ELRC148-20/21KZN

Case Number: ELRC148-20/21KZN
Last date of arbitration: 18 & 19 May 2022

Date of award: 17/07/2022

Arbitrator: Scelo V Mkhize
Education Labour Relations Council
ELRC Building, 261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.z
DETAILS OF THE HEARING
1. The matter was enrolled before me for arbitration proceedings in terms of section 191(5) (a) (iv) of the Labour Relations Act 66 of 1995 as amended (The Act). The arbitration was held on various dates being 02 October 2021, 21 October 2020, 11 December 2020, 25 February 2021, 22 April 2021 09, and 10 June 2021, 06 August 2021, 04 and 05 November 2021, 07 and 08 December 2021, 16, 17 and 18 February 2022, 06 and 07 April 2022, and 17,18 and 19 May 2022. The arbitration was held at Majuba TVET College, Newcastle.

2. The Applicant, Ms Masondo, appeared in person and was represented by Mr Muzi Ntshangase a trade union representative from SADTU. The First Respondent, on the other hand, was represented by Mr Brian Mdlalose an official from the Department of Education, KwaZulu-Natal. The Second Respondent, Mr Justice Sibisi, appeared in person and represented himself throughout the proceedings

3. The arbitration was held in English and it was mechanically recorded. The arbitration proceedings were interpreted by Siyabonga Mthembu.

ISSUE TO BE DECIDED

4. In these proceedings, I am required to decide whether by not promoting the Applicant to the position of a principal, the First Respondent committed an unfair labour practice envisaged by section 186 (a) of the Act. If so, I must determine the relief that the applicant would be entitled to.

BACKGROUND

5. The Applicant is Nonhlanhla Benedicta Masondo who is currently employed as a deputy principal at Vulindlela Primary School. The First Respondent is the Department of Education KwaZulu Natal, a governmental department dully fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger Street, Pietermaritzburg, KwaZulu Natal. The Second Respondent is Justice Xolani Sibisi who was appointed as the principal at Vulindlela Primary School.

6. The Applicant referred a dispute for unfair labour practice related to promotion in terms section 186 (2) (a) of the Labour Relations Act 66 of 1995 to this honorable council claiming that First Respondent committed an unfair labour practice by not promoting her to the position of a Principal at Vulindlela Primary School.

7. The Applicant’s claim emanated from the First Respondent’s advertisement of a principal’s position at the above-mentioned school. The post was advertised on 20 September 2019 and the closing date for application was the 25th October 2019. The Applicant applied for the position before the closing date. She was shortlisted and invited for an interview which was held on 13 February 2020. Consequently, the Applicant was recommended for appointment.

8. Pursuant to the Applicant’s recommendation for appointment, the Second Respondent lodged a grievance against the Applicant’s recommendation. In his grievance the Second Respondent contended that the interview did not comply with legal prescripts, there were substantive unfairness and procedural irregularities, the candidates did not receive similar treatment and that there was an undue influence on the members of the interview panel. The grievance committee found that the two candidates who were interviewed were subjected to unequal treatment in that one of the scorers used different guidelines in scoring the candidates and that the candidates were not given an opportunity to ask questions or comment at the end of their interviews. Consequently, it was held that the appointment process should be reconvened at the interview stage. As a result, another interview was held on 24 March 2020. Consequent to the second interview, the Second Respondent was ranked number one and he was recommended for appointment, hence the Applicant’s claim for unfair labour practice.

9. The basis for the Applicant’s claim is that: firstly, the Second Respondent’s grievance did not have any substance or merits which could have resulted to the Applicant’s recommendation for appointment being set aside and for the process to start afresh. Secondly, prior to the second interviews, the interview committee was changed and the new interview committee to conduct the second interview was appointed. The appointment of the new interview committee was irregular and contrary to the Schools Act, in that that the School Governing Body was pressurized or manipulated to conduct a By-election to fill the educators’ component. Thirdly, Mr D D Shabalala, the person who was appointed through an alleged irregular process participated in the School Governing Board Committee that took a decision to appoint the new interview committee and he was elected as a member of the second interview committee.

10. The First Respondent denied that it committed any unfair labour practice relating to promotion against the Applicant. The grievance committee found that there were irregularities in the interview process that led to the Applicant’s recommendation for appointment. This is so because one of the members of the interview committee, Kubheka, was found using a memorandum to score candidates despite the agreement that the members would not use the memorandum. This gave the Applicant an unfair advantage over the other candidates. Furthermore, the chairperson of the interview committee was faster sleep while the interview was in process. Similarly, the Second Respondent denied that his recommendation and appointment was unfair to the Applicant.

11. The parties produced the bundles of documents to be used during the arbitration process. The Applicant’s bundles were marked as bundle “A” and “A1”. The First Respondent’s bundles were marked as bundle “B” and “B1”. The First Respondent further produced still photographs which were marked as exhibit 1 to 6. During the leading of evidence, the parties, in my presence, conducted an inspection in loco of the venue that was used during the interview process and photographs were taken and were marked as exhibit 7 to 12. The examples of papers that were used to set the order of candidates were marked as exhibit 10 and 11.

COMMON CAUSE FACTS

12. The following facts were common cause between the parties: That the Applicant is employed by the Respondent as a deputy principal at Vulindlela primary school; that the First Respondent advertised a vacant position of a principal at Vulindlela primary school; that the salary for the advertised post was R571188,00 per annum; that the Applicant applied before the closing date and she was shortlisted; that she was then called for an interview on 13 February 2020; that she ranked number one at interviews and she was recommended for the post; that after the Applicant’s recommendation, the Second Respondent lodged a grievance against the Applicant’s recommendation; that the outcome of the grievance was that the interviews should be redone at interview stage; that the second interviews were held on 24 March 2020; that the Second Respondent was ranked number one at the second interviews and he was recommended for appointment, that the Second respondent was eventually appointed on 01 July 2020 and that the Applicant was earning R425 685,00 per annum at the time of the alleged unfair labour practice.

ISSUES IN DISPUTE

13. The following issues were in dispute between the parties: Whether the First Respondent committed an unfair labour practice relating to promotion against the Applicant, in particular, whether the grievance lodged by the Second Respondent had any substance or merits which could have resulted to the Applicant’s recommendation for appointment being set aside; whether the appointment of the interview committee that presided over the second interview was irregular and contrary to the Schools Act; whether Mr D D Shabalala who was appointed through the alleged irregular process participated in the School Governing Body Committee to take decisions about the appointment of the interview committee and that he was appointed as a member of the interview committee and whether the chairperson of the interview committee for the second interview was faster sleep during the second interview process.

SURVEY OF EVIDENCE AND ARGUMENTS

Applicant’s case

First witness

14. The Applicant’s first witness was Ntokozo Kubheka who testified as follows:

15. During 2019/2020, he was a member of the governing body of Vulindlela Primary School and she was amongst the people who participated in the recruitment of a school principal in 2019.

16. In the first interview of the principal’s post, the human resource official had told them that they would use Resolution 11 to formulate questions to be asked from the candidates. They would also use Resolution 11 to obtain the expected answers. She referred the council to page 11 and 12 of bundle “B”. She stated that bundle “B” was a memorandum that she had written by her hand and she used it during the interviews. The resource person had told them that they must chose question and then write down the expected answers and they must know it by heart. Therefore, she did not use Resolution 11 because the resource person took all the papers before the commencement of the interviews. As a result, they relied their memories to score the candidates. She denied that the two candidates who attended the interview, the Applicant and the Second Respondent, were treated differently during interviews.
17. During cross examination, she denied that there were meetings that were held at Balele Resort to be trained on how to score the candidates, in particular the Applicant. But she did not dispute that there were meetings where they expressed their wish for the Applicant to be appointed. She also did not dispute that there were meetings that were held in the presence of the former principal, Mr Kubheka. She stated that Kubheka was a co-opted member of the SGB because of his experience. However, she could not recall how many times they met as a group that wanted the Applicant to be appointed. She also could not recall whether Balele Resort was ever used for these meetings. However, she could recall being part of the SGB in 2019 and that she organized school uniforms for the children, but she disputed that because of that recollection she had a selective memory. She did not dispute the contents of the minutes of the interview in page 1 to 3 of bundle “B”. She also disputed that after the interviews on 13 February 2020, they were transported home by the Applicant.

Second witness

18. The Applicant’s second witness, Sbusiso Godfrey Hlongwane, testified as follows: He had been a member of the SGB of Vulindela for three successive terms, which is nine years in total. He was the chairperson of the interview committee that conducted interviews for the principal’s post at Vulindlela.

19. In 2019, there was a training for SGB which was conducted by Mr Mdlalose. After this training they were introduced to Mrs Mhlungu, the resource person. Thereafter, he called a meeting where Mhlungu was present. The purpose of the meeting was to elect the Interview committee. In that meeting he was elected as the Chairperson of the interview committee and TM Zulu was elected as the Secretary. The reader was Mrs Sign. They also elected members through their expertise viz; S Mkhwanazi who was the former principal Blank bank, S Radebe who was the former principal of Osizweni High School and S Kubheka who was a parent. These three were elected as scorers. Other members of committee were TG Dlamini who was an Usher and Mr Nkosi who was the time keeper.

20. For some reason they could not continue with the interview in 2019. As a result, they had to re-arrange in January 2020. However, before the interviews could sit, Mkhwanazi withdrew as a member due to his personal reasons. Mrs Sign also withdrew because she took an early retirement. Consequently, Mr Khanyi was appointed to replace Mkhwanazi and Mr Ndaba was appointed as a reader. They also invited representative from the trade unions NATU and SADTU.


21. After that the shortlisting process was done which resulted to three candidates being shortlisted for interview. However, only two candidates turned up for interviews viz Sibisi and the Applicant. Interviews were then conducted. The Applicant came first and the Sibisi, the Second Respondent, came second. During the interviews, he noted that Mrs Mhlungu, the resource person had taken control of the whole process to such an extent that she was the one who was making most decision about the procedure. She told them not to use resolution11, but they must memorize the content of resolution 11. She also told them that she wanted the scores of the candidates to be announced immediate after a candidate had left the interview room. While they were still in the interview process, but before announcement, Mrs Mhlungu collected all the papers. After the first candidate left, Mhlungu left her table and went straight to Kubheka on the other side of the table and she forcefully grabbed the papers, resolution 11 and the memorandum. Few days after the interview, Mahlangu told him that there was a grievance lodged against the interview.

22. Subsequently, the interview committee were called to attend a grievance meeting at the district office. At the meeting they were told that, the second Respondent had lodged the grievance. The grievance was that another scorer had been using the memo. Furthermore, the chairperson of interview committee did not ask him anything. Shortly after wards he was told that the results of the grievance were out. He then went to the district office to collect them. While he was waiting for a taxi at the bus stop, he saw the Applicant and asked her lift. Subsequent to that, he received a threatening call saying they saw him in Applicant’s car.


23. He then called Mhlungu to advise her as there was already a meeting that had been arranged. Muhlungu told him to arrange an urgent meeting for SGB as she wanted the outcome to be read in her presence. In the meeting Mhlungu took over as the chairperson. When the Applicant came, she found Mhlungu in the meeting and there was a heated argument between the two of them. At the meeting Mhlungu said there must be By-elections to fill the teachers’ component. On the following day Mhlungu announced that they would to elect the new interview committee. Consequently, a certain Mr DD Shabalala was appointed to became part of SGB and also as a new interview committee member. He was appointed to remain as a chairperson, Radebe as the scorer, TC Dlamini also as the scorer and TM Zulu as the secretary. Nkosi was appointed as the usher and time keeper. Thereafter, the interview dates were set. All the five candidate who were invited in the previous interview were invited. However, only three who came viz: a certain Mr Nyathikazi, the Applicant and the Second Respondent. The Second Respondent Sibisi came first, Nyathikazi came second, the applicant came third.

24. After the outcome of the second interviews, he wrote a grievance letter to effect that the elections were not properly conducted and also about the conduct of the resource person. A certain Mr Mdlalose conducted investigation about the grievance and found that the elections did not go well and he recommended that the election must be redone.


25. Under cross examination, he could not state where the procedure for election of people to members of the SGB is found. He denied the presence of co-opted members when discussions were held. He denied that all the training for the interview committee were done in the presence of the Applicant. He also denied that there was a meeting at Balele resort where they discuss how they should score the Applicant. He denied also that he fell asleep during the interviews.

Third witness

26. The Applicant’s third witness was Musa Richard Nkosi who testified as follows:

27. He was the SGB member at Vulindlela since 2010. He was elected from the employee’s component which is the none teaching component. The initial interviews of the principal’s post at Vulindlela were only attended by the Applicant and the Second Respondent. The interview committee had written numbers that would assist in selecting the candidate that would go first at the interviews. They had also prepared written guidelines for scorers and agreed that the memorandum would not be used. As a result, the resource person Mhlungu, gave the scorers something to read so that they would know it by heart and she took it back. The Applicant picked up paper number one and she was the first to go into the interviews. The Second Applicant picked up number two and he was the second to get inside the interviews.
28. After the Applicant had been interviewed, Mhlungu stood up and went to Kubheka, one of the scorers, and she told her that she was copying. After that, the Second Respondent came in the interview room. At the end of his interview and after he had left the room, there was a noise amongst the members of the interview committee. The noise was about the chairperson, Hlongwane, who was accused of falling asleep during the interview. However, according to his observation, Hlongwane was not sleeping, but it was Mhlungu who was sleeping. That is so because her face was facing down and she even had her shoes off.

29. Mhlungu had taken away the typed memo. However, Kubheka had a hand written memo which she had copied from the typed memo because Mhlungu did not given them sufficient time to memorize it. But Kubheka did not use it to score candidates; she put it on the side of the table.

30. Regarding the second interviews, he stated that there was going to be two meetings for the SGB at the school. The first meeting was going to discuss the burglary that had occurred and which the Applicant was going to attend. The second meeting was a meeting to discuss the principal’s post. While the first meeting was on, Mhlungu suddenly entered the meeting and questioned the presence of the Applicant in the meeting to discuss the principal’s post. The chairperson tried to explain to her that this meeting was discussing the burglary at school, they were going to meet with her afterwards to discuss the principal’s post. She refused to listen stating that they were not going to discuss the principal's post in the presence of the Applicant.

31. Eventually the second meeting was started. In that meeting they were advised that the grievance committee had found that the interviews had to be redone at the interviews stage. They were also advised that there was a vacancy for the teacher’s component in the SGB. The following day Mhlungu came with the name of the teacher who would fill the teacher’s component in the SGB. However, the meeting where this teacher was appointed was not a pre-planned, but it happened on the same day. As a result, D D Shabalala, the person who was appointed to fill the teacher’s component was appointed as the secretary of the interview committee.

32. During cross examination, he denied that the SGB met at a resort called Balele. He said he never heard of that before. He denied also that when the candidates in the first interview were picking up numbers for an interview order, the Applicant jumped to pick the number first. He also denied that the chairperson, Hlongwane, was sleeping during the first interview. He stated that Hlongwane just had his face facing down and not sleeping. The person who was sleeping was Mhlungu, the resource person, and he demonstrated how Mhlungu was sleeping. He admitted that he was present when SGB members were electing the interview committee for the second time, but he did not know whether there was anything wrong in that selection process.

Fourth witness

33. The Applicant was the fourth witness to testify in support of her case and she testified as follows:

34. She was a deputy principal at Vulindlela primary school and she had six years as a deputy principal. She applied for a position of a principal as advertised by the First Respondent. She was called for an interview on 13 February 2020 and she was the first one to be interviewed by the interview committee. She stated that questions were put to her and she answered them accordingly. Subsequently, she was told that she had been successful in the interviews and she had been recommended for appointment.

35. After a while, she was called by the circuit manager who advised her that the interviews would be redone. The district manager had already called the chairperson, Hlongwane, to uplift the outcome of the grievance. Consequently, the interviews were redone at interview stage and the Second Respondent was recommended for appointment.

36. Prior to the second interviews, there was an election process that had occurred to elect a member of the governing body to fill the vacancy of the teacher’s component in the SGB, as well as in the interview committee. That process was irregular because the appointment process did not follow the relevant prescripts. The chairperson should have first written to governance to advise them that there was a vacancy in the SGB, but that did not happen.

37. During cross examination, she admitted that when the chairperson of a meeting loses focus, that would constitute a procedural irregularity. However, she denied that the chairperson of the interview committee fell asleep during the interview process. She stated that when she was being interviewed, she did not see the chairperson sleeping. She also denied that the interview committee went to a resort called Balele to discuss the ways and means to ensure that she was appointed to the post. She also disputed knowledge of the photographs in exhibit 1, 2, 3,4 and 5. Instead, she stated that Zulu and Dlamini had asked her to pay them R50000,00 so that they would make sure that she was appointed to the post. She denied that the papers that were made to set up the interview order had been designed in a way that would be easy for her to see number one.


First Respondent’s case

First witness

38. The First Respondent’s first witness was Thobile Milicent Zulu who testified as follows:

39. She is employed by the Respondent as an educator. During or about 2020, she was the member of the SGB and she was the secretary. The SGB was well capacitated on how to conduct interviews. There had been two workshops that we held to capacitate the SGB on conducting interviews. The first training was at Sizakele High School and another one was held at Vulindlela Primary School. After these two workshops, there was no need to for a further training. However, another workshop was held at Balele Resort. This workshop was conducted by Mr Kubheka, the former principal of Vulindlela. In this regard she referred to exhibit 1, 2, 3, 4 and 5 which are photographs that were taken at Balele Resort. These photographs show the members of interview committee who attended the training that was conducted by Kubheka. In that workshop, they we told how they must score the Applicant at the interviews. They were told that they must score the Applicant higher than any other candidate no matter how best that candidate had performed in the interviews. They went to Balele resort on two occasions to be trained on this subject. However, there were other meetings that were held by the members of the committee for the same purpose. One of these meeting was held at the principal’s office at Vulindlela. Another meeting was held at the Applicant's residence. She referred the council to exhibit 6 as photograph that was taken at the Applicant’s place of residence during that training.

40. In one of the workshops mentioned above, they agreed that since the Applicant wanted to be the first one to be interviewed, they would design papers to be used to set the order of candidates in such a manner that the Applicant would be able to see the paper with number one. In fact, they made the paper with number one smaller than the other papers and the Applicant was aware of this because she was present in that meeting. When the candidates got inside the interview venue, the Applicant was behind the Second Respondent. However, she rushed through and overtook the Second Respondent so that she would pick up the paper with number one.

41. She stated that during the interview process they scored the Applicant in accordance with their plan. They agreed that they would not use the memorandum because they had been trained on how to score the candidates. But the resource person Mhlungu did not know anything about their plan. That is why the minutes in page 2 of bundle “B” reflect that no memorandum would be used. However, during the interview process, the resource person noticed that there was a member who was using the memorandum. After the candidate had left, the resource person went to the table of that member and pulled the papers that she was using. But there was nothing wrong when a scorer was referring to a document, except that they had an agreement that no memorandum would be used. However, the use of memorandum was biased in favour of the Applicant because the she already knew what question would be asked.


42. Likewise, the Second Respondent entered the interview room. He was asked questions and he answered them accordingly. But he was not given an opportunity to make comments at the end of his interview; the chairperson was sleeping. As she was sitting next to the chairperson, she tried wake him up but he was faster sleep. She believes that the Second Respondent performed better than the Applicant. She denied that Mhlungu was also sleeping during the interview. When asked why they conspired with the Applicant against the Second Respondent in the first place, she stated that they were under certain pressure and they wanted to maintain peace at the work place because the Applicant was going to be her superior. However, they eventually realized that they needed to be fair.


43. During cross examination, it was put to her that having a memorandum with them when the interview was in progress would have assisted them and not having a memorandum would have disadvantaged them. In response, she stated that it was not that they did not have the memorandum at all, but it was hidden. It was only him and the resource person who did not have the memorandum. He denied that there were any memorandums that were collected by the resource person from the interview members before the candidates came inside the interview room. The resource person took the memorandum from Kubheka after the candidates had left. When she was asked what happened to the memorandums after the resource person had told them to remove them, she said they put them on top of the cupboard. She admitted that when they we electing the replacement for the second interviews, they did not follow the proper process for conducting By-elections.


Second witness

44. The First Respondent’s second witness was Thulile Gloria Dlamini who testified as follows:

45. She was a member of the school governing body since 2018 and she was unemployed. She was an additional member, but she was later appointed as the treasurer. However, she was an usher at the initial interview. Prior to the interview, they had trainings relating to the post which were conducted by Kubheka., the former principal. However, these trainings were not at the instance of the SGB. She did not know what prompted Kubheka to provide them with these trainings, but he once told them that he wanted the Applicant or Liedeburg to take over the principalship after he had retired. So, he wanted things to go the way he wanted. It was a plan that the Applicant would take over the principal post even before she was appointed to act in the position. She stated that despite the trainings that were provided by a certain Mr Mdlalose, there were other trainings that were held. Two were held at Balele Resort and one at the Applicant’s place of residence. The trainings at Balele were about the scoring of candidates, in particular, the Applicant. She confirmed that the photographs in exhibit 1, 2, 3, 4 and 5 were taken at Balele resort and the Applicant was present. Exhibit 6 was taken at the Applicant’s house.

46. She confirmed that the chairperson fell asleep during the interview. When they see him sleeping, they looked at each other, but could not do anything as the candidate was still present. However, Mr Ndaba who was sitting closed to him snatched him and he got shocked. She denied that Mhlungu was also sleeping. She also confirmed that the papers that were used to set the order of candidates were designed in way that would be easy for the Applicant to identify the paper with number one. As a result, when the candidates were to pick up the papers, the Applicant rushed and picked up the small paper. After scoring the candidates, the Applicant got marks that were very high. Consequently, they decided to adjust the marks so that it would not be obvious that there was plan in fovour of the Applicant. However, when they were adjusting marks the resource person went outside and she said she did not want to be involved. With regard to the memorandum, she stated that prior to the process they agreed that they would not use the memorandum, they would only use blank papers. As a result, the memorandums were collected and put into a box. However, Kubheka did not hand in her memorandum.

47. During cross examination, she maintained that the photographs in exhibit 1,2,3,4 and 5 were taken at Balele Resort. But he could not make any comment when he was asked to show anything in the photographs that proves that the photographs were taken at Balele Resort. When she was asked how the memorandums were collected, she stated that the secretary Zulu collected the memorandums and she did not notice that Kubheka did not submit her memo. It was put to her that Zulu stated that she was the only one who did not have the memorandum and that the memorandums were hidden somewhere. In her response, she stated that they had agreed that the memorandums would be collected and placed anywhere because they knew what they came for. She denied that the chairperson was not sleeping. She stated that even the chairperson himself agreed that he was sleeping when they spoke to him at the interviews and at the grievance hearing.


Third witness

48. The First Respondent’s third witness was Zodwa Doreen Mhlungu who testified as follows:

49. She is employed by the Department of education as the principal at Thembinkosi Primary School. She was appointed as the nominee of the principal’s post at Vulindlela. Her responsibilities were to ensure that the appointment is done according to the procedure and in line with the policies. Also, to see if the interview committee had been trained.

50. After the appointment of the interview committee, she noted that the committee required training. As a result, she arranged a training at Vulindlela. The workshop was conducted by Mr Mdlalose and Xolile Thusi.

51. She stated that during the interview, they made a memorandum with the interview committee. However, the members of interview committee told her that they were not going to use the memorandum because they had managed to grasp the content. As result, they agreed on the criteria that no memorandums would be used during the interviews. However, during the interview of the Applicant, she noticed that one of the scorers, Kubheka, was not concentrating; she was reading something and writing down. After the Applicant had left the interview room, she went to Kubheka to check whether she understood. She found that what she was busy writing on was something similar to the memorandum. When she asked her what was it, Kubheka literally cried and apologized. She thinks she cried because she was not supposed to see this memorandum. Some of the things in the memorandum were similar to the memorandum they had crafted. The memorandum was never used to the other candidate. Therefore, the candidates were not given similar treatment. She stated that in terms of circular 36 of 2019, clause 10.12, all interviewees must receive similar treatment during interviews. She also referred to the duties of the chairperson in clause 13 of the circular.

52. She denied that she was sleeping during the interviews. But it was the chairperson, Hlongwane, who was sleeping. There was even a noise when those who were closer to him were trying to wake him up. She stated that Hlongwane’s position was crucial because a meeting without a chairperson is not a meeting.

53. She stated after the grievance committee had ordered the interviews to be redone, there was an SGB meeting that was held. In that meeting, it was discovered that there was a vacancy within the SGB. She then advised the SGB to fill the vacant position. Consequently, there were By-elections that were held and DD Shabalala was elected to fill the vacant position. Shabalala was also elected as a secretary of the interview committee. After that they set the new date for the interviews. Three candidates were called to attend the interview. The second Respondent was recommended for appointment.

54. During cross examination, she confirmed that the interview committee during the first interviews crafted the memorandum in her presence. The memorandum was in line with resolution 11. They agreed that they would not use the memorandum and the secretary collected the memorandums from the members. After discovering the memorandum from Kubheka, she admitted that the memorandum found in her possession was copied from resolution 11 and she apologized. When it was put to her that no witnesses had ever testified that Kubheka cried after she had been found with the memorandum, she insisted that Kubheka indeed cried.


Fourth witness

55. The First Respondent’s fourth witness was Sophie Nkosi who testified as follows:

56. She is employed by the Department of education as a senior educational specialist, under governance and management. She had been employed as such for the past 31 years. In their department, they mostly work with school governing bodies. They conduct workshops and assist on policy matters. She was familiar with the appointment of school governing bodies. The SGB has power to co-opt members to the SGB. This is done after elections or at any time if there is a need. Where there is a vacancy within the SGB, a ninety days’ notice must be given and thereafter By-elections must be held. In the cases were the SGB want to co-opt someone because of his or her expertise, such person can be co-opted at any time if there is a need. However, such person does not become a member of the SGB and he or she does not have voting rights. She stated that the chairperson of the SGB does not have a right to act on behalf of the SGB without their mandate.

57. During cross examination, she was asked about the procedure for By-elections. In response she stated that By-elections are initiated by the school principal. A fourteen (14) days’ notice must be issued before the By-elections are held. If no one disputing the process the elections must proceed. She could not make any comments when she was referred to the letter of complaint written by Mr Hlongwane.


Fifth witness

58. The First Respondent’s witness was Xolile Sanelisiwe Thusi who testified as follows:

59. She is employed by the First Respondent as an assistant director (human resources services). Her duties included dealing with service conditions, staff matters and trainings. On trainings, they train school principals and school governing bodies on procedural manuals. She stated that Kubheka was not allowed to train SGB members after they had trained them. Also, the Applicant was not supposed to be present when training of the interview committed was done. She stated that if the interview committee members had decided not to use the memorandum, they should have applied it across to all candidates.

Second Respondent’s case

60. The Second Respondent did not testify in the proceedings nor called any witness in support of his case. But the Second Respondent was part of the proceedings and he remained in attendance for the duration of the proceedings.


CLOSING ARGUMENTS

61. Both, the Applicant’s and the First Respondent’s representatives submitted written closing submissions. I would not repeat their submissions herein, but I have considered their submissions in my analysis below.

ANALYSIS OF EVIDENCE AND SUBMISSIONS


62. In these proceedings I am required to decide whether the First Respondent committed an unfair labour practice related to promotion envisaged by section 186 (2) (a) of the Act, in particular, whether by not promoting the Applicant to the position of a principal, the First Respondent committed an unfair labour practice within the ambit of section 186 (2) (a).

63. The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), it was held that the overall onus always rests on the employee to show the existence of an unfair labour practice. Therefore, the Applicant bears onus to prove that the First Respondent committed an unfair labour practice against her.


Whether the Respondent’s failure to promote the Applicant was unfair

64. In terms of section 186 (2) (a) of the Act, an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving- unfair conduct by an employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits.

65. In City of Cape Town v SAMWU obo Sylvester and Others (2013) 34 ILJ 1156 (LC) it was held that an overall test in an unfair labour practice related to promotion is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following:

• Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer; or
• Whether the employer’s decision was arbitrary, or capricious, or unfair; or

• Whether the employer failed to apply its mind to the promotion of the employee; or

• Whether the employer’s decision not to promote was motivated by bad faith;

• Whether the employer’s decision not to promote was discriminatory;

• Whether there were insubstantial reasons for the employer’s decision not to promote;

• Whether the employer’s decision not to promote was based upon a wrong principle;

• Whether the employer’s decision not to promote was taken in a biased manner.

66. In Apollo Tyres South Africa (Pty) Ltd v CCMA and Others (2013) 34 ILJ 1120 (LAC), at paragraph 53, it was held that unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended

67. In the present case the Applicant’s challenge to the First Respondent’s failure to promote her is premised on the following basis: Firstly, the Applicant contended that the grievance filed by the Second Respondent against the recommendation to promote her did not have any merits which could have resulted to her promotion being set aside by the grievance committee. Secondly, the formation of the School Government Body that appointed the interview committee for the second interview was irregular and contrary to the Schools Act. Thirdly, Mr DD Shabalala who was appointed through an irregular process was part of the School Governing Body that appointed the interview committee and he was appointed as the member of the interview committee.

68. I now turn to deal with the Applicant’s first contention. The grievance lodge by the Second Respondent against the Applicant’s recommendation for appointment in the first interviews appears on bundle A1 pages 1 to 2. The Second Respondent’s reasons to be aggrieved were the following: none compliance with the legal prescripts (15.1), substantive unfairness/procedural irregularities (15.4), all interviewees must receive similar treatment during interviews and undue influence. The decision of grievance committee appears on bundle A1 page 3. The committee had found that the two candidates who were interviewed were subjected to an unequal treatment in that one of the scorers used different guidelines in scoring the two candidates. It further found that the candidates were not given an opportunity to ask questions or comment at the end of their respective interviews.

69. It was common cause that the grievance committee set aside the Applicant’s recommendation for appointment based on the above findings and it ordered that the interviews must be redone at interview stage. The only issues in dispute in this regard were whether the two candidates were treated differently during the interviews in that one of the scores used different guidelines to score the candidates and whether the candidates, in particular, the Second Respondent was not given an opportunity to ask questions at the end of the interview. This allegation was premised on allegation that the chairperson of the interview committee, Hlongwane, fell asleep during the interview.

70. All the three witnesses of the Applicant including the Applicant herself denied the above allegations. The First Respondent’s witnesses on the other hand, in particular, Zulu, Dlamini and Mhlungu insisted that the interviewees were treated differently and that the chairperson, Hlongwane, fell asleep during the interviews. As a result, he did not give the Second Respondent an opportunity to ask questions or to make comments at the end of his interviews. The two witnesses of the First Respondent, Zulu and Dlamini, who were also members of the SGB, further testified that there was well orchestrated plan between the SGB and the interview committee to ensure that the Applicant was going be appointed as the principal of Vulindlela. This was disputed by the Applicant’s witnesses and the Applicant herself. This then raised dispute of facts between the Applicant’s and the First Respondent’s versions. The Courts have developed guidelines on how to deal with the dispute of facts in a particular case. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngqeleni & Others (JR1595/08) (2010) ZALCJHB 3(1 October 2010), it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.

71. There was a material contradiction on the evidence of the Applicant’s witnesses regarding the use of the memorandum and their version was highly improbable in this regard. I say so for the following reasons: The Applicant’s first witness, Kubheka and the second witness Hlongwane, testified that it was the resource person, Mhlungu who told them not to use the memorandum. Hlongwane even said the resource person took control of the whole process. However, the Applicant’s third witness Nkosi, stated that they prepared the written guidelines for scorers and agreed that the memorandum would not be used. That was when Mhlungu gave the scorers something to read so that they would know it by heart. In my view, the latter version by Nkosi is consistent with what is contained in the minutes of the interview appearing on bundle BB1 page 2. The following is recorded on the minutes in paragraph 6: “no memorandums will be used during the interview process even any papers written an expected answers. The scorers must be concentrate to the candidates while interviewed. All IC agreed”. The minutes were never disputed by the Applicant or her witnesses at the hearing. In light of this, it is highly improbable that the none use of memorandum was not a decision that was taken by the resource person. Therefore, the evidence of the Applicant’s witnesses cannot be trusted and is unreliable. As a result, this contradiction renders the version of the Applicant’s witnesses that Kubheka did not use the memorandum during the interview of the Applicant highly improbable and unreliable, and it must be rejected.

72. On the other hand, the First Respondent’s witnesses gave a very credible and reliable evidence about the use of the memorandum. They stated that it was the agreement of the interview committee that they would not use the memorandum and they corroborated each other in this regard. Their version is consistent with what is contained in the minutes of the interview as stated above. Therefore, in my view, their version to the effect that Kubheka was found using the memorandum during the interview of the Applicant should be believed. I therefore find that Kubheka used the memorandum when the Applicant was interviewed which was contrary to the decision of the interview committee. It was common cause that the memorandum was not used when the Second Respondent was interviewed. In terms of the First Respondent’s policy, HRM Circular No 36 of 2019, clause 10:12, all interviewees must receive similar treatment during the interviews. Therefore, the use of memorandum by Kubheka in favour of the Applicant alone was unfair. On this basis alone, I am of the view that the grievance committee had a valid reason to set aside the Applicant’s recommendation for appointment. I find it unnecessary to decide whether the chairperson was sleeping or not during the interviews.

73. I now turn to deal with the Applicant’s second challenge. The Applicant’s second claim was that the formation of the SGB that appointed the interview committee was irregular and contrary to the Schools Act. In fact, the Applicant testified that chairperson should have first written to governance to advise them that there was a vacancy in the SGB and this was not done. Furthermore, the Applicant contended that the person who was appointed through an irregular process was eventually appointed as the member of the interview committee. This was disputed by the First Respondent. However, the First Respondent’s witness, Sophie Nkosi, made material concession in favour of the Applicant’s case. Nkosi testified that she is a senior educational specialist under governance and management department. She was familiar with the appointment of school governing bodies. She admitted that there must be By-elections in order to fill a vacancy within the SGB. Such By-elections must be initiated by the school principal and a 14 days’ notice must be issued in this regard.

74. The above version is in line with the First Respondent’s policy, the Guidelines Relating to Election of School Governing Bodies of Public Schools 2021. These guidelines provides that the filling of a vacancy within the governing body must done through By-elections and if the election is for educator’s component, a 14 days’ notice must be given to all educators in the school. The chairperson of the governing body in consultation with the school principal must initiate the process by advising the district director of any vacancies within the governing body and arrangements for By-elections. It became common during the proceedings and the First Respondent did not dispute that the By-elections where Shabalala was appointed were not initiated by the chairperson of the school governing body nor by the Applicant who was the acting school principal at that time and that a proper notice was not issued. This, in my view, amount to a procedural irregularity in the none appointment of the Applicant and was thus unfair.

75. In light of the above findings, I am of the view that the none appointment of the Applicant to the position of the school principal was substantively fair, but procedurally unfair.

REMEDY

76. In terms of section 193 of the Labour Relations Act 66 of 1995, an arbitrator appointed in terms of this Act my determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation. In the present case, I am of the view that since the none appointment of the Applicant was solely on procedurally unfairness and there was no evidence to suggest that Applicant was the best candidate, compensation would be an appropriate remedy in the circumstances. Section 194 (4) provide that compensation award to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months remuneration. In my view, a compensation of R10 00,00 is just and equitable in the circumstances to compensate for injured feelings.


AWARD

77. The none appointment of the Applicant, Nonhlanhla Benedicta Masondo, to the position of the school principal at Vulindlela Primary School was substantively fair, but procedurally unfair.

78. As a result of the procedural unfairness, the First Respondent, Education Department of KwaZulu-Natal, is ordered to pay the Applicant compensation in the sum of R10 000,00 by not later than 15 December 2022.


79. There is no order as to costs.


Scelo V Mkhize - Panelist