ELRC 400-21/22GP
Text
ELRC 400-21/22GP
Award Date:
31 May 2022
AT THE EDUCATION LABOUR RELATION COUNCIL
In the matter between:
JANE ANNA MOLEKWA APPLICANT
And
EDUCATION DEPARTMENT OF GAUTENG 1ST RESPONDENT
L.P MGWEVU 2ND RESPONDENT
ARBITRATION AWARD
CASE NUMBER: ELRC 400-21/22GP
DATE OF HEARING(S): 03 February 2022
02 March 2022
03 March 2022
06 April 2022
03 May 2022
04 May 2022
DATE AWARD SUBMITTED: 31 May 2022
NAME OF COMMISSIONER: ABNER CHOKWE
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing into an alleged unfair labour practice dispute referred in terms of Section 186(2)(a) of the Labour Relations Act as amended (“the LRA”) was held at Norwood District office of Education Department of Gauteng, 44 Wolfgang street, Johannesburg on 03 February,02, 03 March, 06 April, 03 May, and 04 May 2022.
2. The Applicant Ms. Jane Anna Molekwa was represented by Mr. Takalani Henry Ndou an attorney from T.H Ndou Attorneys. The first Respondent, Department of Education Gauteng was represented by Mr. Motsiri Hlapolosa its Labour Relations Official. The second Respondent, Ms. Lindiwe Portia Mgwevu was represented by Ms. Angelique Marais an attorney from Marais Attorneys.
3. The arbitration proceedings were digitally recorded.
4. A joined bundle of documents was submitted.
5. Pre-arbitration minutes conducted virtually via Zoom on 14 September 2021 were also submitted.
6. Ms. L.P Mgwevu the appointed candidate was joined as a second respondent.
7. At the close of the proceedings the parties requested an opportunity to submit closing arguments in writing and were granted until 16 May 2022 to do so. All three parties submitted closing arguments timeously.
PRELIMINARY ISSUES
8. No party raised preliminary issues during arbitration proceedings.
ISSUE TO BE DECIDED
9. I must determine whether certain candidates (including the second respondent and one other candidate but excluding the applicant) were provided with the interview questions before the interviews through whatsApp. Whether there was unfair conduct.
BACKGROUND TO THE ISSUE
10. The Applicant was employed by the first Respondent on 02 May 2007 as an Educator PL1. At the time of the dispute on 18 August 2021 she earned a gross salary of R23 645.07 per month. The Respondent is Education Department of Gauteng.
11. In terms of the pre-arbitration minutes the following issues were common cause:
- This was a promotion dispute which involved post number JE41ED1061 at Ponelopele High School, being the post of HOD (life sciences, physical sciences, and natural science) at post level 2 advertised in vacancy list 4/2021
- The Applicant was appointed on post level 1
- The Applicant applied for the post, was shortlisted, and interviewed, but was
unsuccessful
- Second Respondent was appointed into the post.
12. The Applicant referred the dispute for arbitration which was scheduled for set down on 02 February 2022
13. The hearing was concluded on 04 May 2022
14. The relief sought by the Applicant was to set aside the appointment of the second Respondent and repeating the process from advertisement.
SURVEY OF EVIDENCE AND ARGUMENT
The Applicant’s Case
Witness 1: Jane Anna Molekwa
15. The Applicant relied on documents and three (3) witnesses including herself.
a. She testified under oath as follows:
i. She confirmed that she had applied for the position of Head of Department as advertised. She participated fully in the recruitment process. She applied for the position since she has acted on three occasions in the position. She also thought she was ready for the position. She went through the interview and the process was fair at that stage. She later learned that two panelists withdrew from the panel meeting. However, she prepared for the interview and the questions were fair. She asked herself why these panelists withdrew.
ii. The interview was conducted on 19 July 2021. The two panelists who withdrew was a parent and the principal. She learned that the parent withdrew due to a funeral commitment and the principal due to sickness. She was not represented in the interview. She was surprised that the IDSO Mr. Mashishi was present in the interview. However, the interview was fine, and she did not feel anything awkward. Her daughter asked her why, the principal was, not present in the interview.
iii. On 21 June 2021 she overheard colleagues asking if the principal was available in the interview. Later she heard somebody informing her that the SGB was called by the principal to announce the successful candidate. She realized that she knew the candidate and was convinced that the candidate will be fit for the position since she mentored her at the university. She congratulated her.
iv. Later she overheard colleagues questioning why the candidate the principal to the circuit office. She was also told that Ms. Phetshula asked Mr. Manamela to call her. It turned out that during their telephonic conversation Ms. Phetshula told Mr. Manamela that one Mr. Murwa sent her questions and answers for the interview via WhatsApp on 18 June 2021. She went through the questions and answers, and she concluded that these were questions asked in the interview. She was surprised since she thought questions were formulated in the morning of the interview. On the questions and answers paper she noticed the principal’s handwriting. She could not understand why the principal’s handwriting was on the paper since he was not present in the interview.
v. She took pictures of items and documents placed on the principal’s table. Mr. Manamela sent questions and answers to her cell phone. Upon receiving the questions and answers, she was angry as to why they gave questions to others and not her. She became emotional and disturbed since some received questions prior interviews. She was assisted by professional since she was not coping emotionally.
vi. She believes that the successful candidate Ms. Mgwevu was preferred than her. She assumed that Ms. Mgwevu received questions and answers as well since Ms. Phetshula received them.
vii. She raised a grievance with the department. The grievance was not entertained. She then referred the dispute to Education Labour Relations Council (ELRC).
viii. Under cross-examination she conceded that she did not see anyone giving Ms. Mgwevu(successful candidate) screen shot questions. However, Ms. Phetshula informed her that she saw one Mr. Murwa giving Ms. Mgwevu documents. She conceded that this averment was hearsay evidence.
Witness 2: Ntombifikile Patricia Phetshula.
a. She is an educator. She applied for the position of head of department for life sciences. It was a promotional post on level 2 since she was on level 1. She was one of the shortlisted candidates and she was part of the interviews.
b. On 11 June 2021 a day after shortlisting she went to Ms. Mgwevu (successful candidate) to ask for grade 8 natural sciences ATP as she was acting head of department. Her response was that she did not have it , but she will give it to her later. She went back to her on another day to ask for the same document and Ms. Mgwevu replied and said you mean the paper that the SGB gave to me to prepare for the interview. She was surprised as to why Ms. Mgwevu has SGB paper. Her concern was that why would SGB give her interview information since they are part of the panel.
c. On 18 June 2021 she went together with Ms. Mgwevu to Mr. Mkhabela to ask for early release since they were supposed to attend the interviews on 19 June 2021, and he refused to release them. She went to her car to prepare for the interviews. She sat in the back seat of the car. Her car was parked in the parking area next to the principal’s car. She started to download information in preparation for the interview.
d. While she was sitting in the car, she saw Ms. Mgwevu getting into her car which was parked next to hers. After a while she saw Mr. Murwa (Administrator) approaching Ms. Mgwevu’s car coming from administration offices. He went to Ms. Mgwevu’s car, took out papers from his pocket and gave them to her. The paper was written in paragraphs and in bullet points. He saw Mr. Murwa handing the paper to Ms. Mgwevu. Mr. Murwa told her that Ms. Mgwevu was receiving documents from the School Governing Body (SGB). She was worried in that if Ms. Mgwevu received questions and answers from SGB in her mind she concluded that it meant she was receiving help from the governing body.
e. At that stage of the incident, she shouted and called Mr. Murwa. Mr. Murwa stopped and asked him if he was distributing questions and answers for the interviews. He seemed shocked and said no.
f. On 18 June 2021 after 17h00 whilst she was at her daughter’s place, she received a call from Mr. Murwa telling her to check her WhatsApp messages because he had sent her something. She checked and found questions and answers. She did not have time to go through the document as she was busy. She looked at the document.
g. She found that most of the questions were asked in the interview. She regretted after the interview for not studying the questions. However, she was prepared and was told that she was working hard. She was also promised that if the post was advertised, she will be considered. She was having high expectation to be appointed in the post in question since the principal wanted her to be the HOD of sciences. She was convinced that the position was hers based on her dream, questions and answers received from Mr. Murwa and the principal’s promise.
h. She was informed by Mr. Manamela that Ms. Mgwevu was appointed. Her appointment was announced by SGB in the staff morning brief. Immediately thereafter the brief the principal called her in his office and told her that he wanted her to get the post. He even gave Mr. Murwa questions and answers to send her, but this was beyond his control because the SGB wanted Ms. Mgwevu.
i. The principal told her that Ms. Molekwa and Mr. Manamela were against him. SGB decided to appoint Ms. Mgwevu as she was on his and SGB side. The principal promised her something else since he knew top guys like Mr. Panyaza Lesufi. This made her angry for the principal for mentioning Mr. Lesufi. She felt that the principal stabbed her in the back.
j. She shared her discussion with the principal promises with Ms. Molekwa. She also showed her the WhatsApp on questions and answers sent by Mr. Murwa to her.
k. Under cross-examination she confirmed that she was interviewed for the position in question.
l. She confirmed that she received the screen shots of questions and answers. She conceded that some and not all questions were asked in the interview. She indicated that she would not say all questions were the same.
m. She indicated that Ms. Mgwevu was preferred because SGB including the principal wanted her to be on their side.
n. She indicated further that she was expecting to get the post. However, it was not fair for her to receive the questions and answers.
o. She conceded that she did not see the questions and answers she alleged Mr. Murwa handed over to Ms. Mgwevu. She also conceded that she could not hear what Mr. Murwa and Ms. Mqwevu were talking about at the time alleged papers were handed over.
p. She further confirmed that Mr. Manamela asked a screen shot from her although after she shared her disappointment with him.
q. She indicated that she received questions and answers from Mr. Murwa but she did not report him to the authorities. She also alleged that the principal promised her the position in question, but she did not report him too.
Witness 3: Phuti Jacob Manamela
i. He is a colleague to the Applicant. He was the secretary of the panel during the interviews for the position in question. He averred that shortlisting took place on 10 June 2021. On the day of shortlisting Ms. Molekwa and Ms. Mgwevu were excused from the panel as they were interested parties.
ii. The panel decided to consider internal candidates who had five- year experience including any other person who was capable of teaching sciences. To his surprise the principal rendered an apology for Mr. Mashishi. Ms. Mamahlodi was requested to call in candidates and shortlisting went on. Ms Mwevu, Ms. Molekwa and Ms. Phetshula and others were shortlisted. They shortlisted six candidates for the post in question. He was satisfied with the shortlisting process except the apology rendered by the principal on behalf of Mr. Mashishi.
iii. On 19 June 2021 interview process took place. The principal excused himself from the interview process. Mr. Mashishi was requested to run the interview. All candidates and Mr. Mashishi were present to proceed with the interview. He was surprised to see Mr. Mashishi running the interview since he was not involved in the shortlisting. All six candidates were interviewed. He was chosen to be a secretary. Mr. Seloane was the chairperson and Mr. Mashishi was representing the district.
iv. After the interview, scores were done. Thereafter they were supposed to motivate who should be the successful candidate. Mr. Mashishi singled out Ms. Molekwa and said he was surprised why she was included as she was a primary teacher. He said the director will not accept her. He concluded that Ms. Molekwa was abused as it was said that the director will not appoint her since she was a primary teacher. At the end Ms. Mgwevu was appointed in the position in question.
v. He looked at the scores and thought that scores could not differ so much in that the score margin was too big. He also factored in comments made by Mr. Mashishi to say Ms. Molekwa is a primary teacher. He further did not know where the deputy principal Mr. Mkhabela was.
vi. He took the minutes during the interview and can confirm that the minutes was a true reflection of what expired in the interview. Ratification took place after the interview. All members of SGB gets a report from the panelist and endorses the minutes. Ms. Mgwevu was recommended for the appointment. Mr. Mashishi requested to include full exercise book in his submissions, and he placed the exercise book in the pocket file.
vii. On 22 June 2021 the process was finalized by one Seepa and others. They did not call him. They called one Botsi. Botsi and asked why he (Manamela) was not involved in the finalization of the process since he (Botsi) was not part of the process.
viii. He claimed that the GDE file is not a true reflection of the file since the minute book submitted by Mr. Mashishi was not part of the file. Mr. Mashishi asked one question. However, he did not know what question he asked.
ix. Interview questions were formulated on 19 June 2021 at 10h00 on the day of the interview. Questions were formulated very quickly. During the questioning time, most panelists referred to the written notes.
x. On 30 July 2021 he lodged a grievance on the outcome of the post in question. He submitted that he raised the grievance late because he was diagnosed with corona virus after interviews. The grievance was based on a breach of confidentiality regarding invitation of one Botsi and Mr. Mashishi in the recruitment process, discrimination and abuse based on qualifications against Ms. Molekwa and that the decision and recommendation were biased based on score margin between position one and the second position.
xi. He received WhatsApp message from Ms. Phetshula after he lodged a grievance. The WhatsApp contained three screen shots. There were five questions formulated for the interview. He saw four on the screen shot. His reaction was that if Ms. Phetshula received the questions like that, he did not know how many did receive. He felt more people could have received and it was sad and unfair. He was of the view that if one got four questions out of five one will gain advantage. However, he did not check answers but questions.
xii. Under cross-examination he indicated that he was SGB member and a scribe at the school. He claimed that he could not lodge a grievance earlier due to covid.
xiii. He conceded that up until the interviews he did not know about leaking questions. He knew about the questions after the interviews.
xiv. He confirmed that questions for the interviews were formulated on the day of interviews.
xv. In closing the Applicant party argued as a follows:
The Applicant’s evidence proved that the process of appointing the second respondent was unfair due to, the fact that the second respondent and Mrs. Phetshula were provided with interview questions and answers which gave them unfair advantages over other candidates including the Applicant. The same questions and answers as they were printed from the WhatsApp messages were compared to the once on the interview minutes and it was found that at least four questions were forwarded to one Mrs. Phetshula prior the interview. Mrs. Phetshula was called to testify, and she conceded that she received them from Mr. Murwa who also came and conceded that he forwarded them to her.
The entire evidence of Mrs. Phetshula is incriminating to herself in the first place and the applicant party think it should be accepted as the truth even on the part where it incriminates the second respondent, the principal, and Mr. Murwa. Her evidence also touches on that she saw Mr. Murwa giving the second respondent papers which were in paragraphs and bullet form, and she believe it was interview questions and answers as after confronting Mr. Murwa without her asking, he then forwarded questions and answers for the interview and told her not to tell anyone. The only inference that can be drawn in this is that Mr. Murwa did give the same questions and answers to the second respondent.
More evidence especially that which relates to the principal Mr. Netshianzwani remain unchallenged as he was not called to answer to those accusations.
Furthermore, the evidence of irregularities in the form of incomplete interview minutes, introducing new panel member on the day of the interview who was not even briefed of the appointment criteria and finalizing interview file with the person who was not a member of the panel excluding the secretary was not countered.
The Applicant party submit that the Applicant was successful in proving on the balance of probabilities that the whole process of appointing the second respondent was not fair as it involves the act of favoritism or the act preferring friends over other candidates. Given all the evidence the process should be set aside, and it must be repeated.
The Applicant have demonstrated that she had realistic chance of being appointed should the process be repeated in a fair manner which does not involve elements of favoritism, the criteria which was formulated was undermined to favor the preferred candidates.
Respondent’s Submissions
16. Respondent relied on documents and three witnesses and testified under oath as follows:
Witness 1: Lindiwe Portia Mgwevu
i. She is employed at Ponelopele Secondary School. She is head of department post level two. She heads department of science and technology which covers life sciences, physical sciences, natural sciences, and technology. Her other duties are ICT coordinator, member of the SGB and she is also a senior marker. She has a professional relationship with colleagues.
j. She applied for the position based on her qualifications. She is an SGB member. She excused herself from the panel during the recruitment process. She did not receive any questions. She met the requirements of the post. The requirements were physical sciences and life sciences.
k. She was previously in post level one, and this was a promotional post. She holds Bachelor of Education degree in a stream of life sciences and natural sciences. She denied the assertion that she was preferred in this position. She also refutes that she received any document from Mr. Murwa as alleged by Ms. Phetshula. She disputes that Mr. Murwa came to her at the parking area. She agrees with assertion that Ms. Phetshula came to her and asked for Annual Teaching Plan (ATP). However, she denies that she uttered the words “oh you mean the paper that the SGB gave to me to prepare for the interview” in Ms. Phetshula statement dated 18 September 2021.
l. She met Ms. Phetshula on 18 June 2021 when they went to ask for permission to leave earlier. Permission was refused. She decided to leave earlier at 11h00 as indicated in the early departure control sheet document. Ms. Phetshula also left at 11h00. She did not meet Mr. Murwa. She became aware of the alleged leaked document of question and answers in the bundle of documents submitted for arbitration. She denies that she received assistance for the interview.
m. Under cross-examination she confirmed that she met Ms. Phetshula at the corridors when they went to ask for permission.
n. She indicated that no one authorized early departure form. The form is filled in and submitted to administration office. She insisted that she left early 18 June 2021 without permission.
o. She denied that she met Mr. Murwa on 18 June 2021. She averred that the relationship with Mr. Murwa is professionally since he is an administrator. She never talked to Mr. Murwa on 18 June 2021. She spoke to Mr. Murwa on 19 June 2021.
p. She denied receiving questions for interview.
Witness 2: Itumeleng Belcon Murwa
a. His current position is administration assistant. He is based at Ponelopele Oracle Secondary School. He is not involved in recruitment. On 18 June 2021, Mrs. Phetshula asked assistance regarding SA-SAMS, how it works, she also asked if he is having some old interview questions and possible answers for the HOD post interviews. He also sent her a document dealing with educators conduct. This assistance was requested at 09h00.
b. He never went to car park to give Ms. Mwevu anything.
c. He got old interview questions and possible answers from school laptop. Everybody can have access to the laptop. It was not the first time he gave these questions. He even gave them to other people outside the school.
d. Under cross- examination he indicated that he is qualified in basic computer. With SA-SAMS he assists with reports and how to type. He did not assist Ms. Mgwevu with SA-SAMS.
e. He testified that he did not assist Ms. Mgwevu with questions.
f. He deleted everything he sent to Mrs. Phethula because she was giving him stress. She did not have Ubuntu because she asked for help, however she ended up accusing him.
g. He insisted that he sent possible questions and answers to Mrs. Mrs Phetshula.
h. She assisted Mrs. Phetshula because she asked him.
i. He denied meeting Ms. Mwevu on 18 June 2021, and he never went to his car on this day in question.
j. He was not part of the panel. He sent possible questions. He would not know whether they were more, or less or the same with those asked in the interview.
Witness 3: Klaas Seloane
i. He is School Governing Body member of Ponelopele Secondary School. He was the chairperson in the interview for the position advertised for science and technology. He was present in the interview.
j. All members of the panel were given the opportunity to make, a contribution to the formulation of the questions. The panel crafted its own questions before the interview. They did not assist any candidate. The allegation raised by Mrs. Phetshula in her statement that SGB wanted Ms. Mgwevu to get the post is not true since the SGB did not assist anybody. Ms. Mgwevu happened to be the most qualified. Ms. Mgwevu was also the best candidate for the post.
k. When the panel formulate the questions the union, IDSO, Parents, himself and one Shongwe were present. The questions were formulated on the day of the interviews. They asked five questions. The procedure followed on the day of the interviews was as follows:
- They drafted agenda
- Followed agenda
- Completed confidentiality form
- Agreed on the number of questions to be set
- Agreed on type of questions
- Agreed on who ask which question
- Take notes
- Record performance
- Candidates came in.
l. There were no objections or questions with regard, to the conduct of the process. The union was involved.
m. Under cross-examination he confirmed that Ms. Mgwevu was the successful candidate.
n. He indicated that during interview one scores the candidate and not qualification.
o. He did not know that Mr. Mashishi mentioned that Ms. Molekwa should not be in the interview because she had primary qualifications.
p. Everyone took notes in the interview and these notes were destroyed. He does not know why Mr. Mashishi kept his own notes since the scribe has written everything.
q. He confirmed that there was no favouritism since SGB was elected last year 2021 and did not know Ms. Mgwevu instead he knew Ms. Molekwa long ago in 2017.
r. He did not know anything about Mr. Manamela ‘s grievance regarding the process. He also did not know anything about Mrs. Phetshula’s questions and answers incident. He further did not know about questions and answers sent by the principal or Mr. Murwa to Mrs. Phetshula.
s. The Respondents argued as follows:
It took the announcement of the successful candidate for a dispute to be referred to council. Safe to say the conduct of the employer was beyond reproach from day one of the process until the announcement of Ms. Mgwevu as the successful candidate.
Applicant party submitted that the arbitration hearing would not have known of questions and answers given to Ms. Phetshula had Ms. Phetshula been appointed as a successful candidate. Given the expectations of being appointed to the post that Ms. Phetshula had, she could not rest but relay her dissatisfaction to Ms. Molekwa to reverse the process. Unfortunately, the evidence led by Ms. Molekwa the applicant is hearsay evidence as she was not privy to any handover of questions and answers from Mr. Murwa to Ms. Phetshula or from Mr. Murwa to Ms. Mgwevu. Therefore, the evidence of Ms. Molekwa cannot be admitted as she testified on what she was told not what she has seen.
Ms. Phetshula told the arbitration that she was given questions and answers by Mr. Murwa. Applicant party agree that to an extent the questions and answers were similar to those asked in the interviews though not entirely the same. Mr. Manamela and Mr. Seloane concurred in saying the panel formulated their own questions and were both made aware of the alleged leakage after appointment of the successful candidate by Ms. Phetshula.
For reasons best known to herself, Ms. Phetshula failed to prepare herself adequately for interviews given that she was given questions and answers as per her request for them from Mr. Murwa. She ended up not being amongst the recommended candidates for appointment. So, her deposed information about the so called “questions and answers” given, in no way did this affect the course and outcome of the recruitment process. All she wants is to see the process redone to benefit her. She cannot have the cake and eat it.
Applicant party further submitted that nowhere in this process has Ms. Phetshula’s evidence stood the test of time. Firstly, no one corroborated her evidence on receipt of questions and answers by Ms. Mgwevu. Mr. Murwa said he send her and her alone the questions and answers and not Ms. Mgwevu. Ms. Mgwevu refuted being given questions and answers at the parking lot by Ms. Phetshula by saying there was no meeting between her and Mr. Murwa who said he never met with Ms. Mgwevu at the parking lot. It can only mean Ms. Phetshula lied about the existence of the meeting at the parking lot. Ms. Phetshula made unfounded claims about her being the principal’s preferred candidate. She further made another unfounded testimony of Ms. Mgwevu being the SGB’s preferred candidate. This was rebutted by both Ms. Mgwevu who said she never was favoured and Mr. Seloane the SGB chairperson who said they assisted no candidate and did not favour any.
t. Like Ms. Molekwa, Mr. Manamela’s evidence was hearsay. All he deposed of in the arbitration in respect of questions and answers, he got from Ms. Phetshula. There was nothing in respect of Ms. Mgwevu receiving questions and answers that he could originally testify to. Mr. Manamela led evidence to the effect that members of the SGB were reading questions from their notes, but this was not agreed to by Mr. Seloane who said they came with their own questions and answers.
u. Applicant party further argued that the employer brought credible witnesses to clear any suspicion that might present to the process. Ms. Mgwevu’s case was, she did not receive questions and answers as alleged. Mr. Murwa admitted to giving possible questions and answers to Ms. Phetshula and lastly Mr. Seloane gave open testimony to how they rolled the process out.
v. The second respondent argued that the interview process and her subsequent appointment in the position of HOD, was conducted in a fair manner since she was appointed on the basis that she was regarded to be the best candidate on the day of the interviews and, also that she was the best qualified candidate for the position. This was confirmed by the SGB member and chairperson Mr. Seloane.
w. The second respondent further argued that it is noteworthy to mention that the interview process was not the only determining factor in respect of the appointment. The second respondent was found to be the best candidate for the position, and she was also the most suitable candidate in respect of her qualifications and experience, as testified by the SGB member and chairperson, Mr. Seloane. It is also the prerogative of an employer to appoint a candidate that it regards the most suitable for a specific position.
x. Furthermore, both the Applicant, Ms. Molekwa and Ms. Phetshula testified that they were happy for the second respondent when her appointment as HOD was announced. They stated that they held her in high regard and that they knew she would do the job right. They had no objection to working with her as the newly appointed HOD.
y. It was not proven by the Applicant party that the second respondent received questions and answers prior to the interview process or at all.
z. The second respondent submitted further that the conduct by the department and the second respondent relating to her appointment as HOD was beyond reproach and that it was procedurally fair.
Respondents prayed for dismissal of the Applicant’s case.
ANALYSIS OF SUBMISSIONS AND ARGUMENT
17. Section 186(2) (a) of the Labour Relations Act provides that "an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating 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”. The employee bears onus to prove, on a balance of probabilities, the existence of the disputed "practice" and its unfairness.
18. Applicant’s dispute concerns the allegation of an unfair labour practice in relation to promotion.
19. It is clear in this case that the following are common cause:
a. This case was triggered by questions and answers sent to Ms. Phetshula by Mr. Murwa through WhatsApp on 18 June 2021 after 17h00.
b. Ms. Phetshula, was shortlisted for the position of HOD for life sciences, physical sciences and natural sciences at post level 2 advertised in vacancy list 4/2021 together with the Applicant and second Respondent
c. The second Respondent was appointed as the successful candidate after the interviews.
d. Ms. Phetshula forwarded questions and answers in question to Mr. Manamela
e. The Applicant received these questions and answers from Mr. Manamela.
f. The interview panel formulated their questions on 19 June 2021.
20. It was the Applicant’s case that certain candidates including the second respondent and Ms. Phetshula but excluding her were provided with the interview questions before the interviews were conducted through Whatsapp. She testified that she became aware of this incident after the interviews were conducted and after the second respondent was appointed. Ms. Phetshula made her aware of this incident in question. Ms. Phetshula testified and confirmed that she did receive the questions and answers from Mr. Murwa. The Applicant submitted the screenshots of these questions and answers as part of documentary evidence to show that indeed questions and answers were received by Mr. Murwa by Ms. Phetshula. Mr. Murwa confirmed this incident. This incident was not disputed by the Respondents.
21. On the other hand, the Respondents argued that the interview process and the subsequent appointment of the second Respondent in the position of HOD, was conducted in a fair manner since she was appointed on the basis that she was regarded to be the best candidate on the day of the interviews and, also that she was the best qualified candidate for the position. This was also confirmed by the SGB member who was the chairman in the interview process. Furthermore, the evidence led by Ms. Phetshula that Mr. Murwa had given interview questions and answers to Ms. Mgwevu the second Respondent was rebutted by the evidence led by Mr. Murwa and the second Respondent, whose evidence corroborated each other, and both also testified that the alleged meeting between them in the parking lot, as testified to by Ms. Phetshula, never happened. Furthermore, Mr. Seloane was not aware of any leaked questions and answers document.
22. Mr. Murwa testified that he had only given interview questions and answers to Ms. Phetshula.
23. It was common cause that the Applicant was rated position three after the interviews as per the final score sheet dated 10 June 2021.The second respondent was rated position one. However, Ms. Phetshula who received questions and answer was rated four.
24. It was also common cause that Mr. Seloane, the chairperson of the interview process was not aware of the leaked questions and answers in question.
25. It is strange to me that Ms. Phetshula who was aggrieved by the outcome of the interviews did not report the conduct of the principal whom she claimed promised her the position and even gave Mr. Murwa questions and answers to give her, to the District Offices. She failed to report or disclose that she received questions and answers to the panel during interviews. When she was asked why she did not report the incident of leakage of questions and answers, she blew hot and cold in that she accepted the questions and answers and at the same time condemned the action as unfair but failed to report it.
26. There was no evidence before me to prove that the Applicant was unfairly prejudiced during the interviews. There was also no evidence that the interview panel was negatively influenced to prefer the second Respondent or by the alleged leakage of the interview questions and answers.
27. In Noonan v Safety and Security Sectorial Bargaining Council and Others [2012] 33 ILJ 2597(LAC), it was held that there is no right to promote in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitute an unfair labour practice. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long, as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
28. In SAMWU obo Demon v Cape Metropolitan Council (1999) 20 ILJ 714 (CCMA), it was held that “[u]nless the appointing authority were shown to have not applied its mind in the selection of the successful candidate, the CCMA may not interfere with the prerogative of the employer to appoint whom it considers the best candidate. Inevitably results in a candidate being appointed and the unsuccessful candidate(s) being disappointed. This is not unfair”.
29. In this case it was common cause that the Applicant was shortlisted and interviewed like all other candidates for the position in question. The Applicant also confirmed that the interview process was fair and just by way of oral evidence in arbitration hearing. The problem arose when she was informed by Ms. Phetshula that questions and answers leaked after the appointment of the successful candidate Ms. Mgwebu.
30. It was not disputed that the second Respondent excused herself from SGB during the recruitment process.
31. It was common cause that the dispute was referred to the council after the second Respondent was appointed albeit Ms. Phetshula received the screenshots of the questions and answers on 18 June 2021. I fail to understand why Ms. Phetshula did not inform the Applicant as early as the 18 June 2021 since she was her witness.
32. Based on evidence before me, I am not persuaded that the second Respondent received alleged leaked questions and answers papers as submitted by the Applicant party.
33. Having considered submissions before me, I find that the first Respondents’ version is more probable than that of the Applicant.
34. Based on all evidence, legal authorities above and on the balance of probabilities, I find that Applicant has failed to discharge the onus to show that the department’s conduct was unfair in not promoting her in the position in question and that the department committed an unfair labour practice in relation to promotion. Applicant has further failed to discharge the onus to show unfair conduct in terms of section 186 (2) (a) of the LRA. The unfairness is based on procedural ground and there was no sufficient evidence on the substance.
AWARD
35. The Application of the Applicant’s claim of unfair labour practice in terms of section 186(2)(a) of the LRA in relation to promotion is hereby dismissed.
36. There is no order as to costs.
Signature:
Date: 31 May 2022
In the matter between:
JANE ANNA MOLEKWA APPLICANT
And
EDUCATION DEPARTMENT OF GAUTENG 1ST RESPONDENT
L.P MGWEVU 2ND RESPONDENT
ARBITRATION AWARD
CASE NUMBER: ELRC 400-21/22GP
DATE OF HEARING(S): 03 February 2022
02 March 2022
03 March 2022
06 April 2022
03 May 2022
04 May 2022
DATE AWARD SUBMITTED: 31 May 2022
NAME OF COMMISSIONER: ABNER CHOKWE
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing into an alleged unfair labour practice dispute referred in terms of Section 186(2)(a) of the Labour Relations Act as amended (“the LRA”) was held at Norwood District office of Education Department of Gauteng, 44 Wolfgang street, Johannesburg on 03 February,02, 03 March, 06 April, 03 May, and 04 May 2022.
2. The Applicant Ms. Jane Anna Molekwa was represented by Mr. Takalani Henry Ndou an attorney from T.H Ndou Attorneys. The first Respondent, Department of Education Gauteng was represented by Mr. Motsiri Hlapolosa its Labour Relations Official. The second Respondent, Ms. Lindiwe Portia Mgwevu was represented by Ms. Angelique Marais an attorney from Marais Attorneys.
3. The arbitration proceedings were digitally recorded.
4. A joined bundle of documents was submitted.
5. Pre-arbitration minutes conducted virtually via Zoom on 14 September 2021 were also submitted.
6. Ms. L.P Mgwevu the appointed candidate was joined as a second respondent.
7. At the close of the proceedings the parties requested an opportunity to submit closing arguments in writing and were granted until 16 May 2022 to do so. All three parties submitted closing arguments timeously.
PRELIMINARY ISSUES
8. No party raised preliminary issues during arbitration proceedings.
ISSUE TO BE DECIDED
9. I must determine whether certain candidates (including the second respondent and one other candidate but excluding the applicant) were provided with the interview questions before the interviews through whatsApp. Whether there was unfair conduct.
BACKGROUND TO THE ISSUE
10. The Applicant was employed by the first Respondent on 02 May 2007 as an Educator PL1. At the time of the dispute on 18 August 2021 she earned a gross salary of R23 645.07 per month. The Respondent is Education Department of Gauteng.
11. In terms of the pre-arbitration minutes the following issues were common cause:
- This was a promotion dispute which involved post number JE41ED1061 at Ponelopele High School, being the post of HOD (life sciences, physical sciences, and natural science) at post level 2 advertised in vacancy list 4/2021
- The Applicant was appointed on post level 1
- The Applicant applied for the post, was shortlisted, and interviewed, but was
unsuccessful
- Second Respondent was appointed into the post.
12. The Applicant referred the dispute for arbitration which was scheduled for set down on 02 February 2022
13. The hearing was concluded on 04 May 2022
14. The relief sought by the Applicant was to set aside the appointment of the second Respondent and repeating the process from advertisement.
SURVEY OF EVIDENCE AND ARGUMENT
The Applicant’s Case
Witness 1: Jane Anna Molekwa
15. The Applicant relied on documents and three (3) witnesses including herself.
a. She testified under oath as follows:
i. She confirmed that she had applied for the position of Head of Department as advertised. She participated fully in the recruitment process. She applied for the position since she has acted on three occasions in the position. She also thought she was ready for the position. She went through the interview and the process was fair at that stage. She later learned that two panelists withdrew from the panel meeting. However, she prepared for the interview and the questions were fair. She asked herself why these panelists withdrew.
ii. The interview was conducted on 19 July 2021. The two panelists who withdrew was a parent and the principal. She learned that the parent withdrew due to a funeral commitment and the principal due to sickness. She was not represented in the interview. She was surprised that the IDSO Mr. Mashishi was present in the interview. However, the interview was fine, and she did not feel anything awkward. Her daughter asked her why, the principal was, not present in the interview.
iii. On 21 June 2021 she overheard colleagues asking if the principal was available in the interview. Later she heard somebody informing her that the SGB was called by the principal to announce the successful candidate. She realized that she knew the candidate and was convinced that the candidate will be fit for the position since she mentored her at the university. She congratulated her.
iv. Later she overheard colleagues questioning why the candidate the principal to the circuit office. She was also told that Ms. Phetshula asked Mr. Manamela to call her. It turned out that during their telephonic conversation Ms. Phetshula told Mr. Manamela that one Mr. Murwa sent her questions and answers for the interview via WhatsApp on 18 June 2021. She went through the questions and answers, and she concluded that these were questions asked in the interview. She was surprised since she thought questions were formulated in the morning of the interview. On the questions and answers paper she noticed the principal’s handwriting. She could not understand why the principal’s handwriting was on the paper since he was not present in the interview.
v. She took pictures of items and documents placed on the principal’s table. Mr. Manamela sent questions and answers to her cell phone. Upon receiving the questions and answers, she was angry as to why they gave questions to others and not her. She became emotional and disturbed since some received questions prior interviews. She was assisted by professional since she was not coping emotionally.
vi. She believes that the successful candidate Ms. Mgwevu was preferred than her. She assumed that Ms. Mgwevu received questions and answers as well since Ms. Phetshula received them.
vii. She raised a grievance with the department. The grievance was not entertained. She then referred the dispute to Education Labour Relations Council (ELRC).
viii. Under cross-examination she conceded that she did not see anyone giving Ms. Mgwevu(successful candidate) screen shot questions. However, Ms. Phetshula informed her that she saw one Mr. Murwa giving Ms. Mgwevu documents. She conceded that this averment was hearsay evidence.
Witness 2: Ntombifikile Patricia Phetshula.
a. She is an educator. She applied for the position of head of department for life sciences. It was a promotional post on level 2 since she was on level 1. She was one of the shortlisted candidates and she was part of the interviews.
b. On 11 June 2021 a day after shortlisting she went to Ms. Mgwevu (successful candidate) to ask for grade 8 natural sciences ATP as she was acting head of department. Her response was that she did not have it , but she will give it to her later. She went back to her on another day to ask for the same document and Ms. Mgwevu replied and said you mean the paper that the SGB gave to me to prepare for the interview. She was surprised as to why Ms. Mgwevu has SGB paper. Her concern was that why would SGB give her interview information since they are part of the panel.
c. On 18 June 2021 she went together with Ms. Mgwevu to Mr. Mkhabela to ask for early release since they were supposed to attend the interviews on 19 June 2021, and he refused to release them. She went to her car to prepare for the interviews. She sat in the back seat of the car. Her car was parked in the parking area next to the principal’s car. She started to download information in preparation for the interview.
d. While she was sitting in the car, she saw Ms. Mgwevu getting into her car which was parked next to hers. After a while she saw Mr. Murwa (Administrator) approaching Ms. Mgwevu’s car coming from administration offices. He went to Ms. Mgwevu’s car, took out papers from his pocket and gave them to her. The paper was written in paragraphs and in bullet points. He saw Mr. Murwa handing the paper to Ms. Mgwevu. Mr. Murwa told her that Ms. Mgwevu was receiving documents from the School Governing Body (SGB). She was worried in that if Ms. Mgwevu received questions and answers from SGB in her mind she concluded that it meant she was receiving help from the governing body.
e. At that stage of the incident, she shouted and called Mr. Murwa. Mr. Murwa stopped and asked him if he was distributing questions and answers for the interviews. He seemed shocked and said no.
f. On 18 June 2021 after 17h00 whilst she was at her daughter’s place, she received a call from Mr. Murwa telling her to check her WhatsApp messages because he had sent her something. She checked and found questions and answers. She did not have time to go through the document as she was busy. She looked at the document.
g. She found that most of the questions were asked in the interview. She regretted after the interview for not studying the questions. However, she was prepared and was told that she was working hard. She was also promised that if the post was advertised, she will be considered. She was having high expectation to be appointed in the post in question since the principal wanted her to be the HOD of sciences. She was convinced that the position was hers based on her dream, questions and answers received from Mr. Murwa and the principal’s promise.
h. She was informed by Mr. Manamela that Ms. Mgwevu was appointed. Her appointment was announced by SGB in the staff morning brief. Immediately thereafter the brief the principal called her in his office and told her that he wanted her to get the post. He even gave Mr. Murwa questions and answers to send her, but this was beyond his control because the SGB wanted Ms. Mgwevu.
i. The principal told her that Ms. Molekwa and Mr. Manamela were against him. SGB decided to appoint Ms. Mgwevu as she was on his and SGB side. The principal promised her something else since he knew top guys like Mr. Panyaza Lesufi. This made her angry for the principal for mentioning Mr. Lesufi. She felt that the principal stabbed her in the back.
j. She shared her discussion with the principal promises with Ms. Molekwa. She also showed her the WhatsApp on questions and answers sent by Mr. Murwa to her.
k. Under cross-examination she confirmed that she was interviewed for the position in question.
l. She confirmed that she received the screen shots of questions and answers. She conceded that some and not all questions were asked in the interview. She indicated that she would not say all questions were the same.
m. She indicated that Ms. Mgwevu was preferred because SGB including the principal wanted her to be on their side.
n. She indicated further that she was expecting to get the post. However, it was not fair for her to receive the questions and answers.
o. She conceded that she did not see the questions and answers she alleged Mr. Murwa handed over to Ms. Mgwevu. She also conceded that she could not hear what Mr. Murwa and Ms. Mqwevu were talking about at the time alleged papers were handed over.
p. She further confirmed that Mr. Manamela asked a screen shot from her although after she shared her disappointment with him.
q. She indicated that she received questions and answers from Mr. Murwa but she did not report him to the authorities. She also alleged that the principal promised her the position in question, but she did not report him too.
Witness 3: Phuti Jacob Manamela
i. He is a colleague to the Applicant. He was the secretary of the panel during the interviews for the position in question. He averred that shortlisting took place on 10 June 2021. On the day of shortlisting Ms. Molekwa and Ms. Mgwevu were excused from the panel as they were interested parties.
ii. The panel decided to consider internal candidates who had five- year experience including any other person who was capable of teaching sciences. To his surprise the principal rendered an apology for Mr. Mashishi. Ms. Mamahlodi was requested to call in candidates and shortlisting went on. Ms Mwevu, Ms. Molekwa and Ms. Phetshula and others were shortlisted. They shortlisted six candidates for the post in question. He was satisfied with the shortlisting process except the apology rendered by the principal on behalf of Mr. Mashishi.
iii. On 19 June 2021 interview process took place. The principal excused himself from the interview process. Mr. Mashishi was requested to run the interview. All candidates and Mr. Mashishi were present to proceed with the interview. He was surprised to see Mr. Mashishi running the interview since he was not involved in the shortlisting. All six candidates were interviewed. He was chosen to be a secretary. Mr. Seloane was the chairperson and Mr. Mashishi was representing the district.
iv. After the interview, scores were done. Thereafter they were supposed to motivate who should be the successful candidate. Mr. Mashishi singled out Ms. Molekwa and said he was surprised why she was included as she was a primary teacher. He said the director will not accept her. He concluded that Ms. Molekwa was abused as it was said that the director will not appoint her since she was a primary teacher. At the end Ms. Mgwevu was appointed in the position in question.
v. He looked at the scores and thought that scores could not differ so much in that the score margin was too big. He also factored in comments made by Mr. Mashishi to say Ms. Molekwa is a primary teacher. He further did not know where the deputy principal Mr. Mkhabela was.
vi. He took the minutes during the interview and can confirm that the minutes was a true reflection of what expired in the interview. Ratification took place after the interview. All members of SGB gets a report from the panelist and endorses the minutes. Ms. Mgwevu was recommended for the appointment. Mr. Mashishi requested to include full exercise book in his submissions, and he placed the exercise book in the pocket file.
vii. On 22 June 2021 the process was finalized by one Seepa and others. They did not call him. They called one Botsi. Botsi and asked why he (Manamela) was not involved in the finalization of the process since he (Botsi) was not part of the process.
viii. He claimed that the GDE file is not a true reflection of the file since the minute book submitted by Mr. Mashishi was not part of the file. Mr. Mashishi asked one question. However, he did not know what question he asked.
ix. Interview questions were formulated on 19 June 2021 at 10h00 on the day of the interview. Questions were formulated very quickly. During the questioning time, most panelists referred to the written notes.
x. On 30 July 2021 he lodged a grievance on the outcome of the post in question. He submitted that he raised the grievance late because he was diagnosed with corona virus after interviews. The grievance was based on a breach of confidentiality regarding invitation of one Botsi and Mr. Mashishi in the recruitment process, discrimination and abuse based on qualifications against Ms. Molekwa and that the decision and recommendation were biased based on score margin between position one and the second position.
xi. He received WhatsApp message from Ms. Phetshula after he lodged a grievance. The WhatsApp contained three screen shots. There were five questions formulated for the interview. He saw four on the screen shot. His reaction was that if Ms. Phetshula received the questions like that, he did not know how many did receive. He felt more people could have received and it was sad and unfair. He was of the view that if one got four questions out of five one will gain advantage. However, he did not check answers but questions.
xii. Under cross-examination he indicated that he was SGB member and a scribe at the school. He claimed that he could not lodge a grievance earlier due to covid.
xiii. He conceded that up until the interviews he did not know about leaking questions. He knew about the questions after the interviews.
xiv. He confirmed that questions for the interviews were formulated on the day of interviews.
xv. In closing the Applicant party argued as a follows:
The Applicant’s evidence proved that the process of appointing the second respondent was unfair due to, the fact that the second respondent and Mrs. Phetshula were provided with interview questions and answers which gave them unfair advantages over other candidates including the Applicant. The same questions and answers as they were printed from the WhatsApp messages were compared to the once on the interview minutes and it was found that at least four questions were forwarded to one Mrs. Phetshula prior the interview. Mrs. Phetshula was called to testify, and she conceded that she received them from Mr. Murwa who also came and conceded that he forwarded them to her.
The entire evidence of Mrs. Phetshula is incriminating to herself in the first place and the applicant party think it should be accepted as the truth even on the part where it incriminates the second respondent, the principal, and Mr. Murwa. Her evidence also touches on that she saw Mr. Murwa giving the second respondent papers which were in paragraphs and bullet form, and she believe it was interview questions and answers as after confronting Mr. Murwa without her asking, he then forwarded questions and answers for the interview and told her not to tell anyone. The only inference that can be drawn in this is that Mr. Murwa did give the same questions and answers to the second respondent.
More evidence especially that which relates to the principal Mr. Netshianzwani remain unchallenged as he was not called to answer to those accusations.
Furthermore, the evidence of irregularities in the form of incomplete interview minutes, introducing new panel member on the day of the interview who was not even briefed of the appointment criteria and finalizing interview file with the person who was not a member of the panel excluding the secretary was not countered.
The Applicant party submit that the Applicant was successful in proving on the balance of probabilities that the whole process of appointing the second respondent was not fair as it involves the act of favoritism or the act preferring friends over other candidates. Given all the evidence the process should be set aside, and it must be repeated.
The Applicant have demonstrated that she had realistic chance of being appointed should the process be repeated in a fair manner which does not involve elements of favoritism, the criteria which was formulated was undermined to favor the preferred candidates.
Respondent’s Submissions
16. Respondent relied on documents and three witnesses and testified under oath as follows:
Witness 1: Lindiwe Portia Mgwevu
i. She is employed at Ponelopele Secondary School. She is head of department post level two. She heads department of science and technology which covers life sciences, physical sciences, natural sciences, and technology. Her other duties are ICT coordinator, member of the SGB and she is also a senior marker. She has a professional relationship with colleagues.
j. She applied for the position based on her qualifications. She is an SGB member. She excused herself from the panel during the recruitment process. She did not receive any questions. She met the requirements of the post. The requirements were physical sciences and life sciences.
k. She was previously in post level one, and this was a promotional post. She holds Bachelor of Education degree in a stream of life sciences and natural sciences. She denied the assertion that she was preferred in this position. She also refutes that she received any document from Mr. Murwa as alleged by Ms. Phetshula. She disputes that Mr. Murwa came to her at the parking area. She agrees with assertion that Ms. Phetshula came to her and asked for Annual Teaching Plan (ATP). However, she denies that she uttered the words “oh you mean the paper that the SGB gave to me to prepare for the interview” in Ms. Phetshula statement dated 18 September 2021.
l. She met Ms. Phetshula on 18 June 2021 when they went to ask for permission to leave earlier. Permission was refused. She decided to leave earlier at 11h00 as indicated in the early departure control sheet document. Ms. Phetshula also left at 11h00. She did not meet Mr. Murwa. She became aware of the alleged leaked document of question and answers in the bundle of documents submitted for arbitration. She denies that she received assistance for the interview.
m. Under cross-examination she confirmed that she met Ms. Phetshula at the corridors when they went to ask for permission.
n. She indicated that no one authorized early departure form. The form is filled in and submitted to administration office. She insisted that she left early 18 June 2021 without permission.
o. She denied that she met Mr. Murwa on 18 June 2021. She averred that the relationship with Mr. Murwa is professionally since he is an administrator. She never talked to Mr. Murwa on 18 June 2021. She spoke to Mr. Murwa on 19 June 2021.
p. She denied receiving questions for interview.
Witness 2: Itumeleng Belcon Murwa
a. His current position is administration assistant. He is based at Ponelopele Oracle Secondary School. He is not involved in recruitment. On 18 June 2021, Mrs. Phetshula asked assistance regarding SA-SAMS, how it works, she also asked if he is having some old interview questions and possible answers for the HOD post interviews. He also sent her a document dealing with educators conduct. This assistance was requested at 09h00.
b. He never went to car park to give Ms. Mwevu anything.
c. He got old interview questions and possible answers from school laptop. Everybody can have access to the laptop. It was not the first time he gave these questions. He even gave them to other people outside the school.
d. Under cross- examination he indicated that he is qualified in basic computer. With SA-SAMS he assists with reports and how to type. He did not assist Ms. Mgwevu with SA-SAMS.
e. He testified that he did not assist Ms. Mgwevu with questions.
f. He deleted everything he sent to Mrs. Phethula because she was giving him stress. She did not have Ubuntu because she asked for help, however she ended up accusing him.
g. He insisted that he sent possible questions and answers to Mrs. Mrs Phetshula.
h. She assisted Mrs. Phetshula because she asked him.
i. He denied meeting Ms. Mwevu on 18 June 2021, and he never went to his car on this day in question.
j. He was not part of the panel. He sent possible questions. He would not know whether they were more, or less or the same with those asked in the interview.
Witness 3: Klaas Seloane
i. He is School Governing Body member of Ponelopele Secondary School. He was the chairperson in the interview for the position advertised for science and technology. He was present in the interview.
j. All members of the panel were given the opportunity to make, a contribution to the formulation of the questions. The panel crafted its own questions before the interview. They did not assist any candidate. The allegation raised by Mrs. Phetshula in her statement that SGB wanted Ms. Mgwevu to get the post is not true since the SGB did not assist anybody. Ms. Mgwevu happened to be the most qualified. Ms. Mgwevu was also the best candidate for the post.
k. When the panel formulate the questions the union, IDSO, Parents, himself and one Shongwe were present. The questions were formulated on the day of the interviews. They asked five questions. The procedure followed on the day of the interviews was as follows:
- They drafted agenda
- Followed agenda
- Completed confidentiality form
- Agreed on the number of questions to be set
- Agreed on type of questions
- Agreed on who ask which question
- Take notes
- Record performance
- Candidates came in.
l. There were no objections or questions with regard, to the conduct of the process. The union was involved.
m. Under cross-examination he confirmed that Ms. Mgwevu was the successful candidate.
n. He indicated that during interview one scores the candidate and not qualification.
o. He did not know that Mr. Mashishi mentioned that Ms. Molekwa should not be in the interview because she had primary qualifications.
p. Everyone took notes in the interview and these notes were destroyed. He does not know why Mr. Mashishi kept his own notes since the scribe has written everything.
q. He confirmed that there was no favouritism since SGB was elected last year 2021 and did not know Ms. Mgwevu instead he knew Ms. Molekwa long ago in 2017.
r. He did not know anything about Mr. Manamela ‘s grievance regarding the process. He also did not know anything about Mrs. Phetshula’s questions and answers incident. He further did not know about questions and answers sent by the principal or Mr. Murwa to Mrs. Phetshula.
s. The Respondents argued as follows:
It took the announcement of the successful candidate for a dispute to be referred to council. Safe to say the conduct of the employer was beyond reproach from day one of the process until the announcement of Ms. Mgwevu as the successful candidate.
Applicant party submitted that the arbitration hearing would not have known of questions and answers given to Ms. Phetshula had Ms. Phetshula been appointed as a successful candidate. Given the expectations of being appointed to the post that Ms. Phetshula had, she could not rest but relay her dissatisfaction to Ms. Molekwa to reverse the process. Unfortunately, the evidence led by Ms. Molekwa the applicant is hearsay evidence as she was not privy to any handover of questions and answers from Mr. Murwa to Ms. Phetshula or from Mr. Murwa to Ms. Mgwevu. Therefore, the evidence of Ms. Molekwa cannot be admitted as she testified on what she was told not what she has seen.
Ms. Phetshula told the arbitration that she was given questions and answers by Mr. Murwa. Applicant party agree that to an extent the questions and answers were similar to those asked in the interviews though not entirely the same. Mr. Manamela and Mr. Seloane concurred in saying the panel formulated their own questions and were both made aware of the alleged leakage after appointment of the successful candidate by Ms. Phetshula.
For reasons best known to herself, Ms. Phetshula failed to prepare herself adequately for interviews given that she was given questions and answers as per her request for them from Mr. Murwa. She ended up not being amongst the recommended candidates for appointment. So, her deposed information about the so called “questions and answers” given, in no way did this affect the course and outcome of the recruitment process. All she wants is to see the process redone to benefit her. She cannot have the cake and eat it.
Applicant party further submitted that nowhere in this process has Ms. Phetshula’s evidence stood the test of time. Firstly, no one corroborated her evidence on receipt of questions and answers by Ms. Mgwevu. Mr. Murwa said he send her and her alone the questions and answers and not Ms. Mgwevu. Ms. Mgwevu refuted being given questions and answers at the parking lot by Ms. Phetshula by saying there was no meeting between her and Mr. Murwa who said he never met with Ms. Mgwevu at the parking lot. It can only mean Ms. Phetshula lied about the existence of the meeting at the parking lot. Ms. Phetshula made unfounded claims about her being the principal’s preferred candidate. She further made another unfounded testimony of Ms. Mgwevu being the SGB’s preferred candidate. This was rebutted by both Ms. Mgwevu who said she never was favoured and Mr. Seloane the SGB chairperson who said they assisted no candidate and did not favour any.
t. Like Ms. Molekwa, Mr. Manamela’s evidence was hearsay. All he deposed of in the arbitration in respect of questions and answers, he got from Ms. Phetshula. There was nothing in respect of Ms. Mgwevu receiving questions and answers that he could originally testify to. Mr. Manamela led evidence to the effect that members of the SGB were reading questions from their notes, but this was not agreed to by Mr. Seloane who said they came with their own questions and answers.
u. Applicant party further argued that the employer brought credible witnesses to clear any suspicion that might present to the process. Ms. Mgwevu’s case was, she did not receive questions and answers as alleged. Mr. Murwa admitted to giving possible questions and answers to Ms. Phetshula and lastly Mr. Seloane gave open testimony to how they rolled the process out.
v. The second respondent argued that the interview process and her subsequent appointment in the position of HOD, was conducted in a fair manner since she was appointed on the basis that she was regarded to be the best candidate on the day of the interviews and, also that she was the best qualified candidate for the position. This was confirmed by the SGB member and chairperson Mr. Seloane.
w. The second respondent further argued that it is noteworthy to mention that the interview process was not the only determining factor in respect of the appointment. The second respondent was found to be the best candidate for the position, and she was also the most suitable candidate in respect of her qualifications and experience, as testified by the SGB member and chairperson, Mr. Seloane. It is also the prerogative of an employer to appoint a candidate that it regards the most suitable for a specific position.
x. Furthermore, both the Applicant, Ms. Molekwa and Ms. Phetshula testified that they were happy for the second respondent when her appointment as HOD was announced. They stated that they held her in high regard and that they knew she would do the job right. They had no objection to working with her as the newly appointed HOD.
y. It was not proven by the Applicant party that the second respondent received questions and answers prior to the interview process or at all.
z. The second respondent submitted further that the conduct by the department and the second respondent relating to her appointment as HOD was beyond reproach and that it was procedurally fair.
Respondents prayed for dismissal of the Applicant’s case.
ANALYSIS OF SUBMISSIONS AND ARGUMENT
17. Section 186(2) (a) of the Labour Relations Act provides that "an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating 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”. The employee bears onus to prove, on a balance of probabilities, the existence of the disputed "practice" and its unfairness.
18. Applicant’s dispute concerns the allegation of an unfair labour practice in relation to promotion.
19. It is clear in this case that the following are common cause:
a. This case was triggered by questions and answers sent to Ms. Phetshula by Mr. Murwa through WhatsApp on 18 June 2021 after 17h00.
b. Ms. Phetshula, was shortlisted for the position of HOD for life sciences, physical sciences and natural sciences at post level 2 advertised in vacancy list 4/2021 together with the Applicant and second Respondent
c. The second Respondent was appointed as the successful candidate after the interviews.
d. Ms. Phetshula forwarded questions and answers in question to Mr. Manamela
e. The Applicant received these questions and answers from Mr. Manamela.
f. The interview panel formulated their questions on 19 June 2021.
20. It was the Applicant’s case that certain candidates including the second respondent and Ms. Phetshula but excluding her were provided with the interview questions before the interviews were conducted through Whatsapp. She testified that she became aware of this incident after the interviews were conducted and after the second respondent was appointed. Ms. Phetshula made her aware of this incident in question. Ms. Phetshula testified and confirmed that she did receive the questions and answers from Mr. Murwa. The Applicant submitted the screenshots of these questions and answers as part of documentary evidence to show that indeed questions and answers were received by Mr. Murwa by Ms. Phetshula. Mr. Murwa confirmed this incident. This incident was not disputed by the Respondents.
21. On the other hand, the Respondents argued that the interview process and the subsequent appointment of the second Respondent in the position of HOD, was conducted in a fair manner since she was appointed on the basis that she was regarded to be the best candidate on the day of the interviews and, also that she was the best qualified candidate for the position. This was also confirmed by the SGB member who was the chairman in the interview process. Furthermore, the evidence led by Ms. Phetshula that Mr. Murwa had given interview questions and answers to Ms. Mgwevu the second Respondent was rebutted by the evidence led by Mr. Murwa and the second Respondent, whose evidence corroborated each other, and both also testified that the alleged meeting between them in the parking lot, as testified to by Ms. Phetshula, never happened. Furthermore, Mr. Seloane was not aware of any leaked questions and answers document.
22. Mr. Murwa testified that he had only given interview questions and answers to Ms. Phetshula.
23. It was common cause that the Applicant was rated position three after the interviews as per the final score sheet dated 10 June 2021.The second respondent was rated position one. However, Ms. Phetshula who received questions and answer was rated four.
24. It was also common cause that Mr. Seloane, the chairperson of the interview process was not aware of the leaked questions and answers in question.
25. It is strange to me that Ms. Phetshula who was aggrieved by the outcome of the interviews did not report the conduct of the principal whom she claimed promised her the position and even gave Mr. Murwa questions and answers to give her, to the District Offices. She failed to report or disclose that she received questions and answers to the panel during interviews. When she was asked why she did not report the incident of leakage of questions and answers, she blew hot and cold in that she accepted the questions and answers and at the same time condemned the action as unfair but failed to report it.
26. There was no evidence before me to prove that the Applicant was unfairly prejudiced during the interviews. There was also no evidence that the interview panel was negatively influenced to prefer the second Respondent or by the alleged leakage of the interview questions and answers.
27. In Noonan v Safety and Security Sectorial Bargaining Council and Others [2012] 33 ILJ 2597(LAC), it was held that there is no right to promote in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitute an unfair labour practice. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long, as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
28. In SAMWU obo Demon v Cape Metropolitan Council (1999) 20 ILJ 714 (CCMA), it was held that “[u]nless the appointing authority were shown to have not applied its mind in the selection of the successful candidate, the CCMA may not interfere with the prerogative of the employer to appoint whom it considers the best candidate. Inevitably results in a candidate being appointed and the unsuccessful candidate(s) being disappointed. This is not unfair”.
29. In this case it was common cause that the Applicant was shortlisted and interviewed like all other candidates for the position in question. The Applicant also confirmed that the interview process was fair and just by way of oral evidence in arbitration hearing. The problem arose when she was informed by Ms. Phetshula that questions and answers leaked after the appointment of the successful candidate Ms. Mgwebu.
30. It was not disputed that the second Respondent excused herself from SGB during the recruitment process.
31. It was common cause that the dispute was referred to the council after the second Respondent was appointed albeit Ms. Phetshula received the screenshots of the questions and answers on 18 June 2021. I fail to understand why Ms. Phetshula did not inform the Applicant as early as the 18 June 2021 since she was her witness.
32. Based on evidence before me, I am not persuaded that the second Respondent received alleged leaked questions and answers papers as submitted by the Applicant party.
33. Having considered submissions before me, I find that the first Respondents’ version is more probable than that of the Applicant.
34. Based on all evidence, legal authorities above and on the balance of probabilities, I find that Applicant has failed to discharge the onus to show that the department’s conduct was unfair in not promoting her in the position in question and that the department committed an unfair labour practice in relation to promotion. Applicant has further failed to discharge the onus to show unfair conduct in terms of section 186 (2) (a) of the LRA. The unfairness is based on procedural ground and there was no sufficient evidence on the substance.
AWARD
35. The Application of the Applicant’s claim of unfair labour practice in terms of section 186(2)(a) of the LRA in relation to promotion is hereby dismissed.
36. There is no order as to costs.
Signature:
Date: 31 May 2022