ELRC49-22/23KZN

Case Number: ELRC49-22/23KZN
Panelist: Thandeka Mtolo
Date of Award: 03 July 2023

In the matter between

KHUMALO S Applicant

(Union/Applicant)


And


DEPARTMENT OF EDUCATION – KWAZULU-NATAL First Respondent

MLABA S. Second Respondent

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The matter was heard on 24, 25 January 2023, 22 February 2023, and 03, and 04 May 2023. Closing arguments were submitted on 16 and 19 May 2023, the closing arguments of the second Respondent were never received but were later confirmed to be included with the first Respondent. Proceedings were mechanically recorded, interpreted, and conducted in Pietermaritzburg.

2. The Applicant, S. Khumalo was present and represented by M. Makhathini a SADTU official. The First Respondent, KZN Department of Education (the Respondent) was represented by S. Daniso and the Second Respondent S. Mlaba present and was represented by Ngubane.

ISSUE TO BE DECIDED

3. Whether the respondent committed an unfair labour practice in terms of section 186(2) (a) of the Act.

BACKGROUND TO THE ISSUE

4. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as “the ELRC”) in terms of section 186(2)( a) of the Labour Relations Act (hereinafter referred to as “The Act”).

5. The matter was conciliated and remained unresolved. A certificate of non – resolution was issued. Arbitration proceedings took place on the aforementioned dates (Paragraph 1).

6. The award was delayed due to reasons forwarded to the council.

7. The Applicant averred that the First Respondent committed an unfair labour practice in that procedure was not followed.

8. The First Respondent stated that they followed procedure and did not commit an Unfair Labour practice.

9. The dispute concerns a Principalship post in Zwartkop primary school that was advertised on HRM35/2021 under post: 1551.

10. The parties submitted Annexure B (Pre-arb minutes) which is the guiding document of the dispute referred. The facts in dispute contained therein as follows:
10.1 The Resource person was related to one of the candidates who was his wife.
10.2 The SGB Chairperson has a close relationship with the Second Respondent.
10.3 Two of the scorers also have a close relationship with the Second Respondent.

11. Parties handed in Annexures A – D as part of their evidence.

12. It must be noted that Pre-arb minutes are binding, however, parties partially led evidence outside their pre-arb minutes but were cautioned that it would have no bearing on the outcome of the matter. The submissions concerning matters that are not stated on Pre-arb minutes will not form part of this award.

Preliminary Issues
13. The Applicant raised a point in limine in that evidence should be admitted that will prove his case.
The Applicant submitted that he had WhatsApp screenshots or rather, social media screenshots that prove the relationship outside the working relationship between the Second Respondent, and the Chairperson or Resource person existed.

14. The Respondent objected and stated that an inference must be drawn that the Applicant stated earlier that he had recordings and applied for the evidence to be admitted but when the application for new evidence was granted, he did not furnish the arbitration with the recordings. He stated that the Applicant was misleading the process with non-existent evidence again. He further stated that he cannot just produce evidence at cross-examination, but he was aware of the arbitration and the matter has been ongoing since 2021.

Analysis Of Evidence And Submissions
15. The onus falls on the Applicant to prove his case. The Applicant applied for new evidence to be submitted in the form of recordings. He never submitted the evidence as instructed. He instead came back and applied for the same recordings to be admitted again as evidence. The second application was contradictory since the Arbitrator had already ruled on it and granted the recordings to be admitted but the applicant failed to produce the evidence.

16. The third application for new evidence to be admitted was not necessarily new evidence to the Applicant. He allegedly has been in possession of it from 2021 since he stated that one WhatsApp post he saw was posted after the interviews, he stated that the post depicted the Resource person as the Mentor of the Second Respondent. The justification of applying to have new evidence submitted during cross-examination could not be justified. The application came as an afterthought, the lack of preparation from the Applicant’s side was evident. The evidence to be submitted was not printed, it was on the Applicant’s phone as stated by the Applicant. The relative relevance of the evidence was not established. He stated that he did not have evidence of the braais and family gatherings but expounded on social media posts where one post would prove that the Resource person and the Second Respondent were close, which is irrelevant to this Arbitration as per the parties’ Pre-arb minutes issues in dispute.

Ruling

17. The third application for new evidence to be admitted failed, and the application was dismissed.

18. The Applicant Representative is well experienced. It seemed the Applicant did not take his case seriously. The conduct was unacceptable. On several occasions, the Applicant was cautioned that he has the burden of proof but failed to produce any evidence despite the ruling of the Commissioner that granted the late submission of evidence.

SURVEY OF EVIDENCE AND ARGUMENT

The Applicant’s submissions

19. The Applicant representative’s opening statement. The Applicant submitted that bundle A: HRM 35 of 2021 is where the dispute arose on the post of principalship, the bundle also contains a letter from the SGB Secretary and SGB Deputy Chairperson. The Applicant was shortlisted and interviewed and was unsuccessful. A DGC grievance was dismissed, with the reason for the dismissal of the grievance being stated as “defective’’. The dispute is referred due to the Resource person, chairperson and scorers not adhering to requirements as they should as members of the interview committee. The role of the resource person as per bundle A, paragraph 12.1.7 “disclosure of any relationship in advance if not declared in advance it might suggest biasness”, on that basis they believe the I.C members were biased towards the Second Respondent. HRM35/2021 ratification process must be done after the interviews. He further submitted that they would bring witnesses to prove the process was not done accordingly. The relief the Applicant is seeking is to have the interview process re-done by an independent panel and the appointment set aside.

First Respondent’s Submissions

20. The respondent averred that all due processes were followed. Mr Mlaba met the requirements of the post, was shortlisted, and was interviewed. The ratification process took place. The Head of Department approved the recommendation from the SGB. He also stated that there is stability in the school, the Applicant once acted as a Principal but that does not give him the right to be appointed. He further submitted that the Applicant is merely bitter and unhappy. The Applicant challenged procedural fairness issues which was their submission. The allegation of unfair procedure is incorrect, and witnesses will testify. He is seeking the dismissal of the matter since it is frivolous and vexatious.

Second Respondent’s Submissions

21. The Second Respondent submitted that Bundle B states facts in dispute, but however, they are no longer the same as pre-arb minutes. SADTU believes that processes were done correctly, they deployed an Observer to ensure processes are done correctly and fair. They deployed Mr Dlamini who reported back to the Trade union that everything went smoothly, and will be called to testify. He also submitted that there is stability in the school, the community is happy with Mr Mlaba, and the enrollment has increased since his appointment. He further stated that they feel Mr Khumalo is bitter for not getting the post, and he is doing what he can to make sure Mr Mlaba is not the school Principal. Ratification was done at the level of the school as the circular entails, and the witness will testify. The Circuit Manager would have not been able to submit documents,and the HOD would not have signed without the ratification documents. The Second Respondent further averred that the Applicant must define the close relationships, and facts in dispute must not change; today we have new facts in dispute. The matter must be dismissed because there is no case.

The Applicant testified under oath to the following effect:

22. He testified that he has been teaching from 2007 to date. He acted in different schools as an Acting Principal, HRM35/2021 was published when had acted for 10 months but 14 months in total at the time of the appointment. He stated that he met the requirements of the post in Education and experience as he also studied further. In 2021 he applied for a Principalship post, was shortlisted, and interviewed. He was welcomed by the Resource Person and told the process will be fair. He knew all the I. C members except for the NATU Rep, and he was not in bad terms with any of the I.C members. During scoring, two members of the I.C were not writing anything down. The only person writing was Ms Gabela. I.C members Mr Ngcobo and Ms Phetha, and most of the I.C members were related to Mr Mlaba. They had a close friendship with the Resource Person (Mr Mpanza). Mr Mlaba was previously an Educator at Mthoqotho, and the Resource Person was his Principal in Mthoqotho.
23. He further testified that the Chairperson of the SGB: James Ngubane was a close friend of Mr Mlaba, and that they serve in the same Sweetwaters ANC branch. Mr Simphiwe Ngcobo, the SGB Treasurer &IC Scorer is a former student of Mr Mpanza. Mlaba, Ngcobo and Mlaba were students at Mthoqotho high school. Ngubane is very close to the Resource person and he awarded tenders to him.
24. He also submitted that three members of the I.C have a close relationship with the Second Respondent, the two scorers were not writing the answers as he was speaking during the interview and he believed that they did not understand his answers, namely, Mr Ngcobo and Ms Phetha. Together with Mr Ngubane, they are the three members of the I.C that should have disclosed their friendship and recused themselves. He argued that the presence of the abovementioned persons tainted the fairness of the process and would influence the outcome of the interviews negatively. The Chairperson and Treasurer are so close with Mr Mlaba in that they even visit each other in their homes, braai together and have drinks together; they even post each other on social networks i.e: Whatsapp statuses and had seen these statuses because he has their numbers. The processes of the interviews were not correctly executed and were not completed on the day of the interviews.
He further stated that the I.C members, through the Chairperson and or Resource Person declare and recuse themselves.
The relief he is seeking is for the appointment to be set aside and, an independent panel to redo the interview process, alternatively; 11 months compensation.

25. He further stated that HRM35/2021 Par 11, 12.7 allude to declaring in advance due to perceived biasness in relationships, he stated that he looked at how people behave around each other and interact and believed the relationship could envoke biasness and unfairness since people in close relationships will always look out for each other, and the mere fact that there was a relationship he believed that the results would favour the friend. The results highlighted his suspicions and a witness will testify to the friendship of the Chairperson, Resource Person and the Second Respondent.

26. He averred that the Scorer and the Secretary told him that the post was his since he performed better than all the other candidates, and they complained that he was sabotaged, the post was not predetermined to be his, but his performance foretold the outcome. He had this conversation with the Scorer and the Treasurer the following day after the interviews.

27. Under cross-examination he testified that the two scorers were not writing due to their incompetence and lack of training and stated that the I.C Secretary informed him that one of the applicants was the Resource person’s wife. He further testified that he matriculated at Mthoqotho, the Second Respondent matriculated at Mthoqotho, the Resource person is a Principal at Mthoqotho. He worked at Mthoqotho for four months when he started working. but the studying and working at the time would have constituted a relationship with the resource person but not a close friendship.

28. He also testified that the Chairperson studied in Mthoqotho, Mlaba and himself; he acceded to the fact that they all studied in Mthoqotho and that it was fair for the Second Respondent to apply for the post. He further conceded that it would not have created a perception of biasness if he went for the interviews with the Chairperson and the Resource person whom he knew from Mthoqotho. He indicated his reason for the perception of biasness with the Second Respondent was Mthoqotho and cited other reasons for the perceived biasness. The Chairperson attends braais, and posts the Second Respondent on social media, the Chairperson gets tenders from the Resource person. The financial relationship of the Chairperson and the resource person would easily influence the Chairperson to make favorable decisions towards the Second Respondent. He stated it was a fact and a witness will testify to it.

29. He further testified that he has a Postgraduate Diploma. In making and analysis, he stated that he stays in Kwa Nxamalala in Sweetwater’s, the Chairperson, Second Respondent, and the Treasurer also reside in the same area; they braai together as friends and not in the community setting and the applicant was never invited to these braais because he was never their friend. He understood that the Chairperson will not agree with these submissions. He also indicated that he has pictures on his phone of the parties posting with each other on social media. He also stated that he was happy to be shortlisted but maintained that he was shortlisted because he was an Acting Principal despite the automatic shortlisting being considered if the Acting Principal had acted for only 12 months. He observed the interview and was not happy as the interview was not done accordingly, and it should be redone.

30. On further cross-examination he maintained that the wife of the Resource person was one of the candidates as per the Secretary’s submissions. He testified that he had a working relationship with the Chairperson of the SGB who would regularly come into the school to do repairs, a working relationship does not create a perception of biasness. The electricity repairs were done by Mr Ngcobo who was paid for electrical repairs, the labourers who were sourced by Mr. Ngcobo were the ones who were paid. The agreement was that SGB members with certain expertise must contribute their skills for free. He did not deny that Mr Ngcobo was paid through his account after proof was provided of labourers that needed to be paid.

31. He conceded that his representative and the Second Respondent’s representative have a working relationship from his perception. Mr Mlaba and Mr Ngcobo have a friendship beyond a working relationship due to other factors already mentioned even though he accepted that serving in the same ANC branch does not constitute a friendship or a close relationship. The in-laws of one of the parties stay one km away from the Chairperson’s house but he also resides a few kilometers away from the Chairperson’s house. He stated that he is on good terms with the Chairperson, he regarded him as an older brother from the community since he is older than him but in the sense that in African culture adults are regarded in that nature even though he is just an acquaintance from the community and nothing more. He refuted the allegations that he once quarrelled with the Chairperson over a girlfriend.

32. He submitted that he was not chosen as a Principal because they were looking out for their friend.

33. Under re-examination he vehemently averred that he did not have any close relationship with any of the I.C members, The Resource person received numerous tenders before and after the interviews which to him signalled a thank you from the Chairperson for assisting in the appointment of Mr Mlaba. He firmly believes that the relationship between the I.C members, Chairperson and Resource person would create a perception of biasness since he regularly sees them together at the car wash and shisa nyama… a place to braai meat.


34. Mlungisi Dlamini took an oath and testified to the following effect:
35. He is a volunteer School Clerk and Screener at Zwartkop, he stays in Kwanxamala Sweetwaters. He is familiar with people in the community, and on the date of the interviews he was screening the candidates. He was outside the interview venue when he noticed that some I.C members did not excuse themselves and was told by I.C members what transpired inside. The Chairperson has a close relationship with the Second Respondent, and Mr Ngcobo has a close friendship with the Second Respondent since he saw the post on a WhatsApp status posted by the Second Respondent of the two friendships mentioned above. They should have recused themselves. He does not have an issue with the Second Respondent.

36. Under cross examination he submitted that he did not understand HRM35/2021 completely as he was not trained on it. He did not play any role on the day in accordance with the circular. He testified that he was not coerced to testify and was not paid. The Chairperson and Resource person are friends and family friends since he has seen them visit each other. He believed that the Resource person is the mentor of the Second Respondent since he saw a post on WhatsApp. He attended Mthoqotho high school, and the Treasurer went to the same school. There is nothing wrong with friendship within the community. He testified because he had committed himself and believed the process was unfair. He would not testify on something he did not know but the Second Respondent posted the Resource person after the interviews as his Mentor. He has no issues and no preference between the Second Respondent and the Applicant. He believed that the Second Respondent deserves the position due to his experience and education but was adamant that the process was unfair. He conceded that he had no evidence to corroborate his submissions and as such it should not be admitted in the Arbitration but overall, it is up to the Arbitrator to determine if there is a case or not.

37. Under re-examination he stated that part of the interview panel had a close friendship with the second respondent, he maintained that the Chairperson, two scorers and the Resource person had a friendship. They also failed to recuse themselves as per par 17. The close friendships prejudiced other candidates as per par 12.7.1 the process looked biased or created the perception of biasness to an outsider.

38. Snethemba Malembe testified under oath that she was involved in the interviews, her responsibility was to take the candidates inside the interview room. She is from Sweetwaters in Nxamalala. She submitted that Mr Madlala, Mr Ngcobo and Mr Mlaba are all friends and they visit each other’s homes. Mr Madlala was co-opted and consequently removed after they complained. They are members of the ANC, and Mr Ngcobo should have disclosed and recused himself. An ANC member came to her house to tell her that they did not see Mr. Khumalo being appointed as the Principal of Zwartkop which led to her believing that the post was fixed.

39. Under cross-examination she testified that Mr. Gwala who is an ANC member and Mthoqotho SGB member asked if she was in communication with Mr. Khumalo and stated that he does not see Mr. Khumalo being appointed as the Principal, however Mr Gwala did not mention the Second Respondent. She did not have any information on the other candidates’ political affiliations. She was not trained on the interview process and had no knowledge of it. She was not a scorer and does not know how the Second Rrespondent was scored but he may have been deemed fit for the position by the scorers. She conceded that she was trained for the interviews by Mr Mpanza who was appointed to lead the process. She conceded that her testimony was contradictory and accepted that she was not a credible witness.

40. Under re-examination, she maintained that she was not a credible witness. She did not feel any pressure. She was called for an SGB meeting which was the actual training, she did not know until cross-examination that it was the training. She stated she believed people should recuse themselves as it is their responsibility to recuse themselves. She stated that there was no post-fixing.

The respondents’ case.

41. Nqobile A Phetha testified under oath:
42. She testified that there was a Principalship post in 2021, and all processes were followed accordingly. She did not have a relationship with Mr Mlaba, but she knew of him from the community and the school he used to teach at which is Mthoqotho where she was a learner. The Applicant was her former Educator in grade nine, but she was never taught by Mr Mlaba. He was just an Educator in her school. She was called by the Applicant to do a voice note which was going to be used as evidence in this case. He told her to state on the voicemote that she was paid by the Second Respondent to score him higher and select him as the Principal and include that she was not writing during the interview, he did not promise to give her anything for testifying.

43. During interviews, she would look and listen when candidates were answering and write after the candidate has spoken. She scored candidates based on their responses and totals and recorded everything. They looked at performance in the interviews, leadership in the community, and their C.V. She did not base her scoring on the fact that she knew the Applicant since she was in SGB and he was the Acting Principal. She also stated that she was closer to the Applicant than the Second Respondent based on the above.

44. Under cross examination she submitted that she was the Scorer in the I.C and an SGB member. She was trained for one day by Mr Mpanza, the Resource person who is the Principal at Mthoqotho. She stated that she understood HRM35/2021 Bundle A:12.1.7 about close relationships, and stated that none of I.C members had close relations with any of the candidates. She was closer to the Applicant because he was her former Educator at Mthoqotho and former Acting Principal at Zwartkop where she was an SGB member. The schools were closed when she was contacted by the applicant to create voice notes. She wanted to address the matter with the SGB once schools were opened again. She did not testify for Mr Khumalo due to time constraints and even if she had the time, she would not have made the time since she believed it would have been unlawful.

45. She further averred that she did not open a criminal case against him because she believed this platform would suffice., The Applicant told her that Dlamini and Malembe did their voice notes, and he came to her workplace and called her when he was at the gate. She did not recall the questions that were asked during interviews, she did not recall whom she scored higher between the Applicant and the Second Respondent, as it all happened in 2021 but she recalled that the Second Respondent scored higher overall. She did not remember what the Second Respondent taught her in grade nine and stated that she did not hold any grudge against him.

46. Under re-examination she stated that she did grade 9 in 2005 which is about 18 years ago. It is difficult remember. She also averred that it would have been difficult for her to open a case against her grade 9 Educator and Acting Principal. She submitted that they called her first and drove to her work requesting her to lie about the second respondent. She did not want to discuss anything since she believed it would be in breach of the confidentiality clause. The questions that were asked she believed were related to leadership and administration.

47. James Mlungisi Ngubane Chairperson of SGB Zwartkop testified under oath to the following.

48. He vehemently denied that he was friends with any of the candidates that applied for the post at Zwartkop. He was elected when Mr Khumalo was the acting Principal of the school. He testified about his closeness to Mr Khumalo since they went to the same high school, live in the same community, worked together when the applicant was acting in the school, and when he lost his family member, he assisted the applicant with grassroots for the funeral. He stated that in comparison he was closer to the Applicant than to Mr Mlaba. He was associated with Mr. Mlaba through the political work in the branch and stated that the Applicant is part of the same political organization. He is a Pastor and is involved in several committees in the community. He did not gain anything from the appointment of Mr Mlaba. He stated that someone came to his home and told him about the Applicant’s illness and that his medication is expensive, so appointing him will assist him to be in a better health position. He did not respond to the request. He was trained on HRM35/2021 and nowhere in the manual it stated that a candidate should be appointed upon request, he also did not recuse himself because he was not friends with any of the candidates and the manual did not state that living in the same community meant that you must recuse yourself.
49. Under cross-examination he stated that he understood HRM35/2021 par. 12.1.7 which talks about disclosure of any relationship or personal interest. He stated that he had a political relationship with the second respondent which is a working relationship, he is a fellow comrade, a friend you do more with.
50. Under re-examination, he maintained that he had a closer relationship to the Applicant in comparison to the second respondent.

51. Mr Mpanza, the Resource person and Mthoqotho Principal testified under oath to the following effect:

52. He testified that he was the Principal at Mthoqotho from 1994 to date. He was the Resource person for HRM35/2021 post 1551 appointed by the circuit management office. He has extensive experience in promotional disputes, been appointed numerous times before. His wife was not one of the candidates, there was a candidate who had a similar surname to his. He vehemently rebuts the allegations that his wife applied for this post. He submitted that he knew the Applicant and the Second Respondent as they were both his learners at Mthoqotho and they became Educators at his school for a certain period. HRM35/2021 Pg12.1 Role of the Resource person, he knew and understood the content contained therein. He was trained by the KZNDOE, and he trained the I.C members, which is normal procedure. They did not receive any complaints from NATU and SADTU trade union observers who were present during the processes. He stated that regarding the relationship with some of the candidates and the scorers it was that they lived in the same community of Sweetwaters. He regards the Applicant and the Second Respondent as his boys since they are from the community and studied in his school, they do activities together in the community, and he stated that they play soccer in the community.

53. Under cross examination he testified that they stayed in the same community. No further questions were asked regarding the allegations of his wife applying for the post, or the scorers and the chairperson having a relationship with the Second Respondent.

54. Under re-examination he affirmed that they were from the same community, and that they knew each other. No further questions were clarified regarding the allegations of his wife applying for the post, or the scorers and the chairperson having a relationship with the second respondent.

The parties’ closing arguments.

Applicant’s closing argument

Re: Closing argument for case number: ELRC 49-22/23KZN
55. The dispute has been about the promotion which the Applicant disputed, both substantive and procedural fairness which led to the appointment of the Respondent (Mr S.S Mlaba) as the principal of Zwartkop Primary School. In his evidence in-chief Mr MS Khumalo, the Applicant led evidence on how the interview process for the mentioned post was flawed by the resource person and the interview committee (IC).

56. The applicant submitted closing arguments citing the following: The Applicant believes that they have proven their case beyond reasonable doubt that the respondent did not adhere to the procedures that ought to be followed when recruiting educators and principals in institutions and thus breaking a lot of rules in the process contained in the bulletin, HRM 35 of 2021. E.g.,1) confidentiality clause, 2) declaration clause, 3) Recusal clause as well as 4) Ratification clause

57. The Applicant believes that they have also proven beyond a reasonable doubt that there was a close relationship between the Second Respondent and the members of the interview committee (Resource person, two scorers and chairperson) which was the ground on which they should have declared and recused themselves so that the process would be fair. All the Respondent’s witnesses, and both the First and Second respondent, have confirmed that they had a close relationship with the candidates. They were never neutral and thus had to recuse themselves from the whole process.

58. The chairperson of the IC, the Secretary of the SGB who was the scorer on the day and the Resource person were contradicting each other when it came to the issue of ratification. The chairperson of the IC said that only members of the IC were present during the ratification; whereas the scorer (secretary of the SGB) said that all members of the SGB were present thus misrepresenting herself and lying in the process. It is a fact that Mrs Malembe (deputy chairperson of the SGB) was not part of the ratification meeting.

59. In their rebuttal, the respondents never submitted a single piece of evidence (documents of the whole interview process) to prove their case, whereas on the other hand the Applicant had witnesses and evidence.

60. In his testimony, the resource person admitted that there was one candidate who had the name Mpanza, but no evidence was furnished to prove that she was not his wife. All that the respondent had was word of mouth and no evidence in the form of documents was at hand as proof that: 1) All SGB members were present and signed during the ratification. 2) The minutes proving that declaration was done and what the agreement was.

61. The resource person was the principal to Second Respondent when he applied for the post; however, he did not see it fit that he make a declaration and recuse himself. He also admitted that he has a close relationship with the Second Respondent and according to him the relationship had reached the stage such that he would call him (Mr S.S Mlaba) his “boy”. In addition the resource person confirms that the friendship that existed between them is such that they play football together, go to political gatherings together as well as attend family gatherings. It is a clear indication that the resource person breached paragraph 12.1.7 of the bulletin, HRM 35 of 2021 which requires that the member of the interview committee declare in advance of any relationship or close friendship with any of the candidates. The resource person had to make sure that the mentioned clause was adhered to yet he decided to ignore it and also admitted that failure to implement this clause would be seen as biasness by an outsider. His intentions, in this case, are clear that he wanted to ensure the respondent (Mr S.S Mlaba) gets the promotion.

62. The Applicant finds it difficult to grasp that a person who claims to have been the resource person for twenty years and had also been trained for the role would not know who to declare a close relationship to. The First Respondent’s representative claimed that ratification may be done even a month after the interviews, however, the IC chairperson and the Resource person said everything pertaining to the process of the interview must be completed on the same day and claimed that they did complete everything on the same day, thus they contradicted each other.

63. The Applicant stated that it is imperative to note that the First Respondent’s and the Second Respondent’s witnesses did not deny the close relationship that existed. What they did was shift the focus and claimed that they shared that close relationship/friendship with the Applicant. The Applicants argument is that; whether the friendship/relationship was with the Applicant or the Respondent, they had to declare and recuse themselves for whole duration of the process. Therefore, sitting in and becoming part of the processes that one knows that they should not be part of, shows that they had a plan that they wanted to execute, which no one other than them would be able to execute. i.e. deviating from the procedure manual in making sure that their friend, fellow teacher and comrade gets the post. As evidence of this, the Applicant pointed out that Mr M Ngubane (IC Chairperson) admitted during cross-examination that he and the respondent (Mr SS Mlaba) served in the same branch of the same political organisation. The fact that Mr SS Mlaba is his comrade is evident enough of the friendship that existed between himself and Mr SS Mlaba. The Applicant stated that Mr M Ngubane’s response was not clear when he was asked why he did not comply with clause 17 of the HRM 35 of 2021 which speaks to both IC and SGB members to recuse themselves in discussion and decision-making on any issue in which they may have personal interest. He, like the resource person also did not comply with clause 12.1.7 of the bulletin. The Applicant claimes that it cannot be disputed that the SGB had a well-planned strategy of ensuring that Mr SS Mlaba is appointed to the post, and that he has a close friendship with the appointee.

64. The Applicant claims that the IC Chairperson (Mr M Ngubane) wanted to co-opt Mr B Madlala (SGB chairperson of resource person’s school and where Mr SS Mlaba comes from), without the mandate of the Zwartkop school SGB. The Applicant pointed out that the concern about this was raised in a letter (annexure A page 18) written to him by both the deputy chairperson and secretary of the SGB where they challenged the inclusion of Mr B. Madlala in the interview committee, as he alleges that he was trained by the DOE then why did he do something of this nature.

65. Allegations brought forward by the Applicant that the chairperson and Mr SS Mlaba visit each other and are frequently seen in family and social gatherings cannot be undermined. This gives the impression that indeed the issue of post-fixing in favour of Mr SS Mlaba was discussed. The applicant party noted with concern that Mr M Ngubane was very emotional and nervous when he provided responses during the cross examination, and therefore appealed to for him to be viewed as an unreliable witness.

66. Miss NA Phetha (SGB secretary) testified that questions for the interview were prepared by the resource person, though the procedure is that this is the responsibility and the task of the interview committee. She was one of the scorers and there is an allegation by the Applicant that she never took any notes when the Applicant was interviewed. This witness was uncertain and evasive. She alleged that the Applicant taught her, but she is not certain of the subjects. She alleged that the process of ratification was held but she cannot remember the day and the rank order of the candidates. She testified that the deputy chairperson of the SGB was part of the ratification, yet the SGB chairperson testified that she was not part of the meeting. As a scorer on that day, Miss NA Phetha could not even remember the questions she was tasked to ask. The Applicant viewed this witness as the one who lacks both credibility and reliability. The issue of the ratification was raised by the Applicant in his evidence in chief and the deputy chairperson of SGB confirmed it in her testimony.

67. In conclusion, the Applicant believes that they presented their case and provided compelling evidence to support their argument. The Applicant feels that the same cannot be said about the Respondent who failed to produce even a single piece of documentary evidence to prove their case and in support of their argument, all they relied upon was hearsay.


Respondent’s closing arguments

Background

68. The Respondent stated that during July 2021, the KZN Department of Education advertised the post of Principalship at Zwartkop Primary School under uMgungundlovu District in HRM 35 of 2021 Post NO 1551. The Applicant together with others applied for the post. About Five (5) candidates including the Applicant were shortlisted. The shortlisted candidates were interviewed for the post, including the Applicant. The outcome of the interview process was that the Applicant was unsuccessful. The 2nd Respondent was the successful candidate.

69. The Applicant then referred the dispute to the Education Labour relations council (ELRC) and alleged an unfair labour practice in relation to the promotion within the contemplation of section 186 (2) of the Labour Relations Act. The dispute was conciliated unsuccessfully, and the matter was referred for arbitration. The parties held a Pre-Arbitration meeting, on the 23rd of September 2022 . Issues in dispute were identified as follows:

69.1 The resource person was related to one of the applicants (who is his wife).
I. 69.2 The SGB Chairperson has a close relationship with the Second Respondent.
II. 69.3 Two of the three scorers also have a close relationship with the Second Respondent.


Submissions

70. The Applicant representative led their witnesses on the facts in disputes, discussed during the Pre-Arb minutes. The Applicant could not prove the first allegation, that the resource person was related to one of the candidates (his wife), as no testimony was led in that regard, or any documentary evidence was produced to substantiate the claim. Therefore, the claim was frivolous. As there was no evidence led about the 1st allegation, the Respondent requested that the Commissioner must dismiss it.

71. The Respondent stated that the Applicant failed to prove that the SGB Chairperson had a close relationship with the Second Respondent. The evidence led was not supported by any material i.e. video, photos or recordings. It is common cause that all parties involved in this dispute were coming from the same area; Sweetwaters, and had attended the same school, Umthoqotho High School. It is not disputed also that the parties would be involved in the same community activities or political affiliations. The Respondent claims that the Applicant failed to dispute the version presented by the SGB Chairperson, which was one of the Respondent’s witnesses, that when the Applicant lost a family member, he helped him with grassroots (Izidindi). The Chairperson also presented that before the post was advertised, the Applicant was acting as the principal and they had worked closely together, therefore making him have a closer relationship with the Applicant than with the Second Respondent, and the Chairperson had no material influence over the process as he was not a scoring member during the entire process.

72. The Respondent stated that the testimony presented by Mlungisi Dlamini (2nd witness for applicant party) who is employed as a school screener, should be disregarded, or not considered as he was not part of the selection processes, he admitted during cross-examination that he had no understanding of the HRM 35/2021 processes, and his testimony was based on hearsay evidence.

73. The Respondent also stated that the testimony presented by Sinethemba Mncwabe (3rd witness) who was the Deputy Chairperson of the SGB should not be considered because she was also not part of the Interview Committee, as her role was to usher the candidates to the door of the interview room. During cross-examination and re-examination, she testified that her testimony was unreliable and should not be considered. She also testified that she was not aware that SGBs could co-opt a member of the community for their expertise as per Paragraph 10.2.5 of HRM 35/2021. Therefore, her letter of complaint was pointless.

74. The Respondent then moved onto Ms Phetha the 2nd Respondent’s witness who testified that she was a Scorer and that she had received training on the processes of HRM 35/2021. The Respondent claims that the allegation that she was not writing anything on the score sheets was untruthful, as incomplete documents are normally rejected by the Department.

75. The Respondent stated that Mr Mpanza, who was the Resource Person during the selection processes, testified that he had extensive experience when it came to promotional post matters. He knew all the parties involved in the dispute, as everyone came from the same area. He also indicated that they were once his learners and later his colleagues at some stage. The Respondent claims that he performed his duties in a professional and unbiased manner; therefore Paragraph 12.1.7 should not apply to him. There was no reason for him to recuse himself, in the selection process as he had no personal interest as per Paragraph 17 of the HRM 35/2021.

76. The Respondent claims that the Applicant was unable to prove his case that he was the best of all the candidates who had applied for the post. He failed to demonstrate unfair labour practice, he also failed to show that there was a conduct that denied him a fair opportunity to compete for the post or conduct that was arbitrary or motivated by an unacceptable reason or that the successful candidate was dishonest and had misled the Interview Committee/1st Respondent.

77. The Respondent stated that it is therefore the prayer of the 1st Respondent that the Commissioner must dismiss this dispute.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

78. I have examined the evidence submitted by both parties and have duly perused the submitted Bundles. I am required to determine whether the Respondent committed an unfair labour practice for not appointing the Applicant.

79. The evidence that is not on the pre-arb minutes is deliberately excluded from this award. Parties were forewarned about the binding effects of the pre-arb minutes as well as issues that are in dispute which will be the only issues that will be considered and determined by the Arbitrator, unless by consent parties added additional issues, of which none were added. The closing arguments of the parties, particularly the applicant is evidence of additional issues.

80. With reference to the judgement in the Labour Appeal Court in Monyakeni v SSSBC and others (JA 64/13) [2015] ZA LAC 17 (handed down on 19 May 2015), there are two components to a complaint regarding a failure to promote an employee as an unfair labour practice. The one relates to the procedure followed by the employer. The other relates to the substantive merits and it concerns the suitability of the candidate for promotion to the post in question.

81. The Applicant bears the onus of proving that the Respondent committed an Unfair Labour Practice. In deciding on an unfair labour practice, the courts have clarified the test to be that of fairness. In Apollo Tyres SA (Pty) Ltd v CCMA and Others (DA/11 (2013 ZALAC 3, (2013) BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (21 February 2013) the Labour Court reiterated that unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious, or inconsistent conduct, whether negligent or intended.

82. It is common cause that the Applicant and the Second Respondent went to the same high school, which is Mthoqotho, and they both taught at Mthoqotho for a short period. They are both members of the same political organisation and trade union. Both parties applied for post-1551 which was advertised on HRM35/2021.

The pre-arb minutes state the issue in dispute as follows:
The Resource person was related to one of the candidates, namely his wife.
The SGB Chairperson has a close relationship with the Second Respondent.
Two of the scorers also have a close relationship with the Second Respondent.

83. The matter is referred as an Unfair Labour Practice in terms of Section 186 (2) (a) of the Labour Relations Act No. 66 of 1995, with regards to a promotion. The applicant disputed the procedure.

84. The Resource person was related to one of the Applicants, namely his wife.

85. The Applicant led evidence that he was informed by one of the I.C members that the wife of the Resource person had applied for the post. He stated that a witness will testify. The evidence was never corroborated by the witnesses, None of the I.C members corroborated the submissions of the Applicant. The documents to corroborate the submissions were never requested nor subpoenaed from the Respondent. The witnesses of the Applicant who were present during interviews did not lead evidence regarding this allegation. It is quite suspicious that such a serious allegation was not pursued with serious enthusiasm. The Resource person rebutted these allegations and stated that an applicant with a similar surname to his had applied for the position. It is quite inconceivable that a Principal and Resource person with vast experience will accept the position of resource person where his own spouse had also applied, where union officials and community members from SGB members will be present to witness the entire process. In the absence of any proof that the spouse applied, I accept the version of Mr Mpanza, the Resource person that his spouse did not apply for the post and that the candidate whom the applicant alluded to has a similar surname to his.

86. The SGB Chairperson has a close relationship with the Second Respondent.

87. The Applicant led evidence that the Chairperson of the SGB has a close relationship with the Second Respondent because they went to the same school, they both serve under the same organisation, they braai together, visit each other’s homes and live near one another, and they post each other on WhatsApp and other social media platforms. The SGB Chairperson rebutted the claims that he has a close relationship with the Second Respondent, he stated that he went to school with the Second Respondent and the Applicant, and he lives nearer to the Applicant. He was closer to the Applicant because he was on the SGB and had to work closer to the Applicant since the Applicant was the acting principal in the school.

88. The Applicant conceded that the Second Respondent attending the same high school, serving under the same organisation and branch did not constitute a close relationship since he is also a member of the same political party and attended the same high school they did and lives in the same community. He was adamant that the close relationship emanated from them forming bonds outside the working relationship through visiting each other’s homes, posting each other on social media and having braais together. The allegations were rebutted. The Applicants’ witness: Dlamini testified about the activities outside of work that occurred between the Second Respondent and the Chairperson, but when these allegations were rebutted, the submissions were not corroborated with any evidence.

89. The applicant signed the pre-arb minutes in 2021 and had adequate time to gather the evidence to corroborate the version that the relationship existed beyond the political affiliation but further to a point where a perception of biasness can be raised. The Applicant was an Acting Principal and worked closely with the Chairperson, but he categorised the relationship as a working relationship which would not create a perception of biasness. Moreover, the Applicant also conceded that going to the same school, serving on the same political organisation, and living in the same community did not inherently establish a close relationship that would create a perception of biasness between the Second Respondent and the Chairperson. I accept these submissions of the Applicant. The Chairperson elaborated that he was closer to the Applicant more than the Second Respondent. The other activities of braais, social media posts and visiting each other were rebutted by the Chairperson and thus proof rested on the Applicant to prove his version but did not produce any proof of these allegations. The Applicant failed to prove that a close relationship existed between the Applicant and the Chairperson, that created a perception of biasness.

90. Two of the scorers also have a close relationship with the Second Respondent.

91. The applicant testified that the two scorers were friends with the Second Respondent because of the activities they did together outside of work. The scorer rebutted the allegations, and also testified that she was closer to the Applicant compared to the Second Respondent since she was taught by the Applicant in grade 9, and she was also a member of the SGB when the applicant was the acting Principal. She rebutted the claims that she was close to the Second Respondent since no other evidence was presented to the contrary to the version she presented. I accept that the relationship of the scorer with the Second Respondent did not create a perception of biasness. She lived in the community and a perception of biasness cannot be created from living in the same community and being an SGB member at the school where the Second Respondent was an Educator. The Applicants’ case did not pursue or elaborate further on the closeness of the scorer and the Second Respondent, but the position changed to that she ought to have recused herself because she was closer to the Applicant. After all, he taught her in grade nine and she was an SGB member where the Applicant was acting. The allegations of a close friendship between Mr Ngcobo, the scorer and the Second Respondent were rebutted but also not corroborated. The persistent reference and reliance on WhatsApp or social media posts is concerning. The testimony of the witness (Dlamini) and the Applicant relied heavily on evidence that is not part of the Arbitration. It is trite law that the onus is on the Applicant to prove his case. The witness: Malembe stated under oath that she was not a credible witness and stated that she was not credible even during the re-examination. Her evidence was contradictory, she was not credible and reliable as a witness. Her evidence is excluded. It is my perception that she did not wish to testify for the Applicant. Her evidence did not assist the Applicant’s case however she was not declared hostile by the Applicant’s Representative.

92. I am persuaded that the Applicant did not prove his case. I find on a balance of probabilities that the Respondent’s version is more probable than that of the Applicant.

93. I find that the Applicant failed to prove that the First Respondent committed any Unfair Labour Practice when he appointed the Second Respondent, Mr S. Mlaba as a Principal at Zwartkop primary school.


AWARD

94. The Respondent, namely, The Department of Education KZN did not commit any Unfair Labour Practice relating to promotion against the applicant, M. S. Khumalo.

95. The application is dismissed.

THANDEKA MTOLO
ELRC ARBITRATOR