ELRC736-22/23EC

Case Number: ELRC736-22/23EC
Commissioner: Henk Jacobs
Date of Ruling: 29 June 2023

In the matter between


NAPTOSA obo Mnoneleli Mnguni
(Applicant)

And

Provincial Department of Education – Eastern Cape
(1st Respondent)

Ms N Manjezi
(2nd Respondent)

Union/Applicant’s representative:
Mr Loyiso Mpinda

Telephone:
Telefax:
E-mail: loyisom@naptosa.org.za

Respondent’s representative:
Respondent’s address: Mr Walter Hena

Telephone: 084 821 3734
Telefax:
E-mail: Walter.hena@ecdoe.gov.za

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held at the East London District Office for the Respondent, on 27 February 2023, 19 April 2023, 29 and 30 May 2023.

2 The applicant, Mr M Mnguni, was represented by Mr. L Mbinda, an official from the National Professional Teacher’s Organisation of South Africa (NAPTOSA), the 1st respondent, the Education Department - Eastern Cape, was represented by Mr T W Hena, an Employment Relations Officer employed by the Respondent, and the second Respondent, Ms N Manjezi, was represented by Ms B Ntomgana, an official from the South African Democratic Teachers Union (SADTU).

3 The hearing was held in English and IsiXhosa and was digitally recorded.

4 Parties further agree to file heads of argument by no later than 14 June 2023, both parties did so.

Issue to be decided

5. The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA, by not appointing the Applicant to the post of Head of Department.

Background to the matter

6. The Applicant referred an alleged unfair labour practice dispute pertaining to promotion to the Education Labour Relations Council after he applied for the post of Head of Department at Qwalasela Intermediate School, as advertised in volume 2 of 2022, the Applicant was shortlisted, interviewed, but not appointed.

7. In terms of issues in dispute, the Applicant submits that the 2nd Respondent was not shortlisted but interviewed and appointed. The 2nd Respondent applied for a post of deputy principal at a school outside of Buffalo City Metropolitan.

8. The interview panel failed to decide how they would go about breaking the tie between the 2nd and 3rd candidate, and that the panel was biased toward the successful candidate.


9. The Applicant sought for the appointment of the 2nd Respondent be set aside and the recruitment process for the post of HOD intermediate face be done afresh.

Survey of submissions

10. This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.

Applicant’s evidence

11. The Applicant testified that the post of HOD he applied for, was advertised in Bulletin Volume 2/2022/298 as per page 6 of the Applicant’s bundle. The post on page 5 as advertised in Volume 2/2022/10 was for a Deputy Principal post at a school in Dutywa district. The post of deputy principal was not vacant at the school the Applicant applied for.

12. Page 2 of the Open Post Bulletin for Deputy Principals and HOD’s Volume 2 of 2022 which reflects the important information for applicants under “B” reads as follows:

“Application Forms are to be accompanied by all relevant documentation.
(Recommended list)
• Completed (EDP 01) application form and CV
• Certified copy of the South African Identity Document
• Certified Copies of all academic qualifications, which must include appropriate training as educator
• Certified copy of membership certificate with SACE (OR proof of application for registration)
C. Forms without all relevant documentation will be discarded.
E. Where there is misrepresentation of facts, or any other deviations from these procedures, regulations, or collective agreements, the Department reserves the right not to fill the post or posts affected.
F. The post, post number and the name of the educational institution for which an application is made should be clearly stated.”

13. The Applicant further testified that the post the successful candidate applied for as per page 23 of the Applicants bundle, was for the deputy principal post at Dutywa. Block 12 on her application is blank and contained no information, and on page 24 the block requesting highest qualification is empty. The 2nd Respondents application is incomplete and should not have been considered.

14. Page 11 of the Applicant’s bundle dated 18 October 2022 is the shortlisting minutes for the post of HOD, Qwalasela Public School Volume 2 of 2022 post number 298. The minutes reflect Ms Manjezi was excused as she was one of the applicants and that number 2, 3,4,5 were eliminated due to qualifications. There were only two candidates left, candidate 1 and 6 as per page 11 of the Applicants bundle.

15. Page 19 is the attendance register for ratification for the post HOD post number 298. Page 17 is the minutes of the ratification for the post of HOD, Qwalasela Public School volume 2 of 2022 post number 10. Page 15 is the minutes of the selection of interview the panel which includes Ms Manjezi who was an applicant.

16. Page 14, dated 04 November 2022, confirms that only two candidates were shortlisted due to the post being advertised for a foundation phase HOD. The Applicant further testified that Ms Langa is the HOD for foundation phase and was appointed during the end of 2022 and the 2nd Respondent is the HOD for intermediate phase.

17. Page 7 is the interview minutes dated 17 March 2022, for the HOD post for Qwalasela Public School, volume 2 of 2022 post number 298 where Ms Langa scored the highest and was recommended. The Applicant testified that they were interviewed during October 2022 and not March 2022. Ms Langa was never an applicant for post number 298, and the 2nd Respondent applied for post number 10.

18. Page 21 reflects the 2nd Respondent’s application letter that states that she wishes to apply for the HOD post volume 2 of 2022 post number 10 which was addressed to the principal for Qwalasela Intermediate School.

19. Page 74 and 75 of the bundle reflects the recommendation by the SGB for appointment to the post of volume 2 of 2022, post number 10 where Ms Manjezi was recommended as the first candidate and the Applicant ranked number two.

20. During the interviews there was no waiting room, the Applicant testified he had to wait in his car and the principal told him that there was no electricity, and they are going to print the questions off campus.

21. Under cross-examination, the Applicant could not confirm whether post 298 was later changed to post 10.

22. Mr Tshangeza testified that he was part of the SGB and testified that the 2nd Respondent was not part of the shortlisting committee, even if her name appears in the minutes. They did not have to deal with the tie as they all agreed that number 1 would be recommended. He raised a comment at the time to the effect that the Applicant performed better than the 2nd Respondent during the interviews.

23. An arrangement was made to go and print the interview questions off campus as they experienced load shedding.

24. Under cross-examination, Mr Tshangeza confirmed that his score was in the minority as the other two panel members scored the 2nd Respondent the highest.

Respondent’s evidence

25. Ms Mbala testified that she is employed by the Respondent as the principal at Qwalasele Public School and that they experienced a problem with the adverts as two posts were advertised, one for post number 298 which was HOD for foundation phase and post number 178 which was for a deputy principal.

26. She communicated with the Circuit Manager who indicated that he would speak to the Director for HR who will rectify it. Back at the school, she called an SGB meeting informing them that the post was incorrectly advertised as a foundation phase post.

27. They formed a selection committee consisting of three parents and two teachers and it transpired after the advert was rectified that the 2nd Respondent was an applicant who was part of the SGB. It was then resolved that the 2nd Respondent be removed and the panel to consist of two parents and one educator.

28. The interview questions were formulated during the morning of the interviews, and they experienced load shedding and could not print the questions, she and the clerk were nominated to go and print the question sheets. They had to leave their phones behind and only took the memory stick to print the questions.

29. They then commenced with the interviews and started with the applications for post 298 which had 2 applicants and then they proceeded with the HOD post which had 5 applicants. She encouraged the panel to make a comment next to the score to substantiate the score.

30. Under cross-examination, Ms Mbala stated that the 2nd Respondent applied for post number 10 and one of their criteria was that should an applicant enter the incorrect post number the application is put aside, the 2nd Respondent initially applied for post number 178 which the committee scratched out and insert post number 10.

31. It was further confirmed that post number 298 does not make reference to foundation phase. Page 249 of bundle A is an addendum to the post bulletin volume 2 of 2022 dated 01 September 2022, and that its purpose is to correct the errors of the main bulletin.

32. Page 277 of bundle A made reference to a post that was added under post number 178 which was for a deputy principal. The post for post number 178 was never filled as they already had a deputy principal.

33. She saw that the 2nd Respondent was an applicant on the master list as per page 45 of bundle B, with the post number 10, where the 2nd Respondent’s name appeared.

34. The 2nd Respondent did not indicate that she was an interested party. Page 15 of the Applicant’s bundle contains the name of the 2nd Respondent as part of the panel, which was incorrect.

35. Page 5 indicates that the post for volume 2 of 2022 post number 20 was for Ngubethole BAM S.S.S in Dutywa district. The 2nd Respondent’s application was complete and should not have been disregarded.

Analysis

36. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.

37. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provisions of benefits to an employee”.

38. It is common cause that the Applicant challenged the Education Department’s decision not to appoint him. The only regulation that guides the process is the Personnel Administrative Measures (PAM).

39. The question to answer is whether the decision not to appoint the Applicant was fair.

40. The provisions stipulated in the PAM provide, inter alia, as follows:

“SCOPE OF APPLICABILITY
1.1 This PAM is applicable to educators at schools, technical colleges, colleges of education and education control and auxiliary services that concern themselves with all those activities aimed at educating and teaching pupils/students, in respect of both formal and non-formal education.

1.2 As regards the matters that are regulated in this PAM, only those measures contained herein shall apply, and there may, in respect of the matters regulated herein, be no deviation from the prescribed measures: Provided that should there be cases not covered by the measures contained herein or should there be any doubt as to the application of the provisions in individual cases, or should there be cases that could justify a deviation from policy, particulars thereof shall be submitted to the Department of Education with a view to a decision regarding such application or possible deviation by the Minister of Education, or the possible amendment or supplementing of the measures by the Minister of Education, with the concurrence of the Minister of State Expenditure in the event of an amendment or supplementation having a financial implication, after negotiation and agreement in terms of the Labour Relations Act, 1995.

3.2 Sifting
(a) The employing department shall acknowledge receipt of all applications by:
(i) informing all applicants in writing of receipt;
(ii) clearly indicating whether the application is complete or not; and
(iii) indicating whether the applicant meets the minimum requirements for the post and that such applications have been referred to the institutions concerned.
(b) The employing department shall handle the initial sifting process to eliminate applications of those candidates who do not comply with requirements for the post(s) as stated in the advertisement.
(c) In the case of colleges, where applications are received at the institution, the college council shall acknowledge receipt of applications in terms of paragraph 2.1 above.
(d) Trade Union parties to Council will be given a full report, at a formal meeting, on:
(i) names of educators who have met the minimum requirements for the post/s in terms of the advertisement;
(ii) names of educators who have not met the minimum requirements for the post/s in terms of the advertisement; and
(iii) other relevant information that are reasonably incidental thereto.

3.3 Shortlisting and interviews

(a) Interview Committees shall be established at educational institution where there are advertised vacancies.
(b) The Interview Committee shall comprise:
(i) In the case of public schools: • one departmental representative (who may be the school principal), as an observer and resource person;
• the Principal of the school (if he/she is not the department’s representative), except in the case where she/he is the applicant;
• members of the school governing body, excluding educator members who are applicants to the advertised post/s; and
• one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
(ii) In the case of colleges: • one departmental representative, as an observer and resource person; • the head of the institution, except in the case where s/he is an applicant;
• members of the college council, excluding educator members who are applicants to the advertised post/s; and
• one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
(c) Each Interview Committee shall appoint from amongst its members a chairperson and a secretary.
(d) All applications that meet the minimum requirements and provisions of the advertisement shall be handed over to the school governing body responsible for that specific public school.
(e) The school governing body is responsible for the convening of the Interview Committee and they must ensure that all relevant persons/organisations are informed at least 5 working days prior to the date, time and venue of the shortlisting, interviews and the drawing up of the preference list. Where the Principal is an applicant, a departmental official may assist the school governing body.
(f) The Interview Committee may conduct shortlisting subject to the following guidelines:
(i) The criteria used must be fair, non-discriminatory and in keeping with the Constitution of the country.
(ii) The curricular needs of the school.
(iii) The obligations of the employer towards serving educators.
(iv) The list of shortlisted candidates for interview purposes should not exceed five per post.
(g) The interviews shall be conducted according to agreed upon guidelines. These guidelines are to be jointly agreed upon by the parties to the provincial chamber.
(h) All interviewees must receive similar treatment during the interviews.
(i) At the conclusion of the interviews the interviewing committee shall rank the candidates in order of preference, together with a brief motivation, and submit this to the school governing body for their recommendation to the relevant employing department.
(j) The governing body must submit their recommendation to the provincial education department in their order of preference.
(k) In the case of colleges, the interviewing committee shall submit its ranked preference list to the college council for their recommendation to the relevant employing department.”

41. It is evident that PAM is applicable to all educators and that it regulates the recruitment process applicable to educators. The main issue in this dispute are the advertisements for the post, the post numbers as advertised in the Bulletin does not line up with what is before me.

42. The Respondent’s case is that post number 298 was incorrectly advertised as a foundation phase post, instead of intermediate phase. What is important to note is that the Respondent could not identify why it was relying on the fact that it was for foundation phase, however, only two candidates were selected from those applications that complied with the minimum requirements. It is common cause that the 2nd Respondent applied for post number 10, which was for a deputy principal post for a school outside of the Buffalo City Metropolitan.

43. Reference was made to post 178 which was incorrectly advertised as a deputy principal post. It was the Respondents evidence that the 2nd Respondent initially applied for post 178, the committee amended her application post number from post 178 to post 10. It was evident from the 2nd Respondents application that the post number was amended using Tipp-ex.

44. One can only wonder how it is possible for the Education Department to get an advertisement wrong three times in a row. In argument, the Respondent raised the issue that the Applicant applied for post number 10, hence he was shortlisted. I am of the view that the Respondent was incorrectly referring to the Applicant instead of the 2nd Respondent. The evidence before me clearly indicates that the Applicant applied for post number 298 and the 2nd Respondent for post number 10.

45. It is trite that the onus of proof rests with the Applicant in an unfair labour practice dispute, however, it was the duty of the Respondent to prove the opposite or to rebut the Applicants evidence, in this instance, the Respondent failed to do so.

46. It was the Applicant’s contention that the 2nd Respondent was part of the SGB meeting and therefore the interview committee was not properly constituted. The minutes of the meetings confirmed that the 2nd Respondent was initially part of the committee, she did at no stage raise the issue that she might have been an interested party to the post, or that she applied for the post.

47. It was only after the applications were received and it was noted on the master list that the 2nd Respondent was an applicant, she was removed.

48. If we draw a correlation between the Applicant’s claim that the committee was biased towards the 2nd Respondent and considering the events that transpired by adopting a holistic approach to the events, a conclusion can be drawn that an element of bias did exist for the following reasons.

49. Firstly, the committee, ex mero muto, (on their own accord) amended the post number on the application form for the 2nd Respondent from post 178 to post number 10, however, the 2nd Respondent’s application letter makes reference to post number 10. Post number 10 was for a post of deputy principal at another school. I find it very difficult as to how one can make a finding that post number 10 was the correct advert for the HOD post as advertised in Bulletin Volume 2 of 2022. What further stood out, was that no evidence was presented where other candidates’ post numbers were amended on their applications forms, it was only the application form for the 2nd Respondent.

50. Secondly, the 2nd Respondent was part of the interview committee and SGB until the applications were received. It was only then that she was excluded; at this stage, she would already have had a well-established presence in the minds of the interview committee, and this was before she was interviewed.

51. Thirdly, Mr Tshangeza testified that in his view, the Applicant outperformed the 2nd Respondent in the interviews, however, he was in a minority. Even though he was in the minority, if one adds the above events, on a balance of probabilities, it can be concluded that the interview committee was biased in favour of the 2nd Respondent.

52. It is trite that all employees have the right not to be subjected to unfair labour practices. In City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held, that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the Employee it is relevant to consider the following:

a) whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the Employer; or
b) whether the Employer’s decision was arbitrary, or capricious, or unfair; or
c) whether the Employer failed to apply its mind to the promotion of the Employee; or
d) whether the Employer’s decision not to promote was motivated by bad faith;
e) whether the Employer’s decision not to promote was discriminatory;
f) whether there were insubstantial reasons for the Employer’s decision not to promote;
g) whether the Employer’s decision not to promote was based upon a wrong principle;
h) whether the Employer’s decision not to promote was taken in a biased manner.

53. In this instance, on a balance of probabilities, the decision not to promote was taken in a biased manner. In Noonan v SSSBC and others [2012] 33 ILJ 2597 (LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an Employee an opportunity to compete for a post constitutes an unfair labour practice. If the Employee is not denied the opportunity of competing for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.

54. It cannot be said that an opportunity to compete would be fair if an element of bias exists. Once the Applicant established that bias existed within the interview committee, that should be the end of the case, the decision taken by such a committee would be arbitrary and capricious under such circumstance.

55. In terms of relief, the Applicant wish for the appointment of the 2nd Respondent to be set aside, and the Respondent to embark on the recruitment process afresh.

56. In light of the above, I find it appropriate to make the following award.

Award

57. First Respondent, the Department of Education: Eastern Cape committed an unfair labour practice relating to promotion as contemplated in section 186(2)(a) of the LRA, against the applicant M Mnguni.

58. The appointment of the second respondent, Ms N Manjeni, is set-aside on the following conditions:


58.1 This order is not retrospective but is effective as from the date of this award.

58.2 The second respondent is entitled to her remuneration and benefits as HOD Qwalasela Public School, until the date that this award is served on the parties by the ELRC.

58.3 This order does not prevent the first respondent from appointing the second respondent, applicant or any other suitable candidate in an acting capacity as HOD in this post, pending the permanent filling of the post.

58.4 The first respondent is directed to repeat the recruitment and selection process in relation to the post of Qwalasela Public School.

58.5 The recruitment and selection process must be repeated from the advertising stage / short listing stage and the short-listing and interviews must be conducted by an independent panel appointed by the first respondent, the independent panel to make its recommendation on ranking and preference of candidates to a properly constituted SGB of Qwalasela Public School, the SGB in turn to make a recommendation on the appointment of a suitable candidate as HOD, Qwalasela Public School, to the first respondent.


Signature:

Commissioner: Henk Jacobs