ELRC81-20/21LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case no: ELRC81-20/21LP
Date of the award: 13/02/23
In the matter between:
VONGANI RODNEY BALOYI APPLICANT
And
DEPARTMENT OF EDUCATION - LIMPOPO RESPONDENT

ARBITRATION AWARD

DETAIS OF THE HEARING AND REPRESENTATION
1. This is the award in the arbitration between Mr V.R Baloyi, the applicant and Limpopo Department of Education, the respondent.

2. The arbitration was held under the auspices of the Education Labour Relations Council in terms of Section 191 (5) of the Labour Relations Act, 1995, as amended.

3. The arbitration proceedings commenced on 28 September 2021 and were concluded on 17 January 2023.

4. The applicant was present and not represented on the first day of arbitration. He was later represented by Mr Maluleke, a legal representative.
5. The respondent was represented by Mr M Matlou.

ISSUES TO BE DECIDED
6. I have to determine whether the respondent committed an unfair labour practice relating to non-promotion of the applicant.

7. Order appropriate relief.

BACKGROUND TO THE ISSUE IN DISPUTE
8. The applicant referred an unfair labour practice dispute to the ELRC. The dispute is related to promotion. Following conciliation of the dispute which failed to resolve the dispute, the matter was referred for arbitration.

9. The parties submitted their bundles of documents. The applicant’s bundle consisted of original grievance form, his letters to the District Director and the MEC.

SURVEY OF EVIDENCE AD ARGUMENTS

Applicant’s case
10. Vangani Rodney Baloyi testified and stated under oath that he was appointed to act as a Principal of Mosego Secondary School from January 2018 until December 2019. In terms of qualifications, he stated that he has B.com degree in Financial Management, Postgraduate Diploma in Banking as well as Postgraduate Diploma in Education. He is currently registered for Master in Business Administration. He still performs the duties of the principal at the school. The appointment to act lapsed after the current incumbent, Ms Matjie E.M was appointed in 2020, however she was chased from the school.

11. He stated that he was the most suitable candidate and should have been appointed because the interview committee rated him number two (2) and the candidate rated number one (1) beat him by 1.6 percent. Candidate rated number 1 was inferior to him in terms of experience and was not on post level (two) 2, promotional post.

12. He stated further that following the interviews conducted by the interview committee, the results will be handed to the School Governing Body (SGB). The SGB would then convene and make their own recommendation. The SGB, according to him, did not sit and make a recommendation.

13. He said that in terms of Section 3 (3) (a) of the Employment of Educators Act, the appointment or promotion or transfer of an educator to any post should be done on recommendation by the SGB which was not the case in this matter. That the SGB function was not delegated to any structure.

14. The District Director who made an appointment in terms of the respondent’s Employment Equity Plan was not properly delegated by the Head of Department. He stated further that there was inconsistency in regard to reasons provided by the respondent because he saw many new principals.

15. He lodged a grievance following the appointment and Mr Phasha, respondent’s official, advised him that the process to appoint the principal was frozen. The SGB Chairperson wrote to the MEC asking for a meeting to deal with the irregular appointment of the principal.

16. Solomon Mohuba stated under oath that he is a member of the School Governing Body of Mosego Secondary School. He has been a member since 2018. He was trained by a representative from the Circuit office on the shortlisting process. He is aware that if a member of the shortlisting committee is related to one of the applicants, such a member should recuse himself or herself. Mr Mashabela, who was a Chairperson of the SGB at Masego Secondary School is the uncle of Mr Kgaphola, one of the applicants and should have recused himself.

17. He stated that Ms Mogoba, SGB Secretary, has a child with Mr Madiba, one of the applicants and was expected to be recused. Ms Mogoba said that the issue of a child happened a long time ago. He indicated also that Mr Majoro, who was a member is related to Mr Madiba in that their mothers were siblings. He was further part of the selection committee that was responsible for constituting the panel. Mr Kgaphola was not selected as a member of the panel. The committee did not want Mr Kgaphola because they were aware of his weaknesses, however that was gossip.

18. Mr Phasha, a representative from Circuit, visited the school to inform the SGB that the Circuit office will be taking over the process. The SGB never reconvened after the interviews. This happened before the dispute was lodged. After the dispute was lodged, Mr Phasha again visited the school to inform them that one candidate lodged a dispute and that the SGB must write a letter to support the dispute.

19. The SGB was invited to the district office by the District Director. The meeting took place twice. In the first meeting, the Director wanted to hear their side of the story. In the second meeting, the Director informed them that he could appoint any of the candidates that attended the interview.

20. Under cross examination, he confirmed that they were trained on the respondent’s employment equity plans. They were informed that the respondent will try to employ more ladies in high positions. He confirmed that women are underrepresented on the principalship level. He would accept the appointment of a woman who is qualified and accepts the appointment. He stated that it was not wrong for the respondent to appoint a woman on the position of principal at Mosego Secondary School to address the imbalances of the past. He was not aware that the SGB met at the district office and that there was nothing wrong if that could have happened.

Respondent ‘s case
21. Ms Nonhlanhla Zungu testified under oath that she is the Acting Assistant Director Provisioning for the respondent. She is amongst others, responsible for quality assurance of all promotional posts and applications, issuing of appointment letters, payments of qualification bonuses and securing adjustments.

22. Following short-listings and interviews process for the position of principal at Mosego Secondary School, Ms Setjie E.M was appointed as the principal. This was after the district office received a recommendation from the Circuit office with names of shortlisted candidates who were interviewed. The ranking of the candidates was as follows:

a) Madiba R.J with average score of 81.8
b) Baloyi V.R with an average score of 79.4
c) Matjie E.M with an average score of 67.4
d) Mashabela R.E with an average score of 64.0
e) Mabitla R.M with an average score of 61.6

23. Ms Setjie was appointed as principal of Masego Secondary School because of the Employment Equity Plan. The respondent wanted to promote the employment of underrepresented females. She stated further that in terms of the respondent’s Circular No 116 of 2019, which is guidelines for the implementation of the 2015/2020 Employment Plan, Paragraph 5, it provided as follows:
“The Head of Department or Delegated official shall always strive to appoint any qualifying candidate from the under-represented group as guided by the statistics of the Employment Equity Profile of the Province and Economical Active Population regardless of scores that could be attained by the candidates from the over-represented groups.”
24. The respondent’s Employment Equity Profile showed that in Sekhukhune District where the school resided, male Principals were 507 while female Principals were 242. There was nothing wrong with the appointment of Ms Setjie as Principal from the underrepresented group.

25. The interview committee ranked the candidates. Two union officials signed the form with both the Chairperson of the interview committee. The SGB also signed the form. She stated that if there was no agreement from the SGB, the Chairperson would not have signed as are the unions. She understood that the signature of the SGB Chairperson confirmed that they have given approval.

26. She stated further that there was no general right to promotion and that employees have a right to be fairly considered for promotion when a vacancy arises in terms of the Collective Agreement Number 3 of 2016. She stated that the Head of Department may deviate from the recommendations of the School Governing Body where there are sound reasons for doing so.

27. Under cross examination, she stated that there was no attendance register of the SGB and their recommendations forms. However, the District always looks at the form signed by the interview committee which is confirmed by both the Chairperson, the SGB and the unions.

ANALYSIS OF EVIDENCE AND ARGUMENTS
28. This matter relates to an alleged unfair labour practice dispute launched by the applicant relating to promotion. The applicant is a Teacher at Mosego Secondary School. He acted as a Principal from January 2018 until December 2019. The referral followed an appointment of Ms Setjie as Principal in the year 2020. Aggrieved by the respondent’s decision to appoint Ms Setjie instead of him, he then referred this dispute to the ELRC.

29. At the commencement of the arbitration proceedings, the applicant stated that his contention or dispute is divided into four issues, namely:

29.1. Undue influence

29.2. Non recusal by conflicted members of the SGB

29.3. Four (4) Principals were available and Mr Kgaphola deployed by the union was included in the panel

29.4. Recommendations of the SGB

30. The applicant in his own words, said he should have been appointed because he was the most suitable candidate. The interview committee rated him number two (2). Candidate number one (1) outperformed him by 1.6 percent and that he was on post level 2. He felt aggrieved because the SGB did not convene and make their own recommendations. He further said that the District Director did not compile a comparative report or analysis of all the recommended candidates when he deviated from the recommendations of the interview committee. He was inconsistent because he attends Principal meetings, he saw many new faces that he believes were appointed from the same circular or vacancy list. He lodged a grievance and Mr Phasha, the Circuit official, informed them that the position is frozen and that the respondent was supposed to start the process again.

31. The applicant’s reasoning throughout the proceedings is based on the subjective feeling that he was the most suitable candidate that should have been appointed. The fact which was not challenged by the respondent was that he acted on the position. It is trite that acting on a higher position does not establish an entitlement to appointment when the position is advertised. In any case, the applicant was shortlisted and interviewed like other candidates. The outcomes of the interview clearly shows that he was ranked number two (2) behind Mr Madiba. While this may be true, I intend not to focus on Mr Madiba because he was not appointed to the position for reasons outlined by the District Director in the report.

In Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513, CCMA, it was held that where an employer failed to appoint an employee to a promotional position, the CCMA or a Court should be hesitant to interfere with the exercise of management’s decision in the absence of gross unreasonableness.

32. By his own admission, Mr Madiba was ranked above the applicant with a difference of 1.6 percent. On the basis of this evidence, his submission is rejected on this point. The fact that he is on post level (two) 2 does not automatically mean that he should have been appointed.

33. The respondent’s case was that Ms Setjie E.M was appointed on the basis that she is a female and was recommended by the interview committee. The applicant did not challenge the fact that females are under represented at the level of Principals. The only issue that he raised was that the Director did not prepare a comparative analysis of the recommended candidates. From the reasons provided by the Director, it was clearly stated that Ms Setjie E.M ‘s appointment is informed by the respondent’s equity plan and was the highest ranked under represented female. Its clear that male candidates were overlooked despite scoring the highest points in order to address the under representation of females. The applicant did not deny the existence of the respondent’s employment’s employment equality profile which showed that males are over represented on principal position levels. He did not dispute that Ms Setjie was appointed in terms of the recommendations of the interview committee.

34. The applicant’s witness, Mr Mohuba, conceded that there was nothing wrong with the appointment of Ms Setjie as a female. He could not dispute the under representation of females in Sekhukhune District at Principal level. In fact, he conceded that it was wrong for the respondent to appoint Ms Setjie.

35. On analysis of the overall evidence presented, I am of the considered view that there is nothing grossly unreasonable in the manner in which the process was handled. The District Director had, in addition, convened two meetings with the SGB members and informed them about the process that he was going to follow after recommendations were received from the circuit office. In terms of the appointment of Ms Setjie and the reasons provided for deviating from the recommendations of both the SGB and circuit office, I am unable to find any flaw or bad faith. Sound reasons were provided by the respondent. Accordingly, the applicant’s dispute stands to fail for the reasons provided above.

AWARD
36. The respondent’s decision not to appoint the applicant did not constitute unfair labour practice.

37. The applicant’s referral is hereby dismissed.

Panelist: M.N Masetla