ELRC955-21/22GP

Panelist : Alta Reynolds

Case Number : ELRC955-21/22GP

Date of Award : 30 August 2022


In the ARBITRATION between:


Mokgotho, Mmamasepe Freddy
(Union/Applicant)

and

Education Department of Gauteng
(1st Respondent)

Motshabi, Segomoco Rebecca
(2nd Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down by the Education Labour Relations Council (ELRC) as an alleged unfair labour practice relating to promotion referred in terms of section 186 (2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was conducted virtually via Zoom video conferencing over five sittings on 19 May 2022, 23 June 2022, 24 June 2022, 4 August 2022 and 5 August 2022.

2. Present for the referring employee (the Applicant) were Ms Amanda Moloto (Attorney with Moloto Moyo Attorneys as Representative) and Mr Mmamasepe Freddy Mokgotho (the Applicant). Present for the employer, the Department of Education – Gauteng (the 1st Respondent), was Mr Matodi Modise (Deputy Chief Education Specialist: Labour Relations as Representative). Present too joined in these proceedings as the 2nd Respondent was Ms Segomoco Rebecca Motshabi (the successful candidate for the disputed post). Legal representation of the Applicant was permitted due to the nature of the dispute. The 2nd Respondent confirmed that the 1st Respondent would also be representing her and was present in the virtual proceedings with the 1st Respondent’s Representative. Mr Themba Tshabalala and Ms Mpotseng Moloi assisted with SeSotho interpretation during the proceedings.

3. The proceedings were conducted in English and SeSotho, with Zoom, digital, handwritten and typed recordings made.

4. An explanation of the arbitration proceedings was provided for the benefit of the Applicant and the 2nd Respondent.

5. No preliminary issues required to be addressed.

6. Written closing arguments were requested and agreed to at the last sitting of the arbitration. It was agreed by both parties that they would submit their closing arguments to the ELRC’s Case Management Officer and copied to one another via e-mail, as follows:

The Applicant by not later than 10 August 2022
The 1st Respondent by not later than 15 August 2022 (which would also be on behalf of the 2nd Respondent)
The Applicant’s reply by not later than 17 August 2022.

7. The parties were informed that the award due date would be amended accordingly. The parties’ written closing arguments were received on or before the due dates. The Applicant confirmed on 18 August 2022 that they would not be submitting a reply to the 1st Respondent’s submissions.

ISSUE TO BE DECIDED

8. The purpose of this arbitration is to determine whether the 1st Respondent had committed an unfair labour practice relating to promotion in terms of section 186 (2)(a) of the LRA. The relief sought by the Applicant is to be appointed in the advertised post of Principal Post Level 4 at Kgomoco Primary School and for the appointment of the 2nd Respondent to be set aside. It is noted that in the Applicant’s closing arguments the alternative relief of protected promotion was also introduced. It was confirmed that the onus of proof would be on the Applicant in this matter.

BACKGROUND TO THE DISPUTE

The following facts were established as common cause

9. The Applicant currently occupies the post of Deputy Principal at Jordan Secondary School in Everton, Vaal, Gauteng, at Post Level 3, which he has occupied since 1 August 2016. The post of Principal at Kgomoco Primary School in Sharpeville, Vaal, Gauteng was advertised under Circular 03 of 2020 post number SE3OED1001 dated October 2020. The Applicant applied for the post, was shortlisted and interviewed. The School Governing Body (SGB) nominated three candidates for appointment, which included the Applicant. The District Director for Sedibeng East District Office recommended the second candidate in ranking, Ms Motshabi (the 2nd Respondent), to the HOD for appointment. The Applicant was the first recommended candidate. The 2nd Respondent’s appointment was confirmed by the HOD and she was to take up the position on 1 February 2022. The 2nd Respondent was appointed based on employment equity considerations. The Applicant’s PERSAL number is 18501583 and the 2nd Respondent’s PERSAL number is 11165154. Their pay statements were not available to confirm earnings.

The following facts were in dispute:

10. Whether the District Director consulted with the SGB before the second candidate (2nd Respondent) was recommended for appointment to the HOD.
11. Whether females are underrepresented in Gauteng Province and Sedibeng East District in terms of the 1st Respondent’s employment equity plan.
12. Whether the 1st Respondent’s employment equity plan has been applied inconsistently in Gauteng and the Sedibeng East District.
13. Whether the Applicant was the most suitable candidate for the advertised post.
14. Whether the 1st Respondent had committed an unfair labour practice by not appointing the Applicant in the advertised post.

SURVEY OF EVIDENCE AND ARGUMENT

15. Mr Mmamasepe Freddy Mokgotho, the Applicant, Ms Gladys Mokoka, Secretary of the SGB Selection Committee (Panel), and Mr Ndosi Mofokeng, Chairperson of the Selection Panel and Chairperson of Kgomoco Primary School SGB, testified under oath for the Applicant party.

16. Ms Nomathenba Xawuka, Assistant Director Human Resources and Provisioning, Mr Phello Metsing, District Director Sedibeng East District, and Mr Enoch Mchiza, Deputy Director Administration and Secretariat at the HOD’s office, testified under oath for the 1st Respondent. The 1st Respondent confirmed that the 2nd Respondent would not be called to testify. It is noted that the 1st Respondent was going to call Ms Rishile Chauke, Deputy Director and Head of Human Resources, Gauteng, to testify, but since she was on maternity leave Ms Xawuka testified in her place.

17. Both parties also intended to recall Mr Mofokeng to testify, depending on the evidence of the 1st Respondent’s further witnesses, but elected not to do so after the the evidence of the 1st Respondent’s witnesses was concluded.

18. Documents were handed in by the Applicant and the 1st Respondent. The 1st Respondent’s Representative alleged that certain documents handed in by the Applicant were unlawfully obtained from the office of the District Director, in particular pages 8 to 59 and pages 70 and 71 of the Applicant’s bundle, which also included personal information of the 2nd Respondent, to which consent had not been given by her in terms of the Protection of Personal Information Act No 4 of 2013 as amended (the POPIA), and requested that these documents not be accepted as evidence. It was agreed that witnesses would be called to testify to the disputed documents, of which the evidentiary value will be considered by the Arbitrator and based on the submissions made by the parties in their closing arguments.

19. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.

THE APPLICANT’S EVIDENCE

20. The Applicant party’s case was that the Applicant was the most suitable candidate for the post and met all the post requirements. The appointment of the incumbent (the 2nd Respondent) was unlawful. The 1st Respondent‘s reliance on the equity circular was unfair and the 1st Respondent did not implement the Equity Circular 9 of 2020 consistently. The Applicant would call two witnesses in support of his ability. The Applicant would also give evidence and evidence would be led to show inconsistency and the unsuitability of the 2nd Respondent. The Applicant sought that the appointment of the 2nd Respondent is set aside and that he be appointed as the Principal of Kgomoco Primary School.

21. Mr Mmamasepe Freddy Mokgotho, the Applicant, testified as follows under oath in his evidence in chief: He explained why he had lodged the dispute with the ELRC and why he felt he was the better candidate to be appointed in the advertised post since he met all the leadership, administration and management skills required for the advertised post, compared to that of the 2nd Respondent. He had also scored higher than the 2nd Respondent in the interviews, with her score being 86 and his being 110. Although the 2nd Respondent does meet the post requirements, he is better positioned than her in terms of his qualifications, managerial experience and his interview score, whilst he is presently also a Deputy Principal at a school. The 2nd Respondent at Post Level 3 was office based at the Sedibeng West District Office as an Assessment Specialist and did not interact with Educators at school level, experiencing the challenges at school level, whereas he interacted with both Educators and learners at school lever on a daily basis.

22. He found out on 4 March 2022 from a parent of Kgomoco Primary School that the parents at the school chased the 2nd Respondent away and he was referred to the Chairperson of the SGB, who informed him that the parents did chase the female Principal away because they were unhappy about her appointment and that he, Mr Mokgotho, was their preferred candidate, but that the District was trying to address an equity problem at the school. At Kgomoco Primary School there are 27 Educators, of which 26 are permanent. Of the 27 Educators, 26 are female and two are male, with one of the males being temporary, hence it was questioned how equity could be addressed in that instance. The School Management Team (SMT) at Kgomoco comprised of only females, with no males. The one permanent male Educator at Kgomoco is on Post Level 1. At Tswelopele Primary School, which is next door to Kgomoco, there are 35 Educators, of which 28 are female and seven male Educators, yet on 1 September 2021 the 1st Respondent appointed a male Principal, Mr Lemisa, at that school. The 1st Respondent had therefore been inconsistent in addressing equity, which is why the 2nd Respondent was chased away from Kgomoco Primary School. He confirmed that Mr Lemisa’s appointment letter was available, but was not contained in their bundle of documents.

23. When the vacancy list was released it did not make any provision as to whether it was an equity post and that female candidates would be preferred over male candidates, otherwise he would not have bothered to apply for the post. With only two male Educators employed at Kgomoco, they are overburdened in dealing with boy learners, who are nowadays very naughty and need more male Educators to deal with them. If the 1st Respondent wanted to address equity at Kgomoco it should have brought in more male than female Educators. He was referred to the statistics indicating the number of female versus male Educators in the Province. He confirmed that with respect to the total number of school Principals there are more males than females employed, reflecting a gender imbalance.

24. There is presently no Principal at Kgomoco Primary School since the parents chased the candidate preferred by the 1st Respondent away. The District Office was supposed to go back to the SGB and parents if they preferred the second candidate. It is stated in Collective Agreement No 1 of 2021 Recruitment and Placement Procedures for Educators at Schools at clause 16.2 that if the HOD declines the SGB recommendation he or she must provide full motivation in writing within 14 working days or call a meeting with the SGB to discuss the rejection of the recommendation and to minute the decision taken in the meeting. The District failed to call such a meeting before they made the recommendation for the 2nd Respondent to be appointed.

25. At a school where the SMT consists of only females with no males, there would definitely be a gender imbalance as girl learners are normally referred to female Educators for their issues which they cannot discuss with male Educators. Boy learners also have certain issues which they cannot discuss with female Educators. This will impact negatively on the running of the school as boys have the tendency to undermine the female Educators. Equity should not be cast in stone and the 1st Respondent should consider the circumstances at a school before applying equity.

26. Mr Mokgotho testified as follows under cross-examination: He is currently a Deputy Principal at a Secondary School and applied for the Principal post at a Primary School. Three candidates were recommended to the HOD for the Principal post and all three were appointable. He agreed that the duty of the SGB is to recommend and not to appoint, and that if the second candidate rejects the appointment that the third candidate can be appointed. He believed he was the best candidate because he had the hightest score, with better qualifications than everyone else and his managerial experience was at a school and not at the District. The Chairperspon of the SGB informed him that he was recommended as the best candidate and showed him the score. The document in the Applicant’s bundle which compared his and the 2nd Respondent’s managerial work experience and qualifications was obtained by his Attorney. He did not know where his Attorney got the 2nd Respondent’s qualifications from. He did not know who compiled the document in the Applicant’s bundle reflecting the inconsistencies in the application of gender equity in the post establishments of Kgomoco Primary School and Tswelopele Primary School, but it was obtained by his Attorney.

27. As to why his experience and qualifications were not relevant to the school type, being a Primary School, the Principal is a management post and there is no policy that says one may not apply from a Secondary School to a Primary School. When he said he was in Management of his present school, he meant about serving on the SMT. It is correct that the SMT consists of HODs, the Deputy Principal and Principal of a school and that the 2nd Respondent has not been a Deputy Principal but the Manager of a school. At his school as Deputy Principal he manages 34 Educators. He did not know that the 2nd Respondent is responsible for managing about 2000 Educators. As to whether she in her position in the District on a daily basis interacts with more than 50 Educators, it was on assessment issues and not management issues and all aspects of the school.

28. The SGB Chairperson did not tell him that the role of the SGB is to recommend three appointable candidates, but according to the Chairperson he was recommended. The SGB Chairperson told him that there was a meeting between the SGB, the Director and Deputy Director but way after the 14 days had lapsed. The SGB Chairperson did not tell him that the SGB told the District Director that they needed time to consult. He could not comment whether the District Director had to remind the SGB about outstanding information, neither whether the SGB consented in principle to the second candidate being appointed when they did not revert to the District Director. He was not aware that the SGB Chairperson called a meeting two weeks ago. He did not recall that Vacancy Circular 03 of 2020 stated that women and people with disabilities are encouraged to apply, thereby indicating that it is an equity post. He believed that in terms of equity between himself and the 2nd Respondent, he as a male is underrepresented based on gender.

29. He could not comment whether he was in possession of illegally acquired documents. He confirmed from the documents that there are 1265 Principals in the District, of whom there are 736 female Princpals. He agreed that according to the Provincial information females are underrepresented, but the dynamics of different schools should be considered, with equity not cast in stone. He agreed that the 2nd Respondent had more teaching experience than him since she started teaching in 1993, but she did not have more managerial experience than him. Although the advertisement had stated that seven years’ experience was required, but not in a management post, the Principal post required somebody with more experience in management, whilst the 2nd Respondent has experience at the District and not at schools.

30. Mr Mokgotho testified as follows under re-examination: As to the version put to him that the documents would not be admitted as evidence, he had consulted with his Attorney and during this consultation they met with the SGB Chairperson Mr Mofokeng. Mr Mofokeng gave the documents to them since he had copies of the documents which he sent to the District when he was preparing the file of the candidates. He was present when his Attorney prepared the documents. In the vacancy circular it was stated that the Principal post required seven years’ teaching experience, but that was not the only requirement as leadership, administration and management skills were also required. He could not respond regarding the charges brought against him about the documents, which is being dealt with by his Attorney.

31. Ms Gladys Mokoka, Secretary of the SGB Selection Panel, testified as follows in her evidence in chief: She has been an Administrator at Kgomoco Primary School for 21 years. She explained her duties as Administrator, which are not repeated here. She is also a SGB member representing the non-teaching staff. Her duties as SGB member was to take minutes on behalf of the non-teaching staff and draft a report for them on what transpired in a meeting. She was aware of the vacancy of the Principal at Kgomoco Primary School and was nominated as the Scribe or Secretary of the process.

32. As Scribe she took minutes, sent invitations to the candidates and Unions and she prepared the file with the SGB Chairperson and the Official delegated by the District office to assist them with the process. Once the file is prepared they send it to Human Resources Recruitment at the District Office. included gender issues whereby females were assigned three points and the male candidates were assigned one point. Six shortlisted candidates were called for interviews. One candidate withdrew, whereby they were left with five candidates for interviewing. She typed the question papers for the interviews and added the scores when the interviews were completed. The interviews were not held at Kgomoco Primary School but at Thutolore Secondary School.

33. She corrected that four and not three persons, including herself, got together and prepared the file after the interviews were completed. The four people were herself, the Chairperson of the SGB, the Official from the District Office, and Mr Sinxesi, also from the District Office. Mr Sinxesi was not a member of the Panel but was there to assist them with the processing of the minutes. The Chairperson of the SGB made his recommendations and a meeting was held with the SGB to give feedback on how the shortlisting and interviewing went, whereafter she took the file to Human Resources Recruitment at the District Office on 23 July 2021.

34. The Official at the District Office whom she worked with was Ms Thembe Xawuka. After she left the file at the District Office Ms Xawuka phoned her to inform her that an attendance register was missing. She had made copies of the file before taking it to the District Office, found the attendance register and took it to Ms Xawuka on 26 July 2021. She had asked Ms Xawuka if all the documents were now in order and what will happen next. Ms Xawuka told her that she was going to take the file to the District Director, but did not know how long the file will be with the Director and that the Director will inform them within 14 days if he is satisfied with the candidate they have recommended.

35. She said further if the District Director is not satisfied with the recommended candidate the Director or she, Ms Xawuka, would contact the SGB to come to an agreement about the candidate before the file can be taken to the HOD. It however did not happen that way because they met with the Director on 30 September 2021, when he explained that the SGB’s recommended candidate was not endorsed by the HOD because of gender equity and that he has appointed the second recommended candidate. The SGB was dissatisfied when they were informed of this by the Director since Ms Xawuka and Mr Modise had told the SGB during the workshop conducted by them that if their recommended candidate is not going to be put forward to the HOD then the Director would come back to them before the file could be taken to the HOD. They were shocked to hear this because it was after the long time from when they took the file to the Director in July 2021 and the first meeting with the Director was on 30 September 2021. They then questioned the Director why they were dealing with stage three of being informed of the appointed candidate when nothing was discussed with them at stage two. The Director informed them that once the HOD has appointed, it was final and there was nothing they could do. The Chairperson informed the Director that they would get back to him, when the Director indicated they could seek legal advice but should not use school funds for this purpose.

36. The meeting was adjourned and some of the SGB members stayed behind to discuss the way forward, when the Chairperson suggested that they should correspond directly with the HOD to find out exactly what happened. When the 1st Respondent tried to introduce the 2nd Respondent to the school in February 2022 the parents were waiting for her at the gate and stopped her from entering. She heard the chaos and noise and the argument which centred around why a female candidate was appointed when they wanted a male candidate, while their neighbouring school had a male Principal appointed.

37. The SMT at Kgocomo had three female members and one male member, who retired in December 2021, so they were left with three female members. In the school structure there are currently 24 female and three male Educators, of which two male Educators are appointed on a permanent basis and one temporarily. She had some knowledge of the structure of the neighbouring school Tswelopele. The Principal Mr Lemisa and the Acting Deputy Principal at Tswelopele are both males and the Principal was acting before he was appointed in August 2021. She knew there were also three female HODs and one acting HOD who is male.

38. She believed the parents at Kgomoco were against the HOD’s decision because they felt another male Educator is needed since the two male Educators battle to control the boy learners. Most of the parents at the school are young single female parents who will come and request the intervention of a male Educator when a child is problematic. There was currently no Deputy Principal at Kgomoco since he went on pension on 31 December 2021. The two permanent male Educators are not part of the SMT. She agreed that the Applicant was the most suitable candidate for the Principal post because she was part of the shortlisting and interviewing pocess in that she took the minutes and calculated the point allocations. She believed that it was in the best interest of the learners that a male person and not a female candidate be appointed on the basis of equity.

39. Ms Mokoka testified as follows under cross-examination: She was not a member of the SGB’s Selection Panel for the Principal post, but was elected as the Scribe or Secretary and represented the SGB in that capacity. She did attend the ratification meeting since she was also a member of the SGB, but was not supposed to say a word in that meeting because of having been the Scribe. Her appointment as Scribe ceased after the Principal was appointed. She did not have an interest in the person appointed. Three candidates were recommended since it was a rule communicated through the circulars. She agreed that the HOD had the authority to appoint and there was nothing wrong for the HOD to have appointed the second recommended candidate. She confirmed the recommendation made by the Selection Panel as contained in the documents.

40. After compiling the file she had made her own back up copy. She did not give the document copies to the Applicant but gave the file back up copies to the Chairperson. She agreed that the Chairperson was not an employee of the 1st Respondent. She did not know if it was correct to give privileged information of the 1st Respondent to a third party. She was referred to a document in the bundle relating to Educator numbers at Kgocomo Primary School stamped 11 May 2022, which she confirmed was part of the file sent to the District on 23 July 2021 but could not explain the difference in the dates, correcting herself afterwards that it was not part of the package that she sent to the District. As School Administrator she and Ms Vuiswa Mosikile are responsible for the strong room in the school. She did not comment on the proposition that she drafted the document and gave it to the Applicant and his Representative. She was also referred to another document in the bundle of documents relating to the Post Establishment for Kgomoco Primary School which was dated 27 June 2021 and was a month prior to 23 July 2021, which could therefore not have been part of the file sent to the District Office. She did not know how that happened and denied again that she was the person who gave the Applicant and his Representative these documents.

41. She knew that the SGB Chairperson did write to the HOD after the meeting of 30 September 2021 through his Secretary. She first denied that she saw that letter since she was not the Chairperson’s Secretary, but only of the SGB Selection Panel, but conceded afterwards that being a member of the SGB she did see the letter, but was not part of it since she was not the Secretary of the SGB. After the meeting of 30 September 2021 when the SGB expressed their dissatisfaction about the appointment and told the Director they would be seeking legal advice, they did not revert back to the Director since they had not yet received legal advice, although several follow up meetings were held. There were several follow up meetings, but not with the Director, who delegated other Officials to the school, being Mr Mokanane and his entourage. After the meeting in September 2021, there was a meeting in December 2021 with Mr Mokanane and two further meetings in February 2022. Mr Mokanane was not aware what was going on when they explained to him why the Principal had not as yet reported to the School.

42. She agreed that she made copies of the recommended candidates’ personal identities and information such as qualifications before sending the file to the District Director. She had not asked them if she could make copies of their personal information. She did not have a copy as back up of Annexure C: Form C – Recommendation/Submission in the bundle of documents that was signed by all the relevant Officials with the final signature of the HOD on 7 September 2021, since this copy was only received long after the interviews were completed. She confirmed that the SGB made the recommendations before the file was sent to the Disrict Director.

43. Ms Mokoka testified as follows under re-examination: She only kept a copy for herself of anything sent to the District Office. The Annexure C: Form C document referred to was not part of the documents sent to the District. She saw it from the Chairperson and there was no need for her to make a copy of it. Her back up bundle of documents comprised all the documents submitted by the recommended candidates, which included their certificates and qualifications, and were part of the package supplied to the District Director. Not all the documents in the Applicant’s bundle of documents were included in the package sent to the District Office, such as the Educator Numbers of Kgomoco Primary School date stamped 11 May 2022 and the school’s Staff Post Establishment dated 27 June 2021.

44. The outcome of the meeting in December 2021 with Mr Mokokeng and the District Director was that the Director should not send the appointed Principal to the school. The Chairperson showed the Director the Annexure C signed recommendation in the meeting, to which the Director did not respond. She also explained what happened at the other two meetings in February 2022, when Mr Mokokeng told them in the company of Mr Mlelekwa and others that a mistake had happened and that they should allow the Principal to come to school and work. They pleaded with them that the 2nd Respondent should not come until they had gone back to the parents. Everything then stopped after the matter was referred to the ELRC.

45. They did not receive any communication from the District Director from 23 July 2021 until 30 September 2021. She herself had made several follow up telephone calls to Ms Xawuka in HR and was also requested by the Chairperson to follow up with Ms Xawuka. She stopped calling Ms Xawuka as she felt that Ms Xawuka was not happy with her continued calls. The HOD delayed in responding to the Chairperson’s letter. The response from the HOD was the Annexure C Recommendation document sent to the Chairperson. During the whole process the HOD or the Director did not come back to the SGB within the 14 day period, but only at the end of September 2021, when they were informed that the HOD has already made an appointment.

46. Mr Ndosi Mofokeng, Chairperson of the SGB, testified as follows in his evidence in chief: He is the Chairperson of the Kgomoco Primary School SGB as well as the appointed Chairperson of the Selection Panel during the filling of the Principal post at Kgomoco Primary School. He explained his role in the process and the shortlisting and interviewing procedure which was followed. Several posts were advertised in the District, which included the Principal post at Kgomoco Primary School. They were called to the District and received training from Mr Modise and another lady (subsequently established to be Ms Xawuka) who trained them on how to conduct shortlisting and interviewing and anything else surrounding the process. During the selection process consideration was given to gender and gender equity, with women given three more points in terms of gender. Two Officials from the District assisted with the process, being Mr Molelekwa who was part of the Panel representing the Director and Mr Sinxesi as HR resource person who was not part of the Panel. The shortlisting and interviews went well and according to plan. After that he and Mr Molelekwa compiled a file, which they took to the District.

47. During the training Mr Modise said that after they had made their recommendations to the District and they did not hear anything from the District or the 1st Respondent within 14 days, then they must take it that everything went well. A long time after they had sent the file to the District in around May 2021 (later corrected to 23 July 2021 as testified to by Ms Mokoka) they received a message from the District Director requesting to see the SGB on 30 September 2021. At that meeting they heard from the District Director, with Mr Molelekwa present, that the HOD had recommended a female candidate due to gender equality and that the post reguired a female person. The SGB had argued to the Director that the Primary School next door had appointed a male Principal and that it was not specified that the post required a female incumbent, to which the Director had responded that they should not get involved in that school’s matters.

48. They were worried that the District was still employing male Principals, with examples provided, after they were told all these posts in the District were to be filled by females, with the manner in which gender equity was applied in the District questioned. Mr Metsing, the Acting District Director, wrote a letter to the SGB informing that the lady appointed would assume the position in February 2022. The SGB called a parents’ meeting and explained the whole process and who they as the SGB recommended for appointment, as well as the 14 day rule whereby whatever is in the file was accepted if there was no communication from the District. The parents were unhappy about this since it appeared things were not done properly and the rules were not followed, also that a male Principal had been appointed in the neighbouring school. That is when the parents decided that they will not allow the person recommended by the District to enter the school premises, which happened on 1 February 2022 when they gathered at the school.

49. As a result of this the school still does not have a Principal. He had sent a sms to the HOD asking for the 1st Respondent’s intervention at the school. The response from the HOD was the Annexure C document confirming the recommendations and approval of the appointment of the second recommended candidate. The District Director had in a meeting informed them that the District does not make any recommendation. The Director was shown this document and that he had recommended the second candidate in this submission. The District Director had never discussed with the SGB that he would be recommending the second candidate for appointment. The SGB had never recommended the 2nd Respondent for appointment. He provided the reasons why the first recommended candidate should be appointed, similar to what Ms Mokoka had testified to. Throughout all their meetings with the District Director they had tried to find an amicable solution and felt they had exhausted all internal remedies regarding the matter up till the point that the District allowed them to seek legal advice.

50. He was very surprised and shocked to hear of the allegations that certain documents in the Applicant’s bundle were stolen from the District Director’s Office since he was told the file was taken in for safekeeping. As Chairperson he was advised by the District Official that he must also have his own file if he needs to refer to it. The guideline in the 1st Respondent’s recruitment policy stated that the application forms must be taken into safekeeping by the SGB and can be disposed of after six months. The Applicant and his Attorney requested these documents contained in the Applicant’s bundle of documents from him as the Chairperson and he provided the documents to them in his capacity as Chairperson.

51. Mr Mofokeng testified as follows under cross-examination: He agreed that as a SGB member and Chairperson he must have a child at the school. It was not his sister’s child but his own child, which is why at one of the SGB meetings he was elected on to the SGB. As to the number of Panellists who were scoring the candidates, there was himself, Mr Molelekwa from the District, two parents and one Educator from the teaching component. He was not the only person who objected to the appointment made by the HOD, but it was the entire SGB. The interest that he had in the matter is in the Black child’s education. He did not respond to the version that money was collected from the learners to pay for the Applicant’s Attorney. He in his personal capacity did not make the recommendations for the candidates, which was done by the Panel. In making the recommendations they looked for qualifications, experience and managerial experience according to the post requirements and for the person who met the post requirements. They recommended the Applicant as the first candidate because he had the best qualifications. He was referred to the Applicant’s qualifications and he considered them relevant for the post. Although he as a parent was not familiar with the curriculum and the relevance of all the Applicant’s qualifications, there were other Officials and Panellists present during the interview who had considered the Applicant’s qualifications and experience and made the recommendation that he be put forward as the preferred candidate, in which they had not made an error. Although the 2nd Respondent might have more years of experience this is a Managerial post, in which aspect the Applicant is more qualified and experienced than the 2nd Respondent. They recommended three candidates in terms of the rules. Their role was to recommend and not to appoint and all three the candidates they recommended were appointable. As to whether the HOD had made a mistake because he appointed one of the candidates that they recommended, it was questioned if he had not made a mistake, why male Principals were appointed at other schools and not at their school.

52. The Director had not complied with the law which was contained in the 1st Respondent’s recruitment policy, which was read out again. What was explained now that the clause referred to did not apply since the HOD did not reject all the recommended appointable candidates, was not what was explained by Mr Modise when they received their training. His understanding was that if the HOD declines the preferred candidate then the SGB must get feedback within 14 days, which they only received after two months. He may have been mistaken that Mr Modise provided them the training.

53. The HOD sent him the Annexure C Recommendation document with the approvals on his phone after he had asked for an intervention from the 1st Respondent. He did not have his phone with him to prove this. The HOD did not provide him with any other documents. He only gave that document from the HOD to the Applicant’s Attorney when the Attorney requested it. After further questioning he stated that it was not only that document that he gave to the Attorney but all the other documents that the Attorney requested, as contained in the Applicant’s bundle of documents. As to the version that a witness will testify that the documents from pages 1 to 80 in the Applicant’s bundle did not go to the HOD’s Office but remained in the District Office, he explained that the file was not created by the Chairperson alone but in the presence of the District Officials.

54. They did not revert back to the District Director after the meeting that they informed him that they would consult and then revert back to him, because at that stage they were still consulting until such time that the Applicant had appointed an Attorney. He could not recall after how many months that was. It was put to him that when they did not revert back to the Director they had consented to the HOD’s appointment since silence means consent, to which he responded that they at no point had agreed with the appointment. He had no knowledge that Ms Mokoka was in possession of Mr Lesima’s appointment letter as Principal at the neighbouring school and whether Ms Mokoka had supplied it to the Applicant’s Attorney, but agreed that Mr Lemisa is appointed at that school.

55. Mr Mofokeng testified as follows under re-examination: The Applicant did have a qualification relevant to Education. He agreed that it was put to him that the District Director/HOD appointed the 2nd Respondent based on curriculum and not on gender. During his meetings with the Director or communications with the HOD it was never mentioned to him that the Applicant was unsuitable because he did not meet the curriculum requirements or experience. According to what the District Director told them the 2nd Respondent was appointed based on her being a female and they needed a female in the post for gender equity purposes.

THE RESPONDENTS’ EVIDENCE

56. The 1ST Respondent’s case was that they would prove that the 2nd Respondent, Ms Motshabi, had been correctly appointed, and would also show that the correct procedure in appointing her was followed. The SGB recommended three appointable candidates. The Director met with the SGB to inform them he is going to recommend the second candidate. They would also submit that the Head of Department (HOD) is the only person with the jurisdiction to make appointments and that the SGB agreed in principle with the District Director when he informed them about his recommendation. They would present two witnesses and also documents in support of their case.

57. Ms Nomathenba Xawuka testified as follows in her evidence in chief: Her occupation is that of Assistant Director Human Resource and Provisioning (HRP). She explained her duties as being to ensure that the recruitment and selection processes go according to requirements. As soon as a vacant post is advertised such as a promotional post at a school, HRP after the closing date conducts training with the SGB and Principal at the school in which they share the guidelines and steps when doing recruitment and selection, such as at Kgomoco Primary School, of which the detail is not repeated here. In the training they are told that after the recruitment and selection has been completed and their recommendations have been done, the Secretary of the Selection Panel will compile the file according to the checklist provided by HRP. After the Secretary has compiled the file it is brought to the HRP Office for verification, where the Chief Personnel Officers and herself will check the file against the checklists to ensure that all the documents are inside the file. The Secretary of the Panel compiles the file and ensures the file complies with the checklists. The Chairperson of the Panel only signs the minute after the file is compiled and is not involved in compiling the file. She explained how the SGB makes their candidate recommendations. Three appointable candidates, based on them all meeting the requirements of the advertised post, are recommended by the SGB in order of preference.

58. After the HRP Office receives the file, they also check if the three recommended candidates meet the requirements of the advertised post. The file then goes to the Deputy Director to verify what HRP had verified and from there it goes to the District Director. The District Director’s role is to double check the recommendations made by the SGB, especially with respect to equity. The approval of the appointment is made by the HOD at Head Office. After the appointment is approved the file returns by the same route to end back at the HRP Office. The HOD would not send the Annexure C signed recommendations to the Chairperson of the SGB. It was not possible for the Applicant to obtain the application forms of the two candidates included in the Applicant’s bundle of documents from her Office.

59. After approval the file is kept at the HRP Office and it does not go back to the school. HRP will just issue the appointment letter to the approved candidate. The HOD had done nothing wrong by appointing one of the recommended candidates for the Principal post at Kgomoco Primary School since it is the HOD who approves and the SGB only recommends.

60. Ms Xawuka testified as follows under cross-examination: She alone from HRP offered training in the filling of the post at Kgomoco Primary School, with the support of the Institutional Development Officer (IDSO) of the school, Makabtoro Rasekgoete. Mr Modise was also present to represent the Labour Unit during the training. It must be the Panel Secretary alone who compiles the file, as specified during the training. As to the Secretary Ms Mokoka testifying that Mr Molelekwa was present during the shortlisting and interview process at Kgomoco Primary School, she knew him as a Cluster Head at the District Office, but could not respond as to whether he was part of the process and a Panel member at the time since she could not remember this.

61. As for the Secretary having to compile the file alone, the role of the Panel Chairperson is to conduct the process of shortlisting and interviewing, with his last duty on the Panel being to sign the minutes after the Secretary has typed them. The Chairperson does not sign off and compile the file with the Secretary, but only the minutes of the shortlisting and the interviews. She did not recall sending Mr Molelekwa to assist with the process. If Mr Molelekwa was part of the Panel he could have been there to assist with shortlisting and interviewing, but they would not have sent him to assist to compile the file.

62. When they at HRP receive the file from the Secretary they refer to the checklist and verify that all the documents are inside the file, as well as those for the recommended three candidates. If there is anything outstanding they would contact the Secretary, but if it is routed to the Deputy Director it means the file is complete. As to Ms Mokoka testifying that Mr Molelekwa had said that they should keep a copy of the file in their possession, it is proper for them to keep a copy before the file is submitted, but only the Secretary may keep a copy, not the SGB. She could not recall if there was anything outstanding on that file, but it is possible that an attendance register could have been outstanding as Ms Mokoka had testified.

63. After the recommendations are confirmed by her Office and sent off to the Deputy Director, it takes about two days for further verification, depending on the availability of the Director to check the file, which is then returned to them and routed to Head Office. She could not say how long it would take for approval at Head Office, but once it is approved it immediately comes back to them. Her understanding of clause 16.2 of Collective Agreement 1 of 2021 was that depending on the availability of the person who is approving, it may exceed the 14 days for the HOD to approve the file. It does not mean that the recommendation of the Panel stands and if there are changes to the recommendations of the SGB the HOD will communicate with the District Director and will hold a meeting with the SGB to explain what happened.

64. She remembered the follow ups made by Ms Mokoka and the Chairperson of the Selection Panel and explained to them every time that the file was en route to the HOD. She did not know when the file reached the HOD. She did not know about the date of 30 September 2021 that the District Director reverted to the SGB after the file was submitted on 23 July 2021. The file could not take more than two months with the office of the HOD, but it is possible that there may have been a delay elsewhere and not in the HOD’s office, with reference to the signatures and dates signed off by the Officials in the Annexure C form, which are not repeated here, with the first signature being on 10 August 2021. If the school SGB had sent a communication directly to the HOD he would have referred it to the District Director and not directly to whomever had sent it, which she regarded as improbable if it was alleged the HOD had done that. As to when the HOD had decided not to appoint the first candidate, she could not respond to the information that went to the District Director, but if changes are made by the HOD, the HOD will inform the District Director, who will then convey the news to the SGB of the school. The District Director is not required to discuss it with the SGB before the HOD makes the appointment, since the HOD makes the final decision. As to Ms Mokoka and Mr Mofokeng’s testimony that in their training they were informed that if the HOD does not agree with the SGB recommendation that they would refer back to the SGB, it was for information only to the SGB since the HOD has the final approval. The SGB or District Director cannot deviate from the Collective Agreements.

65. In her position at the Sedibeng East District she was privy to how many male and female school Principals have been appointed. She was also referred to Vacancy Circular 03 of 2020, which included the advertisements for four vacant Principal posts and one Deputy Principal post. The vacant Principal posts were at Kgomoco Primary School in Sharpeville, Laerskool Drie Riviere in Vereeniging, Laerskool Republiek in Meyerton and Tshepong Primary School in shepong. The vacant Deputy Principal post was at Fountain Five Primary School in Heidelberg. She did not have the information of whether male or females were appointed in these posts as her Office did not handle the appointments in the other processes.

66. They were striving to reach the equity targets in the Province, but she could not respond if the equity circular was applied consistently, except to explain that the package presented to a SGB will include male and female applicants. The shortlisting will be done according to the requirements of the post. Even if five females and two males are shortlisted, it would depend on the interviewing process who the recommended candidates are and whether they are female or male. She would not know if females were recommended in the processes for those schools. She knew that the first recommended candidate for the Kgomoco Principal post had the highest score, but did not know how many males and females were on the Kgomoco SMT and that there were only two males on the establishment in the entire school. She could not respond to the statement whether it was in the best interest of the children at the school, given that there was no male on the SMT and only two males in the entire school, that the more suitable candidate was overlooked on equity which was not applied consistently.

67. Ms Xawuka testified as follows under re-examinaton: She had no control over the time frames to obtain signatures from the District and to when the HOD signed the approval since it depended on the people who were authorising. The Secretary of the Panel is supposed to compile the file, not the SGB Chairperson. She confirmed that she presented the training to the SGB.

68. Mr Phello Metsing testified as follows in his evidence in chief: He is the District Director of Sedibeng East of the 1st Respondent. His role pertaining to appointments is to ensure that the time frames provided by Head Office are adhered to by SGBs. He also approves SGB recommendations and his Office is involved in referring the recommendations to the Head Office for appointment decisions. He explained what is meant by the words “decline” and “rejection” in clause 16.2 of Collective Agreement No 1 of 2021. By “decline” is meant when the HOD declines the candidate that the SGB recommended as their number one or preferred candidate. If the HOD declines the first candidate, then the law provides for the HOD to appoint any of the three recommended candidates. After the decision has been made by the HOD the HOD must within 14 working days provide an explanation to the SGB that their preferred candidate has been rejected. His Office is regarded as the delegated authority for the HOD and they will convene a meeting with the SGB after the file and appointment decision is received from the HOD.

69. When the file with recommendations is initially received from HRP his role is to check that the file contains all the required documents and he also adds his recommendation to the file that is then referred to the HOD. He confirmed that the role of the SGB is to make recommendations and not to make an appointment from the recommended candidates. He motivated why he recommended the SGB’s second candidate instead of the first candidate. Every time there is a vacancy list they are given targets in terms of the Equity Act and it is also the responsibility of the HOD to ensure that equity is implemented. They encourage the SGB to help them meet those targets, especially the progression of women in Principal posts, since in their case the District was retrogressing in terms of the appointment of women into Principal posts. In his position he represents the HOD and he needed to remind the HOD of the targets to appoint women in the Principal positions.

70. As to the fact that in two other schools male Principals were appointed, he responded that in terms of the equity requirements it was not the case of recommending any woman who is not qualified to become a Principal. It was an open vacancy list and if women applied for the post and did not qualify, then the possibility would be that the majority of males are shortlisted and interviewed and are recommended by that SGB. The HOD cannot appoint a person who is not recommended by the SGB. The dynamics of the schools are not the same, therefore schools cannot be compared since the situations may differ.

71. There was no way that the confidential documents contained in the Applicant’s bundle of documents could have been obtained, since the sealed applications are taken to the school and after the appointment is processed all the documents are returned to the District Office. Consent also has to be obtained in terms or the POPIA for such information to be shared in these proceedings. He did not give permission for this information to be released, and it was never applied for. The documents were therefore illegally obtained by the Applicant.

72. The HOD had not committed an error by appointing a person not recommended as first preference by the SGB since the policy did not state that only one candidate must be recommended, whereas three were recommended as being appointable.

73. Mr Metsing testified as follows under cross-examination: He was not aware of a break in at their Office (to steal the disputed documents) as he would have been the first to be informed to open a case with the SAPS. He confirmed that the documents in the Applicant’s bundle were not legally obtained. He was not aware, as testified by Mr Mofokeng, that in terms of the guidelines for the appointment of Educators and Chief Education Therapists the application forms must be kept in safekeeping of the SGB for six months until disposed of. What should happen is that the application forms sent to the school for shortlisting and interviews and submitted in the file to the HOD are returned in the file for safekeeping by the District.

74. If the HOD declines the first candidate recommended by the SGB they have to communicate that information to the SGB after 14 days. He could not recall the date that the HOD declined the first recommendation of the SGB, but the time they received the file was within the stipulated period. When the HOD declined the recommended candidate they convened a meeting with the SGB. He could not recall the date of the meeting, but it was in October/November 2021. In that meeting they explained the HOD’s decision. The SGB was not happy in their response. There were minutes taken of the meeting with the SGB, which were not in the 1st Respondent’s bundle of documents.

75. He confirmed the signatures and dates on the Annexure C Recommendation document as contained in the Applicant’s bundle of documents, with the HOD’s signature of approval dated 7 September 2021. He could not dispute that the feedback meeting with the SGB was conducted on 30 September 2021, since he could not recall the date that the meeting took place. When he made his recommendation to the HOD for the second candidate on 11 August 2021, he did not discuss this with the SGB since the law did not provide that he discuss it with them. He did not know yet what the HOD was going to decide and had to wait until the outcome of the HOD was available. The communication of the HOD outcome is provided for in two processes, either verbally or to convene a meeting.

76. The Secretary of the SGB Selection Panel was irresponsible to state that no minutes of that feedback meeting were taken, since the minutes were available and could have been requested by the parties. They had to provide feedback to the SGB but did not have the powers to change the HOD’s decision. They did sit down with the SGB when the recommendation was declined. The mere fact that the HOD had not appointed the SGB’s preferred candidate and appointed the second candidate, confirms that the first candidate was rejected by the HOD.

77. He was referred to the candidates appointed by gender at the other schools advertised in the same Vacancy List. They would still not meet the equity target because of the slowness in appointing women in Principal posts. He was aware that the Applicant was the highest scoring candidate for the post. The second candidate’s recommendation was based on employment equity. The District had not applied equity consistently, otherwise they would have reached the 50% female target by now. The District was falling short because of the appointment of male candidates, when more female candidates needed to be appointed.

78. As to whether equity seemed to be more applicable in some instances where male Principals were appointed instead of females, in many instances it was part of the challenge that once the advertisement had been placed, they found that males were competing for the Principal posts and only males could then be recommended by the SGBs. It was easier in Kgomoco Primary School, when an appointable female was recommended as the second preferred candidate. If only males apply for a post the HOD has the discretion to restart the process if he believes that equity has not been implemented. His (Mr Metsing’s) decision to recommend the second candidate was not based on curriculum, but on equity.

79. No re-examination of this witness was required.

80. Mr Enoch Mchiza (Mkhize) testified as follows in his evidence in chief: He is the Deputy Director for Administration and Secretariat, currently acting as Director, in the Office of the HOD. He explained the procedure to be followed if the Chairperson of the SGB wanted to apply for documents like the Annexure C: Form C – Recommendation/Submission from the HOD, aside from the District Director. Annexure C is a type of template given to District Offices to use when appointments are made at schooling level to capture the decisions and processes undertaken in the interviewing process, and would end at the HOD’s Office as Accounting Officer to make a determination. Once the file is received by the Office of the HOD, he, Mr Mchiza, quality assures the file and hands it to the HOD for a determination to be made, which is then returned to him and a copy made for their office, with the file sent back to where it came from. Whatever the HOD Office has in their possession will never be given to any other individual, apart from the persons along the route through which the file came to their office. As to whether Mr Mofokeng had testified that he was in communication with the HOD’s Office and that the HOD had sent him the Annexure C Form, he refuted that such a process would be undertaken by their Office, which was highly unlikely and unprocedural.

81. Mr Mchiza testified as follows under cross-examination: As to whether a member of the SGB and Chairperson can send correspondence directly to the HOD if they are unhappy about the appointment process at a school, he confirmed that any individual can send information to the Office of the HOD involving any matters relating to Education. If the HOD’s Office received correspondence, an acknowledgement of receipt will be sent to the person who sought the information and referred to the relevant Office for a technical response. He is aware of all correspondence which is sent for the attention of the HOD through the Personal Assistant (PA) of the HOD or himself via e-mail or post. If it is sent to the MEC’S (HOD’s) PA via e-mail he would not have that information. He would also not know if the HOD had sent the issue to someone else to attend to. He was not aware of any correspondence sent by Mr Mofokeng from Kgomoco Primary School’s SGB to the HOD seeking an intervention.

82. He had made a copy of the Annexure C Form before sending it to the District Office. It is impossible that the HOD’s Office would have given a copy of that document or the file to any individual unless it followed the same procedure that it was sent to the HOD’s Office. He did not know if the file goes back to the school after it is returned to the District Office. He did not know what transpired at the District Office and if there was any break in during which documents as contained in the Applicant’s bundle of documents were allegedly stolen. No documents were given to Mr Mofokeng, the SGB Chairperson, from their Office. It was true that he was not the only person dealing with e-mails and correspondence, but it was unlikely that anyone else would have sent the documents since every Official is vetted by the SA Security Agency and the standard procedures have to be complied with. If somebody else in the HOD’s Office had sent the documents to Mr Mofokeng, it would not have been in compliance with the standard operating procedures. He confirmed he never personally sent those documents to Mr Mofokeng, but could not speak for other Officials who could have done so.

83. No re-examination was also required of this witness.

CLOSING ARGUMENT

84. Written closing arguments were presented by the parties as agreed to at the conclusion of the arbitration. These closing arguments are not repeated here, but have been summarised under Analysis of Evidence and Argument and taken into account in arriving at the award.

ANALYSIS OF EVIDENCE AND ARGUMENT

85. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the 1st Respondent, the Department of Education – Gauteng, had committed an unfair labour practice relating to promotion by appointing Ms Segomoco Rebecca Motshabi, the 2nd Respondent, into the advertised position of Principal Post Level 4 at Kgomoco Primary School and not the Applicant, Mr Mmamasepe Freddy Mokgotho. Ms Motshabi was joined in the arbitration as the 2nd Respondent due to her having a substantial interest in the subject matter of the proceedings.

86. The relevant provisions in terms of section 186 (2)(a) of the LRA are the following:

(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to 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;

87. It was common cause that the Applicant currently occupies a Deputy Principal Post Level 3 position at a different school, Jordan Secondary School in Everton, Gauteng, that he met all the requirements of the advertised post, was shortlisted and interviewed, and was nominated as the first recommended candidate for the post by the School Governing Body’s (SGB) Selection Panel. It was further common cause that the SGB’s second recommended candidate was Ms Segomoco Rebecca Motshabi, the 2nd Respondent.

88. It was also common cause that the 1st Respondent’s delegated authority, the Head of Department for Gauteng Province, did not ratify the Applicant’s appointment due to the requirements of its Employment Equity Plan (EEP), which required more females to be appointed at the level of school Principal in the 1st Respondent’s Sedibeng East District, as a result of which the SGB’s second recommended candidate, Ms Motshabi, was appointed instead.

89. The Applicant party’s version and argument is summarised as follows: A point in limine had been raised by the 1st Respondent in that it was alleged that documents in the Applicant’s bundle of documents were stolen from the Offices of the District Director of Sedibeng East during a break in that occurred there and that these documents should not be admitted into evidence due to having been stolen, whereas the District Director himself had denied that there was such a break in and that documents were stolen from their Offices. The Applicant had also submitted that the documents in their bundle were obtained from the Chairperson of the SGB, with the Chairperson and the Secretary of the SGB’s Selection Panel testifying that they were advised by Mr Molelekwa of the District Office that they should keep a back up file of the recruitment and selection process documents in the SGB’s safekeeping.

90. They referred to the evidence presented by the parties’ witnesses, which is not repeated here since the detail has been sufficiently captured in the body of this award, save to highlight that the 1st Respondent had been inconsistent in applying equity at Kgomoco Primary School when male Principals had been appointed at other schools and a neighbouring school, and that the correct procedure had not been followed in appointing the 2nd Respondent since the 1st Respondent had not informed the SGB within 14 working days that the HOD was not satisfied with their recommended candidate.

91. They submitted further that the Applicant had discharged the onus to prove that the appointment of the 2nd Respondent was irrational and unfair, for the following reasons: The 1st Respondent did not present evidence of the fairness of the process followed and that the appointment or non-appointment was rational or fair, with the only evidence presented being that the appointment was based solely on equity. The District Director had also not complied with clause 16.2 of Collective Agreement No 1 of 2021, with no evidence led to indicate that the HOD had provided a full motivation in writing within 14 working days or called a meeting with the SGB to discuss the rejection of the SGB’s recommendation and to minute the decision taken at that meeting, with the first meeting having only taken place on 30 September 2021. Male Principals had been appointed at other schools despite the District sitting at 31.9 percent of female Principals in terms of equity. Circular 9 of 2020 the Circular on the Implementation of Employment Equity Plan dated 13 October 2020 was therefore not sacrosanct and the HOD could have applied his mind in different situations so that strict adherence to that Circular should not be to the detriment of the school and learners. To support their submissions reference was made to the matter in Head of Western Cape Education Department v Governing Body of Point High School (584/2007) [2008] ZASCA 48 (31 March 2008), in particular that Circular 9 of 2020 is not regarded as absolute and that the HOD must conform to the statutory requirements of fair administration.

92. They concluded that the Applicant sought an order directing the 1st Respondent to appoint him in the Principal post at Kgomoco Primary School with back-pay to the date of non-promotion, alternatively granting him “protected promotion”. The Arbitrator was also referred to Collective Agreement 3 of 2016 which provides that before granting any relief, consideration must be given to the effect that the relief is likely to have on the school, the Education Department and the learners, with all awards being in the best interest of the learners.

93. The 1st Respondent’s version and argument is summarised as follows, with specific reference to the testimony of the parties’ witnesses: Although the Applicant had testified that he was the most qualified candidate, he was not as suitably qualified as the 2nd Respondent and possessed irrelevant qualifications not recognised by Basic Education. The Applicant had presented an unlawfully acquired bundle of documents and the 1st Respondent submitted that the Arbitrator approach these documents with caution, or that they are not admitted as material evidence. The HOD had not committed an error in appointing the 2nd Respondent since the mandate of the Panel was to recommend three candidates, with the appointment made by the office of the HOD, not the SGB.

94. The Chairperson of the SGB was not viewed as being truthful during his testimony and seemed to have a personal or financial interest in the appointment of the Applicant, and did not have the interest of the learners at heart as he had stated. The District Director’s role during the recruitment process was to remind the HOD about gender equity. As to why males were appointed at three other schools and not females, the SGBs had mostly recommended males and had to motivate their recommendations. A female candidate could not be appointed for the sake of equity if not recommended by the SGB. The 2nd Respondent was recommended by the SGB of Kgomoco Primary School and was appointable, whereby she was appointed by the HOD on the basis of equity. There were procedures in place to acquire documents from the HOD’s office and the HOD has never provided any person confidential dcouments.

95. They submitted in conclusion that the HOD never committed an error in addressing equity and had acted within the law, and that the Employment of Educators Act No 76 of 1998 (the EEA) and the Personnel Administrative Measures (PAM) of the EEA give the HOD the authority to appoint a suitable candidate. The applicable Vacancy Circular 03 of 2020 stated that women and people with disabilities are encouraged to apply and that preference will be given to underrepresented groups as per the Gauteng Department of Education Employment Equity Targets contained in Circular 9 of 2020 the Circular on the Implementation of Employment Equity Plan.

96. With respect to the parties’ aforementioned averments and the case at hand, I refer to the following extracts from the EEA, which are deemed as relevant to this dispute:

6. Powers of employers
(1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator –
(a) in the service of the Department of Basic Education shall be made by the Director-General; or
(b) in the service of a provincial Department of Basic Education shall be made by the Head of Department.
(2) Subject to the provisions of this Chapter, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, appointments in, and promotions or transfers to, posts on any educator establishment under this Act shall be in accordance with such procedure and such requirements as the Minister may determine.
(3) (a) Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are so in excess and suitable for the post concerned.
(b) In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or council, as the case may be, must adhere to –
(i) the democratic values and principles as referred to in section 7(1);
(ii) any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators;
(iii) any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators which the candidate must meet;
(iv) a procedure whereby it is established that the candidate is registered or qualifies for registration as an educator with the South African Council for Educators; and
(v) procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.
(c) The governing body must submit, in order of preference to the Head of Department, a list of –
(i) at least three names of recommended candidates; or
(ii) fewer than three candidates in consultation with the Head of Department.
(d) When the Head of Department considers the recommendation contemplated in paragraph (c), he or she must, before making the appointment, ensure that the governing body has met the requirements in paragraph (b).
(e) If the governing body has not met the requirements in paragraph (b), the Head of Department must decline the recommendation.
(f) Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list.
(g) If the Head of Department declines a recommendation, he or she must –
(i) consider all the applications submitted for that post;
(ii) apply the requirements in paragraph (b) (i) to (iv); and
(iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post.
And then at (l):
(l) A recommendation contemplated in paragraph (a) shall be made within two months from the date on which a governing body was requested to make a recommendation, failing which the Head of Department may, subject to paragraph (g) make an appointment without a recommendation.

7. Appointments and filling of posts
(1) In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195(1) of the Constitution of the Republic of South Africa, 1996 (Act No 108 of 1996), and which include the following factors, namely –
(a) the ability of the candidate; and
(b) the need to redress the imbalances of the past in order to achieve broad representation.

97. The foregoing confirms that the Provincial Head of Department (HOD), or his/her delegated authority, is authorised to make appointments of Educators and that due regard must be given to the principles of equality, equity and democratic values provided for in other statutes such as the Employment Equity Act 55 of 1998 (the EEQA) and the Constitution in making such appointments.

98. Of particular relevance in this matter is Circular 9 of 2020 the Circular on the Implementation of Employment Equity Plan issued by the Department of Education – Gauteng Province on 13 October 2020 (the EEP Circular) and was referred to by both parties. Paragraphs 8.7 and 8.1(c) of the EEP Circular state, inter alia, that schools and SGBs must ensure that the selection and appointment of staff complies with the numerical targets and demographic goals informed by the Employment Equity Plan (EEP) as derived from the requirements of the EEQA. The EEP Circular is stated as applying to all Gauteng Department of Education (the 1st Respondent’s) employees, with special emphasis on designated groups, namely African, Coloured, Indian, Women and Persons with Disabilities.

99. The purpose of the EEP Circular is stated further under paragraph 2 as being to –
2.1 promote equal opportunities and fair treatment in employment through the elimination of unfair discrimination;
2.2 ensure applicability of equitable representation in all occupational levels of the workforce;
2.3 guide the processes of implementing affirmative action measures to redress the past imbalances experienced by designated groups; and
2.4 promote transparency and collaboration with organised labour and school governors.

100. Tables were also contained in the EEP Circular reflecting the 1st Respondent’s total workforce in terms of occupational levels, gender and race as at 31 December 2019. Table 4(c) School Principals reflected that out of 2001 Principals overall in the Province there were 1265 males and 736 females appointed. The percentage of female Principals was therefore 36.8% against a goal of 50%, with the comment that at school level there is a gender imbalance favouring male employees. The 1st Respondent’s evidence was that the Sedibeng East District lagged behind with only 31.9% female Principals. The statistics reflected in the EEP Circular were not disputed by the parties. The numerical targets to be achieved over three years were also contained in the EEP Circular. With respect to strategies to achieve the targets, the specific role and responsibility of the Head of Department under paragraph 8.1 was to also ensure that the selection and appointment of staff complies with numerical targets/demographic goals as informed by the Employment Equity Policy and be accountable for the achievement of the 1st Respondent’s Employment Equity goals/objectives.

FINDING

101. I have considered all the evidence and argument presented, but because section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute, with such findings made on the balance of probabilities. The following is accordingly found, on the balance of probabilities and in the circumstances of this case:

102. It was common cause that the Applicant was the first recommended candidate of the SGB for the advertised post of Principal at Kgomoco Primary School and that the 2nd Respondent was the second recommended candidate. It was also common cause that the 2nd Respondent was appointed because of equity considerations since females were shown to be underrepresented at the level of Principal in both the Province and the Sedibeng East District of the 1st Respondent, which statistics as presented in the EEP Circular were not disputed by the Applicant party.

103. Vacancy Circular 03 of 2020 – Educator Promotional Posts under 3. Advertisement and Appointment Principles stated as follows at 3.3 and 3.4 and would have made the Applicant aware that equity considerations would apply in making the appointment for the post that he applied for:

3.3 In advertising and filling of these vacant posts, the Department will be guided by policy guidelines, viz:
• Employment Equity measures for designated groups, namely black people in general (which include Indians, Coloureds and Africans), women and people with disabilities; and
• Representivity
3.4 Women and people with disabilities are encouraged to apply and preference will be given to the underrepresented groups as per the GDE Employment Equity Targets as in the Circular for the implementation of Employment Equity Plan No 09 of 2020.

104. The Applicant’s witnesses were all of the view that, although the SGB’s three recommended candidates were all regarded as appointable, the Applicant should have been appointed by the HOD because of other considerations and not ony employment equity, such as the specific circumstances at Kgomoco Primary School, which has too few males on the establishment and requires another male Educator to assist with and manage the boy learners.

105. A further issue of concern raised by the Applicant’s witnesses was that of inconsistency in the application of employment equity, since despite the underrepresentation of females in Principal posts, the 1st Respondent nevertheless still appointed males in Principal posts, citing, in addition to the male Principal appointed at the neighbouring Tswelopele Primary School, that male Principals were appointed at Laerskool Drie Riviere and Laerskool Republiek of which the Principal posts were advertised in the same Vacancy Circular 03 of 2020 as that of Kgomoco Primary School.

106. On the face of it, it would therefore appear that the 1st Respondent had indeed been inconsistent in not appointing the Applicant when the neighbouring school and two other schools had recently appointed male Principals, particularly when the statistics supported that females were underrepresented in this category within the Province and District.

107. Unfortunately the detail of the recruitment and selection processes followed and the recommendations that were made by those respective SGB’s were not available in these proceedings, nor any evidence led in this regard. The 1st Respondent’s version is however regarded as plausible that if no females had applied for those posts, or had applied but did not meet the post requirements, then it is improbable that they would have been recommended to the HOD for appointment. In such circumstances if only males had been recommended when there were none or no suitable female candidates, regardless of equity considerations and targets, then the HOD would have no alternative but to appoint a male candidate. Inconsistency can reasonably only be alleged if the same or similar circumstances had applied at these schools as at Kgomoco Primary School. In the case of Kgomoco Primary School, however, there was a suitable female candidate whom the SGB Selection Panel regarded as meeting the post requirements and was recommended as an appointable candidate for the HOD to consider. Given the gender challenges that the 1st Respondent faced in that category of Educator, it is not regarded as unreasonable for the HOD to have appointed the 2nd Respondent in the Principal post at Kgomoco Primary School.

108. If the SGB felt that they needed more male Educators to assist in managing the boys at the school, then males could be attracted or deployed from the other ranks for this purpose, not necessarily at Principal level.

109. It is noted that the process followed by the SGB’s Selection Panel in shortlisting, interviewing and recommending their preferred candidates to the HOD, was not placed in dispute. However, in their view the HOD should have appointed their preferred candidate, being the Applicant, since he had more managerial and leadership experience at school level than the 2nd Respondent who had been previously appointed at the District Office, hence their submission that the Applicant was the best qualified candidate for appointment in the post. From the evidence and admitted documents it is however found that the 2nd Respondent nevertheless did it meet the requirements for the post and qualified to be recommended for appointment.

110. A procedural aspect was placed in dispute and only arose after the SGB had completed their work and the recommendations were made to the HOD for appointment. This related to clause 16.2 of the ELRC Gauteng Provincial Chamber Collective Agreement No 1 of 2021 Recruitment and Placement Procedures for Educators at Schools dated 27 September 2021 (the Recruitment and Placement Procedures) which states as follows:

16.2 In cases where the Head of the Department or his/her delegated authority declines the School Governing Body’s recommendation he/she must provide full motivation in writing within 14 working days or call a meeting with the School Governing Body to discuss the rejection of the recommendation and to minute the decision taken in the meeting. Should there be no communiqué within fourteen (14) working days from the Head of Department or his/her delegated authority it will imply that the recommendation made by the School Governing Body stands.

111. It was not disputed that the Secretary of the Selection Panel provided the file to the District Office on 31 July 2021, and that the first meeting that the District Director as the delegated authority of the HOD had with the SGB regarding the appointment was on 30 September 2021. The approval route that the matter had to follow once received by the District Office is recorded and dated on the Annexure C: Form C Recommendation/Submission form, in this instance the request for approval from the HOD or delegated authority on the filling of the vacant Principal Post at Kgomoco Primary in GDE (Gauteng Department of Education) approved post establishment. The following signatories and dates are noted:

The SGB Chairperson’s motivation and recommendation that M F Mokgotho be appointed in the position of Principal at Kgomoco Primary School, dated 21 July 2021.
Ms Rishile Chauke, Deputy Director: THRS, dated 10 August 2021, accepting the SGB Chairperson’s recommendation.
Mr B P Metsing, Acting District Director, dated 11 August 2021, amending the SGB Chairperson’s recommendation and recommending Ms S R Motshabi, with a motivation attached (not provided).
Ms K E Ndlebe, Director: Recruitment & Selection, dated 31 August 2021, supporting the SGB Chairperson’s recommendation as amended, with the following notes:
1. HOD to take note of the District Director’s recommendation above and motivation as in Annexure A.
2. Letter from the SGB Annexure B.
3. The District is sitting at 31.9% female Principals.
Mr J Coetzee, CD: Strategic HR Management, dated 1 September 2021, supporting the SGB Chairperson’s recommendation as amended.
Mr R Mmutlana, DDG: Corporate Management, dated 2 September 2021, accepting the SGB Chairpersons’ recommendation as amended, with a note supporting Ms S R Motshabi.
Mr Edward Mosuwe, Head of Department, dated 7 September 2021, approving the recommendation of the SGB Chairperson, with a note Ms S R Motshabi appointed as per recommendation too of the District Director.

112. The Respondent’s witnesses all confirmed that once the approval by the HOD is granted the same return route is followed between the different Offices until it again reaches the District Office. It is unclear how long this took, with no evidence presented as to when the District Office received the official approval document. The reading of Clause 16.2 however does not refer to 14 days working from when the recommendations were submitted by the SGB to the District Office, but from when the recommendation is declined or rejected by the HOD or his/her delegated authority. Mr Metsing as the District Director had however not acted as the delegated authority of the HOD in making the appointment, but the HOD himself, hence Mr Metsing would not have had the final say in who would be appointed. Even though Mr Metsing had recommended the 2nd Respondent, three further recommendations needed to still be obtained before it reached the HOD’s desk for final approval. Mr Metsing had therefore correctly stated he could not yet advise the SGB that he was recommending the second candidate since the recommendation and approval route had not been completed yet, and his recommendation could have been changed by the other Officials.

113. The date of the rejection of the first recommended candidate would then be when the final approval was signed off by the HOD, being 7 September 2021. 14 Working days, excluding weekends and public holidays, from 7 September 2021 for feedback to be provided by the District Director on behalf of the HOD to the SGB would have lapsed on 28 September 2021, whereas the meeting with the SGB took place on 30 September 2021, meaning that it was two days out of time. The reason for this is not clear, other than it could have been as a result of a delay in the return communication chain. This communication delay is however not regarded as making the recruitment and selection process for the post defective, but could have contributed to the dissatisfaction experienced by the SGB and other interested parties.

114. The issue of the documents which were allegedly unlawfully obtained by the Applicant and his Representative, was raised during the proceedings and addressed in the evidence of the parties’ witnesses, with the admissibility of these documents disputed by the 1st Respondent. I do not intend to dwell on how these documents were acquired, whether legitimately via the SGB or unlawfully by other means, since it is a matter to be addressed outside this forum. There is however one key document which was allegedly provided by the HOD’s office to the Applicant, being the Annexure C Recommendation Form which was duly signed by all the responsible Officials up till the level of the HOD in which the appointment of the 2nd Respondent was approved. This document was referred to by the witnesses of both parties and therefore no longer remained in dispute, although the Annexures referred to in that document were not available.

115. It is noted that the evidence supported that it was possible for the copies of the other documents that were part of the file that the Secretary of the SGB Selection Panel had prepared and handed to the District Office were retained by the SGB and were provided to the Chairperson of the SGB, who in turn provided these copies to the Applicant. However, at the point when the file with recommendations was submitted to the District Office, only the Chairperson’s recommendation would have been completed and signed off on that document, with all the other signatures and approvals to have followed thereafter. The question then certainly arises how that completed document and other documents which could not have been part of the copies of the original file submitted to the District, could have come into the possession of the Applicant and his Representative. But as already stated, this is not an issue to be determined in these proceedings.

116. Based on the foregoing findings and the probabilities in this matter, I am not persuaded that the HOD had erred in appointing the 2nd Respondent in the post of Principal at Kgomoco Primary School. Insufficient evidence was in my view also presented in these proceedings to support inconsistency in the appointment of male Principals at other schools in the District, in particular as to how the recommendations were made by those respective SGB’s and the circumstances at those schools that resulted in male candidates being appointed by the HOD.

117. As an observation, and to be noted is not a finding in this matter, a very concerning issue nevertheless remains as to how the 1st Respondent is intending to address the resistance of the SGB and the parent body at Kgomoco Primary School by them not allowing the successful candidate to take up her position and fulfil the functions of Principal at the school. This must be regarded as disruptive and certainly not in the best interests of the child learners at the school.

118. The position that the best interests of the child is paramount finds support in the Constitutional Court judgement in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) in which it was held that section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions.

119. These decision makers are not limited to an Arbitrator in determining a dispute which affects the interests of children,but would apply to all decision makers within the echelon of professions such as the Education sector, which includes schools and school governing bodies, as well as other persons who have an impact on the education, wellbeing and welfare of learners at a particular institution. It is therefore regarded of critical importance that other dynamics and agendas, personal or otherwise, at Kgomoco Primary School should be addressed and set aside as amicably and soon as possible so that education can be take place in a proper and organised manner at the school.

120. In the circumstances I find that the Applicant has been unable, on the balance of probabilities, to discharge the onus to prove that the 1st Respondent had committed an unfair labour practice by not appointing him in the post of Principal at Kgomoco Primary School, and that the 1st Respondent has as a result not acted unfairly by failing to appoint him.

AWARD

121. The 1st Respondent had not committed an unfair labour practice relating to promotion by not appointing the Applicant, Mr Mmamasepe Freddy Mokgotho, as Principal Post Level 4 at Kgomoco Primary School.

122. The matter is accordingly dismissed.

123. No order as to costs is made.

Panelist: Alta Reynolds (Ms)