ELRC731-22/23EC

Panelist: Ncumisa Bantwini
Case Number: ELRC731-22/23EC Date of Award 19 June 2023


IN THE MATTER BETWEEN

NAPTOSA obo Tabisa Mnyaka : Union/Applicant

AND

Department of Education – Eastern Cape : 1st Respondent

Mrs. Ntombekaya Kene : 2nd Respondent


DETAILS OF HEARING AND REPRESENTATIONS

1. This arbitration was part heard on 20 February 2023, 18 April 2023 and was finalized on 01 June 2023 in the respondent’s offices in Ngcobo District. The dispute came before the ELRC in terms of Section 191 (1) (5) (a) read with section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended, (the LRA).

2. Mr. Aaron Mhlontlo of NAPTOSA appeared for the applicant, Mrs Tabisa Mnyaka. Mr. Bonisile Nkuhlu appeared for the 1st respondent, the Department of Education-Eastern Cape while Mr. Funisile Nevi of SADTU appeared for the 2nd respondent, Mrs. Ntombekaya Kene. Parties agreed to submit written closing arguments on 09 June 2023. All arguments have been considered in the preparation of this award.

ISSUE TO BE DECIDED

3. The issues to be decided is whether the respondent’s conduct of not appointing the applicant to a position of a Head of Department (HOD) for Languages at Cala Village Senior Secondary School in Cala was fair or not.

4. I have considered all the evidence and arguments, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons. I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and determination of the dispute.

BACKGROUND TO THE DISPUTE

5. The applicant referred a dispute to the ELRC regarding an alleged failure by the respondent to appoint her to the position of Departmental Head (HOD)- Languages at Cala Village Senior Secondary School. When the dispute could not be resolved at conciliation level, the applicant filed a request for arbitration through her union.

SURVEY OF EVIDENCE AND ARGUMENT

Applicant’s case
6. According to Mr. Mhlontlo ‘s opening statement, the dispute relates to unfair labour practice based on promotion. The applicant applied for Departmental Head (HOD) position at Cala Village Senior Secondary School and was not appointed. She was shortlisted, interviewed and was the best candidate. Ms. Jakavula who was not a member of SGB was part of ratification meeting. The appointed candidate misled the interview panel and the applicant will indicate that in her evidence. The remedy sought is the appointment of the applicant to the position of HOD.

7. The applicant, Mrs. Tabisa Mnyaka testified under oath as follows:

8. She works for the respondent and was appointed as an Educator on 20 February 1991. She qualifies for the advertised position of the Departmental Head-languages at Cala Village Senior Secondary School. She is capable of teaching Life Orientation and Life Sciences, Geography, Agriculture. She was rated as number 1 candidate at the interview but the SGB recommended Ms. Kene who was rated as number 2 in terms of scoring (page.78 of the bundle).

9. In terms of the post profiling, she fits very well. The requirement for the position is languages and qualifications being English and Xhosa as majors. The UNISA examination results that are reflected on page 48 of the bundle, the first code is Practical English as a Language while the second code is IsiXhosa -Method of Teaching. She qualifies for the position as she has been teaching IsiXhosa in all her teaching experience. She has been awarded with certificates and trophies and got position 1 from the circuit.

10. In 2020 she was teaching Isixhosa in grade 12 and got an award in 2021 for 2020 results. The learner’s results are contained on page 43 and 56 of the bundle. The applicant made reference to the Ms. Kene’s application and stated that it is not true that she resigned in 2014 and was re-appointed in 2016/2017. The interview process was not recorded as she did not see a recorder.

11. Under cross-examination by the 1st respondent, the applicant testified that she majored in Biology and Agriculture in her Secondary Diploma. Ms. Kene was awarded in 2021 for (Isixhosa). She has been teaching Isixhosa language since 1992.

12. Under cross-examination by the 2nd respondent, the applicant testified as follows:
13. She did Practical English in her Secondary Teachers Diploma and there was no set work as it is the case in Isixhosa. The SGB has powers to make decisions and they can reject the interview panelist decision and she assumes that this is what happened in her case. She has not seen HRM memo regarding the interview in her school.

14. The employee conceded that her qualifications do not bear the majors that are indicated in the bulletin. Her certificates do not reflect Isixhosa nor English although she was interviewed and rated as number 1 in terms of scoring.

15. Under re-examination, the applicant stated as follows:
16. Nothing talks about English and Isixhosa in the bulletin and she is offering Isixhosa and has been teaching Isixhosa for 21 years. She qualifies for the advertised position as per its requirement as indicated on page 71 of the bundle. She was awarded for best Isixhosa result in 2021 for 2020 examinations (page 97).

17. Nokwakha Precious Ntakana, the witness for the applicant testified as follows:
18. She is a member of SGB at Cala Village SSS from 2018 to date. In 2021 she was elected as the chairperson of the SGB. She did attend the shortlisting meeting as reflected in page 70 to page 74. She was scoring candidates during the interview process. Ms. Mandyoli was chairing the process. The applicant was ranked as number 1 and the 2nd respondent, Ms. Kene was number 2. After the scores were calculated, the SGB members were called for ratification.

19. Ms. Jakavula who was the Deputy Principal attended the ratification meeting although she was did not participate in shortlisting and interview processes. After Ms. Jakavula indicated her dissatisfaction about the scores and about the candidate to be recommended, the SGB chairperson suggested that they vote and they indeed voted. Five members voted for the 2nd respondent while 4 members voted in favor of the applicant. During the training in preparation for the process of appointment, they were advised to recommend the best performing candidate and non SGB members are not supposed to participate during the selection process. Mrs Mnyaka could have been recommended if the Principal and his Deputy did not vote.

20. Under cross-examination, the witness testified as follows:
21. She is the chairperson of the SGB at Cala Village Senior Secondary School. The requirements of the HOD position are Languages (Isixhosa and English). The applicant does not possess the required qualifications in terms of post profiling but the decision of the panel during the shortlisng process was that she must be shortlisted. The panelists noticed that the applicant does not qualify for the position.

22. During the interview process, she was scoring candidates and Ms. Mandyoli was chairing the process. Ms. Jakavula, was never invited, she just pitched in and the Resource Person was not supposed to allow her to participate in the process. Unions did not object to her presence. Ms. Mandyoli continued to chair the ratification process and no one objected. Ms. Kene was appointed as the recommended candidate by the SGB.

23. Under cross-examination by Mr. Nevi, the witness testified as follows:
24. Ms. Mnyaka was the best performer and she produced good Isixhosa results in 2020. She is not aware that Ms. Kene was also awarded for good Isixhosa results in 2022. She was scoring during the interview and Ms. Mandyoli was the chairperson. The parent component was outvoted during the ratification meeting. The witness disputed that she is causing chaos in Cala Village Senior Secondary School.

25. Under re-examination, the witness stated that the applicant was the highest scored candidate.

26. In closing, Mr. Mhlontlo argued as follows
27. Ms. Jakavula was not coopted in line with the National Guidelines of SGB Elections. The election of Ms. Mayekiso by SMT was also questionable. The fact that the interview as well as the ratification processes were not chaired by the SGB Chairperson cannot be determining factors in proving that the respondent did not commit an unfair labour practice based on promotion.

28. Mr. Duna and Ms. Mayekiso did not attend recruitment and selection workshop, meaning that they were not supposed to participate in the selection process. The fact that the position was profiled by the SMT and Teachers and not by the SGB was irregular. The evidence to the fact that the applicant does not qualify for the position was not substantiated. The applicant did languages in matric and at tertiary level hence she was teaching Isixhosa (P39 and 48). The interviewing panel were just told to look for someone whose transcript reflects English and Isixhosa and that happened to be Ms. Kene. The incumbent was not supposed to have been shortlisted as she did not have 29 years teaching experience as she resigned from the respondent at some stage. Her application form was defective as it had some gaps.

29. Voice recorders were never used in shortlisting, interview and ratification meeting despite the circular being active. Mr. Mhlontlo finally argued that the applicant must be appointed as she is the best candidate for the position.

30. The remedy sought by the applicant is that the appointment of the incumbent be reviewed and set aside.

• The applicant be appointed to the position as the majority of SGB voted in her favour, Mr. Duna and Ms. Jakavula did not have voting rights.
• The position of Departmental Head be readvertised and processes be conducted by an independent panel.

The Respondent’s case

31. Mr. Nkuhlu, the 1st respondent’s representative stated in his opening statement that the process of appointment of the 2nd respondent was conducted fairly and transparently. The profiling of the position was conducted by the Principal and the SMT and was endorsed by the SGB. The scoring panel consulted with the entire SGB for ratification of the appointed candidate. Both unions (SADTU and NAPTOSA were present and they confirmed that the process was conducted fairly. The 1st respondent approved the decision of the SGB as it was made in the interest of the school.

The 2nd respondent

32. According to Mr. Nevi’s opening statement, Ms. Kene deserves to be appointed to the position as advertised as she possesses clear requirements, focusing in languages. The incumbent has been in the field since 1992 and the applicant was not supposed to have been shortlisted as she does not possess languages which were requirements for the position.

33. Mr. Mbulelo Joseph Duna, the first witness testified as follows:
34. He works for the 1st respondent as a Principal at Cala Village Senior Secondary School. The position of HOD for Languages (English and Isixhosa) was profiled by SMT and it was taken to SGB for endorsement before it was advertised by the 1st respondent. When the position was advertised, he advised all staff who have an interest and qualify in line with the bulletin for the position to apply. All schools with advertised positions were invited to training/workshop. All SGB members attended the training/workshop and came with a clear mandate on how the selection process will unfold. The SGB meeting was conducted to select the interview panel. Shortlisting of the candidates was conducted and it transpired that the 2 candidates (Ms. Kene and Mr. Mbaliso) met the requirements and 1 of the candidates (Ms. Mnyaka) does not meet the required qualifications for the position.

35. Although the third candidate did not meet the required qualifications for the position, she was interviewed. During the interview, although it was expected that the chairperson of the SGB, Ms. Ntakana would chair the process, she refused complaining that she had flu and she was one of the scorers. The Deputy chairperson also did not want to chair the interview complaining that she has chaired the interviews for about 4 times. The panel appointed the Treasurer, Mrs Mandyoli to chair the interview process. He (the witness) was the resource person. The qualifications and the criteria were written on the chalk board. The applicant was the highest scored candidate although she does not meet the required qualifications of the position.

36. The SGB adopted Ms. Jakavula who is the Deputy Principal to assist in the selection process. During ratification meeting, the panel realized that they made a mistake. The problem ensued as Ms. Ntakana put off the scarf being vocal to the fact that the applicant must be recommended. The problem was later resolved as profiling and requirements were revisited until number2/Ms. Kene was recommended as the candidate who will add value in improving the performance of the school. The HOD is able to capacitate the department in both languages. The recommendation was submitted to the Department of Education and Ms. Kene was appointed to the position. Recommending Ms. Kene was a good decision as the school is performing very well.

37. Under cross-examination, Mr. Duna testified as follows:

38. He has occupied managerial teaching positions since 1999 until he was appointed as a principal in 2021 at Cala Village Senior Secondary School. The school was not specializing until it was visited by the Department of Education. The school had to appoint Educators who qualify for HOD positions.

39. He suspects that Ms. Ntakana had a hidden agenda during interview and ratification processes. She came in complaining of flu and hoarse voice and she was allowed to score candidates and scored the applicant highest points. During the ratification stage, she was vocal in suggesting the number 1 candidate instead of considering the qualifications and post profile.

40. The unions SADTU and NAPTOSA were present throughout the process as observers. The interview panel and the SGB did not want the position to be taken back to the Department of Education hence they proceeded with the process even when they realized that the applicant was shortlisted although she did not qualify for the position.

41. After the appointment of Mrs Kene, the school is performing excellently and it is at 73%.

42. Under cross-examination by Mr. Mhlontlo, the witness testified as follows:

43. He regards himself as a credible witness. Profiling of the position is a responsibility of SMT, teaching staff and the SGB. The witness could not respond when it was put to him that post profiling is the SGB’s responsibility. Ms. Jakavula was co-opted by the interview committee/ SGB during the ratification meeting because the SGB was new, some of the members left and he (the witness) was also new in the school.

44. When a question as to whether the recorder was utilized during the process or not, the witness’s response was that the use of a recorder is still a dream of the department and has never been utilized across the Eastern Cape Province. The ratification meeting was chaired by Mrs. Mandyoli as she was chairing the interview process. The decision to recommend the 2nd respondent was taken by the SGB and not by Ms. Jakavula.


45. Under re-examination, the witness stated that 2 candidates met the requirements of the position and the criteria set out but the applicant did not meet them as she does not possess languages. Ms. Kene was recommended for appointment as she met the required requirements for the position.

46. The second witness, Ms. Nomvuyo Mayekiso testified as follows:
47. She works for the 1st respondent as an Educator. During the selection process of the position in question, she was the SGB Secretary. During the shortlisting process, 3 candidates were selected but they later realized that the 3rd candidate/applicant did not meet the requirements in terms of criteria and qualifications as the candidate did not have English and Isixhosa.

48. The panel decided to proceed with the process of selection as the position was going to be taken back to the Department of Education if they cancel the process. On the day of the interview, the SGB chairperson refused to chair the interview complaining of being sick having a scarf on. The Deputy Chairperson also refused to chair the process complaining of having chaired 4 processes before. They both participated in scoring the candidates. The Treasurer agreed to chair the process of the interview.

49. There was 1 scoring SGB member from the teacher component. The 2 SGB parent component members allocated highest marks to the applicant. At the ratification process, they all noticed that marks allocated were contradicting the set criteria for the position. Ms. Ntakana was arguing at the ratification meeting her scarf removed but they resorted to voting which was in favor of the second candidate. Ms. Kene met the qualifications and the set criteria for the position hence she was recommended for appointment to the HOD position.

50. Under cross-examination by the 2nd respondent, the witness testified as follows:

51. They noticed as the panel that the applicant does not qualify for the position in terms of profiling. After arguing during the ratification meeting, no one challenged the decision of recommending Ms. Kene for the position. It was strange to notice that Ms. Ntakana, the SGB Chairperson was no longer sick, she even removed her scarf, her voice was no longer hoarse. Her suspicion was that she lied about being sick because she wanted to score candidates. Everyone signed the recommendation of the incumbent. The HOD is performing very well and she is confident that recommending her for the position was a good decision.

52. Under cross-examination by Mr. Mhlontlo, the witness testified as follows:

53. She was elected as SGB member in 2021 but she did not participate in the activities of the SGB until 2 teacher component members left. The SMT approached her but she did not attend the workshop before the selection process commenced. The witness did not respond when it was put to her that she was not elected in terms of the SGB Election National Guidelines.

54. The witness stated further that she recorded the minutes of selection process and signed them (pages 64 to page 66). She was aware of the qualifications of the position throughout the process. The witness also did not respond when it was put to her that Ms. Jakavula and the Principal had no voting rights when there was no consensus on the candidate to recommend during the ratification meeting. Mrs. Mandyoli continued to chair the ratification meeting as the SGB chairperson and her deputy refused.

55. The third witness, Mrs. Nonyaniso Mandyoli testified as follows:

56. She has been a member of SGB from 2016 and she is the Treasurer. She has attended workshops on recruitment of staff for 4 times. The school needed HOD teacher specializing with languages. The selection panel had 5 members. On the day of the interview, the SGB chairperson refused to chair the process complaining of being sick. The Deputy chairperson also refused to chair the interview and her concern was that she has chaired 4 processes already before.

57. She was then elected as the chairperson and she agreed. When the scores were revealed, it transpired that Ms. Ntakana scored Ms. Mnyaka the highest marks. The entire SGB was called for ratification meeting and it was discovered that Ms. Mnyaka does not meet the criteria and the qualifications for the position. Ms. Kene was then recommended as she was scored as number 2. Although Ms. Ntakana was sick initially, she was arguing in favour of recommending Ms Mnyaka, having the scarf off during the ratification meeting.

58. Under cross-examination by Mr. Nevi, the witness testified as follows:

59. In 2022, Ms. Mnyaka was awarded for good performance while Ms. Kene was also awarded at district level for good performance in Isixhosa. When SGB was disunited during ratification, she was shocked to see Ms. Ntakana talking vocally at ratification stage and she (the witness) realized that she wanted to score candidates so that she can award high marks to the applicant. This created tension among the committee members.

60. Under cross-examination by Mr. Mhlontlo, the witness testified as follows:

61. Ms. Mnyaka was teaching Isixhosa when the position of HOD was advertised. The requirement of the position was specialist in languages. She chaired the interview as well as ratification processes because the SGB chairperson told them that she was sick. The Deputy chairperson also refused to chair the processes complaining of having chaired selection interviews for 4 times.

62. The witness stated further that there was disunity in terms of selecting the candidate to be recommended until they decided to vote. Ms. Mnyaka was outvoted by Ms. Kene who was recommended for appointment. The witness did not respond when it was put to her that the Principal and the Deputy Principal were not supposed to vote as they did not have voting rights.

63. Under re-examination by Mr. Nkuhlu, the witness stated that the SGB chairperson and the deputy chairperson refused to chair the interview and ratification processes.

64. Under re-examination by Mr. Nevi, the witness stated that the principal and the unions guided/assisted the panel. The SGB unanimously agreed that she chairs the selection processes.

65. In closing, Mr. Nkuhlu argued as follows:

66. The SGB members were trained on how to conduct the selection processes after the HOD position was profiled and advertised. SADTU and NAPTOSA unions were observing the processes and no issues were raised until the incumbent was appointed.

67. Ms. Jakavula was coopted by the SGB during the ratification meeting because of her managerial and governance skills. Ms. Kene was recommended as the best candidate because she met the requirement in terms of the profiling as she possesses or majored in languages (English and Isixhosa) at tertiary level.

68. Although Ms. Mnyaka was awarded highest marks/scores, she did not meet the required or profiled qualification for the position as she majored in Biology and Agricultural Science. The position of Departmental Head in Languages is a specialized position as the incumbent must be able to advise other language teachers. According to section 20 of the SASA 84 of 1996 as amended, one of the main functions of the SGB is to promote the best interest of the school, strive to ensure its development through provision of quality education for all learners.

69. In closing, Mr. Nevi argued that the position was well profiled by SMT, taken to teachers and endorsed by the SGB. The applicant does not qualify for the position as she majored in Agricultural Science and Biology while the incumbent majored in English and Isixhosa. The incumbent met the requirements of the position hence she was recommended unanimously by the SGB for appointment to the position.

ANALYSIS OF EVIDENCE AND ARGUMENTS
70. The issues of common cause that relates to this matter are as follows:
• That the applicant applied for an advertised position of Departmental Head for Languages at Cala Village Senior Secondary School in Cala.

• That the applicant was shortlisted and interviewed but was not appointed to the position.

• That Ms. Kene was recommended by the SGB and appointed as the best and suitable candidate for the position.

• That the position was profiled by the SMT, Educators and was endorsed by the SGB before it was advertised.

• That the requirement for the Departmental Head for languages position is (English and Isixhosa languages as majors)
71. While it is the applicant’s case that she met the qualifications for the position as she obtained more marks/scores, it is undisputed evidence that she majored with Agricultural Science and Biology while the incumbent majored in English and Isixhosa which are the requirements for the position.
72. It must be noted that the applicant conceded under cross-examination that her qualifications do not bear the majors that are indicated in the bulletin. She stated further that her certificates do not reflect IsiXhosa nor English. This evidence was also corroborated by her witness, Ms. Ntakana.

73. It is undisputed evidence that recording of the recruitment processes is not complied with across the Eastern Cape Province.

74. It is the respondent’s case that the selection process was fairly conducted in terms of the prescripts of the respondent (PAM and ELRC CA 5 of 1998 as well as PELRC CA 2of 2002) as the qualifying candidate was appointed.

75. It is not disputed that during the ratification process there was disunity among the SGB members until a decision to coopt the Deputy Principal, Ms. Jakavula was made and that voting was an option.

76. Although the applicant’s witness was adamant that the applicant should have been recommended as the highest scorer without considering the qualifications, requirements and profiling of the position, she failed to cite the relevant prescript/policy to corroborate her version.

77. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC (handed down on 18 November 2016) 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 qualification 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 protocol 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 the suitable candidate for consideration, but that he was the best candidate”

78. See also in Buffalo City FET College v CCMA and others (P 372/12) [2016] ZALC CPE 18 handed down on 4 November 2016) it was held that in unfair labour practice disputes, particularly in those relating to promotion, the onus is on the Employee to prove that she/ he is a suitable and better candidate for the position in question”


79. It appears from the party’s evidence that the 1st respondent followed a fair procedure in appointing the best candidate for the position of Departmental Head-Languages at Cala Village Senior Secondary School and as such did not exercise its prerogative in a biased, unfair, capricious and unjust manner in appointing Ms. Ntombekhaya Kene to the position.

80. The applicant has failed to discharge the onus to prove the claim of unfair labour practice based on promotion on balance of probabilities by the respondent.

AWARD
81. I therefore make the following award:

82. The appointment of the incumbent, Ms. Ntombekhaya Kene by the respondent, the Department of Education – Eastern Cape was both procedural and substantively fair.

83. The 1st respondent, the Department of Education –Eastern Cape cannot be compelled to nullify the appointment of Ms. Kene.

84. The applicant, is therefore not entitled to any relief.

85. The application is dismissed.

Signature 
Ncumisa Bantwini
ELRC Panelist