ELRC893-21/22 KZN

Arbitrator: J.D. Vedan
Case Reference No.: ELRC893-21/22 KZN
Date of hearing: 13 January 2022

In the arbitration between:
Gugu Everfriedah Ntshangase Applicant/Employee party

and
Department Education - KwaZulu-Natal First Respondent/Employer party
and
N. N. Mbatha Second Respondent
Applicant’s representative: Mr N. S. Malunga
Tel: 083 422 9704
E-mail: thuli.legal@natu.org.za

First Respondent’s representative: Ms J. Dumisa
Tel: 033-846 5173
E-mail: Jabu.Dumisa@kzndoe.gov.za

Second Respondent’s representative: Mr S. Acheampong
Tel: 082 611 7047
E-mail: sethotou@gmail.com
DETAILS OF HEARING AND REPRESENTATION:

1. This arbitration was held via Zoom on 25 July 2022 and 27 October 2022, and was thereafter concluded via a face-to-face hearing at the Zululand District Office, 38ba Princess Mkabayi Street, Ulundi on 13 January 2023.

2. The Applicant, Gugu Everfriedah Ntshangase, was represented by Mr N. S. Malunga, a NATU Union Official.

3. The First Respondent, Department of Education - KwaZulu-Natal, was represented by Ms J. Dumisa, its representative.

4. The Second Respondent, Ms N. N. Mbatha, was represented by Mr S. Acheampong, a SADTU Union Official.

BACKGROUND TO THE DISPUTE:

5. The Applicant was working at the primary school in Ulundi. She was employed for thirty-nine years by the Department of Education – KwaZulu-Natal. She acted as Principal at the school in which the HRM Circular 35 of 2020 came out regarding the post of Principalship at the school.

6. The Applicant stated that the Second Respondent, Ms N. N. Mbatha, was a Level One Educator, and that she was recommended for two positions, that of Principal and Deputy Principal at the school, and Ms Mbatha accepted the position of Principal.
7. The Applicant was of the view that she was the best candidate for the position of Principal, and that she complied with all the requirements, and should have been appointed.

8. She alleged bias on the part of the Interview Committee, as appointed by the School Governing Body. She alleged that the bias was because the School Governing Body had held a braai, and that braai was apparently co-ordinated by Ms Mbatha without the knowledge of herself, although the Applicant was a part of the School Governing Body.

9. She stated that the people that attended the braai consisted of two scorers/members of the Interview Committee, and this is the whole basis of the case.

10. The Department of Education issued two letters of appointment to Ms Mbatha, and she had the privilege of choosing whether to accept the position of Deputy Principal or Principal of the same school.

11. The Applicant stated that she was already a Deputy Principal, however she was acting as Principal at that time, and Ms Mbatha was a Head of Department.

12. The First Respondent stated that all procedures were complied with, and the School Governing Body and the Interview Committee were properly constituted. Furthermore, Ms Mbatha met all the requirements for both the positions.

13. Union Officials were present who verified that the process was fair. Furthermore, there was a resource person present to ensure that the process was followed correctly. The issue of the braai was never raised.

14. The First Respondent is not accountable for after-hours activities unless there is a nexus that can be shown between the braai and the interviews. There is nothing wrong in recommending a person for two posts, if the person applied for both.

15. The Second Respondent, through her representative, agreed with what the First Respondent stated. Ms Mbatha wanted the position of Principal, as this was her preferred option. All the procedures that were carried out were flawless.

ISSUE TO BE DECIDED:

16. Whether the First Respondent committed an unfair labour practice against the Applicant in terms of Section 182 (2)(a) of the LRA?

APPLICANT’S EVIDENCE:

17. The Applicant appeared to be appointed to the position of Deputy Principal.

18. She stated that on 26 August 2021 the School Governing Body met to form an Interview Committee. She had recused herself, as she had an interest in the Principal post. Other members who also had an interest had recused themselves.

19. She alleged that the School Governing Body members thereafter left with Ms Mbatha. She just heard that a braai had been organised thereafter, and that Ms Mbatha was present. She agreed that Ms Mbatha was appointed as the Deputy Secretary of the School Governing Body.
20. It was put to her by the First Respondent that the braai was held on 9 May 2021, and this was before HRM Circular 35 of 2020 had even been issued by the Department. The Applicant disputed that. It was put to her further that the braai was held after the formation of the sub-committee. However the Applicant maintained that the braai was held after the bulletin was issued.

21. The Applicant stated that the braai was held on or about 26 August 2021.

21. It was put to the Applicant that the braai was held because the School Governing Body had no budget to utilise for catering for the event, and therefore they had to go out to have refreshments.

22. The Applicant stated that present at the braai was Ms Mbatha and also a Ms Sibiya.

23. It was put to her that no prejudice was suffered as a result of the alleged braai, even if it was held on 26 August 2021. However the Applicant stated that she had a problem with it, as she was not part of the braai. She did not know what had happened at the braai.

24. It was put to the Applicant that the interviews were very transparent, there were no objections, and her Union had observed the process. The Applicant had no comment to this, as she stated that she was not present.

25. It was put to her that Ms Mbatha was requested to join the members in the braai, and there was no formal invitation.

26. The Applicant then indicated that she had a witness to call, Mr Sibiya, and her representative stated that the arbitration proceedings should be conducted physically at Ulundi to facilitate the calling of the witness, as the witness was not computer literate to use Zoom.
27. It was put to the Applicant by the Second Respondent’s representative that her evidence was merely hearsay concerning what had occurred.

28. The hearing sat on 13 January 2023, however the witness for the Applicant was unwilling to attend the hearing due to fear.

RESPONDENTS’ EVIDENCE:

29. The First and Second Respondents closed their cases without calling any witnesses, as they stated that there was no case to answer.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

30. The onus fell on the Applicant to prove that the First Respondent committed an unfair labour practice against the Applicant on a balance of probabilities.

31. The Applicant was not able to show any specific instance of irregularity as far as the scoring, or the composition of the Interview Committee, or the questions framed, or irregularities in any other respect on the part of the Interview Committee.


32. Furthermore it would appear that the Union representative were present as the process was being conducted. There were no documents tabled to show any irregularities, as well as no inconsistency in the scoring.

33. The only aspect the Applicant relied upon was that a braai was held involving the School Governing Body members, and present at the braai was the Second Respondent, Ms N. N. Mbatha. However, the Applicant was not able to say what went on at the braai, or what was discussed at the braai, if indeed anything was discussed, regarding the promotion concerning the Principal and Deputy Principal posts.

34. The Applicant had stated that she had a witness to call who was present at the braai. However, the witness did not make himself available at the arbitration, and thus we have a lacuna in this respect.

35. Furthermore the First Respondent stated that the braai was held prior to the post being advertised. However even if it was held thereafter, there is nothing to indicate that anything untoward went on at the braai. The Applicant’s argument is that she was not invited. However, it would appear that this was an ad hoc arrangement to obtain food, as catering was not available to the members of the School Governing Body.

36. The evidence presented does not indicate, nor support a case for, unfair labour practice, either procedurally or substantively, but appears to be completely hearsay upon which one cannot make a finding of unfairness.

FINDINGS:

37. I therefore find that there was no unfair labour practice in this matter.

AWARD:

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

39. The application is dismissed.

40. There is no order as to costs.

J.D. VEDAN
ELRC Panellist