ELRC178-21/22 KZN

Arbitrator: J.D. Vedan
Case Reference No.: ELRC178-21/22 KZN
Date of Award: 07 October 2022

In the arbitration between:

Jabulile Elizabeth Gwambe Applicant/Employee party
and

Department of Education – KwaZulu-Natal First Respondent/Employer party

and
Buhle Pretty Xoseka Second Respondent/Joinder party

Applicant’s representative: Mr R. Juguth
E-mail: rishalj@naptosa.org.za
First Respondent’s representative: Mr I. Makhooe
E-mail: itumeleng.makhooe@kzndoe.gov.za
Second Respondent’s representative: Ms Mkhize
E-mail: buhlexoseka@gmail.com

DETAILS OF HEARING AND REPRESENTATION

1. The matter was held virtually via Zoom on 26 January 2022 and concluded on 21 September 2022.

2. The Applicant was represented by Mr R. Juguth, a Union Official.

3. The First Respondent was represented by Mr I. Makhooe, its representative.

4. The Second Respondent was represented by Ms Mkhize, a Union Official.

5. The parties agreed to submit written closing arguments by 28 September 2022.

BACKGROUND TO THE DISPUTE

6. The Applicant referred an unfair labour dispute relating to a promotion. The Applicant and the Second Respondent had been shortlisted for a post which had been advertised as Post 172 in HRM Circular 36 of 2019, which was the post of Departmental Head for Physical, Mathematical, Computer and Life Sciences at Sithokozile Secondary School. The Second Respondent was appointed to the post on 21 June 2021. The Unions of both candidates were present during the process.

7. The Applicant claims that she is the most suitable for the post and that the Second Respondent is not suitable for the post. She alleged that the Department made the appointment based on a biased School Governing Body recommendation. The Applicant alleges that the conduct of the School Governing Body has denied her a fair opportunity.

8. The First Respondent contended that the Applicant’s case cannot be ascertained. Further the First Respondent stated that the Applicant bears the onus to prove the unfair labour practice. The School Governing Body via the Interview Committee makes a recommendation based on the person they believe is suitable for the position. The Second Respondent was the candidate recommended by both the Interview Committee and the School Governing Body and is the right candidate for the post.

9. The Second Respondent stated that the process was free and fair. All processes were followed. The interview committee made a decision, and the School Governing Body ratified it. The Interview Committee was not biased.

10. The case appears to be based on the Applicant’s allegation that the Interview Committee and the School Governing Body was biased against her in that the Second Respondent, Buhle Pretty Xoseka, had a close relationship with Mrs Duma, the Chairperson of the School Governing Body at that time, and Mr Ngcobo who was on the School Governing Body and a life partner of Mrs Duma.

11. The Applicant further stated that on the day of the interview process the Second Respondent arrived in the same vehicle as the said Mrs Duma and Mr Ngcobo.

12. The second part of the Applicant’s complaint was that the then Acting Deputy Principal, Mr L. S. Zondi had validated the Second Respondent’s Z83 application form even though it was not accurate and contained misrepresentations. It should be noted that Mr Zondi was not called as a witness.

ISSUE TO BE DECIDED

13. Whether the First Respondent committed an unfair labour practice against the Applicant with regards to promotion.

SURVEY OF EVIDENCE AND ARGUMENTS:

APPLICANT’S EVIDENCE

14. The Applicant testified that she is a Secondary School Teacher with a Diploma in Sciences and Mathematics. She started teaching in 2001 and is currently teaching at Sithokozile Secondary School in Clermont. She began teaching at this school in 2005 and she specializes in FET, teaching Physical Science, Mathematics and now Maths Literacy. She currently teaches Grade 10 Maths Literacy. She stated that she belongs to the Department of Mathematics and Sciences and she specialized in these subjects at tertiary level.

15. She stated that she is not friends with any members of the School Governing Body and alleged that the Second Respondent has been friends with the Chairperson, Mrs Duma, for the past five years. She added that this friendship is common knowledge at the school. She added that Mrs Duma was a part of the Interview Committee. She stated that other members of the committee would have also been biased towards Mrs Duma. She stated that Mr Ngcobo is a part of the committee and is the life partner of Mrs Duma. She stated that anyone on the panel who has a relationship with a candidate must declare it.

16. With reference to the Second Respondent’s Z83 form, the Applicant stated that this form had been validated as there was a school stamp on it.

17. The Applicant and the Second Respondent taught within the same Department and therefore the Applicant is familiar with the Second Respondent’s roles and responsibilities. She stated that the Second Respondent was not responsible for training. The subject adviser, Mr Niven, conducted training workshops. The Second Respondent did not conduct training workshops. Further she stated that Mrs Gabini was responsible for the school based support team and not the Second Respondent. Mr Nxumalo is currently responsible for same. She further added that the Second Respondent did not serve on the exam committee for three years.

18. The Applicant stated that she is the Chairperson of the Examination Committee and the Second Respondent was only present last year. Further she added that the Life Orientation Teachers were in charge of guidance in the school, and not the Second Respondent.

19. She stated that the Second Respondent did not organise the school awards day. The Applicant is the Chairperson of the organising team, which is the Entertainment Committee and the Second Respondent was not a part of same. She alleged that the Second Respondent lied on her application.

20. When the Applicant was appointed as the Acting Departmental Head for Math and Sciences in 2018, she was able to organise extra classes for learners during that year. These classes were to assist learners to improve their results. During that year, learners from tertiary institutions came to the school for the Mathematics and Physical Science courses. The school Mathematics marks increased from 44.3% to 75% during her time as Acting Departmental Head. This attracted an income from Smith Industries and Bio Industries- they were able to donate twenty laptops. The Applicant acted in this position from 2018 to 2020.

21. She stated that when she was the Acting Departmental Head, her interactions with the Second Respondent were not good. She added that in October 2021, the Second Respondent moderated the Life Orientation scripts, however she took the scripts back to the Life Science Educator and told her that she had moderated the scripts. The Life Science Educator informed the Second Respondent that Life Orientation was not her subject. The Applicant alleged that the Second Respondent made them a laughing stock at the school.

22. The Applicant further alleged that on one occasion in 2021, the Second Respondent told the Grade 12 learners to tell the Principal that they did not want the Applicant as their teacher, and that the Second Respondent is the best teacher. When the Second Respondent brought the Principal to the class, a learner stated that the Second Respondent had told them to state the above. The Applicant added that a manager cannot do this.

23. Under cross examination, the Applicant stated that she did lodge a grievance for the post. The case was conducted in 2019 and 2020. She has a response from the grievance committee.

24. She stated that she was treated unfairly as she had not been invited for the first interviews. The grievance report was in her favour and she was invited to the second interviews, however, she believed that the members of the Interview Committee were angry with her due to the grievance she lodged against them. Therefore, the Applicant stated that she was treated unfairly.


25. The Applicant added that if she had been appointed, she would not have mentioned the relationship between Mrs Duma and Mr Ngcobo. She added that the Second Respondent and Mrs Duma are friends and the HRM Circular states that the interview committee member or School Governing Body member must recuse themselves if they have a personal interest. The Applicant believed that they had a personal interest and therefore should have recused themselves.


26. According to the Applicant, lying on an application is a criminal offence. She added that it was common knowledge within the school that the Second Respondent was not qualified for the post. She did raise the issue with Mr Zondi, who validated the Second Respondent’s documents, however it was not addressed.

27. The Applicant stated that while the Second Respondent was appointed as Deputy Chief Marker for the NSC 2021, there was a strike by all markers against her which means that she was not doing her job well.

28. Upon re-examination, the Second Respondent stated that she lodged a grievance after the first round of the process. The report was in her favour, and she was invited for the interviews.

29. The first witness for the Applicant, Fezila Nxumalo, testified that she has been teaching at Sithokozile Secondary School for twenty years. She is an experienced observer and observed the interview process, but not the shortlisting process.

30. Ms Nxumalo stated that the Chairperson of the School Governing Body and the Second Respondent are friends. The Chairperson, Mrs Duma, had arrived for the interview process in the Second Respondent’s car. She was late.

31. She referred to the comment and stated that it was not a true reflection of the process. She was unhappy with the scoring of the Applicant. She mentioned it to the committee several times and they stated that they would take it under consideration. Further, Ms Nxumalo stated that she did not receive the minutes after the process.

32. She added that the Second Respondent’s answers were not very strong and despite this, she was given high scores. Ms Nxumalo said that she thought this was because the Second Respondent was friends with Mrs Duma.

33. Under cross-examination, Ms Nxumalo stated that she would regard the Second Respondent as a level-headed, professional and educated person.


34. She stated that she did not mention Mrs Duma arriving at the venue in the Second Respondent’s vehicle during the grievance process as she was not given a chance to speak.


35. Ms Nxumalo added that she was silenced whenever she raised an issue. She reiterated that the Chairperson was biased.

36. The second witness for the Applicant, Emeltrudice Tholakele Shezi, stated that she has been teaching at Sithokozile Secondary School since 2004. She teaches within the Department of Science and is the Life Science Educator. The Applicant and the Second Respondent are her colleagues.


37. She stated that the Second Respondent came to the school in 2004, however, it was not a permanent post as she was called on as a substitute teacher to take the place of Ms Gumede, the Biology teacher who was on maternity leave. Thereafter, a Zulu teacher retired and the Second Respondent applied for that post. She was appointed. She taught biology for three months and thereafter she taught isiZulu. She then registered to teach Maths Literacy. Ms Shezi added that the Second Respondent did not belong to the Department of Science.


38. Ms Shezi stated that she knows that the Second Applicant is friends with the people of the School Governing Body - Mrs Duma and her partner, Mr Ngcobo. It is common knowledge that they are friends.


39. Under cross-examination, Ms Shezi stated that the Second Respondent taught isiZulu and only one Maths Literacy class. Therefore, she fell within the language department. She was a full load isiZulu teacher from 2004 to 2020.


40. She added that she could not speak on management duties and further, she did not check the qualifications of the Applicant and Second Respondent as there was no need for her to do so.

FIRST RESPONDENT’S EVIDENCE

41. The Second Respondent testified that she had been teaching at Sithokozile Secondary School since 2004 as a Post Level 1 Educator until she became the Departmental Head for Mathematics and Science. She stated that she has been teaching Math and General Science for twenty three years.

42. She added that she came to the school to teach Biology and when the Biology teacher returned, she taught isiZulu.

43. In 2008, she began teaching Maths Literacy again for experience. She had two classes of Maths Literacy. In 2011, she taught isiZulu and Maths Literacy to the grade 12 learners. There were 113 students doing Maths Literacy that year and they obtained a 100% pass.


44. The Second Respondent stated that the Applicant was teaching Grade 12 Physical Science and due to certain reasons, she was also given Maths Literacy to teach. The Applicant then joined the Second Respondent in teaching the subject.


45. She stated that the school had decided to employ a new teacher to teach Grade 12 Physical Science. This teacher had been groomed by the then Departmental Head.


46. She denied that she misrepresented information on her CV or that Mr Zondi validated same. She received a letter of placement which stated that the Department has the right to withdraw her placement if they discover something incorrect on her CV. The Department found no issues and she was thereafter appointed.


47. The Second Respondent stated that the Applicant was not a part of the step-ahead program.


48. The subject advisor worked with the Second Respondent. The Second Respondent had an advanced certificate in Education, post graduate and the Department had been giving out bursaries to teachers with Mathematics to do Maths Literacy as it was a new subject they wished to introduce. She received the bursary and came back to teach. She was used for the Step Ahead program due to her experience.

49. She stated that she helped the Applicant understand the subject and she has been working with the Applicant since she started teaching the subject as the Applicant did not have the qualification for the subject. She mentored the Applicant.


50. She stated that she only taught in secondary school. Moreover, she did an advanced certificate which allowed her to teach Grade 10 to 12 Maths Literacy. She added that she is in REQV 14 while the Applicant is in REQV 13.


51. The Second Respondent stated that it is true that she speaks to the stakeholders at the school and she speaks to parents professionally. She views the School Governing Body as parents and speaks to them professionally.


52. She denied arriving at the interview with Mrs Duma. The interview was during school hours and learners and educators were at the school. She arrived alone.

53. Under cross-examination, she stated that she is familiar with HRM 36 of 2019. She further stated that before she was on REQV 14, she was on REQV 13, as she only had a Senior Primary Teacher Diploma. The department required them to upgrade themselves to at least a degree. She therefore did an advanced certificate in Education and was upgraded to REQV 14.

54. She stated that she was the subject head for Maths Literacy before becoming the Departmental Head. She has also been a cluster co-ordinator.

55. She added that she did not understand why the school asked the Applicant to leave Physical Science for Maths Literacy as they were struggling to find a Physical Science teacher.


56. She also applied for the Acting Post, to which the Applicant was appointed.


57. The Second Respondent stated that she believes that she has managerial experience. She was a coordinator delegated by her former Principal to be a Chairperson and Coordinator of Integrated Quality Management System, where she had to attend workshops. She believes that this is a part of management.


58. She added that she does not know about the personal lives of Mrs Duma and Mr Ngcobo as she is not their close friends. She treats them professionally as the stakeholders in the school.

ANALYSIS OF EVIDENCE AND ARGUMENTS

59. In disputes of this nature the onus lies on the Applicant to prove on a balance of probabilities that an unlawful labour practice had been perpetrated upon her.

60. The post that was at issue was advertised in terms of HRM Circular 36 of 2019 to which I have had sight. The post number was 172, and the post was that of Departmental Head (Physical, Mathematical, Computer and Life Sciences). After the interview stage, the Second Respondent scored 32.25, and was ranked first and was thereafter appointed, while the Applicant had a score of 29.25. The appointment was made on 1 June 2021.

61. Firstly, both Unions were present during the period of interviews, and the forms were signed off. There was no objection raised to the process that followed. There was no indication on the form itself that there was a dispute with the process based on the allegation that Mrs Duma/Mr Ngcobo and the Second Respondent were friends, and that they should have recused themselves from the process.

62. When it comes to recusal, the process is normally done at the beginning of the interview stage when an application is made for members to recuse themselves if they are perceived to be biased. There was no such application made by the Applicant or her Union, which obviously was there to protect her interests.

63. If the Second Respondent and Mrs Duma/Mr Ngcobo had arrived together in the same vehicle then the inappropriateness of them travelling together would have been raised by Ms Fezile Nxumalo, the second witness for the Applicant. On her own testimony she is an experienced Union observer, and had been to many promotion processes, and received comprehensive training. She would have known that she ought to have raised her misgivings about them travelling together before the process, or even during the process.

64. Even the third witness for the Applicant, Ms Emeltrudice Tholakele Shezi, appeared to have been primed to state that she had seen the members of the School Governing Body and the Second Respondent travelling together.

65. The Second Respondent vehemently denied that she travelled in the same vehicle with the members on the morning of the interview, and based on the evidence given, and the demeanour of the parties, and the fact that the Second Respondent would have been aware, as she stated, that travelling together was totally inappropriate, I find on a balance of probabilities that the Second Respondent did not travel with members of the School Governing Body.

66. With regards to the Second Respondent not having the suitable qualifications, I am of the view that the Second Respondent was actually well trained in the Science and Mathematical fields. She had originally attended the school to teach Biology, which is now known as Life Sciences which falls under Sciences. She had twenty-three years experience teaching Mathematics and General Sciences. She had replaced a Teacher who was on maternity leave, and thereafter when the Teacher returned she began teaching isiZulu.

67. Thereafter evidence was led, and which I accept, that she started teaching Maths Literacy in 2018. Although the third witness, Ms Shezi, stated that the Second Respondent had only taught one class of Maths Literacy, this was proved to be incorrect, and she later admitted that she made an incorrect statement in that over the years the Second Respondent taught many other classes of Maths Literacy. In fact evidence was given, which I accept, that there were one hundred and thirteen students doing Maths Literacy in 2011, and the school had obtained 100% that year.

68. Furthermore the Second Respondent had a REQV ranking of 14 and the Applicant only had a REQV ranking of 13, and it was admitted to by the Applicant’s witness, namely Ms Shezi, that this was a higher ranking after some persistent cross-examination by the First Respondent. Later the Applicant, through her representative, made submissions more in the line of arguments during the re-examination of Ms Shezi that the Applicant should have been on the same REQV 14 due to her additional qualifications. However the Applicant’s additional qualification was in Engineering, and had nothing to do with the Education Department.

69. With regards to the Step Ahead Programme, it is apparent that the Department had placed the Second Respondent, and another Educator, to undergo further training under the Subject Advisor, as she had an Advanced Certificate in Education. As Maths Literacy was a new subject they gave her a bursary with the view that she should teach the subject.

70. Furthermore the Second Respondent was appointed as a Deputy Chief Marker in 2019, and had served as a Senior Marker as well. It seems that the Applicant assisted in the teaching of Maths Literacy, and was given guidance by the Second Respondent.

71. I am of the view that the contents of the Z83 form reflected the achievements of the Second Respondent, and was validated by Mr L. S. Zondi in so far as the contents thereof was within his knowledge.

72. The Applicant stated that she required the entire process to be redone from the interview stage, as a remedy for an unlawful labour practice.


73. There was an allusion as well that the Applicant and the Second Respondent were scored unfairly. However no substantial proof was produced to this effect, and although the Applicant’s witness, Ms Nxumalo, stated that she had raised this issue with the panel, given Ms Nxumalo’s support of the Applicant, and the fact that she had signed the necessary documents I am disinclined to believe there was unfairness in the scoring process. There was no proof either that the Second Respondent was scored higher than she deserved. There was even an allegation by Ms Nxumalo, which was not proved, that the questions may have been handed to the Second Respondent beforehand.

74. As an experienced Union observer I do not consider it probable that Ms Nxumalo would have been fobbed off when she objected to over-scoring of the Second Respondent by the Interview Committee stating that she could take the matter as far as arbitration.

75. I am of the view that the Second Respondent gave her evidence clearly and concisely, and even under cross-examination she remained steadfast in enunciating her qualifications and capabilities for the job, whereas the Applicant and her witnesses did not come across as enunciating the veracity of the occurrences correctly. There was a general view that they just felt that Mrs Duma/Mr Ncgobo were friends with the Second Respondent by their interactions. However as stated, especially when working in a closed environment, one tends to interact with others, as stakeholders in this case in the educational process.

76. Obviously the First Respondent depends on the findings of the Interview Committee and their listing of candidates to make an appointment, and mere unhappiness, or a perception of unfairness, does not establish unfair conduct. What is regarded as fair will be based on the circumstances of each case. One has to make an assessment of whether the decision to appoint the Second Respondent as opposed to the Applicant was correct or incorrect in terms of the prevailing standards of priorities. This was confirmed in the case of National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) para 33.

77. In Provincial Administration Western Cape v Bikwani & others (2002) 23 ILJ 761 (LC), the Court held that:

“There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this an area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination are present.”

78. In this matter I have to consider whether the employer was fair, but essentially what I have to do is review the employer’s decision.

79. The fact that an employee has acted in a position does not give him/her an automatic right to the position even though the position became available. The only right such a person may have is the right to be considered for the post. This was stated in SAPS v SSSBC [2010] 8 BLLR 892 (LC).

80. Moreover it has been shown that the school in question was, or is, a high performing school and the results are generally good, and therefore the good results may be due to the entire ethos of the school.

FINDINGS:

81. I am therefore of the view that the Second Respondent has complied with the requirements for the post, and I have no sound reasons to interfere with the managerial prerogative. Furthermore the First Respondent’s decision of acting on the recommendation of the School Governing Body was reasonable, and I do not find any unfair conduct on the part of the First Respondent.

AWARD:

82. The First Respondent has not committed an unfair labour practice against the Applicant.


83. The application is dismissed.


84. There is no order as to costs.

J.D. VEDAN
ELRC Panellist