ELRC638-21/22EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HEARD VIRTUALLY VIA ZOOM AND IN QUEENSTOWN

Case No ELRC638-21/22EC

In the matter between

NAPTOSA obo MHLONTLO, AARON Applicant

and

DEPARTMENT OF EDUCATION: EASTERN CAPE First Respondent

And

MZIMKHULU MDLANGU Second Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 3 April 2023

SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice in terms of section 186(2)(a) - unfair conduct relating to promotion - non-appointment to a position applied for.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a)(iv) of the Labour Relations Act 66, 1995, (the LRA). The Applicant, Mr Aaron Mhlontlo, was represented by Adv G. D. Saayman, an official of NAPTOSA and the First Respondent, Department of Education: Eastern Cape, was represented by Mr Lusapho Ndzongo, the Assistant Director: Labour Relations. The Second Respondent, Mzimkhulu Mdlangu, represented himself.

2. The proceedings were held virtually through Zoom and on some days heard face to face on 19 May 2022, 26 August 2022, 27-28 September 2022 and 17 October 2022, 18 November 2022 and 6 March 2023 and the proceedings were recorded electronically.

3. The parties signed a pre-arb minute which was filed with the Council.

4. All parties agreed to submit written closing arguments by no later than 13 March 2023. The Respoondent’s representative applied for extension due to strike related disruptions which saw him unable to access his office and the extension was granted up to 20 March 2023 and the Applicant and First Respondent both complied and no closing arguments were received from the Second Respondent.

ISSUE TO BE DECIDED

5. I am required to determine whether the conduct of the Respondent in not appointing the Applicant to a Principal’s position amounts to an unfair labour practice, and if so, determine an appropriate remedy.

BACKGROUND TO THE DISPUTE

6. The Applicant holds the position of Principal (P3) at notch 288 and applied for a position of Principal that would have taken him to notch 307. He was not appointed to such a position, the decision which forms the subject matter of the dispute. The Applicant seeks, as a remedy, compensation equivalent to twelve months remuneration.


EVIDENCE AND ARGUMENT
Applicant’s Version

7. Mr Aaron Mhlontlo (the Applicant) led the evidence of two witnesses (himself and Mr Ngandi) and a bundle of documents, the summary of which is outlined below:

8. The Applicant testified that he was appointed as an Educator in 1992 and in 2001 he became a Departmental Head and in 2002 was appointed as a Principal. He worked as a Principal in 5 schools. In 2016 his school achieved a 75% pass rate which was above the minimum requirement of the department. He applied for a P4 post which would have meant a promotion should he be successful. He has impeccable leadership qualities and where he worked he was guided by stability, cohesion of HR, unity and teamwork. He properly applied the 4 leadership pillars of planning, leadership, management and control.

9. He also actively participated in recruitment as per PAM and circulars, resolutions and collective agreements. He was active as a Principal. In managing appointments the following has to be observed:
a. There must be a meeting to nominate a selection panel;
b. 50% + 1 SGB Members;
c. Shortlisting as per bulletin requirements;
d. Interviews;
e. People nominated by SGB as per PAM document;
f. Panel rates a candidate based on performance and send to SGB;
g. Recommendations made in a ratification meeting;
h. Ratification meeting to meet a 50% + 1 quorum;
i. Parent members to be more by 1 of teaching and non-teaching staff.

10. As a Principal he would be a resource person in the ratification meeting as it is done by SGB members. The school had 1140 learners and qualified for 17 SGB members comprised of the following members:
a. 1 Principal
b. 3 Educators
c. 9 Parents
d. 1 Non-teaching staff
e. 3 Learners

11. In the minutes of the ratification meeting held in respect of the appointment in question, nothing talks of a recommended candidate by the SGB and the meeting was held by 6 members. If the learner component is removed one is left with 14 members and if the Principal is removed then 13 members are left. Half of 13 is 6.5 + 1 is 7. The ratification meeting therefore did not meet the quorum and that amounts to no ratification.

12. In August 2019 in the school he applied to there was an incident where SADTU members revolted against a member of NAPTOSA (Ms Mbulana) where they chased her away and pushed the department to discipline her. The Applicant represented that member of NAPTOSA and got her reinstated. The SGB members defied the department and the District Director in that matter. There was a meeting with the Portfolio Committee on Education where one of the SGB members, Mr Mondleki, said they are prepared to die before Ms Mbulana can go back and the Applicant was labelled with bad names. He regarded that as a threat and attempts to silence him were made.

13. During that period Educators went on strike because of Ms Mbulana’s presence. The same people who had a problem with him worked with the Second Respondent and participated in thee selection process. They then placed the Applicant at No. 2 and confirmed to him that there was a predetermined decision not to appoint him. The Second Respondent was part of the illegal strike mentioned and in 2020 he also participated. He was also part of SADTU meetings that were against Ms Mbulana’s reinstatement. In 2021 he was also part of a strike that was against Ms Mbulana’s reinstatement as Acting Principal.
14. The Applicant also led evidence that the Second Respondent had a sound relationship with the SGB Chairperson and Deputy. The minutes do not reflect the rankings. The Applicant also stated that he holds the following qualifications:
i. Bachelor of Education:Education Management
ii. Further Diploma in Education
iii. Certificate in Human Resources
iv. Advanced Certificate in Public Administration
v. National Diploma: Public Management.

15. He stated that the Second Respondent does not have such qualifications and such qualifications are a requirement for a Principal to manage a school.

16. Under cross-examination the Applicant stated that he was not aware of inactive or active SGB members at the school. He stated that whilst Mr Mondleki was not part of the interviews he could have influenced the outcome. He also confirmed that he was aware that the Second Respondent was acting as Principal at the time of the recruitment process. He also indicated that other than being rushed by Mr Mtikitiki, the SGB Chair, he observed nothing untoward about the interview process and raised no grievance regarding the composition of the SGB of Ekuphumleni High School.

17. The Applicant indicated that it is the SGB’s responsibility to recommend the best candidate and the department must appoint the best. In terms of the schools he was in a P3 school and Ekuphumleni was a P4 and that would have meant a promotion. He also indicated that one of the union representatives in the interviews raised a grievance regarding the selection process as he believed that the Second Respondent was not the best candidate. He also stated that the report should start from shortlisting criteria and include what actually transpired on the day of interviews and must come with a brief motivation, clear to say as the panel they did as mandated. The SGB had to deliberate and make a recommendation that they are satisfied.

18. The Applicant also raised an issue that one of the panellists Mrs Thabo resides in the same area as the Second Respondent and that they both go to the same church and gets a lift every week from the Second Respondent. The Applicant stated that despite his qualifications and performance in the interview they choose the Second Respondent. Mrs Thabo scored the Second Respondent a 5/5 on Financial Management whilst he had never had an opportunity to lead a school and the Applicant was a Principal in 2 schools and was scored 3/5. He indicated that he was skilled and equipped by the department on how to manage a school’s finances and he got clean audits. He stated that the performance of Ekuphumleni High School decreased under the Second Respondent. From the Second Respondent’s CV he was a Deputy Principal and was never an Accounting Officer of a school, which falls under the duties of a Principal. The Deputy Principal is responsible for the curriculum.

19. He stated that the fact that Mrs Thabo stayed in the same area as the Second Respondent and getting transported by him to church raises an apprehension of bias. The fact that Mr Mondleki was vocal on an issue that the Applicant represented and his presence in the ratification meeting also shows the bias complained of. The Second Respondent was also a participant in the issue of Ms Mbulana which Mr Mondleki supported. The guidelines of a ratification meeting are crucial and should there be no 50% + 1, the meeting had to be adjourned, postponed or called off. In the ratification meeting panel members report to the SGB and recommendations are communicated. The quorum therefore determines the validity of the meeting. There was therefore bias by Mr Mttikitiki and Mr Kemka as they all scored the Second Respondent full marks compared to the Applicant. As a Principal he had a good record of a well behaving school and was a member of the disciplinary committee.

20. Mr Songezo Ngandi (Mr Ngandi) testified that he was part of the interviews as part of CTU-ATU. He confirmed that Mr Mtikitiki, Mrs Thabo and Mr Kemka were the panellists. He never complained about the questioning in the interviews. Mr Kemka was for the Teacher Component and the Second Respondent was scored 27/30 and Mrs Thabo scored him 28/30 and they all scored the Applicant lower. He wrote a grievance because he was unhappy with what transpired. They agreed on questions to be asked to candidates and the expected answers.

21. He then discovered that one of the candidates scored higher at the expense of the other candidates although he did not respond well to questions. As a union representative he does not score but represents PAJA that the decision must be just, fair and reasonable. The candidate was given marks he did not deserve and that forms the basis of his grievance to the department and that candidate is the Second Respondent. He then did not sign the declaration as he was of the view that the Applicant performed best. He stated that he also overheard the parents during the break saying they must recommend the Second Respondent and to him that showed bias. He then stood up and said he would not sign the declaration because the decision to recommend the Second Respondent over the Applicant was not just, fair and reasonable.

22. He reiterated that questions and expected answers were agreed upon and if one of the candidates does not respond as agreed s/he cannot be scored higher and that he was expected to agree to that. Whilst he had no duty to allocate marks he had to ensure that everybody is treated fairly. Mr Ngandi had prepared a document that seemed to be a transcript of the interview comparing answers between the Applicant and the Second Respondent. He stated that in one of the questions the Applicant's response entailed 12 points whilst the Second Respondent gave 5 points.

23. Mr Ngandi said that the Applicant provided the best answers with detail whilst the Second Respondent was brief in his answers and the Applicant’s responses were in line with what was agreed to be expected answers. Overall there was a huge difference between the candidates’ marks which shows bias towards their preferred candidate. What he overheard from those parents is what he saw on the scoresheet. In his view the panellists were not listening to the answers and that led to a bad decision and he wishes that the department must train parents on how to allocate scores.

24. Under cross-examination he stated that he worked with the Applicant in NAPTOSA and the Applicant led the portfolio of Conditions of Service. Mr Ngandi also confirmed that he is also a Principal of a school. He confirmed that on the day of the interviews he signed the acceptance of the decision but he raised his dissatisfaction knowing it was the prerogative of the panel even if unrealistic. He stated that the notes he took were his and denied that he used the Applicant’s recording of his interview although he listened to it. He stated that there is HRM Circular 44//22019 that required interviews to be recorded. He stated that the comparison is between the Applicant and the Second Respondent.

25. He confirmed overhearing the conversation regarding recommendation of the Second Respondent and confirmed that the interviews were not recorded.

Respondent’s Version

26. The Respondent’s version was led through the evidence of four witnesses, Mr Mtikitiki, Mr Mondleki, Mrs Thabo and Mr Bokuva, as well as a bundle of documents, the summary of which is outlined below:

27. Mr Mtikitiki testified that he is the SGB Chairperson at Ekuphumleni High School as of March 2020. He was involved in the recruitment and selection in the Principal's post for the school. His role was to take scores and check compliance. He was part of shortlisting with unions, they set questions together, times for candidates. The SGB panel consisted of two parents and 1 teacher. In the panel it was him, Mr Genu, Mr Mondleki, Mrs Thabo, Cikizwa and Mr Sobukhwe. He confirmed that he was part of the ratification meeting. He stated that he did not know any of the candidates, and saw them for the first time.

28. In the interviews the NAPTOSA member addressed the seating arrangement, they explained the time allocated for each candidate, they asked questions and asked the candidates if they had any complaints. All candidates said they were well received and had no issues. He received no complaints about rushing any of the candidates. He stated that he received training on conducting interviews. The NAPTOSA representative requested that panellists must not sit close to each other and indeed they could not see each other’s score sheets.

29. He also attended the grievance meeting but he had foreseen no complaints as they followed the process and they did not know the candidates. They had been advised in the workshop that it is dangerous to go to interviews with a person in mind. They did not know each other and the candidates. He stated that he saw the Applicant for the first time. They made a toss and the Applicant was then the first candidate to be interviewed. Mr Mtikitiki stated that he scored the Applicant based on how he answered. The correct score he gave is 18.

30. He saw the Second Respondent at school as he was the Deputy Principal. They wanted a person who would help the school and he scored the Second Respondent according to how he answered. Under cross-examination he stated that he was elected to the SGB in 2021 and has a term of 3 years. He cannot recall the questions he asked but had 2 questions. He stated that QMS is about developing the school’s standard and there’s lots of that for example if there is a drug problem one would work on that. The interview questions were written in isiXhosa so that they could understand them.

31. He stated that 3 candidates answered the question on QMS correctly, it was the question of who’s best, better or good. The Applicant was not bad but they had to look for the best. In comparison to the experience of the Applicant and Second Respondent he stated that he knew no one on the day and the Second Respondent was the best. He maintained that he scored based on answers. He did not know what the purpose of a ratification meeting was and could not answer as to the members present in the said meeting. He then explained that they had 9 parents and the total number of their SGB was 12 members. He stated that 2 SGB members tendered apologies.

32. He denied knowing Ms Mbulana and that he heard of her case but that she was out of the school when they started in the SGB. He stated that he noticed no one recording and did not hear any person saying he would record. He noticed no intimidation on anyone on the day of the Portfolio Committee meeting and that he never spoke on the day.

33. The second witness Mr Mondleki testified that he was a member of the SGB at Ekuphumleni High School from March 2021. They were taken to a workshop when the Principal’s post became vacant and were told what to do. They were told they should choose 3 SGB members for the panel.. They chose Mr Mtikitiki, Mr Kemka and Mrs Thabo. The interviews were held and a meeting held thereafter to give feedback. In the meeting they were told how the interviews went and who was successful as Principal. They had no problem as they wanted a Principal for the school. The meeting was held on 1 September 2021, chaired by Mr Mtikitiki and there were 2 apologies from Mr Tswelekile and Mrs Sobukhwe.

34. Mr Mondleki stated that they had 7 active SGB parent members whilst they initially had 9 parents at election. The other two parents were not attending meetings. He stated that the schooll had about 1000 learners. He understands the ratification meeting to have made the quorum. He is aware of a meeting held by the Portfolio Committee on Education regarding an Educator at the school. He knows nothing about Ms Mbulana as they never dealt with her case as SGB. In the portfolio committee meeting the Chairperson asked their view about the teacher in question and the response was that they heard that the matter is subjudice and they asked for the school to run smoothly and the issue with the teacher arose before their time. He stated that he does not know the Applicant and stated that in the portfolio committee meeting he only spoke to the chairperson.

35. Under cross-examination he denied ever knowing Ms Mbulana or saying anything about her issue. He denied that Ms Mbulana was against him getting work from the school, in the form of tenders. He stated that the SGB took a decision to co–opt members but the Principal’s post became vacant before they could co-opt. He confirmed attending an induction workshop as SGB. He confirmed that for any decision to be taken the quorum required is 50% + 1 and should be 7 people. He stated that there were 2 apologies in the ratification meeting. He stated that another SGB meeting sat but provided no minutes. He denied ever doing business with the school. He confirmed that the portfolio committee went to the school regarding a problem with a teacher and were directed to resolve the problem and the matter had been escalated to Labour. He denied voicing out his position regarding Ms Mbulana.

36. Mr Bokuva testified that he is the Secretary of the SADTU Branch and his role is to deploy people to interviews and at times play a role in some schools. He was deployed to be observed in the interviews of Ekuphumleni High School for the Principal’s post. Him and Mr Ngandi from NAPTOSA were the observers. They checked if the panel was correctly set up and they continued. No objections were raised about the panel and they managed the seating arrangement for panellists not to sit too close to each other.

37. In the interviews the candidates were received the same way with the Chairperson welcoming everyone and explaining the time allocated. He observed no one being rushed. He explained that the panel must meet the SGB to ratify the ranking of the candidates. He believes all candidates were treated the same way. Their role as union observers is to ensure fairness to all candidates and ensure the panel does what it needed to do. He is not aware of any candidate who recorded. He stated that Ekuphumleni is one of the performing schools in the district and therefore cannot be proper that it is kept without a Principal.

38. Under cross-examination he confirmed that Circular 14/2019 required that interviews be recorded and HR to purchase recorders. He confirmed that Mr Ngandi had an objection to the outcome and did not sign. He indicated that no candidate exceeded time allocated and the Applicant had detailed answers whilst the Second Respondent was scant.

39. Mrs Thabo testified that she is an SGB Member at Ekuphumleni High School and was part of the recruitment and selection for the Principal’s post at the school. She also confirms that she and the Second Respondent go to the same church although he does not regularly attend and has no close relationship with him. Mrs Thabo stated that she also owns a car and has church transport that is used by all congregants, organised by the church. She disputed that she was offered transport by the Second Respondent although she gets a lift in his car and that he is at school on Sundays.

40. She stated that she allocated marks based on how she heard him answer questions in the interview. She also stated that candidates were treated the same, greeted by the chairperson and given their time slot. She is not aware of any candidate that was rushed for time and none of the candidates indicated they had problems with how they were treated. She stated that she scored the Applicant higher scores. She indicated under cross-examination that the Second Respondent was the best of all the candidates.

41. Mr Mzimkhulu Mdlangu (the Second Respondent) testified that he now holds the position of Principal of Ekuphumleni High School. He responded to the open bulletin Volume 1/2021 and applied for the position. He is a qualified teacher and the requirements for the position were as follows:-
a. Completed application form;
b. Certified copy of South African ID;
c. Certified copies of all academic qualifications;
d. SACE Certificate; or
e. Proof of application for SACE registration.

42. He testified that he made no mistake in applying as he meets the minimum requirement and he attached copies of his diploma and his senior certificate and on that basis he is a well-deserving candidate. He went through the recruitment process and was shortlisted. He therefore qualifies to be Principal of Ekuphumleni High School. He stated that he has no blood relations with Mrs Thabo and they live in a small community where they know each other.

43. He testified that he would be prejudiced if the appointment can be set aside because he did nothing wrong and the decision will affect him, the Whittlesea community and the Queenstown District as their school is a big institution. His family and community will be affected. He stated that there may be mistakes in signing the form but are not deliberate as qualifications prove.

44. He stated that he had a degree in that he had Matric + 4 years and confirmed that he has a 3 year diploma and a Further Education Diploma. He confirmed that saying he had NQF Level 15 in his application form was misleading and that he does not have a degree but met the minimum requirements. He confirmed under cross-examination that he cannot find anything in the ratification minutes that says he was recommended and no report by the panel to the SGB in terms of the minutes and there is no record of apologies.

ANALYSIS OF EVIDENCE AND ARGUMENT

45. Section 185 of the LRA states that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices, giving effect to section 23 of the Constitution of the Republic of South Africa. This dispute is referred as an unfair labour practice dispute in which the onus rests on the employee to prove that s/he is a suitable and better candidate for the position in question, as per Buffalo City Public FET College v CCMA and others (P372/12) [2016] ZALCPE 18.

46. In this matter the dispute is around non-promotion of the Applicant to a Principal’s position at Ekuphumleni High School. The Applicant presented evidence showing that he is suitably qualified for the position as he has qualifications over and above the minimum required qualifications for the position. He further added that he has vast experience in the position of Principal and the fact that he has managed more than one school with clean audits and better performance, which evidence was not disputed by the First Respondent. In so far as the dispute by the Second Respondent in this regard it is to the extent that there was protest action in one or some of the communities against him arising out of his appointment in one of the schools.

47. Another issue raised was that there was bias in the appointment of the Second Respondent, given that his application form misled the employer in that it presented a false claim of an academic degree whilst the Applicant did a 2 year qualification after his Diploma. That application form misrepresented his NQF and REQV level, a fact that was not placed in dispute by the First or Second Respondent.

48. Another issue by the Applicant was that there was apprehension of bias regarding the relations between Mrs Thabo and the Second Respondent that extend beyond the school into the church. It is further alleged by the Applicant that there are issues that affect him in his duties as representative of NAPTOSA relating to issues that affected Ms Mbulana, a member of his union that he represented in a matter that led to her reinstatement and intervention of the Portfolio Committee on Education in the school.

49. The last issue is that the process leading to the recommendation of a successful candidate was done in a ratification meeting that was not quorate, other than other allegations against SGB members that had business dealings with the school who would also be bias towards people that serve or assist in serving their interests in this regard in the likes of Mr Mondleki

50. On the Respondents’ evidence in so far as the interview process they believe they followed a fair process in having asked candidates if they were happy with the process, as well as the Applicant having recorded the proceedings without consent, despite a Circular instructing HRMs to procure recording devices for purpose of recording interviews.

51. In this matter none of the SGB members explained their decision to score the Second Respondent higher than the Applicant and other candidates, except to state that it was based on how the candidates answered their questions, the content of which was never placed at our disposal so as to have a full view of how the candidates answered so as to have a holistic view of the interview process. This difficulty is further exacerbated by the fact that none of the SGB members could motivate their scores.

52. This is made difficult even further by the fact that none of them explains why was the Second Respondent even shortlisted given the discrepancies in qualifications, NQF and REQV levels because based on the misrepresentations on the application form in that regard, the Second Respondent should not even have made the shortlist, without denying that he is suitably qualified, but how he presented that was unprofessional and misleading, even if one may accept that it was not deliberate.

53. One of the glaring questions being the one on Financial Management where I find the scoring was seriously ill-informed in that when it comes to experience the Applicant has been a Principal in more than one school for a number of years, having fulfilled the role of Accounting Officer with undisputed evidence of having clean audits and experience in the role compared to a Deputy Principal who has not played any role in this regard is quite confusing to say the least and becomes more confusing in the absence of any motivation by the body that is entrusted with the discretion to appoint suitable persons in the role, which can’t be applied willy nilly.

54. There is a further allegation by the Applicant that he represented an employee that was despised (for lack of a better word) by the Second Respondent, his colleagues and SGB, to the extent of them embarking on an illegal strike to protest against reinstatement of that employee. None of the Employer’s witness could give an account of what transpired in this regard and what their role was, despite them acknowledging a visit by the Portfolio Committee in this regard, but all provide a bare denial of what the meeting addressed, including it’s resolutions to the school, which the SGB should be aware of irrespective of them knowing the employee in question or not talks to the credibility of them as witnesses.


55. In City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC it was held ttthat the overall test was one of fairness. In deciding whether the employer acted unfairly in failing or refusing to promote the Employee it is relevant to consider the following:
i. Whether the failure or refusal to promote was caused by unacceptable,irrelevant or invidious consideration on the part of the Employer; or
ii. Whether the Employer’s decision was arbitrary, or capricious, or unfair; or
iii. Whether the Employer failed to apply its mind to the promotion of the Employee; or
iv. Whether the Employer’s decision to promote was motivated by bad faith;
v. Whether there were insubstantial reasons for the Employer’s decision not to promote;
vi. Whether the Employer’s decision not to promote was based upon a wrong principle;
vii. Whether the Employer’s decision not to promote was taken in a biased manner.

56. In view of the Mrs Thabo issue, I do find that it is common cause that there was a relationship shared beyond the school, even though it is not out of the ordinary, it ought to have been disclosed before she took responsibility on the interviews, even though that it may not be far-fetched that as members of the same community it was likely for them to have a relationship with the same school. And lastly on the quorum of the ratification meeting, it is clear that there was not the required composition of the SGB and as such the meeting should have been rescheduled. There is no mention of inactive SGB members in the SA Schools Act, in that regard and the school (including the SGB should have ensured that they have the required numbers of SGB representation in their SGB meetings) as that is a compliance issue. There is no record of apologies in the ratification meeting minutes, which is a legal obligation that motivates for acceptance of the decision to appoint the Second Responden

57. I therefore find that it is not far-fetched to conclude a reasonable apprehension of bias for the condonation of substantive errors in the Second Respondent’s application form as well as a reasonable apprehension of bias in his appointment given that he was already acting in the position, having been part of the school before that, coupled with the lack of motivation into considerations leading to his appointment, the reasons for which I cannot even attempt to find for the First and Second Respondent. Further the extended, known relations between the Second Respondent and an SGB member ought to have been disclosed before they interview each other, in the ethical sense of reasoning

58. I must therefore find that the Applicant discharged the onus as required in showing that the Respondent committed an unfair labour practice in not promoting him to the position of Principal of Ekuphumleni High School, given the further qualifications, experience and performance in the recruitment and selection process outlined by the First Respondent. Additional to that is the finding of bias from SGB members in having Mrs Thabo not recusing herself in interviewing fellow congregant and further for the SGB’s failure to provide their considerations in appointing the Second Respondent into the position. She could have made such a disclosure and moved on and allowed other SGB members to interview the Second Respondent.

59. Coming to the remedy, the Applicant sought a remedy in terms of section 193(4) of the LRA, which provides that an arbitrator appointed in terms of this Act may 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 circumstances I find that, consistent with the Applicant’s prayer and the finding on procedural flaws with regard to the quorum of the ratification meeting as well as lack of the motivation for the Respondent’s decision, on the substantive side of issues,I find that in terms of section 194(4) of the LRA that an order of compensation is just and equitable in all the circumstances outlined above. Compensation equivalent to nine (9) months remuneration calculated at his rate of pay equivalent to R43 068. 50 per month X 9 months = R387 616. 50.

60. In the circumstances, I make the following award:

AWARD

61. The conduct of the Respondent, Department of Education: Eastern Cape, in not appointing Applicant, Aaron Mhlontlo, to the position of Principal: Ekuphumleni High School, constitutes an unfair labour practice

62. The Respondent, Department of Education: Eastern Cape, is ordered to pay compensation to the Applicant, Aaron Mhlontlo, compensation equivalent to nine (9) months’ remuneration, as calculated in paragraph 59 above, amounting to R387 616.50.

63. The amount in paragraph 62 above, must be paid to the Applicant, Aaron Mhlontlo, by the Respondent, Department of Education: Eastern Cape, by no later than 30 April 2023.


PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL