ELRC705-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case number: ELRC705-22/23EC

In the matter between

NAPTOSA obo Siziwe Jingisa Applicant

And

Education Department of Eastern Cape First Respondent

Molteno Sibango Second Respondent

Appearances: For the applicant: Mr. L Mbinda
For the First Respondent: Mr. Nkuhlu
For the Second Respondent: Mr. Jacobs
Arbitrator: Thobela Ncetezo
Heard: 23 February, 12 April & 10 May 2023
Delivered: 7 June 2023
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – Unfair labour practice related to promotion.

ARBITRATION AWARD

Details of hearing and representation

1. The Applicant, Mrs. Siziwe Jingisa, was represented by NAPTOSA official, Mr. L Mbinda. Mr. B Nkuhlu who is employed as a Chief Education Specialist: Labour Relations represented the First Respondent, Education Department of Eastern Cape. The Second Respondent, Mr. Molteno Sibango, was represented by SADTU official Mr. S Jacobs.

2. The Applicant submitted a bundle of documents, which was accepted and used as the main bundle that was used by all the parties. The First and Second Respondents introduced five witnesses in total and they all testified under oath. The proceedings which were digitally recorded were conducted in English.

3. The parties requested to submit closing arguments in writing for consideration, the last of which were received on 22 May 2023.

Issue to be decided

4. I am required to decide whether the conduct of the First Respondent amounts to an unfair labour practice as contemplated in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended.

Background to the dispute

5. The Applicant submitted that she applied for the post of a school principal at Nomadamba Primary School in August 2022. She submitted that she met all the requirements of the post, and she was shortlisted for interviews but was not appointed.

6. The First Respondent submitted that no person objected to the fairness of the interview process and that the incumbent met the minimum requirements of the post and was the best candidate. The names of the candidates were taken to the School Governing Body (SGB) for ratification, and it was agreed that the Second Respondent will be recommended as the best candidate for the post. It was further submitted that the Applicant was the third best candidate in terms of the scores.

7. The Second Respondent submitted that he was the best candidate for the post and met all the requirements in terms of the job.

8. The post needed someone with management, Mathematics, English and NS Technology. The Applicant taught all these subjects except English and the Second Respondent also taught all these subject except Mathematics.

Survey of evidence and arguments
Applicant’s case

9. The Applicant testified that she is currently a Head of Department (HoD) at Namadamba Primary School, offering Mathematics, Natural Sciences -Technology to Grade 7 learners, which were fundamentals and Xhosa to Grade 4 learners. She further testified that she was the only one who taught Maths and NS Tech to Grades 4-7 and that to teach Maths one must have done it at High School and trained on it at tertiary level.

10. When the post was advertised in 2021, the SGB secretary, Ms. Jaxa, called her and the Second Respondent; and suggested that the Applicant must withdraw her application for the principal post as the Second Respondent has been at the Namadamba longer than her.

11. She further testified that the interview panel should have considered the memo on Employment Equity on Appointments in Offices and in Schools (Page 17 of Applicant’s Bundle), needs of the school, including her gender and recommended her instead of the Second Respondent. She further testified that she was not scored well, and the scores did not reflect what is needed by the school.

12. Under cross-examination, the Applicant testified that she did an Advanced Certificate: Education (ACE) majoring in Education with Pretoria University and Physical Science at Cape College. She is not teaching English at Nomadamba Primary School but met all the requirements of the post and teaches Maths and NS Technology to Grade 6 learners; and the Second Respondent is an English teacher.

13. She further testified that the role of a school principal is to manage, lead the school but teach as well. She denied that she profiled the post in question to suit her and stated that profiling was done by the SGB. She further testified that the Second Respondent teaches English, Xhosa, and NS Tech to Grades 4 and 6. She admitted that fundamentals are identified by the weight that carry and that languages carry more weight.

14. Around the time when the post was advertised in 2021, the SGB secretary, Miss. Jaxa, who is a sister-in-law to the Second Respondent suggested to the Applicant that she must withdraw her application as the Second Respondent had been at the school longer. The secretary said this in the presence of the Second Respondent.

15. The Applicant could not remember telling the union representatives not to attend the ratification meeting. She further testified that candidates are scored according to their performance, and she did not expect to be just awarded a post.

First Respondent’s case

16. The first witness, Mr. Buntu Mnqanqeni, testified that he is employed as a Circuit Manager at Laphumilanga Circuit, which is under Chris Hani East District. His role for the post in dispute was that of a resource person and standing in for another circuit manager, Mr. Qeku on the day of the interviews. There were only three candidates who turned up for the interview and they were scored according to their performance.

17. The trade unions signed a declaration form that the interviews were fair and the HR Route Form, which is a recommendation by the SGB was submitted.

18. Under cross-examination, the witness denied that the verbal arrangement that he should represent the circuit manager was an imposition. He stated that the scores of the interview were collated by the members of the SGB and circuit manager. During the interview the panel did not use a voice recorder as they still do not possess one.

19. He further testified that the Applicant and Second Respondent could have qualified in terms of the advert in the bulletin. The Second Respondent qualified for the job because he specialises in English, teaches NS Tech, and has BA Honours. The Applicant has more than twenty years of experience and as a female she was considered for the post.

20. The second witness, Miss. Nosisa Yvonne Jaxa, testified that during the process of interviews she was the SGB secretary and the person who recorded in writing the scores of the candidates. The criterion for the post was given to them by the resource person who also guided them during the process. The trade union representatives declared the interview process just and fair. The candidates scores were also declared during the ratification meeting and the Second Respondent scored the highest points. The ratification meeting accepted the decision of the panel.

21. Under cross-examination, she testified that she was a scriber during the selection, interview, and ratification process. She called the Second Respondent “Sbali” not because he is her in-law but because that is what everyone called him when the witness arrived at the school. Years later she heard that the Second Respondent is married to a person with the same clan name as hers.

22. When she realised that there was tension at the school because of the post in question, she called the Applicant and Second Respondent and told them that one of them must withdraw their application.

23. She further testified that the SGB co-opted two members. One for a specific duty and another one for expertise with no right to vote. She made a mistake and recorded Mr. Thembela Rubela in the minutes of the meeting even though he had excused himself and left the meeting in the middle. She also made a mistake in the minutes by not recording the names of the candidates.

24. The third witness, Mr. Sicelo Ntontle, testified that he has been the chairperson of the SGB for three years. They attended a workshop where they were trained by the Circuit Manager on shortlisting and interviews for the position of the school principal and were informed to follow rules for shortlisting.

25. When the scores were declared no person disputed the scoring of candidates. During the ratification meeting, those who were not part of the interview panel were informed of the number of candidates that were interviewed and their scores. The witness only became aware in February 2023 that there was someone who queried the appointment of the incumbent.

26. Under cross-examination, she testified that during the workshop they were informed that a non-teaching component does not form part of the panel in the appointment of school principal and a Mrs Mrubata was co-opted. They were told that the panel should be comprised of four parent component and two teacher component members of the SGB. Thembela Rubela who is an Administrative Officer excused himself from the selection panel because he is not a teacher component of the SGB and in terms of the rules he cannot be part of the panel. In scoring the candidates they considered the requirements for the post as advertised in the bulletin. However, he stated that the appointment of the incumbent took place a while ago and could not remember how they allocated points. They followed what they were told to do in conducting interviews during the workshop.

27. The post had been advertised before, but interviews did not take place because the SGB was confused about whose responsibility it was to profile a post but during the workshop they were informed that it was the responsibility of the outgoing principal and SGB to profile a post.

28. She further testified that the second-best candidate was Mrs. Wanase and the Applicant was the third best candidate.

The Second Respondent’s case

29. The Second Respondent, Mr. Molteno Sibango, testified that at tertiary he majored in languages, namely, English and Xhosa. The requirements of the post were English, NS and Mathematics. English, which is a medium of instruction, was fundamental because it has more weight than any other learning area. He is therefore the most qualified for the post.

30. He denied that he is related to the SGB secretary, Miss. Jaxa who calls him Sbali as that is how he is called by everyone at Nomadamba except the Applicant. He only met Miss. Jaxa at Nomadamba and does not know if she is related to her wife.

31. Under cross-examination, he admitted that he has not done Mathematics but submitted that as a principal he has capacity to look for someone who knows Maths. He further testified that he submitted an affidavit for proof of his qualifications because his certificates, transcripts and books were burnt when his home caught fire. He teaches NS Tech to Grades 4 & 5, IsiXhosa to Grades 4, 5, 6 & 7, English to Grades 4, 5, 6 & 7. He holds a qualification in management, which he did in his Further Education Certificate.

Closing arguments by the Applicant

32. The applicant was a Departmental Head for 5 years and one year and three months of the 5 years she was an Acting Principal. The incumbent was a post level 1 at time of application. The applicant is thus better equipped and experienced for the post. [18] The applicant has a Primary Teachers’ Diploma, Advance Certificate in Education with specialization in Education Management. In her Primary Teachers’ Diploma, she specialized in Mathematics, Physical Science, Biology and English.

33. Despite the internal Memo of the Department of Education dated 14 June 2022 stating clearly that the department has to make the concerted effort to ensure that women and are appointed at both offices and schools particularly at the SMS (Senior Management Service) level. This was not considered at all despite that the applicant was employable in terms of her scores (51out of75which is equal to 68% and that is way above average). The second respondent is reducing Employment Equity to number of shortlisted women and in so doing he is missing the point.

34. The Applicant further argued that she is better qualified and experienced than the incumbent. Was it not for the bias and irrational conduct of the SGB the applicant would have been appointed. Was it not for the unduly influence by Ms Jaxa the applicant would have been appointed SGB. The Applicant requested that the post of principal which is occupied by the Second Respondent be set aside and re-advertised.

Closing arguments by the First Respondent

35. It was argued that the Second Respondent scored sixty-two points, which was the higher of the two other candidates and he met all the requirements of the post. It was further argued that the involvement of stakeholders in the recruitment of the principal is not doubtable because SGB participated in profiling the post. When the bulletin was issued, SGB members attended a workshop on how to conduct the appointment of a principal by the Departmental Officials and Union Representatives represented in the chamber. The cooption of Ms. Mrubata by the SGB took place after the workshop with the agreement of all parties. After the interview when the selection panel and Ratification Meeting agreed about the scores, the Second Respondent was recommended for appointment. It was further argued that currently at Namadamba Primary School the employment equity is applying because there are three SMT members; two females and one male. The interview is the rating tool to choose the best candidate according to the legislation guiding the employment of educators i.e., PAM Document as revised. When the resource person Mr. B.B. Mnqanqeni guided the appointment of a principal no deviation by the SGB from laws regulating appointments of a principal. It was further argued that if changes can be made against the appointment of the process of recruitment will be rendered useless as all candidates not recommended would challenge the appointment and such will set a bad precedent and the country will not be able to contain it.

Closing arguments by the Second Respondent

36. The Second Respondent argued that based on his qualifications he meets the minimum requirements for the post, he is currently teaching Xhosa, English, Natural Sciences and Technology, EMS, and Social Sciences. He further argued that he was also serving as a school management team member for many years. Looking at how fundamental English is, supersedes Mathematics in that all other 8 subjects are taught in English with the exception of Isixhosa. He further argued that learners can fail Examinations if they don’t obtain Level 3 in English although the same is not applied in Mathematics where they can be condoned.

37. It was further argued that the Equity plan was observed and well implemented by the SGB panel as four female candidates were shortlisted by the Panel and only 1 male candidate shortlisted. The School Management Team of Nomadamba Primary School consist of three members, two are females and one is a male.

Analysis of evidence and arguments

38. Section 138(1) of the Act provides that the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) further provides that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.

39. The dispute before was in terms of Section 186(2)(b) of the Act. In disputes of unfair labour practice, the principle of he who alleges must prove, applies. The onus therefore rested with the Applicant to prove that the conduct of the Respondent amounted to an unfair labour practice in terms of the above Section.

40. She disputed the appointment of the Second Respondent and testified that she was the best candidate for the post and that the First Respondent should have considered the internal memo regarding Employment Equity on Appointments in Offices and In Schools, which is dated 14 June 2022 (Page 17 of Applicant’s Bundle).

41. The testimony of the Applicant that she is the best candidate for the post is contrary to the scores that were allocated to the three candidates that attended the interviews. The Second Respondent received the highest score and was recommended as the best candidate by the panel. The Applicant was the third best candidate. Even if I were to find that the Second Respondent was not suitable for the job, I am of the view that it would be irregular to appoint the Applicant into the disputed position and not the candidate who came second. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC, it was held that a finding that a failure to promote was unfair must be a rational one i.e., it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the Employee’s qualifications and/or suitability for the position in question against that of other candidates. The Court held that in promotion disputes it is not enough to merely show that there is a breach of policy or procedures in the recruitment process. It is also necessary for the Employee to show that the breach of the procedure had unfairly prejudiced him. This means that the Employee must not merely show that he was a suitable candidate for consideration but that he was the best candidate.

42. The Applicant was afforded an opportunity to compete for the post, but the scores allocated to the candidates show that the Applicant was not the best candidate for the post was the third best candidate. It is my considered view that it would be irregular to require an Employer to appoint a candidate who came third in the interview and disregard the candidate who came second, had it been that the incumbent was proved not to be the best candidate. In Noona v Safety and Security Sectoral Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) the Court held that there is no right to promotion in the ordinary course, only a right to be given an opportunity to compete for a post.

43. I am of the view that the Employment Equity on Appointments in Offices and In Schools is intended to promote employment of the women and persons with disabilities and is to guard against them being to overlook even when they qualify for the job. The Applicant might have met the minimum requirements of the job, but she was not the best candidate, and this was shown through the score that she received, which placed her on the third position. According to the testimony of the all the parties, the second best candidate was female, and if the appointment of the Second Respondent was to be reversed, the former would have been the suitable candidate for the job. The Applicant did not challenge the scores that were given to the second-best candidate to suggest that out of the three candidates she was the best, Sun International Management (supra).

44. Based on the above reasons I am of the view that it would not be logical to order the reversal of the appointment and re-advertisement of the post when the Applicant has not been able to prove on a balance of probabilities that she was the best candidate for the post. I am therefore of the view that the Applicant has failed to prove on a balance of probabilities that the conduct of the First Respondent amounts to an unfair labour practice as contemplated in Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended.

45. I accordingly make the following award;

Award

46. The Respondent, Department of Education: Eastern Cape did not perpetrate an unfair labour practice relating to promotion when not appoint the Applicant, Siziwe Jingisa to the advertised post of Principal at Nomadamba Primary School.

47. The Applicant is not entitled to any relief.

Signature:


Commissioner: Thobela Ncetezo
Sector: Education