ELRC392-22/23 EC

Case Number: ELRC392-22/23 EC
Panelists: Malusi Mbuli
Date of Award: 30-01-2023

In the ARBITRATION between

NAPTOSA obo VUYO VAVA
(Union / Applicant)


And

DEPARTMENT OF EDUCATION (EASTERN CAPE)
(1st Respondent)


VUSUMZI MAZWI
(2nd Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995. It was set down for arbitration hearing at the Engcobo District offices in Engcobo on the 19th & 20th of January 2023 before Commissioner M. Mbuli.

2. The applicant Mr. Vuyo Vava attended the hearing and was represented by Mr. Aaron Mhlontlo an official of the applicant’s trade union NAPTOSA. The 1st respondent, the Department of Education (Eastern Cape) was also present at the hearing and was represented by Mr. Bonisile Nkuhlu an official of the respondent.

3. The 2nd respondent Mr. Vusumzi Mazwi was also present at the hearing and was represented by Miss. Nomvuyo Veldman a shop steward of the applicant’s trade union SADTU.

4. The matter was finalized on the 20th of January 2023 and the parties agreed to file their closing arguments not later than the 27th of January 2023.

ISSUE TO BE DECIDED

5. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so the appropriate remedy.

BACKGROUND TO THE ISSUE

6. The applicant, Mr. Vuyo Vava applied for the position of Principal - at Silingela Primary School in the Engcobo District of the respondent. The applicant was not shortlisted for the said position and through his Union – NAPTOSA challenged the appointment of the 2nd respondent at the ELRC.

7. Five candidates were recommended for appointment by the interviewing panel in terms of section 6 of the Employment of Educators Act including the 2nd respondent. The Department of Education – Eastern Cape appointed the 2nd respondent Mr. Vusumzi Mazwi who is now occupying the position.

8. I must mention at this stage that the respondent failed to provide the hearing with documentation that relate to applications and attributes of the candidates and this made it very difficult for the hearing to assess all that information especially on the substantive part. The reasons provided was that the documents were lost and I postponed the matter twice to allow the respondent to provide this crucial information but in vain.

9. The applicant felt that the process that led to the appointment of the 2nd respondent and his non – appointment was unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the LRA.

10. It is not in dispute that both the applicant and the 2nd respondent qualified for the position but the issue in dispute is whether there was flouting of the process and fair short listing process. The applicant’s dispute is primarily premised on procedural fairness and the applicant’s argument is that the Department of Education acted unfairly in appointing the 2nd respondent. The applicant seeks protective promotion or reversal of the process as a remedy to his unfair labour practice dispute.

11. The parties agree that the decision or power to recommend a candidate to the department rests with the School Governing Body and that the decision to appoint rests with the Department of Education - EC. The applicant then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 20th of January 2023.

SURVEY OF EVIDENCE

Applicant’s submissions.

12. The applicant Mr. Vuyo Vava testified to the following effect.

 He applied for the position of Principal at Silingela Primary School in the Engcobo District of the 1st respondent and was not short listed or considered for appointment to the said position. He averred that he started working for the respondent as a level 1 educator in 1996, then in 2006 he was promoted to become an HOD at Gubangxa Junior Secondary School, acted as a Principal from 2009 and was appointed full time as the Principal in 2011 to date.

 He stated that for all the positions he has been appointed to he has applied for those position and had undergone the recruitment processes and he has the managerial experience required for the position and believes he was the best candidate for the job. He added that he therefore has experience in filling in the application forms and applying for the said positions.

 He stated that he applied for the position because it was a promotion for him even though he is already a principal because Gubangxa Junior Secondary School where he is now is a P3 School and Silingela Junior Secondary School is a P4 School slightly more or bigger in terms of student’s numbers than Gubangxa Junior Secondary School.

 He confirmed that the post was advertised in an open bulletin and that he does not know the reason why he was not shortlisted. He stated that he has complied with all the requirements for a valid application form, his application was properly filled in and submitted but he was advised that his application form, CV and documents together with those of other applications for all the other candidates who were shortlisted were lost by the respondent.

 For this reason no one from the department can say that his application was not properly filled in or defective and to confirm that he did apply his name is properly and correctly captured on the master list but his managerial experience is not captured correctly.

 He stated that he then wrote to the chairperson of the panel requesting the reasons why he was not shortlisted and also to be provided with the profiles of the shortlisted candidates. He stated that his letter was submitted to Mr. Dingiswayo who was the resource person and he confirmed receipt of that letter dated 18th of March 2022.

 He averred that he received response from the respondent which indicated that the respondent was unable to provide the information he required because it was confidential information and he filled a grievance and that grievance was not heard and concluded. He confirmed that the date was set for the 2nd sitting of the grievance but decided not to attend it because he did not have confidence in the process and its possible outcomes.

 He stated that he did not attend the conciliation meeting because he could not connect because of network problems but still had an interest in competing fairly and transparently for this position as he believes that he is the best candidate for the job.

 He stated that the panel that failed to shortlist him changed the 2 panelists on its own and replaced them and this constituted an irregularity as that was supposed to be referred back to the SGB to replace the panel or wait for those members to become available. He stated that the master list was not signed, unverified no indication of outstanding documents in the sifting stage and if the application was defective he was supposed to have been sifted out at that stage.

 He further stated that the criteria that was introduced for shortlisting was wrong in law and also unfair because it required that the candidates must submit application letters and testimonials even though this was after the applications were filled and these are not requirements as per prescripts applicable to the employment of educators. He added that the criteria must be reliable, fair and consistent with the bulletin.

 He told the hearing that there is a candidate by the name or surname Peter who was shortlisted even though he seemingly did not apply because his name does not appear on the minutes of candidates who applied and the department has lost the documents which could confirm whether Mr. Peter applied or not.

 He stated that he knows Mr. Mazwi from the teaching fraternity, he was an HOD in his circuit and was a Deputy Principal at Siyakhula Junior Secondary School in his locality and does not know about him being a Principal.

Respondent’s submissions

13. The respondents 1st witness Mr. Andile Tika testified that:

- He is the chairperson of the SGB since 2021, this was his first time to be a member of the SGB and was involved in the process that led to the appointment of the 2nd respondent and non – appointment or non - shortlisting of the applicant.

- He confirmed that before shortlisting and the entire process they were trained on how to conduct the process and every step of the process was clear to him. He confirmed that as a member of the SGB he was involved in the appointment of the panel and was also appointed as part of the panel of short listing and interviews.

- He confirmed that as a panel of interviewers they themselves changed and replaced the other panel members and that there was no objection when that was done and that he does not see anything wrong with what they did in that respect.

- He stated that everything went well with the recruitment. He stated that he was appointed as the chairperson of the SGB in the first meeting when they were elected by the community and was not elected as a chairperson by the members of the SGB in their own meeting.

- He confirmed however that they were told that the chairperson must be elected from amongst themselves in a meeting chaired by the principal and he was not elected in that meeting. He averred that they were not told about the use of the voice recorders when conducting shortlisting and interviews. He confirmed that their mandate was to shortlist and interview and was not to change the panel members and that they are a subcommittee of the SGB and he believed that they had a right to change panel members.

- He confirmed that Mr. Dingiswayo was the resource person and there were unions that were observing the process as well and he believes that there were no irregularities. He stated that he cannot say the reason why the applicant was not shortlisted.

- He confirmed that they received a complaint from the applicant but could not respond to him adequately because the information he requested was confidential. He stated that he cannot dispute or confirm whether the applicant submitted an incomplete application or a defective application.

- He confirmed that Peter did not appear on the candidate list but confirmed he was shortlisted and stated that this was possibly an error and that the process was fair.

14. The respondent’s 2nd witness Ms. Tembisa Klaas testified that:

- She is a member of the SGB, teacher component, was the secretary of the selection panel and they were trained in a workshop that was conducted by the EDO and that they were also told about the issue of confidentiality.

- She confirmed that the 2 panelists were changed by the members of the panel and not the SGB which elected them and stated that if they were for some reason not available they were supposed to be referred back to the SGB or wait for their availability. She later contradicted herself and stated that this issue was referred back to the SGB.

- She confirmed that they as the selection panel set the criteria which required that candidates must submit the application letter and testimonial and that 20 candidates applied for the post but 5 candidates were shortlisted. She further confirmed that the name of Peter does not appear on the list of candidates but he was shortlisted.

- She confirmed that the applicant filled a complaint and the letter of complaint was read but they decided to proceed with the selection process. She stated that the process was fair and there were no irregularities nor objections from the unions nor resource person.

- She stated that the executive of the SGB was elected in the first meeting that was chaired by the Principal and the educator was the electoral officer. She also stated that Mr. Tika was elected chairperson in the big meeting with the community.

- She confirmed that the selection panel is a subcommittee of the SGB and that it cannot change the panel on its own without the endorsement or confirmation of the SGB. She further confirmed that the shortlisting and interviews were not digitally recorded.

- She averred that she cannot remember what was missing in the applicant’s application and what requirements he did not meet but stated that the process was fair. She confirmed that the applicant’s application together with those of other candidates and the HR route form are missing and cannot be traced.


ANALYSIS OF EVIDENCE AND ARGUMENT

15. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.

16. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to consider him for appointment to the position in question and appointing the 2nd respondent.

17. The respondent appointed the 2nd respondent Mr, Vusumzi Mazwi who was recommended by the interviewing panel and later by the SGB. Both candidates meet the minimum requirements of the position of Principal in relation to all the attributes. As indicated above the applicant contests the procedural as well as substantive fairness of the appointment of the 2nd respondent and his non - appointment. On the procedural aspect the applicant raised the following procedural aspects:

18. The applicant feels that there is no reason why he was not shortlisted and he has asked the respondent to furnish him with such reason but was told that it was confidential, his application was incomplete or the reason is unknown.

19. The issue that this award has to deal with is whether there were procedural irregularities that can have an effect of rendering the process procedurally unfair. The substantive issue was also placed in dispute because the applicant felt that he was the best candidate for the job or post in question. It seems from what was provided that the 2 candidates who are a subject of this dispute met the minimum requirements for the said position and that both of them are or were eligible for appointment to the post of the principal.

20. The applicant’s representative led evidence of the applicant in advancing the applicant’s case and his evidence is summarized above in the topic dealing with survey of evidence. The essence of the evidence of the applicant is that there is no reason why he was not shortlisted because he had an edge over the other candidates because he was already a Principal at that point.

21. Applicant also pointed out a number of irregularities in the process some of which have been confirmed by the respondent’s witnesses. The respondent did not call any witness to explain the loss of the crucial documents to this dispute and there was no satisfactory explanation for this conduct.

22. I shall therefore deal with and evaluate the evidence on the versions of the parties in consideration of this background because in Tshishonga v/s Ministry of Justice and Constitutional Development & other (2007) 28 ILJ 195 (LC) the court said that an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavorable to him or even damage his case.

23. The respondent doesn’t seem to dispute these irregularities and I then propose to deal with these issues so as to make the analysis clear and I must mention at this stage that I have read and considered the arguments of both the applicant and the respondent.

24. The applicant led undisputed evidence that he applied for the position because it was a promotion to him even though he is already a principal because Gubangxa Junior Secondary School where he is now is a P3 School and Silingela Junior Secondary School is a P4 School slightly more or bigger in terms of students numbers than Gubangxa Junior Secondary School.

25. He confirmed that the post was advertised in an open bulletin and that he does not know the reason why he was not shortlisted and that this reason has not been provided by the respondent even now in this hearing. He stated that he has complied with all the requirements for a valid application form, his application was properly filled in and submitted but he was advised that his application form, CV and documents together with those of other applications for all the other candidates who were shortlisted were lost by the respondent. This evidence is also not disputed as I have indicated also above that there was no explanation on how the documents went missing.

26. For this reason no one from the department can say that his application was not properly filled in or defective and to confirm that he did apply his name is properly and correctly captured on the master list but his managerial experience is not captured correctly. The inference that I can draw from this is that the applicant’s application was not in any way defective and that someone from the respondent’s side deliberately excluded or disqualified him without any reason.

27. Applicant filed a complaint with the chairperson of the panel requesting the reasons why he was not shortlisted and also to be provided with the profiles of the shortlisted candidates and there was no satisfactory response to the applicant’s request. The response from the respondent which indicated that the respondent was unable to provide the information he required because it was confidential information is unacceptable.

28. I accept that the applicant after filling in a grievance and that grievance was not heard and concluded, he confirmed that the date was set for the 2nd sitting of the grievance but decided not to attend it because he did not have confidence in the process and its possible outcomes and by this conduct he has waived his right.

29. The panel that failed to shortlist the applicant changed the 2 panelists on its own and replaced them and this constituted an irregularity as that was supposed to be referred back to the SGB to replace the panel or wait for those members to become available. It is not in dispute that the master list was not signed, unverified, no indication of outstanding documents in the sifting stage and if the application was defective he was supposed to have been sifted out at that stage. I conclude that the applicants application was not defective even if this was the reason for non – shortlisting.

30. The criteria that was introduced for shortlisting was wrong and also unfair because it required that the candidates must submit application letters and testimonials even though this was after the applications were filled in, these are not requirements as per prescripts applicable to the employment of educators. The criteria used was unfair and inconsistent with the bulletin.

31. A candidate by the name or surname of Peter was shortlisted even though he seemingly did not apply because his name does not appear on the minutes of candidates who applied and the department has lost the documents which could confirm whether Mr. Peter applied or not. From this conduct I cannot accept that this is a genuine error or omission.

32. The panel of interviewers themselves changed and replaced the other panel members and the fact that there was no objection when that was done does not mean that this was right, I take note of the respondent’s witnesses that according to them everything went well with the recruitment. The fact that the chairperson of the SGB was elected by the community and not by the members of the SGB in their own meeting is not acceptable.

33. The 1st respondent’s witness correctly confirmed that their mandate was to shortlist and interview and was not to change the panel members and that they are a subcommittee of the SGB. They however had no right to change panel members. The fact that there was no objection from Mr. Dingiswayo who was the resource person and unions does not mean that there were no irregularities in the context of how the applicant has characterized his dispute.

34. All the witnesses who were present at the short listing and interviews cannot clearly confirm that the process was credible, fair and without irregularities. All what happened confirm that there were procedural irregularities in the recruitment and appointment of the Principal at Silingana Primary School.

35. It is not disputed that the applicant and the 2nd respondent met the requirements of the post as envisaged in Regulation 11 of the Employment of Educators Act 76 of 1998. From the argument above it then follows that the decision by the respondent to appoint the 2nd respondent and not to consider to appoint the applicant was procedurally unfair based on the evidence and argument advanced in this matter.

36. Just on these points the process of appointment of the 2nd respondent cannot be said to be procedurally fair. The respondent has authority to appoint but has a responsibility to exercise such discretion reasonably and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion exercised by a party competent to exercise that discretion.

37. The reason for this is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The applicant in this matter has managed to demonstrate that the employer has not applied discretion fairly.

38. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.

39. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to the Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.

- Whether the employer’s decision was arbitrary, or capricious, or unfair.
- Whether the employer failed to apply its mind to the promotion of the employee.
- Whether the employer’s decision not to promote was motivated by bad faith.
- 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.

40. If one looks at how the discretion was applied by the respondent in this case it is clear that the prescripts that relate to the employment of Educators was disregarded. There are a number of procedural irregularities in this appointment as discussed above and that justifies interference with the decision to appoint the 2nd respondent.

41. In Nutese v/s Technikon Northern Transvaal (1997) 4 BLLR 467 (CCMA) it was said that employees have no right to promotion and as long the employer cannot provide rationale basis for its decision, appointment or promotion stand to be set aside. Similarly the applicant has no right to protective promotion.

42. Whilst I agree with this principle it must be noted that the applicant’s contention of this appointment is mostly on procedural grounds and whilst the 2nd respondent may be the best candidate for the position if he is or met the minimum requirements, the procedural irregularities should not be of such a nature that other candidates are prejudiced. This is what happened in this dispute, the nature and extent of the irregularities prejudiced the applicant and possibly other candidates as discussed above.

43. I know of no authority and none has been cited for the proposition that the courts would not interfere at all with the exercise of discretionary power when they are unfair, arbitrary and unreasonable. The appointment of the 2nd respondent stands to be set aside because it was effected procedurally unfairly.

44. The appointment of the 2nd respondent and the non – appointment of the applicant was procedurally and substantively unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended. The applicant has indicated that he would like the Council to grant him an appropriate remedy including but not limited to protective promotion.

45. The applicant obviously cannot be granted protective promotion on procedural grounds and as I have indicated it was not easy to properly assess the substantive part as respondent has lost crucial documents to determine this part properly. The applicant has requested that I make an order stating that the appointment be set aside and the process be started afresh from the shortlisting stage.

46. This is not an unreasonable prayer from the applicant’s side in the circumstances but because of the documents allegedly lost by the respondent, it is going to be practically impossible to start the process at shortlisting stage.

47. In the circumstances I make the following award.

AWARD

48. The appointment of the 2nd respondent Mr. Vusumzi Mazwi is hereby set aside with effect from the 28th of February 2023.

49. The respondent Department of Education is ordered to re – advertise the position of the Principal at Silingela Primary School (the position in question) not later than the 30th of March 2023 and advise the applicant and 2nd respondent specifically to apply for that position.

50. Nothing stops the respondent to appoint anyone including the applicant or the 2nd respondent to act in the said position from the 01st of March 2023 until the position is filled.

51. There is no order as to costs.


Signature:

Commissioner: Malusi Mbuli