ELRC 397-20-21 KZN

Case No ELRC 397-20-21 KZN
In the matter between
ROGER BHEKISISA MNTAMBO Applicant
and
DEPARTMENT OF EDUCATION: KZN 1st Respondent
SADTU O B O NORMAN KWANELE MBHAMALI 2nd Respondent

ARBITRATOR : AS Dorasamy
HEARD : 29/30 SEPTEMBER 2022
DATE OF AWARD : 18 OCTOBER 2021
SUMMARY : Labour Relations Act 66 of 1995 – Section 186(2) (a) - alleged unfair
conduct related to promotion
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration on various dates and on the 30 September 2022 the evidence was completed at the Department of Education offices in Mkhuze. This matter was under the auspices of the Education Labour Relations Council (ELRC). Mr Dan Mpanza an attorney represented Mr Roger Bhekisisa Mntambo (applicant), Mr Thabani Mchunu represented the Department of Education KZN (1st respondent), second respondent was initially represented by Mr Themba Tolman Xunu and thereafter represented himself. The parties were to submit written closing arguments by the 7 October 2022 but because of other commitments the submissions were extended to the 14 October 2022. The party’s submissions and the applicable provisions of the applicable circulars relating to promotions were considered when I arrived at my decision.

THE ISSUE IN DISPUTE
2 I am required to determine whether the 1ST respondent committed any unfair labour practice in not promoting the applicant to the post in question Principal of Biva Combined School and dependent thereon the appropriate relief may be determined.
THE BACKGROUND TO THE DISPUTE
3.1 The applicant applied for the post, was short-listed and interviewed for the post in the first interviews, was not shortlisted or interviewed by the Interview Panel appointed by the Department of Education. He was not appointed.
3.2. Mr Norman Kwanele Mbhamali was appointed to the post. The applicant prays that the process be done de novo and the process to eliminate him was not fair and tainted.
The respondents oppose the relief sought by the applicant.
3.3. All documents referred to had been made available to the parties at arbitration. The markings of the documents was standardised with the parties at the arbitration.

APPLICANT’S (EMPLOYEE) OPENING STATEMENT
4. The applicant applied for the post and he was interviewed by the Interview Committee on the 28 November 2019 and the outcome was that he was the preferred candidate.
5. Subsequently a grievance was lodged and on the 12 February 2020 the process had to be re-done from shortlisting within four weeks.
6. The School Governing Body (SGB) approached the Department of Education (DOE) to take over the process. The DOE took over the powers of the SGB and concluded the matter. The applicant will argue that when the first respondent took that decision it flouted the South African School’s Act (SASA) which is pre-emptory that the SGB must recommend the appointment of the educators to a school.
FIRST RESPONDENT’S OPENING STATEMENT
7. The DOE followed the procedures in terms of HRM 35 of 2019 and the first process done by the SGB was full of flaws therefore the DOE intervened because it received a grievance and dealt with it. The District Grievance Committee (DGC) ruled that the matter be re-done.
8. The SGB communicated that they were unfit to run the process and asked the Department to take over the process.
9. The first respondent contends that the application be dismissed and the second respondent remain in the post.
SECOND RESPONDENT’S OPENING STATEMENT
10. The second respondent believes that all the processes were followed and he was appointed on credibility and that the case be dismissed.

SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.

MR ROGER BHEKISISA MNTAMBO
Mr Mntambo testified to the following effect:
11. He applied for the post and was interviewed on the 28 November 2019 and was the highest ranked candidate.
12. The second respondent lodged a grievance. The DGC ruled that the process be done de novo from shortlisting by a new Interview Committee (IC). He was not short listed in the second interviews.
13. In the second interviews the SGB was not part of the process.
14. The second respondent scored the highest and was the preferred candidate.
15. On page 20 there is no persal numbers, post description and no signatures and no indication as to who filled it in. He was unfairly treated as the others were properly filled.

Under cross-examination by the First Respondent he stated that
16. He is from the same school and knew of the first grievance.

SPECIAL NOTE:
THE FIRST PROCESS WAS SET ASIDE BY THE DGC and therefore the salient aspects of the evidence of the witnesses of the first process is recorded only for completeness

Ms NOBUHLE ZIBISILE DLAMINI
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
17. She was part of the DGC and knew that the process had to be re-done. They escalated the matter and a meeting was held at the District and at the school because they did not understand the issues raised at the District. The SGB wrote to Pietermaritzburg office of the Department.
18. The SGB recommended that the process be taken over by the Department.

SIBONGA GOODMAN MYENI
The salient aspects of his evidence is recorded below.
19. The SGB wanted the process to be taken over by the Department.

EVIDENCE ON BEHALF OF THE FIRST AND SECOND RESPONDENTS

FIRST RESPONDENT’S CASE
MTHANDENI WISEMAN SHEZI
The salient aspects of his evidence are recorded below.
20. He is a Circuit Manager and appointed as the chairperson of the IC by the HOD to conduct the selection process for the post of principal of Biva Combined School.
21. They conducted the shortlisting processes on the 2 July 2020. According to the process the observers were present. They numbered the CVs to avoid nepotism. They received 30 CVs. All were read and scored. As per the procedure manual they shortlisted 5 candidates.
22. The shortlisted candidates were invited for an interview. After the interviews the panellists and unions signed the document.

Under cross examination by the Applicant’s representative he stated as follows:
23. He undertook more than 20 such processes.
24. The second process was before a separate panel. The CVs were numbered and the candidates were scored and the scores were added and then divided and then the summary sheet was filled.
25. The five candidates shortlisted were invited to an interview. Mr Myeni and Mr Mtshali scored and he was the third scorer.
26. He was appointed by the Department.

PHILANINGNKOSI LUCKY MYENI
The salient aspects of his evidence are recorded below.
27. The first process was re-done and they had a meeting to hand over the matter to the Department because it was beyond their powers.
Under cross examination by the applicant’s representative he stated as follows:
28. They met after the DGC meeting. He was aware of the grievance.
29. They requested the Department to take over the responsibility.
30. The circuit manager came with a letter and told them that the Department will take over the process.
31. He was present when the new principal was introduced to the school.

MTHIYANE SIPHO
The salient aspects of his evidence are recorded below.
32. He attended the DGC meeting and it was to be re-done.
33. On the letter dated 27 February 2020 they decided to write to the Department handing over the process to it. The entire SGB was present.
34. Ms Zikhali came and introduced Mr Mbhamali as the principal.

KHULEKHALINI JELE SIPHILE
The salient aspects of his evidence is recorded below:
35. He is a teacher at the school and was the secretary of the SGB. He was aware of the DGC meeting that said the process must be re-done.

CLOSING ARGUMENTS
36. The parties submitted written closing arguments were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.

ANALYSIS OF EVIDENCE AND ARGUMENT
THE RELEVANT LEGAL PRINCIPLES
37. In Noonan v Safety and Sectorial Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity of competing for a post then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
38 It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
39. In the present case, the first process done by the SGB was set aside by the DGC that recommended that the process be re-done. The SGB then decided that since it lacked capacity to undertake the process, handed over the process to the Department to finalise the process and make an appointment.
40. The following are recorded for completeness:
Promotion: Procedural Fairness
• Do not be overtly technical in respect of procedural irregularities
• We do not go digging to try and find points to frustrate the appointment of suitably qualified educators.
Promotion: Substantive Fairness
• Very difficult to prove
• Applicant must prove he was the best of ALL the candidates who applied for the post taking into account all these factors:
• Qualifications and experience as per CV’s
• Performance during interviews
• Subjective impressions made during interviews
Case Study
Thandile v ELRC (JR 1089/16) [2021] ZALC JHB 226 (11August 2021)
Allegation: Interview panel was not properly constituted
Court held
• This was immaterial
• Applicant did not complain about it at the time while knowing it was not properly constituted
Allegation: Score sheets were not signed
Court held
• This was immaterial
• There were no requirements that score sheets must be signed

41. Section 6 of the Employment of Educators Act 76 of 1998
Powers of the Employer
6 (1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator-
(a)…………..or
(b) in the service of the Department of Education shall be made by the Head of Department.

42. The DGC ordered that the processes be re-done and be done by the SGB who in turn
requested the Department to undertake the process. In the re-done process the applicant was
not short listed. The Interview Committee appointed by the DOE made a recommendation that
Mr Norman Kwanele Mbhamali be appointed to the post. This was done. The appointment was
not arbitrary or motivated by an unacceptable reason. The decision can be rationally justified,
and therefore I do not believe that there are any justifiable reasons to interfere with the
decision to appoint Mr Norman Kwanele Mbhamali as principal of Biva Combined School.

APPLICATION OF THE LAW TO THE FACTS
43. The promotion process of the respondent the Department of Education is regulated by HRM
Circular NO.36 of 2019 documents and collective agreements. The stakeholders in the
education sector continuously appraise the procedure manuals and where necessary
amendments are effected.
44. The following are of importance to direct parties in this sector that careful consideration must
be given to the following principles that guide/ direct the promotion/ appointment process.
Should a better understanding evolve then this would lead to a more expeditious filling of
advertised posts and effective teaching and learning situation. It is a clear from the number of
disputes attended to by the ELRC that the education sector is saddled with promotion disputes
that have the net result that the vacant posts remain in limbo until the matters are settled either
by agreement or by awards.
45. The following are recorded in the promotion manuals.
2. GENERAL PRINCIPLES
This procedure manual is developed within the framework of the Personnel Administrative
Measures (PAM) and replaces all other previous practices and procedure manuals.

46. The parties are bound by the collective agreement and this includes individual educators
employed by the KwaZulu Natal Education department.
47. As a consequence of the above I determine that the appointment of Mr Norman Kwanele Mbhamali as principal of Biva Combined School be confirmed.
48. COSTS
I have considered the issue of costs and determine that no party acted frivolously or vexatiously in the proceedings and do not order of costs against any party.
AWARD
49.1 The application is dismissed
49.2. The appointment of Mr Norman Kwanele Mbhamali as principal of Biva Combined School is confirmed.
49.3. There is no order as to costs.

DATED AT DURBAN ON THIS 18 DAY OF OCTOBER 2022.

A S DORASAMY (ARBITRATOR)