ELRC644-22/23 EC

Case Number: ELRC644-22/23 EC
Panelists: Malusi Mbuli
Date of Award: 03-07-2023

In the ARBITRATION between

NAPTOSA obo THOBEKA GLORIA MAKALIMA
(Applicant)

And

DEPARTMENT OF EDUCATION (EASTERN CAPE)
(1st Respondent)

ANDILE MDLEDLE
(2nd Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995. It was set down for arbitration hearing at the Alfred Nzo East District offices in Bizana and was finalized on the 21st of June 2023 before Commissioner M. Mbuli.

2. The applicant Ms. Thobeka Gloria Makalima attended the hearing and was represented by Mr. Aaron Mhlontlo an official of the applicant’s trade union NAPTOSA. The 1st respondent, the Department of Education (Eastern Cape) was also present at the hearing and was represented by Ms. Zukiswa Nkomo an official of the respondent.

3. The 2nd respondent Mr. Andile Mdledle was also present at the hearing and was represented by Mr. Mxolisi Phalane a shop steward of the applicant’s trade union SADTU. The matter was finalized on the 21st of June 2023 and the parties agreed to file their closing arguments not later than the 27th of June 2023 and all the parties filed their arguments.

ISSUE TO BE DECIDED

4. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so the appropriate remedy.

BACKGROUND TO THE ISSUE

5. The applicant, Ms. Thobeka Gloria Makalima applied for the position of Principal at Luna Primary School in the Alfred Nzo East District of the respondent. At the time of application, the applicant was a post-level 3 educator (Deputy Principal) at the same school, Luna Primary School.

6. The applicant was shortlisted and interviewed for the said position and was placed at no 3 in terms of the scores. Through his Union – NAPTOSA the applicant challenged the appointment of the 2nd respondent at the ELRC because she that she was the candidate for the job based on her performance in the interviews.

7. Candidates were recommended for appointment by the interviewing panel in terms of section 6 of the Employment of Educators Act including the 2nd respondent and the applicant. The Department of Education – Eastern Cape appointed the 2nd respondent Mr. Andile Mdledle who is now occupying the position.

8. The applicant felt that the process that led to the appointment of the 2nd respondent and her non – appointment was unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the LRA. It is not in dispute that both the applicant and the 2nd respondent qualified for the position but the issue in dispute is whether there was flouting of the process and other procedural irregularities in the short listing, interviewing and ratification processes.

9. The applicant’s dispute is primarily premised on procedural fairness and the applicant’s argument is that the Department of Education acted unfairly in appointing the 2nd respondent. The applicant seeks the setting aside of the post and starting the process afresh.

10. The parties agree that the decision or power to recommend a candidate to the department rests with the School Governing Body and that the decision to appoint rest with the Department of Education - EC. The applicant then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 21st of June 2023.

SURVEY OF EVIDENCE

Applicant’s submissions.

11. The applicant Ms. Thobeka Gloria Makalima testified that she started working for the Department of Education as a teacher in 1983 and was recruited to Luna Primary School in 2022. At the time of applying for this position she was a Deputy Principal at Luna (also Acting Principal from October 2021 until September 2022), a Choir Expert and a Mathematics teacher.

12. She averred that she was doing all the duties of the Principal and she also applied for allowance which she got in April 2022. She stated that she was told by Ms. Nontuthuzelo Mpondo an SGB member that Mrs. Xheke said she was not going to get the post of a Principal. She stated that she was not allowed to be part of the meeting to appoint the panel. She stated that Mrs. Xheke who happened to be a Chairperson of a panel and the Deputy Chairperson of the SGB said she will manage the school over her dead body and that she is not educated.

13. She heard this from Mrs. Nontuthuzelo Mpondo a lady from that location and that was not easy for her to convene SGB because the SGB was not co-operating with her and there were tensions between her as the school manager (Acting Principal) and the SGB. She stated that the SGB led by Mrs. Nyawose (SGB Chairperson) did not want her as she was alleging that every meeting she tried to convene with the SGB did not succeed as they were not coming when she tried to convene them for a meeting.

14. Miss. Makalima did indicate that the SGB together with union members were trained by the appointed resource person on how to do shortlisting and interviews so they were aware of how the process must be conducted. She averred that the application form of Mr. Andile Mdledle the 2nd respondent, appointed Principal of Luna Full Service School was not properly filled and should have been disqualified. She also stated that there is a lot of misrepresentation that appear in the form of the 2nd respondent in relation to when he obtained his qualifications and when he obtained the SACE certificate.

15. The applicant Ms. Makalima stated that the 2nd respondent Andile Mdledle is blood related to Mrs. Xheke who was the chairperson of a panel that was conducting shortlisting and interviews and she did not disclose this relationship and this compromised the interview process. She further stated that this type of bias based on blood relationship is evident from the scores allocated by Mrs. Xheke to the 2nd respondent where he was allocated 100 %, 25 marks out of 25 by Mrs. Xheke.

16. She described that along unfair favoritism and nepotism terms from Mrs. Cheek and that she knew about the outcome of the interviews way back as she was appraised by Mrs. Nontuthuzelo Mpondo who happens to be a citizen in the location where Luna School is situated. She averred that she was allocated the lowest marks by Mrs. Xheke in the interviews. She also indicated that she felt discomfort when she knew that there was Mr. Andile Mdledle who was also a candidate and she personally knew that she was blood related to the chairperson of the panel.

17. She stated that the panel had a predetermined outcome or decision of interviews because of this blood relationship, utterances and the blood relationship that the other candidate – 2nd respondent had with the chairperson of the panel. She stated that she was accused by Nyawose of buying the post for R50 000,00 and they also plotted against her saying that she had strangled a child which allegations were unfounded because this did not happen but was conspiracy against her. She stated that there was no proper ratification meeting held at for this position.

18. Miss. Makalima described the relationship that Mr. Mdledle who was appointed as the principal at Luna Primary School of and stated that it was a close relationship because Mrs. Xheke the chairperson of the panel of interview and SGB member has a little brother Mr. Senzeni Xheke and his brother is married to a sister to Mr. Andile Mdledle’s mother, Zodwa Ntozakhe and therefore Andile Mdledle is Mrs. Xhekes nephew. The applicant further stated that Mrs. Nyawose had stated that they want a male Principal in that school.

19. The 2nd witness of the applicant was Ms. Nontuthuzelo Mpondo who testified she was a member of the SGB in 2022 and can recall the meeting that was called by the SGB in April and May. She stated that she wanted the SGB to appoint the person whom they know and who is achievable. She stated that whilst they were at wedding function the SGB members together with Mrs. Doris Xheke stated that the applicant is not educated and they would like to appoint someone with a master Degree and a male and if the applicant can be appointed they would go to Bisho or head office on their own.

20. She confirmed that Mr. Mdledle who was appointed as the principal at Luna Primary School was a close relative of Mrs. Xheke the chairperson of the panel of interview and SGB member has a little brother Senzeni Xheke and his brother is married to a sister to Mr. Andile Mdledle’s mother, Zodwa Ntozakhe and therefore Andile Mdledle is Mrs. Xhekes nephew.

21. The applicant further stated that Mrs. Nyawose had stated that they want a male Principal in that school and that Mrs. Xheke failed to disclose that type of a relationship. She stated that he does not know if Mr. Mdledle has a Masters degree. She averred that she wanted Ms. Makalima to be appointed because she was teaching Maths, conducting music and was passionate about the cleanliness and also stated that she did not have a problem with Mr. Mdledle being appointed because she didn’t know him before.

22. The 3rd witness of the applicant was Simnikile Mbanjwa who stated that he was part of the employment recruitment process of a Principal at Luna Primary School in 2022. She stated that the 2nd respondent’s form was not properly filled because it had a number of gaps and the information on the form was not accurate. She stated that the application of the 2nd respondent should have been disqualified and he was therefore not supposed to be shortlisted.

23. She stated that during shortlisting there were discussions that Ms. Makalima should not be shortlisted but they ended up reluctantly shortlisting her. He also confirmed that Mr. Mdledle who was appointed as the principal at Luna Primary School was a close relative of Mrs. Xheke, the chairperson of the panel of interview and SGB member has a little brother Senzeni Xheke and his brother is married to a sister to Mr. Andile Mdledle’s mother, Zodwa Ntozakhe and therefore Andile Mdledle is Mrs. Xhekes’ nephew..

24. He stated that Mrs. Xheke did not recuse herself from chairing the interviews despite the objections that were made to her presiding over the interviews and as a result her scores were not the true reflection of what happened at the interviews and the 2nd respondent was given 100 % marks or scores by Mrs. Xheke.

Respondent’s submissions

25. The 1st witness of the respondent was Mr. Monwabisi Mahlaba who stated that he was a Circuit Manager of Circuit 3 and was a resource person and was part of the interviews and short listing and he did not know the candidates to this post. He stated in his evidence that his role of a resource person for shortlisting and interviews for the Principal’s post of Luna was to oversee and advise the panel.

26. He stated that the panel members were elected by the SGB, properly constituted and that the processes to appoint the principal were fair and free of irregularities. He confirmed that the chairperson of the panel of interviews was Mrs. Xheke. She stated that the interviews were initially set for the 14th of June 2022 but because there was a complaint by Ms. Makalima they were moved to the 21st of June 2022.

27. He averred that the complaint was attended with the assistance of the District Director and Circuit Manager who visited the school, met the SGB and the Acting Principal and it was resolved that the panel of interviews should continue with its work. He stated that he wrote to the complainant and the complainant was advised of the decision. He testified that both unions were advised and represented as SADTU and CTU ATU in both processes.

28. He averred that all the parties did not indicate any dissatisfaction and they were satisfied because there is nothing they raised as observers that was being unfair during and after the interviews. He confirmed that the SGB was trained by himself on the 01st of June 2022 as a resource person appointed by the District Director to perform the task of recruitment at Luna Primary School as he was not the Circuit Manager of Luna Primary and was appointed because the Circuit Manager was on sick leave.

29. He also indicated that the panel that conducted shortlisting and interviews was trained on the 1st of June 2022 of which it was Miss. Makalima who contacted the SGB members to attend that training and thereafter they elected the panel that was going to conduct the interviews. On the day of the interview after the interviews the panel reported to the SGB about the outcomes of the interviews and the SGB was entirely satisfied with the outcome.

30. He stated that the SGB recommended the candidate that scored the highest marks to be the principal of Luna Primary School and indicated that it was only the panel that reported to the SGB and the SGB did the recommendation while he was not there as the resource person. He further testified that the questions were drafted by the panel. He disputed that the panel had a predetermined decision and it being improperly constituted as that function lies with the Principal of the school. He however confirmed that the 2nd respondent was scored 100 % by the panelist Mrs. Doris Xheke.

31. The 2nd witness of the respondent was Mrs. Dorris Xheke who testified that she is the member of the SGB and the Deputy Chairperson of the SGB and was also Chairperson of the panel that was conducting shortlisting and interviews at Luna Full Service School. She confirmed that they were trained as the SGB of Luna Primary School on how to conduct interviews and shortlisting and their role during the process and also the union was part of the training.

32. She confirmed that she knew Miss. Makalima because she was the Acting Principal at the school and an ex officio member of the SGB but denied that she did not was Miss. Makalima appointed and also disputed that she preferred the 2nd respondent. She confirmed that in the training they were told that if the panelist is related to one of the candidates he or she must indicate and request to be excused from the panel.

33. She did not request to be excused because she was not related to any of the candidates. She disputed that she was related in any manner to Mr. Andile Mdledle the 2nd respondent and that they were told that if one is having a brother or a sister or a child in the candidates for the job he or she must request to be excused.

34. She confirmed that the panel was elected on the day of the training of SGB on how to conduct interviews and the role of the panel. She mentioned that after the interviews they (panel) reported to the SGB about the proceedings of the whole interview process and then the SGB did recommendation according to the scores that were scored by candidates. She confirmed that they drafted the questions themselves as the panel and they were assisted by the unions and the resource person.

ANALYSIS OF EVIDENCE AND ARGUMENT

35. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.

36. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to consider him for appointment to the position in question and appointing the 2nd respondent.

37. The respondent appointed the 2nd respondent Mr. Andile Mdledle who was recommended by the interviewing panel and later by the SGB. Both candidates meet the minimum requirements of the position of Principal in relation to all the attributes. As indicated above the applicant contests the procedural as well as substantive fairness of the appointment of the 2nd respondent and his non - appointment. On the procedural aspect the applicant raised a number of issues and the applicant’s dispute is more on the procedural aspects.

38. The applicant feels that the there is no reason why she was not appointed and that it is because the members of the SGB were influenced and most importantly that Mrs. Xheke wanted to ensure that Mr. Andile Mdledle who is related to her is appointed. The issue that this award has to deal with is whether there were procedural irregularities that can have an effect of rendering the process procedurally unfair.

39. The substantive issue was also placed in dispute because the applicant feels that she was the best candidate for the job or post in question because she is teaching Maths, conducting choirs and has been working hard for the school when she was Acting Principal. It seems from what was provided that that the two candidates who are a subject of this dispute meet the minimum requirements for the said position and that both of them were eligible for appointment to the post of the principal.

40. The applicant’s representative led evidence of the applicant in advancing the applicants case and his evidence is summarized above in the topic dealing with survey of evidence. The essence of the evidence of the applicant is that there is no reason why she was not appointed and if the scoring in particular by Mrs. Xheke were fair.

41. Applicant also pointed a number of irregularities in the process some of which have been confirmed by the respondent’s witnesses in relation to how the 2nd respondent’s form was completed and wrong information was provided. These issues are interrelated and I must say that the respondent did not call a number of witnesses to explain the process, corroborate the evidence of the two witnesses called by the respondent.

42. I shall therefore deal with and evaluate the evidence in consideration of this background because in Tshishonga v/s Ministry of Justice and Constitutional Development & other (2007) 28 ILJ 195 (LC) the court said that an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavorable to him or even damage his case.

43. The panelist and the SGB are supposed to administer justice when making an appointment and any person who undertakes to administer justice is disqualified or his or her decision will be reviewed and set aside if that person has bias which interferes with his or her impartiality or there are circumstance affecting him or her that might reasonably create a suspicion that that that person is biased.

44. The applicant alleged that the incumbent appointed, 2nd respondent is blood related to one of the panel members who happened to be the Chairperson of the interviews Mrs. Xheke. All the applicants’ witnesses testified and confirmed that the 2nd respondent is related to Xheke.. When this witness was called she first tried to present what can be described as a bare denial of this allegation but upon tough cross examination she confirmed that they were related even though it was not blood relation.

45. There are a number of types relationships that may give rise to bias like, family relationship, pecuniary relationship and family relationship. The evidence led in this hearing confirms that the 2nd respondent has a family relationship with the chairperson of the interview panel and a member of the SGB. This cannot be overlooked because all the other allegations of influence emanate from this fact.

46. The respondent argues that this does not hold any waters because the Department of Education only refers to the nuclear family not to the extended member of the family. She states that the word relative put in this aspect emphasises on the close relative that can show some bias in the employment processes.

47. She says because all members of the panel were trained they should have raised the issue that Mrs. Xheke is closely related to the incumbent and therefore should not form part of the process because they all come from the same community but because they understand nuclear family they never raised that.

48. She states that the teachers and non-teaching staff in the SGB were also supposed to raise that Mrs. Xheke is blood related to the incumbent. I do not agree with the 1st and 2nd respondents representative because it is the panelist herself Mrs. Xheke who was expected to declare and recuse herself because in the manner described by the witnesses she is related to the 2nd respondent.

49. I do not agree with the respondent the appointment of the principal Mr. Andile Mdledle at Luna Full Service School was proper and all the recruitment processes were followed. The 100 % scores awarded by Mrs. Xeke to the 2nd respondent are a testimony of bias and I reject the argument that Mrs. Xheke did not know Andile Mdledle before the shortlisting and the interviews. The other members of the SGB were not called as I indicated above to take the hearing to confidence and that the utterances that did not favour the appointment of Miss. Makalima, the applicant seem to be true.

50. I do not agree that the SGB and the panel had no predetermined decision on who they wanted to appoint in the position of the Principal but the candidate that scored high marks was appointed as the principal of Luna Full Service School. The issue of bias does not have to be a real one but a perception of bias is sufficient to constitute bias.

51. The applicant’s representative has argued that the meeting that was convened by the department prior to the shortlisting to discuss the issue of the strangled child had an impact on the thinking of the Interview Committee in taking a predetermined decision despite the denial. The worst part is that these allegations are unfounded and there is really no proof to back them up. It therefore makes sense in the circumstances for the applicant to argue that such allegations were purposefully convened to blackmail the applicant.

52. The applicant further argues that the three panelists, Mrs. Qumba, Miss Xheke, and Mrs. Nyawose who were mentioned and discussed in the grievance/complaint letter of an applicant had their scores almost in the same range for the 2nd Respondent and the same range for the applicant and that the 2nd respondent was not supposed to have been shortlisted in the first place because there were also issues of misrepresentation because he said he worked at different schools at the same time.

53. The applicant has referred me to the decision in SAPS v Safety and Security Sectoral Bargaining Council, Robertson NO and Noonan (unreported Labour Court judgment Cheadle AJ, Case Number P426/08, dated 27 October 2010); Ngcobo v Standard Bank of South Africa and Others (D439/12) [2013] ZALD 33 (25 September 2013), where the Court held that where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, he or she should generally, at least demonstrate that there was conduct that denied him or her 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 misled the interview panel. The same court held further that every applicant must carefully apply his or her mind to the application form and complete it honestly and diligently to compete fairly with other candidates.

54. I do accept that the ratification meeting was done and all members of the SGB were called and scores were shown to them and all SGB members agreed on the three recommended candidates. The fact that there was no complaint registered at that point does not automatically translate to a fair process. The issues that relate to SACE are a non – issue. I agree with the 2nd respondent and that the irregularity must be the one that compromise the fairness of the process.

55. Similarly the fact that union representatives declare process fair from shortlisting to the recommendation does not mean that the process cannot be challenged. The respondents have also argued that the setting aside and repeating the process may affect/disturb teaching and learning in that institution and this may negatively impact on the best interest of the learners at that school. This must be balanced with the requirements for a fair process and as it has been argued there were irregularities that can affect the fairness of the process.

56. It is not disputed that the applicant and the 2nd respondent met the requirements of the post as envisaged in Regulation 11 of the Employment of Educators Act 76 of 1998. From the argument above it then follows that the decision by the respondent to appoint the 2nd respondent and not to consider to appoint the applicant was procedurally unfair based on the evidence and argument advanced in this matter.

57. Just on these points the process of appointment of the 2nd respondent cannot be said to be procedurally fair. The respondent has authority to appoint but has a responsibility to exercise such discretion reasonable and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion exercised by a party competent to exercise that discretion.

58. The reason for this is that is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The applicant in this matter has managed to demonstrate that the employer has not applied discretion fairly, procedural fairness has a bearing on the outcome of the process.

59. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a bias manner.

60. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to the Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.

- Whether the employer’s decision was arbitrary, or capricious, or unfair.
- Whether the employer failed to apply its mind to the promotion of the employee.
- Whether the employer’s decision not to promote was motivated by bad faith.
- Whether there were insubstantial reasons for the employer’s decision not to promote.
- Whether the employer’s decision not to promote was based upon a wrong principle.

61. If one looks at how the discretion was applied by the respondent in this case it is clear that the prescripts that relate to the employment of Educators was disregarded. There are serious procedural irregularities in this appointment as discussed above and that justifies interference with the decision to appoint the 2nd respondent. In Nutese v/s Technikon Northern Transvaal (1997) 4 BLLR 467 (CCMA) it was said that the employees have no right to promotion and as long the employer cannot provide rationale basis for its decision, appointment or promotion stand to be set aside. Similarly the applicant has no right to protective promotion.

62. Whilst I agree with this principle it must be noted that the applicant’s contention of this appointment is mostly on procedural grounds and whilst the 2nd respondent maybe the best candidate for the position if he is or met the minimum requirements, the procedural irregularities should not be of such a nature that other candidates are prejudiced. This is what happened in this dispute, the nature and extent of the irregularities prejudiced the applicant and possible other candidates as discussed above.

63. I know of no authority and none has been cited for the proposition that the courts would not interfere at all with the exercise of discretionary power when they are unfair, arbitrary and unreasonable. The appointment of the 2nd respondent stands to be set aside because it was effected procedurally unfairly.

64. The appointment of the 2nd respondent and the non – appointment of the applicant was procedurally and substantively unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended. The applicant has indicated that he would like the Council to grant him an appropriate remedy including but not limited to protective promotion.

65. The applicant obviously cannot be granted protective promotion on procedural grounds and as I have indicated it was not easy to properly assess the substantive part as respondent has lost crucial documents to determine this part properly. The applicant has requested that I make an order stating that the appointment be set aside and the process be started afresh from the shortlisting stage.

66. This is not an unreasonable prayer from the applicant’s side in the circumstances but because of the documents allegedly lost by the respondent, it is going to be practically impossible to start the process at shortlisting stage.

67. In the circumstances I make the following award.

AWARD

68. The appointment of the 2nd respondent Mr. Andile Mdledle is hereby set aside with effect from the 31st of August 2023.

69. The respondent Department of Education – Eastern Cape is ordered to re – advertise the position of the Principal at Luna Primary School (the position in question) not later than the 31st of August 2023 and advise the applicant and 2nd respondent specifically to apply for that position.

70. Nothing stops the respondent to appoint anyone including the applicant and the 2nd respondent to act in the said position from the 01st of September 2023 until the position is filled.

71. There is no order as to costs.

Signature:

Commissioner: Malusi Mbuli