09 October 2020 deals with the implementation of the Department’s Equity Plan.
16. The First Respondent submitted and argued that Circular 9 of 2020 was implemented in the appointments. The Second Respondent elected not to present oral evidence but participated in the cross-examination of the witnesses and also submitted the written closing arguments.
17. The Applicant sought relief of the re-advertisement of the position as recommended by the Head of Department (HOD), Edward Mosuwe.
SURVEY OF PARTIES’ EVIDENCE
Applicant’s Evidence
Dorcus Naume Molepo testified under oath as follows:
18. She employed by the Department for 31 years. She applied for the position of a Principal at Allanridge Secondary School which was advertised on 05 October 2020.
19. The Department did not apply Circular 09 of 2020 in the appointment of the Second Respondent since in terms of the Employment Equity Plan (EE Plan) of the Department, females were not represented in the occupational level of Pricipalship and the target was not achieved. Reference was made to the Circular 09 of 2020 on pages 11 to 27 of Bundle A and in particular, clauses on introduction, purpose, employment equity process, numerical targets to be achieved over 3 years, roles and responsibilities of the Head of Department, of the Schools and School Governing Body (SGB) in the selection and appointment of staff in compliance with numerical targets/demographic goals as informed by the EE plan.
20. Reference was made to Page 31 of Bundle A, which is the letter by the District Director (DD), Ms S Molobi to the School Governing Body (SGB). The letter indicated that there are policy guidelines on Employment Equity and that African females are underrepresented in terms of the Department’s Equity plan and employment targets in terms of the occupational levels for pricipalship post and further that the grid requirements an achievement of 50% appointment of females as enshrined in Circular 09 of 2020.
21. The SGB shortlisted only 1 female and 4 (four) males and that was based on the scoring and considerations of Circular 9 of 2020, the SGB was requested to reconsider recommending one of the females interviewed on their preference list, failing which the SGB must motivate why the HOD should consider the preference list against the directives of Circular 9 of 2020 and the equity plan of the Department.
22. Reference was made to Page 33 of Bundle A, which is the motivation written by the SGB, as required by the DD on 04 March 2021 to motivate why they wanted to keep the recommended candidate.
23. The response of the SGB still did not address the DD’s letter and contents of Circular 9 of 2020 as females were still not accommodated.
24. The letter on Page 34 of Bundle A was read into record. It was a letter from the DD to the HOD, dated 10 March 2021. The letter was written after the motivation of the SGB dated 09 March 2021.
25. She became aware of the outcomes of the interviews on 08 July 2021 after the communication of the DD on Page 166 of Bundle A, letter dated 21 April 2021. The school stakeholders were told in the SGB meeting that the position will be advertised.
26. The Chairperson of the SGB, Gregory Masonte did a handover and the minutes are recorded on Page 147 of Bundle A, bullet 10 that they will redo the whole principal interview process.
27. Circular 9 of 2020 dated 13 October 2020 was read into record. The candidates shortlisted are not balanced in terms of gender (females and males) as there were 6 males and 5 females.
28. There was communication that was sent by the DD to announce the Principal but no other communication was received in response to the DD’s letter of 21 April 2021.
29. After the meeting of 08 July 2021, the new SGB wrote a letter to the DD and the HOD seeking clarity on the appointment of the new Principal. The letter on Page 157 of Bundle A dated 22 July 2021 was also addressed by the SGB to the DD regarding the appointment of the new principal Robert Netshivhangani. The letter requested the DD to halt the appointment of the new principal until the matter was resolved.
30. The response of the DD is on Page 155 of Bundle A indicating the proposal for the meeting to clarify the matter. The meeting never happened. There was also no response from the HOD on the SGB letter.
31. The Applicant seeks the relief that the post be advertised. The Applicant has suffered prejudice in that she was discriminated even though she has worked for the school as Acting Principal with thirty one (31) years of experience. Gender equity was not implemented and males were favoured over females by the interview panel.
Stephen Sibanda testified under oath as follows:
32. He is a P1 Educator at Allanridge Secondary School and also the current secretary of the SGB. His duties as a Secretary of the SGB includes attending SGB meetings, sitting down with the Chairperson of the SGB and the principal to map up the agenda for routine and urgent meetings as well as take minutes of the SGB meetings.
33. He was aware of the minutes on Page 145 of Bundle A, which he wrote for the meeting of the SGB wherein the outgoing SGB Chairperson handed over all issues, materials and policies to the new SGB.
34. Point 10 of the minutes on Page 147 was Sydney Masonte’s report (outgoing Chairperson). Mr Masonte indicated that seventy eight (780 applications were received, five(5) females applied and there was no dispute. He also referred to Circular 9 of 2020 and indicated that there were three (3) female candidates and one (1) was shortlisted and interviewed and as the file did not meet the requirements of Circular 9 of 2020, there were challenges and the SGB was given two (2) options. They were to either review and include the female candidate or write a motivation letter for the preferred candidate.
35. The recommendation of SGB was to redo the whole interview process. The minutes were signed by the secretary, the Acting Principal (the Applicant) and the new SGB Chairperson, Eunice Monyanyedi.
36. The SGB received correspondences from the Department stating that there were certain recommendations regarding the Pricipalship position and that new principal was introduced at the school. The new Principal introduction meeting was chaired by Mashishi.
37. Whilst there was a new Principal who was introduced, there is a contradictory statement on the letter on Page 151 of Bundle A that the SGB agreed to meet with the HOD regarding the appointment of the new Principal and the re-advertisement of the post.
38. The main reason to re-advertise the post was due to the non-adherence of Circular 9 of 2020. The letter was sent to the HOD’s secretary by email and another one sent to the DD, both on 22 July 2021. The letters are contained on Pages 154 and 155 of Bundle A. The DD responded after receiving the email and asked that she be allowed time to arrange a meeting with the SGB the following week. After the email, there was no further communication from the DD.
39. The SGB felt that they were not taken serious and were just bulldozed into the decisions of the Department without further consultations. In his view, the Applicant was not treated fairly. The process was not fair. Mashishi told them that they were out of order when they questioned the appointment of the new Principal whilst waiting for the HOD and the DD’s responses.
40. The letter on Page 160 of Bundle A was the letter from the Department that Masonte reported verbally about. At that time Masonte did not have the letter in his possession. He recorded in the minutes what was said in the letter by Masonte.
41. The Applicant closed her case.
The First Respondent’s Evidence
Sydney Gregory Masonte testified under oath as follows:
42. He was the Chairperson of the SGB and one of the panel members in the interviews of the Principal position. He was no longer the SGB member but just an ordinary member of the SGB.
43. He was aware that Circular 9 of 2020 seeks to achieve equality of the past and making sure that women are considered for positions during the recruitment process as there was under representation of women in the Principal positions.
44. In the position of Pricipalship under this dispute, they considered and implemented Circular 09 of 2020 in that they scored three (3) for women and one (1) for males during interviews. They had 78 candidates and 9 females who applied. The other two (2) female candidates were excluded from the shortlisted candidates as one was already aged sixty-two (62) and the other one was a PL 1 teacher. Only the Applicant was shortlisted for the interviews.
45. The Applicant’s performance during the interviews was below average and she was therefore not recommended in the top three (3). The Second Respondent was the best candidate and in position 1. The other two males Lekgwati and Choshi were in position two (2) and three (3) respectively. The Applicant was in position five (5) on the scoring compared to other candidates interviewed. The sixth candidate did not attend the interviews therefore the Applicant was last in the scoring list.
46. When considering the qualifications, the Second Respondent was highly qualified as he had achieved a course in School Management and Leadership and Honours Degree in Education, whereas the Applicant compared has a Degree for Learners with Special Needs which was not a relevant qualification for the position.
47. He denied that due to his negative attitude and bad treatment towards the Applicant when she was the Acting Principal, he influenced the panel members not to recommend the Applicant; since he came to the interviews with a preconceived decision against the Applicant. He furthermore denied that he could have influenced the panel members not to allocate their own individual and independent scores.
48. He could not remember why he could have said to the Applicant he would show her when he was referred to Page 137 of Bundle A which the Applicant sent an email regarding an incident of 3 and 4 December 2020 which involved him.
49. He emphasized that there were many incidents during the Applicant’s acting as the Principal that he interacted with her as she lacked leadership and experience and her school attendance was very poor. The SGB they could not get a lot done in her absence as the Principal of the school at the time.
50. He reiterated that his prior knowledge of the Applicant did not disadvantage her because the interviews were purely based on her qualifications and performance scores.
51. He was aware of the letter on Page 345 of Bundle A and the letter was directed to the SGB Chairperson and the DD. The letter of 21 April 2020 of the DD requested them to write a motivation to keep the preferred candidate.
52. He denied that the contents of the hand written notes reflected the correct information he reported in the meeting and further that the minutes were never adopted and the adoption would have corrected the incorrect recording even though it was signed by new Chairperson and the Secretary.
53. When the DD came to deliver the letter personally, the SGB explained to her that they could not bring the female as the Principal because of her lack of relevant qualifications as well as her interview performance. The DD gave them the chance to write a motivation for their preferred candidate and those were the prevailing circumstances they mentioned in the communication.
Mr Rinel Sing testified under oath as follows:
54. He is the Senior Education Specialist at the District Office and was involved in the recruitment of the Pricipalship at Allanridge Secondary School.
55. He was one of the panel members representing the Department. He was aware of the Circular 9 of 2020 and its intention to address the imbalances of the past in terms of gender. The females were underrepresented and they considered that as females were allocated a score of three (3) whereas they allocated a score of one (1) for males
56. They also looked at the shortlist criteria which included females. The panel was disadvantaged by the number of female candidates that applied as the number was six (6).
57. The Applicant’s performance during the interviews relative to other candidates interviewed was very poor because she gave short answers, few words and very little feedback. Her score was the lowest compared to the other candidates. The highest score was twenty-two (2) and the Applicant’s score was eleven point two (11.2), whilst the other two (2) were fifteen (15) and fourteen (14) respectively.
58. Their recommendations were informed by the candidates’ qualifications, criteria and management skills in high schools. The Second Respondent had a Bachelor in Education Honours and Education Leadership and Management qualification which was relevant to the position whereas the Applicant has a qualification in Special Education Needs which was irrelevant to the position because the school is a high school not a special school.
59. With his experience as a former Principal, he was involved in shortlisting and interview process and was delegated powers to represent the HOD by the D D and he believed that he achieved his delegated powers in shortlisting female candidates and allocating three (3) scores to females and one(1) for males in order to achieve the objectives of Circular 9 of 2020.
60. They asked all candidates same questions during the interviews and did not differentiate whether it was a man or woman and same allocation of time was given during the interviews.
61. He was aware of any policy in the Department that did not allow them to interview a person of fifty-eight 58 years and PL1 teachers and Primary School Principals and he denied that it was discrimination on females.
62. He emphasized that the advertisement required management and leadership in the job type of secondary school not primary school as their job descriptions are not the same and further that the curriculum of primary school is not the same as that of the secondary school.
63. Women were involved in the process as they were shortlisted and interviewed for the position. He could not agree or disagree with the contents of the DD letter as it was not intended for him and he was not aware of it because he saw it for the first time in the arbitration process. They could not just merely put women in the position and remove men because they were guided by the criteria in the gazette and the performance scores during the interviews.
64. He believed that the interviews process was 100% free and fair as there were females in their panel and they also interviewed females.
65. The First Respondent closed its case.
Second Respondent’s Evidence
66. The Second Respondent, Robert Netshivhangani did not present his evidence.
ANALYSIS OF PARTIES’ EVIDENCE AND ARGUMENTS
67. The Applicant referred an unfair labour practice dispute relating to promotion in terms of section 186(2(a) of the LRA.
68. Section 186(2) of the LRA defines an unfair labour practice as meaning inter alia:
(2) “Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving:
(a) an unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason related to probation) or training of an employee or relating to the provision of benefits to an employee;…..”
69. The LRA requires employers to treat employees fairly when they apply for promotions. An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all the elements of the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair. Fairness requires that the position and interests of both the employee and employer are taken into account in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the LRA.
70. The Applicant submitted in her evidence that the First Respondent appointed the Second Respondent and did not take into account the provisions of Circular 09 of 2020 in that it failed to consider the Employment Equity Plan of the Department and to consider the Applicant for appointment since females were not represented in the occupational level of pricipalship and that target has not been achieved by the Respondent. It was not in dispute that the Second respondent scored higher and was appointed to the post.
71. The Applicant presented the correspondence from the DD to the SGB Chairperson of Allanridge Secondary on 04 March 2021 in which she indicated the policy guidelines on employment equity and underrepresentation of females in the occupational level of Pricipalship post. The DD requested the SGB to reconsider the recommendations to one of the females interviewed on their preference list or motivate to the HOD why to consider the preferred list against the directives of Circular 9 of 2020.
72. Another communication dated 21 April 2021 from the DD to the SGB Chairperson was also presented by the Applicant in her evidence and it still reiterated the position and view of the DD and HOD and furthermore recommended that the post be advertised.
73. The Respondent however presented oral evidence of the former Chairperson of the SGB, Masonte, who was also part of the interview panel and testified that they considered the provisions of Circular 09 of 2020 in that they shortlisted female candidates who met the criteria and during the interviews they allocated females a score of three (3) and males a score of one (1).
74. The Respondent also tendered the evidence of Rinel Sing, the Senior Education Specialist who corroborated the evidence of Masonte in how they considered the provisions of Circular 09 of 2020 in the recruitment process and recommendations of the preferred candidates.
75. Both witnesses of the Respondent Masonte and Sing submitted that the Applicant’s performance during the interviews was very poor in that she scored the lowest of all the candidates interviewed and was also not one of the top three (3) candidates preferred and that the Second Respondent scored the highest score over and above the fact that he possessed the relevant high qualifications including Honours Degree in Education and a course in School Leadership and Management which the Applicant did not possess; whereas the Applicant possesses a Degree in Learners with Special Needs which was irrelevant for the position.
76. The Applicant argued that due to the bad working relationship with the Applicant, abused treatment and threats, his knowledge of alleged poor attendance by the Applicant, Masonte was biased in scoring the Applicant in the interviews and also influenced the other panel members because he believed that the Applicant. As there was no sufficient tangible evidence to support these allegations and arguments by the Applicant, I find that they are merely speculations and misconceptions.
77. It was common cause that the Applicant did not challenge her interview scores and those obtained by the candidates who were interviewed with her including the Second Respondent. However, the Applicant in her arguments raised new evidence which was intended to argue her good performance at the school, her contribution towards the achievement of the pass rate, and her work experience and years of service; against the allocated scores by the interview panel. I will not consider the arguments because they have not been supported by presentation of evidence during the proceedings and have not been canvassed with the Respondents’ witnesses.
78. It is my considered view that merely because the Second Respondent’s interview score was the highest, in the absence of cogent evidence why the HOD should premise the decision to appoint solely on that rating, the scoring would not, per se, entitled him to the position. There would be all be other factors for consideration like the relevant qualifications and work experience and in this case certainly also the considerations of Circular 09 of 2020.
79. The main question for determination therefore is whether or not the interview panel considered Circular 9 of 2020 in the recruitment process that led to the appointment of the Second Respondent.
80. The starting point of the enquiry lies in the shortlisting. Clearly the Applicant met shortlisting criteria as she was shortlisted. I observed that indeed the Applicant was allocated three (3) scores on the shortlisting criteria no 1 on Equity, whereas all the other males shortlisted were scored a rating of one (1). I am therefore convinced that the equity criteria in terms of Circular 09 of 2020 was observed and the scoring has clearly advantaged female candidates against the male candidates shortlisted.
81. In so far as the recommendations for the preferred candidate were concerned, besides the oral testimony of the First Respondent’s witnesses to the effect that Circular 09 of 2020 was adhered to, I have not been presented with the evidence to show how the Circular 09 pf 2020 was adhered to, and not even the documentary evidence in the form of recommendations by the interview panel to the DD. The memo submitted in evidence dated 10 March 2021 from the DD to the HOD mentioned that the SGB submitted recommendations to the district office for the appointment of the Principal, which she scrutinized and observed that they did not adhere to the Employment Equity plan of the Department as Circular 09 of 2020 in terms of underrepresentation of gender (female Principals),
82. It is clear that the DD sent communication dated 04 March 2021 to the SGB Chairperson advising the SGB to reconsider the recommending one of the female candidates interviewed on their preference list or submit a motivation to the HOD to consider the preference list against the directives of Circular 09 of 2020. The DD indicated to the HOD that the SGB was adamant of their preferred candidate and submitted the motivation in that respect.
83. My understanding from the DD was that if the SGB opted for the motivation of the preferred list, it must actually submit motivation for the deviation from the Equity Plan targets for this occupational level of pricipalship stipulating good reasons for the HOD to consider for approval process.
84. The SGB opted to submit the motivation as it was adamant that it would still want to keep the preferred list. I have perused the response of the SGB with the motivation dated 09 March 2021, which still did not address the concerns of the DD with regard to the adherence to the Circular 09 of 2020. The response made reference to the prevailing circumstances which were also not specified or articulated in the motivation letter. The motivation letter is silent on the SGB’s consideration of Circular 09 of 2020. This is the basis on which the HOD did not approve the recommendations and advised that the SGB must comply with the Department’s policy requirement and equity.
85. Although Masonte submitted evidence that Paragraph 10 of the minutes of the SGB hand over meeting dated 13 May 2021 were not correct and further that they have not be ratified by the SGB, I reject this submission since I observed that paragraph 10 has correctly recorded what the DD advised the SGB in her letter dated 04 March 2021 and in particular her observation that the SGB file recommendation did not meet the requirements of Circular 09 of 202 and the two suggestions given by the DD to review the preferred list of candidate or to write a motivation letter for the preferred candidate were also stated in the minutes.
86. I regard the minutes as valid as I observed that they have been signed by the new SGB Chairperson Eunice Monyanyedi and the Applicant who was the Acting Principal at that time as well as the SGB secretary Stephen Sibanda, who have testimony on these minutes and the context in which Masonte presented the information to the SGB even though he did not have the letter at the meeting. I therefore agree with the Applicant’s arguments that the minutes were authentic.
87. I am therefore not convinced by the explanation of the Respondent that the provisions of Circular 09 of 2020 were considered without presentation of the documentary evidence that shows that in their recommendations of the DD for the HOD’s approval. I cannot accept the Respondent’s evidence in that respect as it was clear that the DD observed the non-adherence with the Circular 09 of 2020 in their SGB recommendations in the letters I specified above and I have not been presented with any evidence by the SGB that indicated to the DD that there has been such adherence to the circular and in what respect. Instead they opted to do the motivation for deviation which still in my view did not address the concerns that Circular 09 of 2020 been observed in the recommendations of the SGB.
88. I fully understand that the DD merely advised and recommended into the SGB, which then had a responsibility to have a high insight into the concerns raised by the DD as a senior official of the Department with the responsibility to monitor compliance with the policies of the Department. The SGB also had a similar responsibility to implement the policies of the Department including the implementation of the Employment Equity plan as stipulated in Circular 09 of 2020.
89. As correctly argued by the Applicant, Sing as the HOD representative of the Department did not execute his delegated functions in the selection and recruitment process. It is very surprising that he did not even give a report to the DD about the outcome of the interview process. I find that his main role was to advise the SGB and the interview panel on the importance of the policy requirements in terms on equity but he dismally failed to do so.
90. It is still mindboggling for me to eventually be presented with the approval of the HOD on page 42C of Bundle A for the appointment of the Second Respondent dated 24 June 2021 indicating the acceptance of the revised motivation submitted by the DD when the same HOD, on 08 April 2021 indicated that failure to consider Circular 09 of 2020 made the process incomplete as required and directing the SGB to consider all necessary policy requirements on equity.
91. I cannot accept the HOD’s decision of 24 June 2021 without the supporting documentation of the revised motivation that made him to make a decision that he later accepted the revised motivation as I do not have such evidence before me. I must emphasize that do not have the evidence of the DD or the HOD to substantiate how the decision of 24 June 2021 was made and what informed such decision. If there was subsequent compliance with the circular, the Respondent should have presented such evidence. However, the signed recommendation by the HOD with the notes does not suffice to make such a conclusion that Circular 09 of 2020 was eventually adhered to by the SGB.
92. It is my understanding that adherence to the provisions of Circular 09 of 2020 did not necessarily imply that the female candidate must be recommended regardless of the shortlisting and interview criteria as well as the performances of the candidates during the interviews. If the female candidate is not considered as a preferred candidate for any particular reasons after considerations of the circular, they must be specified in the recommendations including what the panel considered in terms of the Circular 09 of 2020. The only reasons the interview panel gave for not recommending the Applicant was her irrelevant qualifications in terms of the criteria and her poor performance during the interviews as compared to the other three preferred candidates.
93. It is understandable from the First Respondent’s arguments that there may have been a challenge as there were few female candidates that applied and may have not met the shortlisting criteria. I will not canvass this argument further as I have not been presented with full evidence to support this version and more in particular because the said candidate are not parties to this dispute in challenging their non-appointment; but I have observed that the Applicant challenged this piece of evidence by the First Respondent and argued that it was discrimination against female candidates.
94. I take into consideration that while the Employment Equity Act allows for preferential treatment for the promotion of employees who are from the designated groups including women, it is not an absolute barrier to the prospective or continued employment or advancement of persons who are not from the designated groups. However, the employers in deviating from its own employment equity plan must be able to show that there have been considerations of its own equity plan and policy provisions like in this instance Circular 09 of 2020 which also seeks to promote equal opportunities and fair treatment in employment through elimination of unfair discrimination and in particular ensuring that EAP targets of the First Respondent are achieved in the selection and appointment of staff.
95. The Circular also provides that the schools and the SGB have a responsibility to assist the First Respondent to achieve its targets and address the EE targets in applying the recruitment and selection guidelines of the First Respondent. Specifically, Clause 8.7 of the Circular requires the schools and the SGB to ensure that in all recommendations it address the underrepresentation according to race, gender and occupational level. It is my considered view that based on the evidence presented to me by the First Respondent, it has not been able to prove to me that there were any recommendations that addressed the provisions of Clause 8.7 of the Circular in this matter.
96. The Second Respondent submitted very short arguments and prayed that in making a determination of this matter, I must consider the financial implications that may affect him, that he was scored the highest which showed that he performed better, the period that he has already spent at Allanridge Secondary School and the fact the it is not the DD that appoints the Principal but the HOD. I will take into account all these considerations in my findings in so far as they are relevant in the adjudication of this dispute.
97. I therefore make a finding that the Applicant has succeeded to prove that in appointing the Second Respondent, the First Respondent did not comply with its own policy provisions and in particular Circular 09 of 2020 and that amounted to unfair labour practice. The First Respondent found it very difficult prove that the decision not to appoint the Applicant was rational in so far as the application of Circular was concerned over and above the holistic assessment of her qualifications, or her suitability for the pricipalship position against the other candidates and in particular the Second Respondent who was appointed as the preferred candidate.
98. In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held at par [79] “A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
99. In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held at [16] that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision- making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.
100. It may well be that the appointed candidate is the most suited for the position and would have been appointed in any event. But without the observance of the proper process, the appointment is fatally flawed and I find it unfair against the Applicant.
101. The Applicant sought the relief to set aside the appointment of the Second Respondent and further order that the position be advertised. The remedies for unfair labour practice are wider than those of unfair dismissals for reinstatement, re-employment and compensation.
102. The re-advertisement of the position will consequently result in an order to set aside the irregular appointment of the incumbent. I have to take into account that the irregular appointment in this matter only came in so far as the interview process and recommendations are concerned not in selection process relating to non-adherence of the provisions of Circular 09 of 2020.
103. Having accepted the concession of the Applicant that she did not challenge the performance of the Second Respondent in the interviews and having satisfied from the evidence presented by the First Respondent that it reflected that the Second Respondent was the best suited candidate in terms of his performance and qualifications, and furthermore in consideration of the score sheets of the interview panel that have a huge score gap between the Applicant and the Second Respondent, it is my considered view that the even if the employment equity considerations of the Circular 09 of 2020 were present, the Applicant would not have been the preferred candidate for appointment, but could have perhaps been elevated in the top three (3) candidates.
104. Based on the above findings and considerations, the nature of the defect and the circumstances under which the flaws were committed, it is therefore my considered view that the solatium compensation shall be the appropriate relief under the circumstances to remedy the unfair conduct or act by the First Respondent against the Applicant for as a result of the procedural flaws of the Respondent for failing to comply with its own policy requirements, specifically Circular 09 of 2020 that gives effect to the purposes of one of the important legislations in the employment environment, ie the Employment Equity Act 55 of 1998, as amended (EEA). I regard this a serious infringement as it borders around discrimination which has the effect of undermining the fundamental dignity of the Employee, taking cognizance that the Employee’s dispute is not of unfair discrimination based on gender.
105. The EEA ensures that employees enjoy equal opportunity and fair treatment in the workplace and also protects employees from any form of discrimination by the employers on listed grounds including gender. The same legislation also requires the employers to take affirmative action measures designed to ensure that suitably qualified people from designated groups, including women have equal employment opportunities.
106. In making an award for the appropriate solatium compensation, I have considered the provisions of Clauses 71 to 76 of the Collective Agreement Number 3 of 2016 ELRC Guidelines: Promotion Arbitrations.
107. I will therefore order the First Respondent to pay the Applicant compensation in the amount of R40 000.00 (Forty Thousand Rands Only).
AWARD
108. I find that the First Respondent committed unfair labour practice against the Applicant.
109. I order the First Respondent to pay the Applicant compensation in the amount of R40 000.00 (Forty Thousand Rands Only).
110. The above-mentioned amount shall be payable by the First Respondent to the Applicant on or before 30 June 2022 and shall earn interest in terms of Section 143 (2) of the LRA at the prescribed rate from the date of payment if it remains unpaid.
Grace Mafa-Chali
ELRC Panellist
Case No.: ELRC423-21/22GP
Date of Award: 06 May 2022
In the ARBITRATION between:
DORCUS NAUME MOLEPO
(Applicant)
AND
DEPARTMENT OF EDUCATION-GAUTENG
( 1st Respondent)
AND
ROBERT NETSHIVHANGANI
( 2nd Respondent)
THE DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held on 07 February 2022, 11 April 2022 and finalized on 12 April 2022 on a Zoom virtual platform.
2. The Applicant was represented by SADTU Official, Mr Brian Moyo.
3. The First Respondent was represented by Ms Maropeng Morena on 07 February 2022 and on 11 February 2022 and 12 April 2022 represented by Mr Motsiri Hlapolosa.
4. The Second Respondent represented himself. The proceedings were manually and digitally recorded.
5. At the end of the proceedings, parties requested to submit their written closing arguments and were directed to do so by 19 April 2022. All the parties obliged with their submissions on time, which have been considered hereunder in my analysis and findings.
6. Parties submitted the joint bundles of documents marked Bundle “A”.
ISSUES TO BE DECIDED
7. I must determine whether or not the First Respondent committed unfair labour practice against the Applicant in terms of Section 186 (2) of the Labour Relations Act 66 of 1995, as amended (the LRA).
8. If so, to determine the appropriate relief.
BACKGROUND TO THE DISPUTE
9. The Applicant was employed on 01 January 2001 at Allanridge Secondary School as a Post Level 1 Educator. She was promoted to the Head of Department on 01 January 2006 and later appointed as Deputy Principal on 12 January 2017.
10. The Applicant earns a basic salary of R37 256.25 per month.
11. On 01 October 2020 to 31 December 2020 and 01 April 2021 to 30 June 2021, the Applicant was appointed in the position of Acting Principal at a salary notch of R700 782.00 per annum at Post Level 5.
12. The position of principal was advertised on 05 October 2020 and five (5) candidates were shortlisted. However, only four (4) candidates attended the interviews including the Applicant and the Second Respondent.
13. The Second Respondent was recommended by the interview panel for the appointment as the Principal at Allanridge Secondary School and subsequently appointed with effect from 05 July 2021.
14. It was common cause that the Applicant was interviewed but not appointed to the position.
15. The Applicant challenged her non-appointment on the basis that a Circular 09 of 2020 was not implemented in the recruitment process. Circular 09 of 2020, dated 09 October 2020 deals with the implementation of the Department’s Equity Plan.
16. The First Respondent submitted and argued that Circular 9 of 2020 was implemented in the appointments. The Second Respondent elected not to present oral evidence but participated in the cross-examination of the witnesses and also submitted the written closing arguments.
17. The Applicant sought relief of the re-advertisement of the position as recommended by the Head of Department (HOD), Edward Mosuwe.
SURVEY OF PARTIES’ EVIDENCE
Applicant’s Evidence
Dorcus Naume Molepo testified under oath as follows:
18. She employed by the Department for 31 years. She applied for the position of a Principal at Allanridge Secondary School which was advertised on 05 October 2020.
19. The Department did not apply Circular 09 of 2020 in the appointment of the Second Respondent since in terms of the Employment Equity Plan (EE Plan) of the Department, females were not represented in the occupational level of Pricipalship and the target was not achieved. Reference was made to the Circular 09 of 2020 on pages 11 to 27 of Bundle A and in particular, clauses on introduction, purpose, employment equity process, numerical targets to be achieved over 3 years, roles and responsibilities of the Head of Department, of the Schools and School Governing Body (SGB) in the selection and appointment of staff in compliance with numerical targets/demographic goals as informed by the EE plan.
20. Reference was made to Page 31 of Bundle A, which is the letter by the District Director (DD), Ms S Molobi to the School Governing Body (SGB). The letter indicated that there are policy guidelines on Employment Equity and that African females are underrepresented in terms of the Department’s Equity plan and employment targets in terms of the occupational levels for pricipalship post and further that the grid requirements an achievement of 50% appointment of females as enshrined in Circular 09 of 2020.
21. The SGB shortlisted only 1 female and 4 (four) males and that was based on the scoring and considerations of Circular 9 of 2020, the SGB was requested to reconsider recommending one of the females interviewed on their preference list, failing which the SGB must motivate why the HOD should consider the preference list against the directives of Circular 9 of 2020 and the equity plan of the Department.
22. Reference was made to Page 33 of Bundle A, which is the motivation written by the SGB, as required by the DD on 04 March 2021 to motivate why they wanted to keep the recommended candidate.
23. The response of the SGB still did not address the DD’s letter and contents of Circular 9 of 2020 as females were still not accommodated.
24. The letter on Page 34 of Bundle A was read into record. It was a letter from the DD to the HOD, dated 10 March 2021. The letter was written after the motivation of the SGB dated 09 March 2021.
25. She became aware of the outcomes of the interviews on 08 July 2021 after the communication of the DD on Page 166 of Bundle A, letter dated 21 April 2021. The school stakeholders were told in the SGB meeting that the position will be advertised.
26. The Chairperson of the SGB, Gregory Masonte did a handover and the minutes are recorded on Page 147 of Bundle A, bullet 10 that they will redo the whole principal interview process.
27. Circular 9 of 2020 dated 13 October 2020 was read into record. The candidates shortlisted are not balanced in terms of gender (females and males) as there were 6 males and 5 females.
28. There was communication that was sent by the DD to announce the Principal but no other communication was received in response to the DD’s letter of 21 April 2021.
29. After the meeting of 08 July 2021, the new SGB wrote a letter to the DD and the HOD seeking clarity on the appointment of the new Principal. The letter on Page 157 of Bundle A dated 22 July 2021 was also addressed by the SGB to the DD regarding the appointment of the new principal Robert Netshivhangani. The letter requested the DD to halt the appointment of the new principal until the matter was resolved.
30. The response of the DD is on Page 155 of Bundle A indicating the proposal for the meeting to clarify the matter. The meeting never happened. There was also no response from the HOD on the SGB letter.
31. The Applicant seeks the relief that the post be advertised. The Applicant has suffered prejudice in that she was discriminated even though she has worked for the school as Acting Principal with thirty one (31) years of experience. Gender equity was not implemented and males were favoured over females by the interview panel.
Stephen Sibanda testified under oath as follows:
32. He is a P1 Educator at Allanridge Secondary School and also the current secretary of the SGB. His duties as a Secretary of the SGB includes attending SGB meetings, sitting down with the Chairperson of the SGB and the principal to map up the agenda for routine and urgent meetings as well as take minutes of the SGB meetings.
33. He was aware of the minutes on Page 145 of Bundle A, which he wrote for the meeting of the SGB wherein the outgoing SGB Chairperson handed over all issues, materials and policies to the new SGB.
34. Point 10 of the minutes on Page 147 was Sydney Masonte’s report (outgoing Chairperson). Mr Masonte indicated that seventy eight (780 applications were received, five(5) females applied and there was no dispute. He also referred to Circular 9 of 2020 and indicated that there were three (3) female candidates and one (1) was shortlisted and interviewed and as the file did not meet the requirements of Circular 9 of 2020, there were challenges and the SGB was given two (2) options. They were to either review and include the female candidate or write a motivation letter for the preferred candidate.
35. The recommendation of SGB was to redo the whole interview process. The minutes were signed by the secretary, the Acting Principal (the Applicant) and the new SGB Chairperson, Eunice Monyanyedi.
36. The SGB received correspondences from the Department stating that there were certain recommendations regarding the Pricipalship position and that new principal was introduced at the school. The new Principal introduction meeting was chaired by Mashishi.
37. Whilst there was a new Principal who was introduced, there is a contradictory statement on the letter on Page 151 of Bundle A that the SGB agreed to meet with the HOD regarding the appointment of the new Principal and the re-advertisement of the post.
38. The main reason to re-advertise the post was due to the non-adherence of Circular 9 of 2020. The letter was sent to the HOD’s secretary by email and another one sent to the DD, both on 22 July 2021. The letters are contained on Pages 154 and 155 of Bundle A. The DD responded after receiving the email and asked that she be allowed time to arrange a meeting with the SGB the following week. After the email, there was no further communication from the DD.
39. The SGB felt that they were not taken serious and were just bulldozed into the decisions of the Department without further consultations. In his view, the Applicant was not treated fairly. The process was not fair. Mashishi told them that they were out of order when they questioned the appointment of the new Principal whilst waiting for the HOD and the DD’s responses.
40. The letter on Page 160 of Bundle A was the letter from the Department that Masonte reported verbally about. At that time Masonte did not have the letter in his possession. He recorded in the minutes what was said in the letter by Masonte.
41. The Applicant closed her case.
The First Respondent’s Evidence
Sydney Gregory Masonte testified under oath as follows:
42. He was the Chairperson of the SGB and one of the panel members in the interviews of the Principal position. He was no longer the SGB member but just an ordinary member of the SGB.
43. He was aware that Circular 9 of 2020 seeks to achieve equality of the past and making sure that women are considered for positions during the recruitment process as there was under representation of women in the Principal positions.
44. In the position of Pricipalship under this dispute, they considered and implemented Circular 09 of 2020 in that they scored three (3) for women and one (1) for males during interviews. They had 78 candidates and 9 females who applied. The other two (2) female candidates were excluded from the shortlisted candidates as one was already aged sixty-two (62) and the other one was a PL 1 teacher. Only the Applicant was shortlisted for the interviews.
45. The Applicant’s performance during the interviews was below average and she was therefore not recommended in the top three (3). The Second Respondent was the best candidate and in position 1. The other two males Lekgwati and Choshi were in position two (2) and three (3) respectively. The Applicant was in position five (5) on the scoring compared to other candidates interviewed. The sixth candidate did not attend the interviews therefore the Applicant was last in the scoring list.
46. When considering the qualifications, the Second Respondent was highly qualified as he had achieved a course in School Management and Leadership and Honours Degree in Education, whereas the Applicant compared has a Degree for Learners with Special Needs which was not a relevant qualification for the position.
47. He denied that due to his negative attitude and bad treatment towards the Applicant when she was the Acting Principal, he influenced the panel members not to recommend the Applicant; since he came to the interviews with a preconceived decision against the Applicant. He furthermore denied that he could have influenced the panel members not to allocate their own individual and independent scores.
48. He could not remember why he could have said to the Applicant he would show her when he was referred to Page 137 of Bundle A which the Applicant sent an email regarding an incident of 3 and 4 December 2020 which involved him.
49. He emphasized that there were many incidents during the Applicant’s acting as the Principal that he interacted with her as she lacked leadership and experience and her school attendance was very poor. The SGB they could not get a lot done in her absence as the Principal of the school at the time.
50. He reiterated that his prior knowledge of the Applicant did not disadvantage her because the interviews were purely based on her qualifications and performance scores.
51. He was aware of the letter on Page 345 of Bundle A and the letter was directed to the SGB Chairperson and the DD. The letter of 21 April 2020 of the DD requested them to write a motivation to keep the preferred candidate.
52. He denied that the contents of the hand written notes reflected the correct information he reported in the meeting and further that the minutes were never adopted and the adoption would have corrected the incorrect recording even though it was signed by new Chairperson and the Secretary.
53. When the DD came to deliver the letter personally, the SGB explained to her that they could not bring the female as the Principal because of her lack of relevant qualifications as well as her interview performance. The DD gave them the chance to write a motivation for their preferred candidate and those were the prevailing circumstances they mentioned in the communication.
Mr Rinel Sing testified under oath as follows:
54. He is the Senior Education Specialist at the District Office and was involved in the recruitment of the Pricipalship at Allanridge Secondary School.
55. He was one of the panel members representing the Department. He was aware of the Circular 9 of 2020 and its intention to address the imbalances of the past in terms of gender. The females were underrepresented and they considered that as females were allocated a score of three (3) whereas they allocated a score of one (1) for males
56. They also looked at the shortlist criteria which included females. The panel was disadvantaged by the number of female candidates that applied as the number was six (6).
57. The Applicant’s performance during the interviews relative to other candidates interviewed was very poor because she gave short answers, few words and very little feedback. Her score was the lowest compared to the other candidates. The highest score was twenty-two (2) and the Applicant’s score was eleven point two (11.2), whilst the other two (2) were fifteen (15) and fourteen (14) respectively.
58. Their recommendations were informed by the candidates’ qualifications, criteria and management skills in high schools. The Second Respondent had a Bachelor in Education Honours and Education Leadership and Management qualification which was relevant to the position whereas the Applicant has a qualification in Special Education Needs which was irrelevant to the position because the school is a high school not a special school.
59. With his experience as a former Principal, he was involved in shortlisting and interview process and was delegated powers to represent the HOD by the D D and he believed that he achieved his delegated powers in shortlisting female candidates and allocating three (3) scores to females and one(1) for males in order to achieve the objectives of Circular 9 of 2020.
60. They asked all candidates same questions during the interviews and did not differentiate whether it was a man or woman and same allocation of time was given during the interviews.
61. He was aware of any policy in the Department that did not allow them to interview a person of fifty-eight 58 years and PL1 teachers and Primary School Principals and he denied that it was discrimination on females.
62. He emphasized that the advertisement required management and leadership in the job type of secondary school not primary school as their job descriptions are not the same and further that the curriculum of primary school is not the same as that of the secondary school.
63. Women were involved in the process as they were shortlisted and interviewed for the position. He could not agree or disagree with the contents of the DD letter as it was not intended for him and he was not aware of it because he saw it for the first time in the arbitration process. They could not just merely put women in the position and remove men because they were guided by the criteria in the gazette and the performance scores during the interviews.
64. He believed that the interviews process was 100% free and fair as there were females in their panel and they also interviewed females.
65. The First Respondent closed its case.
Second Respondent’s Evidence
66. The Second Respondent, Robert Netshivhangani did not present his evidence.
ANALYSIS OF PARTIES’ EVIDENCE AND ARGUMENTS
67. The Applicant referred an unfair labour practice dispute relating to promotion in terms of section 186(2(a) of the LRA.
68. Section 186(2) of the LRA defines an unfair labour practice as meaning inter alia:
(2) “Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving:
(a) an unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason related to probation) or training of an employee or relating to the provision of benefits to an employee;…..”
69. The LRA requires employers to treat employees fairly when they apply for promotions. An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all the elements of the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair. Fairness requires that the position and interests of both the employee and employer are taken into account in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the LRA.
70. The Applicant submitted in her evidence that the First Respondent appointed the Second Respondent and did not take into account the provisions of Circular 09 of 2020 in that it failed to consider the Employment Equity Plan of the Department and to consider the Applicant for appointment since females were not represented in the occupational level of pricipalship and that target has not been achieved by the Respondent. It was not in dispute that the Second respondent scored higher and was appointed to the post.
71. The Applicant presented the correspondence from the DD to the SGB Chairperson of Allanridge Secondary on 04 March 2021 in which she indicated the policy guidelines on employment equity and underrepresentation of females in the occupational level of Pricipalship post. The DD requested the SGB to reconsider the recommendations to one of the females interviewed on their preference list or motivate to the HOD why to consider the preferred list against the directives of Circular 9 of 2020.
72. Another communication dated 21 April 2021 from the DD to the SGB Chairperson was also presented by the Applicant in her evidence and it still reiterated the position and view of the DD and HOD and furthermore recommended that the post be advertised.
73. The Respondent however presented oral evidence of the former Chairperson of the SGB, Masonte, who was also part of the interview panel and testified that they considered the provisions of Circular 09 of 2020 in that they shortlisted female candidates who met the criteria and during the interviews they allocated females a score of three (3) and males a score of one (1).
74. The Respondent also tendered the evidence of Rinel Sing, the Senior Education Specialist who corroborated the evidence of Masonte in how they considered the provisions of Circular 09 of 2020 in the recruitment process and recommendations of the preferred candidates.
75. Both witnesses of the Respondent Masonte and Sing submitted that the Applicant’s performance during the interviews was very poor in that she scored the lowest of all the candidates interviewed and was also not one of the top three (3) candidates preferred and that the Second Respondent scored the highest score over and above the fact that he possessed the relevant high qualifications including Honours Degree in Education and a course in School Leadership and Management which the Applicant did not possess; whereas the Applicant possesses a Degree in Learners with Special Needs which was irrelevant for the position.
76. The Applicant argued that due to the bad working relationship with the Applicant, abused treatment and threats, his knowledge of alleged poor attendance by the Applicant, Masonte was biased in scoring the Applicant in the interviews and also influenced the other panel members because he believed that the Applicant. As there was no sufficient tangible evidence to support these allegations and arguments by the Applicant, I find that they are merely speculations and misconceptions.
77. It was common cause that the Applicant did not challenge her interview scores and those obtained by the candidates who were interviewed with her including the Second Respondent. However, the Applicant in her arguments raised new evidence which was intended to argue her good performance at the school, her contribution towards the achievement of the pass rate, and her work experience and years of service; against the allocated scores by the interview panel. I will not consider the arguments because they have not been supported by presentation of evidence during the proceedings and have not been canvassed with the Respondents’ witnesses.
78. It is my considered view that merely because the Second Respondent’s interview score was the highest, in the absence of cogent evidence why the HOD should premise the decision to appoint solely on that rating, the scoring would not, per se, entitled him to the position. There would be all be other factors for consideration like the relevant qualifications and work experience and in this case certainly also the considerations of Circular 09 of 2020.
79. The main question for determination therefore is whether or not the interview panel considered Circular 9 of 2020 in the recruitment process that led to the appointment of the Second Respondent.
80. The starting point of the enquiry lies in the shortlisting. Clearly the Applicant met shortlisting criteria as she was shortlisted. I observed that indeed the Applicant was allocated three (3) scores on the shortlisting criteria no 1 on Equity, whereas all the other males shortlisted were scored a rating of one (1). I am therefore convinced that the equity criteria in terms of Circular 09 of 2020 was observed and the scoring has clearly advantaged female candidates against the male candidates shortlisted.
81. In so far as the recommendations for the preferred candidate were concerned, besides the oral testimony of the First Respondent’s witnesses to the effect that Circular 09 of 2020 was adhered to, I have not been presented with the evidence to show how the Circular 09 pf 2020 was adhered to, and not even the documentary evidence in the form of recommendations by the interview panel to the DD. The memo submitted in evidence dated 10 March 2021 from the DD to the HOD mentioned that the SGB submitted recommendations to the district office for the appointment of the Principal, which she scrutinized and observed that they did not adhere to the Employment Equity plan of the Department as Circular 09 of 2020 in terms of underrepresentation of gender (female Principals),
82. It is clear that the DD sent communication dated 04 March 2021 to the SGB Chairperson advising the SGB to reconsider the recommending one of the female candidates interviewed on their preference list or submit a motivation to the HOD to consider the preference list against the directives of Circular 09 of 2020. The DD indicated to the HOD that the SGB was adamant of their preferred candidate and submitted the motivation in that respect.
83. My understanding from the DD was that if the SGB opted for the motivation of the preferred list, it must actually submit motivation for the deviation from the Equity Plan targets for this occupational level of pricipalship stipulating good reasons for the HOD to consider for approval process.
84. The SGB opted to submit the motivation as it was adamant that it would still want to keep the preferred list. I have perused the response of the SGB with the motivation dated 09 March 2021, which still did not address the concerns of the DD with regard to the adherence to the Circular 09 of 2020. The response made reference to the prevailing circumstances which were also not specified or articulated in the motivation letter. The motivation letter is silent on the SGB’s consideration of Circular 09 of 2020. This is the basis on which the HOD did not approve the recommendations and advised that the SGB must comply with the Department’s policy requirement and equity.
85. Although Masonte submitted evidence that Paragraph 10 of the minutes of the SGB hand over meeting dated 13 May 2021 were not correct and further that they have not be ratified by the SGB, I reject this submission since I observed that paragraph 10 has correctly recorded what the DD advised the SGB in her letter dated 04 March 2021 and in particular her observation that the SGB file recommendation did not meet the requirements of Circular 09 of 202 and the two suggestions given by the DD to review the preferred list of candidate or to write a motivation letter for the preferred candidate were also stated in the minutes.
86. I regard the minutes as valid as I observed that they have been signed by the new SGB Chairperson Eunice Monyanyedi and the Applicant who was the Acting Principal at that time as well as the SGB secretary Stephen Sibanda, who have testimony on these minutes and the context in which Masonte presented the information to the SGB even though he did not have the letter at the meeting. I therefore agree with the Applicant’s arguments that the minutes were authentic.
87. I am therefore not convinced by the explanation of the Respondent that the provisions of Circular 09 of 2020 were considered without presentation of the documentary evidence that shows that in their recommendations of the DD for the HOD’s approval. I cannot accept the Respondent’s evidence in that respect as it was clear that the DD observed the non-adherence with the Circular 09 of 2020 in their SGB recommendations in the letters I specified above and I have not been presented with any evidence by the SGB that indicated to the DD that there has been such adherence to the circular and in what respect. Instead they opted to do the motivation for deviation which still in my view did not address the concerns that Circular 09 of 2020 been observed in the recommendations of the SGB.
88. I fully understand that the DD merely advised and recommended into the SGB, which then had a responsibility to have a high insight into the concerns raised by the DD as a senior official of the Department with the responsibility to monitor compliance with the policies of the Department. The SGB also had a similar responsibility to implement the policies of the Department including the implementation of the Employment Equity plan as stipulated in Circular 09 of 2020.
89. As correctly argued by the Applicant, Sing as the HOD representative of the Department did not execute his delegated functions in the selection and recruitment process. It is very surprising that he did not even give a report to the DD about the outcome of the interview process. I find that his main role was to advise the SGB and the interview panel on the importance of the policy requirements in terms on equity but he dismally failed to do so.
90. It is still mindboggling for me to eventually be presented with the approval of the HOD on page 42C of Bundle A for the appointment of the Second Respondent dated 24 June 2021 indicating the acceptance of the revised motivation submitted by the DD when the same HOD, on 08 April 2021 indicated that failure to consider Circular 09 of 2020 made the process incomplete as required and directing the SGB to consider all necessary policy requirements on equity.
91. I cannot accept the HOD’s decision of 24 June 2021 without the supporting documentation of the revised motivation that made him to make a decision that he later accepted the revised motivation as I do not have such evidence before me. I must emphasize that do not have the evidence of the DD or the HOD to substantiate how the decision of 24 June 2021 was made and what informed such decision. If there was subsequent compliance with the circular, the Respondent should have presented such evidence. However, the signed recommendation by the HOD with the notes does not suffice to make such a conclusion that Circular 09 of 2020 was eventually adhered to by the SGB.
92. It is my understanding that adherence to the provisions of Circular 09 of 2020 did not necessarily imply that the female candidate must be recommended regardless of the shortlisting and interview criteria as well as the performances of the candidates during the interviews. If the female candidate is not considered as a preferred candidate for any particular reasons after considerations of the circular, they must be specified in the recommendations including what the panel considered in terms of the Circular 09 of 2020. The only reasons the interview panel gave for not recommending the Applicant was her irrelevant qualifications in terms of the criteria and her poor performance during the interviews as compared to the other three preferred candidates.
93. It is understandable from the First Respondent’s arguments that there may have been a challenge as there were few female candidates that applied and may have not met the shortlisting criteria. I will not canvass this argument further as I have not been presented with full evidence to support this version and more in particular because the said candidate are not parties to this dispute in challenging their non-appointment; but I have observed that the Applicant challenged this piece of evidence by the First Respondent and argued that it was discrimination against female candidates.
94. I take into consideration that while the Employment Equity Act allows for preferential treatment for the promotion of employees who are from the designated groups including women, it is not an absolute barrier to the prospective or continued employment or advancement of persons who are not from the designated groups. However, the employers in deviating from its own employment equity plan must be able to show that there have been considerations of its own equity plan and policy provisions like in this instance Circular 09 of 2020 which also seeks to promote equal opportunities and fair treatment in employment through elimination of unfair discrimination and in particular ensuring that EAP targets of the First Respondent are achieved in the selection and appointment of staff.
95. The Circular also provides that the schools and the SGB have a responsibility to assist the First Respondent to achieve its targets and address the EE targets in applying the recruitment and selection guidelines of the First Respondent. Specifically, Clause 8.7 of the Circular requires the schools and the SGB to ensure that in all recommendations it address the underrepresentation according to race, gender and occupational level. It is my considered view that based on the evidence presented to me by the First Respondent, it has not been able to prove to me that there were any recommendations that addressed the provisions of Clause 8.7 of the Circular in this matter.
96. The Second Respondent submitted very short arguments and prayed that in making a determination of this matter, I must consider the financial implications that may affect him, that he was scored the highest which showed that he performed better, the period that he has already spent at Allanridge Secondary School and the fact the it is not the DD that appoints the Principal but the HOD. I will take into account all these considerations in my findings in so far as they are relevant in the adjudication of this dispute.
97. I therefore make a finding that the Applicant has succeeded to prove that in appointing the Second Respondent, the First Respondent did not comply with its own policy provisions and in particular Circular 09 of 2020 and that amounted to unfair labour practice. The First Respondent found it very difficult prove that the decision not to appoint the Applicant was rational in so far as the application of Circular was concerned over and above the holistic assessment of her qualifications, or her suitability for the pricipalship position against the other candidates and in particular the Second Respondent who was appointed as the preferred candidate.
98. In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held at par [79] “A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
99. In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held at [16] that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision- making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.
100. It may well be that the appointed candidate is the most suited for the position and would have been appointed in any event. But without the observance of the proper process, the appointment is fatally flawed and I find it unfair against the Applicant.
101. The Applicant sought the relief to set aside the appointment of the Second Respondent and further order that the position be advertised. The remedies for unfair labour practice are wider than those of unfair dismissals for reinstatement, re-employment and compensation.
102. The re-advertisement of the position will consequently result in an order to set aside the irregular appointment of the incumbent. I have to take into account that the irregular appointment in this matter only came in so far as the interview process and recommendations are concerned not in selection process relating to non-adherence of the provisions of Circular 09 of 2020.
103. Having accepted the concession of the Applicant that she did not challenge the performance of the Second Respondent in the interviews and having satisfied from the evidence presented by the First Respondent that it reflected that the Second Respondent was the best suited candidate in terms of his performance and qualifications, and furthermore in consideration of the score sheets of the interview panel that have a huge score gap between the Applicant and the Second Respondent, it is my considered view that the even if the employment equity considerations of the Circular 09 of 2020 were present, the Applicant would not have been the preferred candidate for appointment, but could have perhaps been elevated in the top three (3) candidates.
104. Based on the above findings and considerations, the nature of the defect and the circumstances under which the flaws were committed, it is therefore my considered view that the solatium compensation shall be the appropriate relief under the circumstances to remedy the unfair conduct or act by the First Respondent against the Applicant for as a result of the procedural flaws of the Respondent for failing to comply with its own policy requirements, specifically Circular 09 of 2020 that gives effect to the purposes of one of the important legislations in the employment environment, ie the Employment Equity Act 55 of 1998, as amended (EEA). I regard this a serious infringement as it borders around discrimination which has the effect of undermining the fundamental dignity of the Employee, taking cognizance that the Employee’s dispute is not of unfair discrimination based on gender.
105. The EEA ensures that employees enjoy equal opportunity and fair treatment in the workplace and also protects employees from any form of discrimination by the employers on listed grounds including gender. The same legislation also requires the employers to take affirmative action measures designed to ensure that suitably qualified people from designated groups, including women have equal employment opportunities.
106. In making an award for the appropriate solatium compensation, I have considered the provisions of Clauses 71 to 76 of the Collective Agreement Number 3 of 2016 ELRC Guidelines: Promotion Arbitrations.
107. I will therefore order the First Respondent to pay the Applicant compensation in the amount of R40 000.00 (Forty Thousand Rands Only).
AWARD
108. I find that the First Respondent committed unfair labour practice against the Applicant.
109. I order the First Respondent to pay the Applicant compensation in the amount of R40 000.00 (Forty Thousand Rands Only).
110. The above-mentioned amount shall be payable by the First Respondent to the Applicant on or before 30 June 2022 and shall earn interest in terms of Section 143 (2) of the LRA at the prescribed rate from the date of payment if it remains unpaid.
Grace Mafa-Chali
ELRC Panellist