ELRC355-21/22 GP

Case Number: ELRC355-21/22 GP
Panelist : Mathabo Makwela
Date of Award: 28 September 2022

In the ARBITRATION between

B Mudzunga
(Employee)

And

Department of Education: GAUTENG
(Employer)


DETAILS OF PARTIES AND REPRESENTATION

1. This is the award in the arbitration between B Mudzunga, the applicant, and Department of Education Gauteng, the first respondent and Wilson Lebelo, the second respondent.

2. The arbitration was under the auspices of the ELRC in terms of Section 191 (5) (9) of the Labour Relations Act 66 of 1995 (as amended) (the LRA).

3. The arbitration hearing took place on 23 February, 18 March, 13 April, 20 June and 25 July 2022.

4. The applicant was in attendance and was represented by Makaleng Moshoro, a union official from SADTU, while the first respondent was represented by George Mbonde, its labour relations practitioner. The second respondent represented himself.

5. The respondent submitted a bundle of documents which was marked as Bundle R and the applicant ‘s bundle of documents as submitted was marked as Bundle A and used in these proceedings. The proceedings were digitally recorded and handwritten notes were also taken. Interpretation services were provided by Mpotseng Moloi.

BACKGROUND TO THE DISPUTE

6. The parties are B Mudzunga (the applicant) and Department of Education- Gauteng, the first respondent and Wilson Lebelo, the second respondent.

7. The applicant had referred an alleged unfair labour practice in terms of Section 186 (2) relating to promotion. The parties concluded a pre-arbitration minute in terms of which it was agreed as common cause that the applicant is permanently employed by the respondent as an educator at post level 1. She commenced employment with the respondent on 01 April 2009 and earns a gross salary of R25 700.00 per month and a nett salary of R20 800.00 per month. She applied for the head of department (“HOD”) position at Soshanguve South Secondary School and was not appointed into the position.

8. The applicant contended that her non appointment into the position in question was unfair.
9. The applicant sought relief in the form of appointment into the HOD position at Soshanguve South Secondary School. Alternatively, an appointment into a similar position at a different school.

PRELIMINARY ISSUES

10. Neither party raised any preliminary point.

ISSUE TO BE DECIDED

11. The issue to be decided is whether the respondent followed a fair process in the appointment process.

SURVEY OF PARTIES EVIDENCE AND ARGUMENTS

The Applicant’s Case

Bohlale Mudzunga (Bohlale) ‘s evidence under oath:

12. Bohlale testified that she holds an economic and management sciences degree in education having majored in accounting and economics obtained in 2008. She also holds an honours degree in inclusive education. She has thirteen years’ experience in teaching. Between 2008 and 2011, she worked at an ABET school. She taught grade eight to twelve and acted in the HOD position for a year. She has more experience compared to the second respondent who does not have an honours degree. She has the requisite skills and knowledge.

13. She further testified that she has skills in the capturing of marks and was trained as a CAPS tutor. She is a grade twelve marker and has done leadership and management course. She attended the SAT course and is a member of the school assessment team. She has experience in teaching accounting, business management and economics up to grade twelve level. She currently teaches economics. The second respondent started in the department in 2012 while she started in 2009. She met all the requirements of the post as listed on R6 than the second respondent. In all the three posts that were advertised, only males were appointed against the dictates of employment equity.

Under cross-examination, Bohlale testified that:

14. Despite the second applicant having occupied an HOD position at PL2 for three and four years, she disagreed that the second respondent was superior to her in management experience. She disagreed stating that she graduated in 2006 and started working in 2010 and the applicant was not there. TUKS is a private school where anybody can be appointed. There was no letter substantiating what the applicant had stated in his application form on his experience. One cannot start working as an HOD. She does not believe that the second respondent was an HOD at Leap School. If he had been an HOD in Gauteng, she would believe that he was superior to her.

15. Her evidence that she acted in an HOD position between 2019 and 2020 is available at the Department of Education’s Human Resources records. Despite the second respondent coming to argue that due to the space provided in the application form, the space did not make room for indication of experience prior to 2010, the declaration part of the form stated that all what is provided was true and that anything that is not provided cannot be true. Her application form was typed and the second respondent could have typed his to include all the required information.

16. There is no degree or certificate showing that the applicant has an honours degree or an academic record of same to today despite there being a TUT notice of approval of issuing an honours qualification. If he had one, same would have been submitted in these proceedings.

17. She agrees that acting in a post does not give her an entitlement to the position but experience does. Though, she agrees that ABET does not form part of the mainstream basic education, she was teaching accounting, business management and economics at grade twelve and thus her experience at ABET was relevant. ABET Level 5 is equal to matric though the question papers are not the same.

18. R86 is a certificate of outstanding performance in accounting awarded by the Department of education in Gauteng to the second respondent for Leap Science and Maths dated 24 February 2017. R88 is a certificate awarded by the Department to the second respondent in Leap Science and Maths for business studies dated 23 February 2018. Despite all these certificates, they are not authentic and are not certified and thus do not demonstrate any requisite experience of the second respondent.

19. She agreed that the appointing authority can appoint any of the three candidates and that the department may deviate from the SGB recommended candidate. In terms of Circular 9 of 2020 departmental heads moved from 2171 to 2371 and thus men are underrepresented. She scored 196 and the second respondent scored 189 in the interviews.

David Abram Mollik (Mollik)’s evidence under oath:

20. Mollik testified that he is a PL1 educator at Soshanguve South Secondary School. He was the secretary of the selection panel during the interviews for the position in question and took minutes. The applicant and second respondent met the requirements to be shortlisted. They were afforded an opportunity to submit the necessary certificates that had not been submitted at that stage and the second respondent did not submit his honours degree certificate.

21. They did not request the second respondent to submit proof with regards to PL2 Leap School and TUKS HOD certificate. The interviewing panel recommended the applicant and the second respondent as second best candidate. The district took a while to appoint the recommended candidate. They heard that the applicant was underscored on questions seven and eight and that the second respondent was over scored on same. Surprisingly, the second respondent was appointed.

22. In terms of Clause 6.2.16(b) of the Recruitment and Selection Policy, in cases where the Head of Department or delegated authority declines the SGB’s recommendation, he/she must provide full motivation in writing within 14 working days or call a meeting to discuss the decline of the recommendation and to minute the decision taken in the meeting. As a secretary, he did not receive such communication from the director. In a meeting where the director updated the SGB on the post, she had said that she was going to appoint on that following Friday. The director never shared her intention to deviate from the SGB recommendation.

23. He was seeing the letter from the director dated 12 July 2021 titled “intention to decline the recommended candidate in the HOD post (TW30ED1066)” for the first time in these proceedings. He could only recognize the signature of the principal and the document is fraudulent. He was the secretary of the SGB and could not have received the letter and kept it to himself.

24. R10 is the equity grid and they were told that equity was a national issue but that they could not apply employment equity at the school. R86-88 were the documents made available prior to the submission to the director.

Under cross-examination, Mollik testified that:

25. He is aware that the director is not bound by the recommendation of the SGB. If R8, director’s letter, was given to the interview panel, he would agree that it gave an opportunity to the SGB to make representations. The director consults with the SGB and not the selection committee because the latter is a subcommittee of the SGB. The letter on R8 constitutes consultation with SGB regarding the director’s intention to deviate but he was seeing it for the first time.

26. The respondent’s representative had said that they should not consider equity at the institutional level. All the submitted files did not indicate equity. Equity is not considered at institutional level but a provincial level. In terms of Circular 9 of 2020, employment equity plan covers Gauteng as a province. In terms of R19 departmental heads target for HOD in Gauteng is underrepresented. Though they met with the director at Thuto Thebe Teachers Centre, the order of preference or deviation from the recommended candidate was not discussed. At that meeting they discussed all the posts and the director had undertaken to appoint before the following Friday. The SGB did not do anything but was surprised that the second respondent and not the applicant was appointed into the position.

27. He disputed the version that the SGB did not do anything because it understood that the director could appoint any of the three candidates because the appointment happened after their term of office as SGB had expired. While they handed over to the new SGB, the latter could not have objected because it was not aware of this issue.

28. Upon being cross-examined by the second respondent, he testified that all candidates were given an opportunity to furnish their outstanding documents if they were coming from another province. It was not required of the second respondent to provide evidence claiming to be LP2 HOD. He could not remember if there was a timeframe required to provide DOT forms. He thought that by 08 May 2021 when the director’s letter at R8 was written that they had exited the SGB office and he was seeing this letter for the first time. It appears that R31 is a response from the SGB to the director responding to the director’s letter at R8. (The SGB wrote: “We agree with the recommendation of the Acting District Director of intending to appoint the second candidate Mr. WS Lebelo Persal No 90875966”. He could only recognize the principal’s signature on the letter because he was no longer an SGB member at that time.

29. He further testified that the DOT form is for background check and cannot indicate that the candidate is suitable. There is no policy that the SGB that started the recruitment process must conclude it. Interview process was not a project and the new SGB could not have taken over the interview process.

Samuel Maile (Maile)’s evidence under oath:

30. Maile testified that he is employed by the City of Tshwane as an administrator and is part of the parents’ component in the SGB. He was not part of the recruitment but fell on the ratification part of the process. He was mandated to follow up with the department on the appointment as it took longer. The district had called them when there was a dispute regarding this post and he had taken part in it. He was given the management plan and during the recruitment training, gender issue was discussed.

31. They further testified that there were told that the gender issue was not going to be considered in this post because it was not stated. The director has a final say on appointments. If the director chooses not to appoint a recommended candidate, the director will consult them and inform them of the reasons for rejection.

32. There were consultations on the three posts. The director called them to Garankuwa and advised them that the first post must be withdrawn because it was not properly advertised and for the second post, the director gave them the name for the second recommended candidate because the recommended candidate was appointed by another school. For the post in question, the director told them that she was going to appoint the recommended candidate by Friday so that when the school reopens that individual could commence with her duties. They were not satisfied with the appointment delay as they felt there was something wrong. He had never seen R8 director’s letter and was not familiar with R31, the SGB’s letter of response to the director on deviation.


Under cross-examination, Maile testified that:

33. He was at the grievance meeting and the second respondent was not in attendance at that grievance lodged by NAPTOSA on his behalf. He was not sure if the second respondent had lodged a grievance. He is not currently serving in the SGB. Their SGB tenure ended at the end of March 2021. He attended the SGB training on recruitment of educators. The director wanted to see them and they thought it was about the three posts. They did not see anything that will indicate that the director may deviate. The director had consulted but did not give them a reason for deviation. There was no reason to ask the director why she was deviating because she did not inform them that he was going to deviate.

34. They had left the meeting under the impression that the director was not going to deviate. The director never said anything about equity or the second respondent. It would make sense that he had not seen R8 and 31 because he was no longer in the SGB. The director can deviate after having given reasons thereto.

35. When cross-examined by the second respondent, he testified that he served as SGB for sixteen years in different schools. He is familiar with the handover process. All documents previously done by the outgoing SGB is given to the incoming SGB. The process of recruitment must be transferred to the incoming SGB if not concluded. R8 is dated 07 May 2021. He was not there on 07 May 2021 and could not speak for the current SGB.

Kelang Morongwa Matsimela (Morongwa)’s evidence under oath:

36. Morongwa testified that she is a PL1 teacher at Soshanguve South Secondary School and formed part of the teacher component in the recruitment process. She was not part of the recruitment panel, interview and shortlisting but part of the ratification. The applicant was the preferred candidate by the SGB. The director had called them in March 2021 and informed them that the post for consumer studies was not properly advertised and had to be withdrawn. They were asked if they were agreeing with the withdrawal.

37. As regards the Math’s post, the director told them that the first recommended candidate had been offered a post elsewhere. As regards the history post, the director followed the SGB recommendation. The director told them that the position in question in these arbitration had a grievance lodged but that he will appoint the recommended candidate before the following Friday. The grievance was lodged b NAPTOSA on behalf of Lebelo and it was dismissed.
38. She has never seen R7,8 and 31. She attended the SGB training on recruitment and if she remembered well, it was said that gender equity was not going to be considered.

Under cross-examination, Morongwa testified that:

39. She is no longer serving in the SGB as their term expired in March 2021. By virtue of this, she could not have been familiar with R8 and 31 as they are dated in May 2021. She was present when the recommendations were announced and the decision to appoint belongs to the director. The latter can appoint any of the three recommended candidates. She disagreed that when the director consults with the SGB it is because she is deviating from the recommended candidates. She knows Maile whom she served with in the SGB. She agreed that when the director deviates, she has to consult with the SGB.

40. The meeting with the director was not only regarding the post in question but was about all four posts. The director never mentioned that she was going to deviate from the SGB’s recommended candidate. The director informed them that there was a grievance on the post in question but that she was going to appoint as per their recommendation. Mbonde said that we needed to appreciate that the director was in her post for 19 days but had consulted with them on the post in question. The director was not supposed to write another letter to the SGB regarding this appointment if she had consulted them about this appointment.

Upon cross-examination by the second respondent, Morongwa testified that:

41. At the end of their SGB there was a handover to the incoming SGB. The handover involved projects and not posts. She believed that the candidate scored the highest must be the one to be appointed. The director did not consult them but consulted the newly-elected SGB. She should have consulted with the old SGB as it was the latter’s post. In their meeting with the director, the latter only spoke about the Maths post that the best candidate was appointed at another school.

42. Though it is practice that after a meeting the director would write a letter to affirm the meeting, there was no need in this instance. The follow up that she had made was before and after the consultation meeting with the director.

David Raphahlele (David)’s evidence under oath:

43. David testified that he was a member of the SGB representing the PS Staff during the interviews. He was the usher during the interview for the post in question. He is still a member of the SGB. There was a meeting of the SGB called by the district. The purpose of the meeting was because of a dispute raised by the second respondent because he was not happy with the SGB decision. The decision of the SGB was upheld.

44. He was part of the meeting with the director at Thuto Thebe but was not sure who had called it. At that meeting, the Maths and Consumer posts information was to be shared. As regards the Maths post, they were informed that the recommended candidate was appointed at another school. The director said that as regards to the BCM post, she was going to appoint as per the SGB’s recommendation in the next week.

45. R8 is a letter from the director stating that the second respondent was going to be appointed. The director never discussed this letter with the SGB as per the rules. R31 is the letter of intention to decline the recommended candidate in the HOD post. He does not recall seeing this letter. Even if the letter was presented to the current SGB, it was not correct procedure. The correct procedure would have been to give the previous SGB an opportunity to respond to the letter and not the current SGB.

Under cross-examination, David testified that:

46. The first meeting called by the director was about the DCM post dispute. When the district dismissed the grievance, the decision was communicated at the briefing meeting to staff members which he did not attend. The reason for the director to call the meeting at Thuto Thebe was not regarding the BCM/HOD commerce post and that she was going to appoint the second respondent and not the applicant for equity reasons.

47. The director never informed them that she was going to appoint the second respondent but only informed them about two posts. If the director was to deviate from the recommended candidate, she was supposed to call them within fourteen days. The BCM post was not on the agenda of the director’s meeting at Thuto Thebe. Only two posts were spoken about and the director had said that in relation to the BCM post she was going to appoint in the next week as per the SGB recommendation. The director had even said that she was not going to discuss the BCM post.


48. She disputed that in terms of R8, the director was clear that she was going to appoint the second respondent. She also disputed that R31 was a letter in which the SGB gave the director the go-ahead to appoint the second respondent.

49. Upon being cross-examined by the second respondent, he testified that the applicant was recommended for the post in question. He only knew of two recommended candidates. The director called a meeting for the Maths post and informed the SGB that the first candidate received a post at another school and they agreed that the second best candidate be appointed. They were not called on the BCM post. The director waited for the outgone SGB to leave office before appointing for the post in question.

Vukani Celumusa Dludlu (Vukani)’s evidence under oath:

50. Vukani testified that he is a teacher at PL1 at the Soshanguve South Secondary School. He was a scribe from shortlisting to the interviews for the post in dispute. The SGB was called to a meeting by the district to be informed of the second respondent’s grievance which was dismissed. He was part of the meeting at Thuto Thebe which was about three posts. The director had informed them that for the first post, they had appointed and that for the second post, the best candidate was going to be appointed. For the post of the subject matter of this arbitration, the director had said that she was going to appoint as per the SGB recommendation.

51. He has never seen R8 and 31 in the past. His understanding of A22 on recommendation was that the director would appoint as per the SGB recommendation.

Under cross-examination, David testified that:

52. His term of office in the SGB came to an end on 31 March 2021. He is currently not serving in the SGB and was not familiar with R8 and 31. The department is not bound by the recommendation of the SGB and may deviate where there are sound reasons for doing so. The director never stated in the meeting with them that she was going to deviate on the SGB recommendation but had said that she was going to appoint in line with SGB recommendation. He did not know why the BCM post was on the agenda at the Thuto Thebe meeting with the director. She had the BCM post on the agenda but did not say that she was going to deviate. It is a justifiable reason to deviate from the SGB recommendation based on employment equity considerations. If one was to add the second respondent’s years of experience at PL2, the second respondent would have seven years’ experience.

53. Upon cross-examination by the second respondent. David testified that the meeting with the director at Thuto Thebe was in the second week or a week thereafter of March 2021. The Thuto Thebe meeting was about four posts where appointments were not made. The director had said that she was going to appoint in accordance with the SGB recommendation on the BCM post and that meeting took 30 minutes.

54. In closing, the applicant’s representative submitted that the director took more than six months to appoint. Therefore, in terms of procedures, the applicant should have been appointed. The decision to appoint was not made within 14 days and thus the SGB recommendation should stand. There was never a meeting held by the current SGB to discuss and agree on the deviation the director intended to appoint the second respondent. The letters at R8 and 31 were fabricated as an attempt for damage control after the referral of this dispute.

55. Moyo was not a credible witness. Everything she said was probably informed and prepared on what to say by the second respondent. As part of the current SGB, he is likely to have a personal working relationship with Moyo. The signatures on the letter from SGB are fraudulent as Gabega signed on behalf of SGB chairperson as an ordinary member of the SGB.

56. The director never respected departmental policies. She failed to abide by the 14-day timeframe and only appointed after six months. She was biased and unfair in her decision. She remembered that she had said that she was going to appoint accordingly but could not remember for which post. The application of employment equity was biased and only done at Soshanguve South Secondary School but in other schools women were appointed.

The Respondent’s Case:


Sethulane Precious Moyo (Moyo)’s evidence under oath:

57. Moyo testified that she is an educator at Soshanguve South Secondary School and the secretary of the current SGB which commenced its tenure on 01 April 2021. R8 was the intention to deviate from the recommended candidate for the HOD post and appoint the second best candidate, the second respondent. She signed that document at R31 wherein the SGB agreed with the deviation.

58. Upon questioning by the second respondent, she testified that on 09 April 2021 the principal had told her that he had received a letter from the district. Raphahlele was in attendance at that meeting and would go in and out of the meeting.

Under cross-examination, Moyo testified that:

59. She is the only a witness to the effect that they had received a letter from the director regarding deviation from the recommended candidate. As per R31, they did not approve but agreed with the director to appoint the second respondent. Since they were not part of the interviews, they had trusted the director’s judgement after comparing the two candidates.

Yvonne Gladys Mooke (Yvonne)’s evidence under oath:

60. Yvonne stated that she holds the position of district director. Her role in the recruitment process is to ensure that the recruitment process runs smoothly and after the three recommended candidates are communicated to her, she takes a decision on who to appoint amongst them. She considers the qualification, experience, motivation from the SGB and the interests of learners, parents and the community. She also considers regulations in making her appointment.

61. According to her, R74 sentence 39 states that the employer can deviate from the recommended candidate on sound reasons. R9- Circular on the implementation of the employment equity plan is to ensure that the employer reaches quotas in terms of employment equity to ensure gender balance. R8 is the letter that was written to the SGB to inform them about the deviation of the director from the recommended candidate for appointment. R31 is the SGB response agreeing with the intended deviation.

62. Clause 6.2.16 (b) taken from the guidelines on the implementation of recruitment of educators states that in case the HOD declines the SGB recommendation. She must provide full motivation in writing within 14 days. The director did not comply with the 14 days because there was a change in management in Tshwane. She started acting as district director in the first term of 2021. In January learner placements, admissions and matric results takes precedence over everything else and only in February would they start looking at filling of vacancies. The district has 187 schools and would have advertised posts across most of them. She would develop a schedule to attend schools where she would like to deviate from the recommended candidates. These and other priorities would have a delaying effect in terms of the 14 days.

63. She had a consultation meeting with the SGB at Thebe Thuto for the four advertised posts. One was an automatic appointment and three remained with one disputed. She informed the SGB of her intention to deviate. R8 was the letter that she wrote to the SGB for deviation even though there was a meeting regarding the deviation to allow the SGB to respond in writing.

Under cross-examination, Yvonne testified that:

64. The director has to adhere to policies, respect the rule of law, be fair and consistent in her decision-making. The policy is a guideline. The recommendation of the best candidates was in January 2021 and the meeting at Thuto Thebe was in March outside the 14 days stated in the guidelines. The BCM post was discussed in that meeting. Even if the minutes of that meeting were not available in these proceedings, they wrote to the SGB to respond in writing and the SGB letter is in the bundle. Four posts were discussed in that meeting and as regards the BCM post, she had given reasons why she was to deviate from their recommendation. One person was appointed, the other post had to be re-advertised and the BCM post was discussed and she consulted thereon with the SGB.

65. Yvonne further testified that in terms of Circular 9, the district had to achieve employment equity targets in terms of appointments of HOD positions. Preference was given to males. She also considered the candidates recommended and realized that the second respondent had an honours degree in accounting and the applicant had an honours degree in accounting but not relevant to BCM HOD post. This added advantage as the person who has accounting will be able to teach in the BCM cluster than a person who had any other BCM qualifications.

66. She further testified that she made her decision to appoint based on documents before her and HR was to verify qualifications before appointment. She would still make the same decision today based on equity considerations. If a school has recommended only female candidates, she would not appoint outside of such recommendation. At Thorn Tree Primary School, a male was appointed because she also considered the margins between the candidates, range of scores and the SGB motivation.

67. As regards the 14-day timeframe, she testified that it means that the recommendation of the SGB stands. However, there is no Act to regulate the policy. They can deviate from the guidelines on sound reasons.


ANALYSIS OF PARTIES EVIDENCE ANDF ARGUMENTS


68. The issue I am to decide is whether the respondent had perpetrated an unfair labour practice relating to promotion when it did not appoint the applicant as recommended by the SGB but appointed the second respondent. It is not disputed that both the applicant and the second respondent were recommended by the SGB. What becomes the issue in this dispute is that the district director had deviated from the SGB recommendation of the applicant into the post.

69. The Thuto Thebe meeting was held in March 2021. The R31 letter written to the SGB by the district director indicating her intention to deviate from the SGB recommended candidate was dated 07 May 2021. The R8 letter by the current SGB consenting to the deviation was dated 12 July 2021. The district director letter has no reference to the discussions at Thuto Thebe about her intending to deviate. If there was consultation and her having indicated to the then SGB that she intended to deviate, same would have been confirmed in her letter. Her letter to the current SGB indicates a present act of intention to deviate from the recommended candidate and not stemming from March 2021 where as she said she would have made her intention clear that she was going to deviate.

70. I, therefore, do not believe that there was any consultation with the previous SGB on the BCM post. The evidence of the applicant becomes more probable that she had undertaken to make the appointment in line with the SGB recommendation. The current SGB does not say that she had consulted with it on the matter. All she did was to write them a letter which does not amount to consultations, but mere information to the current SGB.

71. Furthermore, it was not in dispute that in terms of Clause 6.21 (b) of the recruitment and selection policy, where the head of department or delegated authority declines the SGB’s recommendation she/he must provide full motivation to the SGB within 14 days. It was common cause that the district director failed to provide full reasons of her intention to decline the recommended candidate of the SGB within 14 days. The district director testified that failure to comply with 14 days means the SGB recommendation stands. Her justification for failure to follow the 14 days was that in January priority was placed on placements of learners, admissions and matric results and in February 2022 she started looking at filling position.

72. I find the district director excuse to be reasonable. However, she should have communicated the delay with the SGB as provided in the policy. Failure to communicate, resulted in the procedure being unfair.

73. Managerial prerogative should be respected unless it is informed by bad faith or improper motive. The district director’s letter of 07 May 2021 indicated that the district is intending to appoint the second respondent given the equity directive as per Circular 09 of 2020. This was accepted by the SGB in its letter of 12 July 2021.

74. In the City of Tshwane Metropolitan Council v SALGBC and Others (2011) 32 ILJ 2493 (LC) the court held that equity considerations are legitimate criteria in conducting selections for appointment. The evidence by the respondent was that it had considered male representations at HOD level as being underrepresented. The district director testified that even if she were to make a decision today with the second respondent not having submitted his honours degree certificate, she would still appoint him based on equity considerations.

75. However, the witnesses of the applicant indicated that this was not an equity post and there was no counter evidence by the respondent to indicate that this was an equity post. R6 wherein the post advert is to be found does not indicate that this was classified as an equity post. Clause 6.2.11 (b) of the recruitment policy guideline bullet point 2 provides that “In order to fast track the recruitment of under-represented occupational levels and groups (See below Table 7 of Circular 1/208) the Department will use an open advertisement and shall indicate if it is an equity post”. This post was not advertised as an equity post and therefore equity considerations should not have been a factor to be considered by the district director.

76. The district director’s reason for not appointing the applicant was unfair towards the applicant since this was not indicated as an equity post in the advertisement.

77. In Ncane v SSSBC and others DA 27/15 others (DA 27/15) [ 2017] ZALAC 1; (2017) 38 ILJ 907 (LAC); [2017] 4 BLLR 350 (LAC) Good labour relations dictate that an Employer must act fairly towards its Employees. In the context of promotion, this means that:

• an Employer must abide by the law and the objective standards and criteria that it has set for promotion including eligibility for post and

• ensure that an eligible Employee has a fair opportunity to compete for the post. It is usually said that this leg of the promotion process must be procedurally fair. As the aim of a process is to achieve a fair substantive result, procedural unfairness may result in the final decision itself being substantively unfair.


78. It was common cause that the applicant was the best candidate and was the first recommended candidate by the SGB. She would have been appointed had it not been the unfair conduct of the respondent.

79. I find that accordingly, the decision of the director for failure to appoint the applicant was procedurally unfair and substantively unfair.

AWARD

80. The first respondent, the Gauteng department of Education, is ordered to appoint the applicant, Bohlale Mudzunga to the BCM HOD position and to pay her remuneration and benefits applicable to the position and grade.

81. The appointment referred to in the preceding paragraph shall operate with retrospective effect from the date when the second respondent was appointed into the position being the 26 July 2021.

82. As at the date of this award the additional remuneration to which the applicant is entitled as a result of the retrospective operation of the promotion is the amount of R42 135.00 (forty two thousand one hundred and thirty five Rand) ( R2809 X 15 months = R 42 135.00) must be paid to the applicant by the 31 October 2022.

83. The amount is

84. The first respondent is ordered to set aside the appointment of the second respondent by the 22nd October 2022.

85. The applicant should resume with her duties as the BCM HOD on 01 November 2022.

Signature:

Commissioner: Mathabo Makwela
Sector: