ELRC 607-19/20 KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC 607-19/20 KZN


In the matter between

Nene MD Applicant
And
Department of Education KZN Respondent


ARBITRATOR: R. Shanker

DELIVERED: 30 June 2022


AWARD


DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for an arbitration hearing and was heard over several days virtually via Zoom. The arbitration finalised on 02 June 2022. The parties there after filed written closing arguments.
2. The applicant, Mduduzi David Nene, referred an unfair labour practice dispute - promotion to the ELRC for resolution. He was represented at these proceedings by L. Nkamane, an attorney. The 1st respondent, Department of Education KZN, was represented by A. Preethpaul. KK Naidoo, the successfully appointed candidate, was joined as a 2nd respondent and attended the proceedings.
ISSUES TO BE DETERMINED:
3. This matter concerns an unfair labour practice dispute in terms of section 186(2)(a) of the Labour Relations Act, 1995, relating to promotion. The issue to be determined is whether the conduct of the respondent in not appointing the applicant was unfair and if so, whether the applicant should be promoted to the post of Principalship, alternatively whether the applicant should be awarded compensation.
BACKGROUND TO DISPUTE:
4. Nene, the applicant, previously referred this unfair labour practice dispute to the ELRC under case number PSES458-18/19KZN on 29 August 2019. He withdrew that dispute on 19 September 2019 at the conciliation stage and later re-referred the dispute under the current case number.
5. At the commencement of this arbitration, the Department of Education KZN challenged the jurisdiction of the ELRC to arbitrate a dispute that had been previously withdrawn. I ruled that the ELRC had the necessary jurisdiction to determine the unfair labour practice dispute before me and I therefore proceeded with this arbitration – see my ruling dated 22 November 2019.
6. Nene’s version is that the conduct of the respondent in not promoting him, was procedurally and substantively unfair. He testified and called three (3) witnesses in support of his version, namely:
6.1. T Dlamini – Chairperson of and scoring member at the Interview Committee and SGB member.
6.2. F T Luthuli – Secretary of and scoring member at the Interview Committee and Departmental Head at the school.
6.3. B Khanyile - Scoring member at Interview Committee and chairperson of the School Governing Body (SGB).
7. The Department of Education KZN called two witnesses to testify.
7.1. Dr Naidoo - The Resource Person at the Interview Committee appointed by the Department of Education.
7.2. A S Reddy – The SADTU union observer present during the interview process.
8. The 2nd respondent, KK Naidoo, also testified.
9. At the commencement of the arbitration proceedings, several common cause issues were identified and some undisputed facts became apparent during the proceedings.
10. In 2018, the Department of Education advertised a Level 4 post of Principalship at the Umhloti Primary School (Verulam), post number 264, advertised in HRM Circular 70 of 2018. KK Naidoo was appointed to the post on 19 August 2019. The appointment was not based on affirmative action.
11. Nene had applied for the post. When the post was advertised, he was employed by the Department of Education KZN as a Level 1 educator at the Mount Haven Primary School. He was short listed and attended the interviews on 27 March 2019. The appointment as a principal would have been a promotion for him, both in terms of salary and status.
12. An independent interview committee was appointed. The Interview Committee was constituted by three members of the SGB (“panellists”). Dr Naidoo (resource person) and A Reddy (SADTU observer) were present at the interviews. The panellist presented pre-agreed questions to each candidate and allocated a score based on their responses. The scores were presented to Dr Naidoo by panellist after each candidate was interviewed.
13. Five candidates attended the interviews in total. Nene and KK Naidoo were the 4th and 5th candidate respectively. There were no issues regarding the scoring of the first three candidates. After Nene had been interviewed and the scores presented to Dr Naidoo, he expressed concern about the scores allocated by the panellist to Nene. He expressed the view that these Nene’s scores were unusually high and that he would not be signing the scores for Nene. After some discussion, the Interview Committee agreed to wait and discuss the scores further after the 5th and final candidate had been interviewed.
14. After all the candidates were interviewed, there was a log discussion or argument, depending on the versions of parties, which resulted in some scores being changed. After the discussions, two of the three panellist, Luthuli and Khanyile, changed their scores. Dlamini did not change his score. Only the scores of Nene and KK Naidoo were adjusted. Following the adjustment, KK Naidoo’s score increased from 31.32 to 33.67 and he was thereafter the highest ranked candidate. Nene’s score decreased from 33.66 to 30.66 and he was joint 2nd ranked candidate together with Budram.
15. So, prior to adjustment in scores, the panellist had allocated the following scores to the candidates:
No Names Scores
A Mr MD Nene 33.66
B Mr KK Naidoo 31.32
C Mr R Budram 30.66
D Mr S. Naicker 29.67
E Dr JS Rubbi Nunan 28.67
16. After the adjustment, the following final scores were allocated by the panellists to the candidates and these scores were presented to the SGB for ratification:
Candidates Scores
A Mr KK Naidoo 33.67
B Mr MD Nene 30.66
C Mr R Budram 30.66
D Mr S Naicker 29.67
E Dr JS Rubbi Nunan 28.67

17. A ratification meeting was held on the same day after the interviews. Present at the meeting were seven (7) SGB members as well as Dr Naidoo and A. Reddy. Five of the SGB members wanted to recommend Nene for the position. Two (2) of the SGB members did not agree.
18. Dr Naidoo advised the SGB of the necessary process to be followed in terms of clause 16 of HRM Circular 70 of 2018 (“clause 16”), if they wished to change the Interview Committee ranked order and recommend Nene for the position.
19. For ease of reference, clause 16 provides as follows:
“CHANGE OF RANK ORDER OF RECOMMENDED CANDIDATES OF INTERVIEW COMMITTEE BY SCHOOL GOVERNING
In the event the SGB at the ratification decides to change the rank order of preference of the interview committee the following must be adhered to:
16.1 All discussions, deliberations and decisions on why they rank order of recommended candidates be changed must be accurately recorded.
16.2 Such changes must be separately motivated in writing and forwarded back to the interview committee to review the changes in rank order of recommended candidates.
16.3 The motivation must clearly indicate:
16.3.1 The reasons for recommending a change in rank order.
16.3.2 If and how after consulting any referees it influenced the SGB to change the rank order of the interview committee.
16.3.3 Clear comments indicating why EACH candidate recommended is not suitable if applicable.
16.3.4 How, after applying its selection criteria, the interview committee may have not correctly ranked the candidates.
16.4 All the information reflected above must be submitted by the SGB chairperson to the interview committee for review and consideration. In considering such a recommendation, it must be ensured that no unfair discrimination is practiced.
16.5 In the event the interview committee concurs with the recommendations of the SGB it must change the rank order of the recommended candidates and forward such to the SGB for ratification.
16.6 All the above information must be submitted to the District Office together with the Ranked Order of Recommended Candidates (Form EHR11).”
20. The nub of the applicant’s case is that he should have been appointed to the position as he was the most suitable candidate and the 1st respondent should have followed the recommendation of the SGB.
21. The respondents disputed that the applicant was the most suitable candidate for the position. It was common cause that all the candidates met the minimum requirements.
22. With regard to whether the Department of Education should have considered the recommendation of the SGB, it became apparent during this arbitration that a separate written motivation had not been submitted by Dr Naidoo to the Department of Education for consideration. Clause 16 requires that, if the SGB decides to change the ranked order of preference of the interview committee, the reason for the change must be separately motivated in writing and forwarded back to the interview committee to review the changes. It is not in dispute that the reasons for the change in the ranked order were contained in the minutes of the ratification meeting. It is in dispute as to whether a separate written motivation had been compiled by the SGB and handed over to Dr Naidoo for submission.
23. Further to the above, the applicant’s version is that Dr Naidoo’s conduct, in changing KK Naidoo’s interview timeslot, forcing the Interview Committee panellist to change their scores and failing to submit a written motivation for consideration, was bias and had unduly influenced the process in favour of KK Naidoo. This version was disputed by the respondent.
24. It is common cause that the KK Naidoo was initially scheduled as the second candidate to be interviewed on the day. His time slot was changed to the last time slot and was then the 5th candidate interviewed, after Nene. It is not in dispute that KK Naidoo had phoned Dr Naidoo in relation to changing the interview timeslot.
25. It was not disputed that the Interview Committee panellist attended training and were fully competent in the interview process.
26.

SURVEY OF EVIDENCE AND ARGUMENT
27. Nene presented the following evidence in support of his version that he was the most suitable candidate. He has a National Diploma in Education, an Advance Certificate in Education, an Honours Degree, Higher Education in Teaching and User Computers for Teachers. He had 15 years teaching experience which commenced in 2003. That teaching experience included the time he was employed by the SGB and in a transformation post. He was appointed by the Department of Education in 2010. He drew a distinction between teaching experience and years of service and maintained that he performed the same teaching functions whilst employed by both the state and the SGB. He maintained that he was the best candidate because he had done a lot for the community and worked very hard.
28. He agreed that he professionally qualified in 2009 when he obtained a National Diploma in Education and that his work experience and service was only thereafter recognised. He therefore had 9 years’ service and experience.
29. He agreed that the post he applied for was in a management position and that he was a Level 1 Educator with no management experience at that time. He was aware that KK Naidoo was teaching since 1983 and was a deputy principal and an acting principal. He maintained that it was possible for him to be placed in the position even with lesser years of experience than KK Naidoo.
30. KK Naidoo testified that at the time of applying for the position, he had 36 years of service. He was promoted to Departmental Head in 2000 and to Deputy Principal in 2006. He was appointed as Acting Principal of the school in 2019. He was in management since 2000 and had 13 years of experience as a Deputy Principal. He had many accolades including a National Teachers Award for school leadership.
31. The parties presented evidence in relation to changing KK Naidoo’s interview time slot.
32. KK Naidoo testified that he had to attend a memorial service in Gauteng and could only leave the next morning. His interview was initially scheduled for 12:00. He needed time to relax and prepare for the interviews. He followed due process. He first tried to contact Dlamini (the chairperson of the Interview Committee) who was not available. He then contacted Khanyile (the chairperson of the SGB). Khanyile said she was fine with changing the timeslot but he needed to check with Dr Naidoo. He phoned Dr Naidoo who did not have a problem with it. He then phoned Khanyile back and informed her accordingly. The timeslot was thereafter changed. He maintained that there was nothing irregular or unusual about changing the interview timeslot as it had happened in the past.
33. Luthuli contended that Dr Naidoo was bias in accommodating KK Naidoo. She agreed that there were no consequences because of the change in the timeslot but maintained that KK Naidoo should have contacted the chairperson of the Interview Committee instead of Dr Naidoo. There were no objections from the Interview Committee regarding the change.
34. Khanyile testified that KK Naidoo did not phone her regarding the changing the interview timeslot. She was informed of it by Dr Naidoo.
35. Dr Naidoo confirmed that KK Naidoo had phoned him and explained that he was travelling from Gauteng. He maintained that there was a valid reason for the request to change the interview timeslot and denied that he was safeguarding the interests of KK Naidoo. The changing of timeslots was not done for the first time. If the timeslot was not changed, the interview would have had to be scheduled for another day. The management plan is ridged and to reschedule KK Naidoo’s interview would have delay the entire process. If they continued with the interviews without accommodation, it may have rendered the process invalid.
36. The parties led evidence in relation to changing Nene’s and KK Naidoo initial interview scores
37. Luthuli testified that Dr Naidoo told then at the interviews that KK Naidoo had spoken better than Nene and he asked them to change their scores. She maintained that the changing of scores were irregular because Dr Naidoo referred to responses of KK Naidoo which were similar to the expected answers as opposed to responses from Nene. She was forced by Dr Naidoo to change the scores as Dr Naidoo said he would not otherwise sign the scores. She believed that Dr Naidoo wanted them to change their scores because he wanted KK Naidoo to score the highest. That was achieved even though Dlamini did not change his score. She agreed that the Interview Committee looked at the specific responses and the basis for the scores before the two members of the Interview Committee changed their scores. The minutes she drafted was not a true reflection of discussions as Dr Naidoo asked her to change her wording in the minutes to state “revisit the scores” and “after a long discussion, the scores were changed”. She was forced to sign the minutes because Dr Naidoo said he would otherwise not sign it. His handwriting is on the document.
38. Dlamini testified that after KK Naidoo was interviewed, Dr Naidoo said he was not happy with Nene’s scores and those scores will have to change. There was a huge debate because the Interview Committee was not happy with that. The panellists were forced to change the scores as Dr Naidoo said he would not sign the scores for Nene. He did not change his scores as he had scored the candidates according to their ability and based on the questions asked. He did not have any reason to believe that Dr Naidoo would have assisted KK Naidoo. He agreed that they were not threatened to change their scores. As the chairperson, he did not tell the other panellists that they did not have to change their scores.
39. Khanyile testified that Dr Naidoo had told them that KK Naidoo had answered the questions better than Nene but Nene was scored higher. Dr Naidoo said he would not sign Nene’s score unless it was changed. She changed her scores because she respected Dr Naidoo as a senior and elder. This was the only reason she changed her score.
40. She agreed she was fully competent in the interview process. There were no problems with the scoring of the first three candidates. She regarded the changing of scores as a serious matter but did not want to engage with Dr Naidoo. She agreed that Dr Naidoo signed the scores even though Dlamini did not change his scores. She agreed that she was not an ordinary panellist but had a B-Ed Degree.
41. Dr Naidoo testified that the role of the resource person was to guide the SGB towards filling the post. In terms of clause 12 of HRM 70, he had to ensure that the interview process was transparent, fair, non-discriminatory and in keeping with the constitution of the country. Scoring therefore had to be fair, both procedurally and substantively. Nene’s scores were high as compared to the first three candidates. There were agreed questions and suggested answers which was used as a benchmark to measure candidates’ responses and to ensure that scoring is fair. There was a 5 point difference between the 3rd candidate and Nene. He raised it because it was his responsibility to pick up discrepancies.
42. After the last candidate was interviewed, his words to the Interview Committee were “to revisit their scores as Nene score was unusually high”. He asked them to take him through their scoring process or thinking. He read out the responses of other candidates. Two panellists then changed their scores. He disagreed that there was an engagement or that anyone was threatened. The process was fair and transparent. Dlamini did not change his score and he respected that and did not put him under duress. He disagreed that this was because the levels had already been achieved what he wanted and he was happy. He maintained that after revisiting the scores, the scores were in line with the answers given by the candidates.
43. Once the scores are signed off, it means that he was satisfied with the process. He had to make sure that the process was fair and couldn’t turn a blind eye. It was not that he was threatening them by saying that he would not sign the scores. He could not allow the process to favour one candidate and he could not sign the scores if he knew it was wrong. He disagreed that he took away their independence of scoring or that he was needling with the process. He made sure that no one was disadvantaged. He acted in terms of the mandate set out in HRM 70.
44. Reddy testified that both Nene and KK Naidoo were his union members. When Dr Naidoo first raised his concerns about Nene’s scores being high, he suggested that they wait until all candidates were interviewed and they all agreed. After the scores were discussed, two members of the panel changed their scores and Dlamini did not, which was respected. There were no issues raised after the scores were changed and the panel agreed that those will be the final scores submitted. Dr Naidoo did not influence the scores. The candidates’ responses were read out and was compared to notes. The panellists made up their own minds to change their scores. Dr Naidoo used the information of the fist three candidates and compared it to Nene’s scores. Other candidates scores were discussed but it was decided to keep the scores of the other candidates. He did not recall any heated debate. He did not agree that Dr Naidoo was exerting influence on the scorers.
45. The parties presented evidence on whether the SGB had compiled and handed over a separate written motivation to Dr Naidoo.
46. Luthuli testified that the SGB wanted to recommend Nene for the position. The recommendation was ratified at a full meeting of the SGB on 27 March 2019. They then compiled a motivation letter which was signed by Dlamini, Luthuli, Ngubane and Khanyile.
47. She agreed that the motivation in their possession was not signed. She disputed that that was because it had not existed at that stage (March 2019) or that it had been prepared just to make a case for the SGB. She agreed that it was the only document not signed. She maintained that it did not make sense to submit a change in ranked order without the motivation.
48. The SGB considered the school, the learners, the demographics of the school, the scores of candidates, performance of candidates, communication with parents that speak zulu, etc. Dr Naidoo advised them that there must be a motivation and they cannot just change the ranked order. She disputed that Dr Naidoo had not been handed a motivation and maintained that Dr Naidoo would not have taken away incomplete work.
49. Dlamini testified that Nene was selected by the SGB as the preferred candidate. They wrote a motivation letter but did not keep a copy of the signed letter that was given to Dr Naidoo. Dr Naidoo was with them when selecting Nene and would not have submitted documents that were not complete. When the motivation was drafted, he was present with Dr Naidoo and Ngubane. The motivation letter then went to the SGB where it was signed. He signed the letter and gave it to Dr Naidoo. Dr Naidoo left with the motivation letter thereafter.
50. He maintained that it was Dr Naidoo’s duty to assist the SGB. Reddy, the union observer, did not sign the motivation letter but he was present when the motivation letter was signed. He disputed that the motivation letter was only prepared after KK Naidoo was appointed and is therefore not signed.
51. Khanyile testified that they recommended Nene for the position because they considered the conditions at the school where there are mainly Isizulu speaking learners and not many teachers. Dr Naidoo asked them to write a motivation letter in terms of clause 16. Dr Naidoo said that the motivation had to be typed. Three others went to get it typed and when they returned, Dr Naidoo asked her to read out the motivation letter to the SGB which she did. There were two letters when they came back. One was signed and the other was not because two members of the SGB did not agree. There was therefore a signed letter which was given to Dr Naidoo. She gave the motivation letter to Dr Naidoo after she read it out to the SGB. They stood up and went to Dr Naidoo where they appended their signature. She said that it was not true that Dr Naidoo did not receive the motivation because the motivation was typed and Dr Naidoo asked the secretary to delete everything from her computer which was done.
52. Ngubane, Reddy, Dlamini and Dr Naidoo left to type the motivation letter. The letter was typed by the school secretary and not Luthuli (who was the Interview Committee secretary). When she handed the letter to Dr Naidoo, Dlamini was present. When it was put to her that Dlamini testified that he had given Dr Naidoo the letter, she maintained that she did. She then maintained that she did not say that she gave the letter to Dr Naidoo.
53. On the question of whether, in terms of clause 16, the change in rank order was submitted by the chairperson of the SGB to the Interview Committee for consideration, she maintained that it was done when she read out the motivation letter to the SGB. She agreed that she looked at the minutes but could not answer as to why that was not in the minutes and maintained that that was the secretary’s responsibility. She was not trained on how to check every detail of the minutes. Dr Naidoo only advised them to write a motivation and did not advise that the change in ranked order had to be referred to the Interview Committee for consideration. She denied that the motivation letter was only prepared after KK Naidoo was appointed. She maintained that only two members did not sign the motivation. Reddy did not sign the motivation letter and maintained that he would come back and sign it. He signed some documents but was not sure if he signed the motivation letter. When it was put to her that if the motivation letter was part of the documents, Reddy would have signed it, she maintained that she was not sure because Reddy said he was unhappy.
54. Dr Naidoo testified that he discussed the procedure mentioned in clause 16 with the SGB. He attended the ratification meeting because he wanted to wait for the minutes of the meeting. Before leaving, he always makes sure that minutes are typed out and confirmed by the SGB. In this instance, the minutes were read, confirmed and signed by all, including Reddy.
55. He does not oversee the process of drafting a separate motivation. There was no separate written motivation submitted to him. He disagreed that he went to the secretary’s office to type out the motivation. He maintained that it was the minutes of the ratification meeting that was typed out and signed and not a separate motivation.
56. He was aware that the minutes included the recommendation and the reasons as to why the SGB wanted Nene to be ranked as the first candidate and believed, for that reason, it was fine to submit it as the motivation. He therefore took it with him and submitted it together with the other documents. He did not tell the SGB that he did not receive a motivation. He only submitted what was given to him.
57. The HOD had the final call and wanted a separate written motivation. Normally, If the department felt that there were outstanding documents, they would request it and the situation would be resolved. In this instance, the SGB could have still submitted a separate written motivation but they insisted that they had already submitted a written motivation. The investigation that followed resulted in a paradigm shift and the point of emphasis changed. Instead, they were investigating as to what happened with the separate written motivation that the SGB said it had submitted.
58. He maintained that he had no association with the school as it was not within his circuit and had no vested interest in the outcome. He denied that he had unfairly interfered in the ratification process.
59. He agreed that the minutes was not a proper motivation and the Department could not have acted on an improper motivation.
60. Reddy testified he was present at the ratification meeting as an observer. Dr Naidoo advised the meeting of the procedure to be followed in terms of clause 16 of HRM 70. He advised the meeting that there must be a justification because they had appointed the Interview Committee and now wanted to change the outcome of that process. The only justification used was demographics. He left the meeting thereafter.
61. He was not part of the team that went to the secretary’s office to type out a motivation. He did not know whether a motivation was prepared. He did not read or sign any motivation and was not part of any discussion or deliberations regarding the motivation. He was not present when any documents were handed to Dr Naidoo. He was aware that the HOD looks at changes in ranked order together with the justification in the motivation.
62. I considered the written closing arguments submitted by the parties in drafting my award.
SURVEY OF EVIDENCE AND ARGUMENT
63. The matter was referred to the ELRC as an unfair labour practice relating to promotion in terms of section 186(2)(a) of the Labour Relations Act. I am required to determine whether the conduct of the employer was unfair in not appointing Nene.
64. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) [2016] ZALCJHB 433 (handed down on 18 November 2016) it was held that a finding that a failure to promote was unfair must be a rational one i.e. it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the Employee’s qualifications and/or suitability for the position in question, against that of other candidates. The Court held that in promotion disputes it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for an Employee to show that the breach of the procedure had unfairly prejudiced him. This means that the Employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate.
65. It is trite that, in determining promotion disputes, it is not the task of the commissioner to consider whether the employer had arrived at the correct decision but to oversee where the employer had acted unfairly towards the employee. To show that there was any unfair conduct by the employer, the employee would have to show some sort of gross unreasonableness or mala fides on the part of the employer.
66. From the evidence submitted at this arbitration, I am not convinced that Nene was the best candidate for the position. Whilst Nene and KK Naidoo had both met the minimum requirements for the position, KK Naidoo was clearly far more experienced and qualified than Nene. After the scores were adjusted (dealt with later), KK Naidoo had clearly performed better than Nene at the interview.
67. Nene was a Level 1 teacher with 9 years of experience whilst KK Naidoo had 38 years of experience. Importantly, this was a management post. KK Naidoo had extensive management experience having served as a Departmental Head and Deputy principal and, for a short while, as an acting principle. Nene, on the other hand, had absolutely no management experience.
68. The SGB appointed the Interview Committee to conduct interviews and determine the ranked order of candidates suitable for appointment to the post. In terms of the final list handed to the SGB for ratification, KK Naidoo was ranked as the best candidate.
69. Whether Dr Naidoo had erred in any manner is a question answered later but from the evidence and argument before me, Dr Naidoo did not submit a separate written motivation/recommendation to the Department for it to consider changing the ranked order of the interview committee. The motivation mentioned in clause 16 is mandatory and its purpose is to provide justification for changing the ranked order. Although the SGB had change the ranked order, there was no justifiable reasons before the HOD to appoint Nene to the position. The applicant's version, that the HOD had failed to consider the recommendation of the SGB, is, therefore, without substance.
70. There was no gross unreasonableness or mala fides on the part of the employer in appointing the second ranked candidate on the SGB list and the first ranked candidate on the Interview Committee list, KK Naidoo, to the post of principalship. I therefore find that the conduct of the employer was not unfair in this regard.
71. I am not convinced that Dr Naidoo’s conduct during the recruitment process had demonstrated bias or that he had unduly influenced the recruitment process in favour of KK Naidoo. He was independently appointed and had no previous association with the school as it was not within his circuit. There was no evidence to suggest that he had a vested interest in the outcome.
72. I am not convinced that there was a separate written motivation that was handed to Dr Naidoo. On the evidence, the most probable version is that the minutes of the ratification process was signed and handed to Dr Naidoo and not a separate written motivation. I considered Dr Naidoo to be a reliable witness and I accept his evidence in this regard. The versions of the applicant’s witnesses were contradictory and unclear but there were bits of their evidence that tied in with Dr Naidoo’s version.
73. There was no signed copy of the written motivation available for perusal which raises huge question marks. The version that Dr Naidoo asked the secretary to delete the motivation from the system is highly questionable. There was confusion as to who was present when the motivation was drafted and signed as well as to whether it was Khanyile or Dlamini that handed it over to Dr Naidoo. It is highly probable that the minutes of the meeting (which contained details of the recommendation) had been read out at the SGB meeting as that is the general process to confirm minutes of meetings.
74. There was no evidence that both the minutes and the motivation were read out which would have happened if there was a motivation that was signed. Given that Dr Naidoo had assumed that the minutes had sufficed as a motivation at that stage, it makes sense that he would have left without requesting a separate motivation from the SGB and this ties in with the applicant’s version that Dr Naidoo would not have taken away incomplete work. I therefore find that the SGB did not prepare a separate written motivation and hand it over to Dr Naidoo in March 2019.
75. I find that Dr Naidoo had acted unreasonably in erroneously assuming that the minutes of the ratification meeting (which contained the discussion on the recommendation) had sufficed as a motivation required in clause 16. I accept, however, Dr Naidoo’s undisputed evidence that errors of this nature are normally rectified when outstanding information is requested by the Department and that this error could have also been rectified had the SGB drafted and submitted a separate written motivation when it was requested to do so. Instead, the SGB insisted that a separate written motivation had been submitted to Dr Naidoo and the ensuing investigation distracted from resolving the error.
76. Although I find that the conduct of the respondent was unreasonable, I am not convinced that the error had significantly prejudiced the applicant because of the opportunity that was available to resolve the error. Whilst I agree that Dr Naidoo had erred, I am not convinced that this was done intentionally to favour KK Naidoo.
77. There is no substance in the allegation that Dr Naidoo had favoured KK Naidoo in accommodating a change in his interview time. I accept that KK Naidoo had to attend a memorial service in Gauteng and could not attend the early interview. I accept that there was a valid reason to change his interview time and that this was not an unusual practice. The panellist had all agreed to the change and there were no objections raised at the interviews.
78. I am not convinced that changing the interview times had prejudiced Nene in any way. The applicant’s argument that the changing of the timeslot was to gauge the performance of Nene before interviewing KK Naidoo, is baseless and not supported by the evidence. I accept that the initial concern that Dr Naidoo raised regarding Nene’s high score was in comparison with the scores of the first three candidates which did not include KK Naidoo.
79. I accept that Dr Naidoo’s role at the interview process was to ensure that the interview process was transparent and fair and that the scores allocated to candidates was substantively fair. It was therefore not unreasonable for him to distance himself from scores that were not fairly allocated. I am therefore not convinced that he had forced the panellists to adjust their score merely by telling them that he was not going to append his signature to Nene’s score. The panellists were trained and fully competent in the interview process. Dlamini, the chairperson did not change his score and it is strange that Luthuli and Khanyile did not take guidance from the chairperson if they felt at the time that they were being forced to change their score.
80. Reddy was an independent observer and both Nene and KK Naidoo were his members. I accept his evidence in support of Dr Naidoo’s evidence that Dr Naidoo did not influence the scores. The panellists made up their own minds to change their scores. I accept that the two panellists changed their score on their own accord after the candidates’ responses were read out and compared to the agreed expected answers. I therefore find Dr Naidoo did not unduly interfere with the interview process.
81. Considering the matter holistically, I find that Nene was not the best candidate for the position and that the recruitment and selection process was not unfair. I accordingly find that the conduct of the employer in not appointing Nene to the post of principalship, was not unfair. The applicant is accordingly not entitled to the relief he seeks.
AWARD
In the circumstances, I make the following award:
82. The application is dismissed.
83. There is no order as to costs.

Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal