ELRC285-21/22EC

Panelist: Sally-Jean Pabst
Case No.: ELRC285-21/22EC
Date of Award: 16 July 2023

In the ARBITRATION between:

NAPTOSA obo Ms Glenda Estelle McGear
(Union / Applicant)


and


Department of Education of the Eastern Cape
(Respondent)

Applicant’s representative: Adv Gavin Duncan Saayman – NAPTOSA

First Respondent’s representative: Mr Garth Jacobs – DOE-EC

Second Respondent: Mr Basildon John Perils

Second Respondent’s representative: Mr Anton Adams – NAPTOSE

DETAILS OF HEARING AND REPRESENTATION

1) The Applicant referred an unfair labour practice dispute to the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA) relating to promotion. The matter was arbitrated on various dates and concluded on 30 June 2023. The proceedings were conducted on different dates either virtually via Zoom and video-recorded, or in person and recorded digitally – with the consent of the parties.

2) The Applicant, Ms Glenda McGear, was present and represented by Advocate Saayman, an official from the registered trade union NAPTOSA.

3) The First Respondent, the Department of Education of the Eastern Cape (DOE-EC), was represented by Mr Samuel Louw, and after Mr Louw resigned, by Mr Garth Jacobs at the last arbitration date.

4) The Second Respondent, Mr Basildon Perils, was represented by Mr Anton Adams, an official from the registered trade union NAPTOSA.

5) The parties by agreement submitted written closing arguments by no later than Friday 7 July 2023.


BACKGROUND
6) The Applicant is currently, and since April 2012, serving as a Post Level 2 Educator in the service of the First Respondent at Hankey Secondary School (Hankey SS) in the Sarah Baartman District, and earns R494,226.00 per annum.

7) Around 2020 this school needed a new Principal to be appointed. The First Respondent sent two departmental officials to the school, who met with and explained to the school SMT and SGB that a specially-appointed interview-panel will usurp the function of appointing the new school Principal.

8) The Applicant applied for the position of Principal Post Level 4 at Hankey SS, to which she was interviewed and shortlisted, but she was unsuccessful. The Second Respondent, Mr Perils who was an external candidate, was appointed and he assumed duties as Principal of the school on 2 June 2021.

9) In terms of narrowing of the issues at the commencement of the arbitration hearing:
a) Whether there was undue influence by the First Respondent on the alternatively selected panel who appointed Mr Perils rather than the Applicant, and
b) Whether the aforementioned alternatively selected panel was appointed ultra vires.


ISSUE TO BE DECIDED
10) I am required to determine whether or not the First Respondent committed an unfair labour practice as contemplated in terms of section 186(2)(a) of the LRA – whether the First Respondent acted unfairly against the Applicant by:
a) unlawfully appointing an alternative panel to interview and appoint a new school principal, and
b) that it acted unfairly against her by unduly influencing this alternative interview-panel to appoint the Second Respondent as the espoused external candidate, rather than herself the internal candidate.

11) In relief the Applicant wishes either for the post to be set aside and re-advertised, alternatively that she be awarded 12 months’ compensation amounting to R 494,226.00 – this being salary notch 279 in terms of the salary of Principal P4.

SURVEY OF EVIDENCE AND ARGUMENT
12) It is trite that the Applicant bears the onus to show that the First Respondent acted unfairly against her by
a) unlawfully appointing an alternative panel to interview and appoint a new school principal, and
b) that it acted unfairly against her by unduly influencing this alternative interview-panel to appoint the Second Respondent as the espoused external candidate, rather than herself the internal candidate.

13) The Applicant party submitted a bundle of documents into evidence, to which all parties agreed to all its contents being what it purports to be. The First Respondent and Second Respondent agreed to rely on the evidence contained in the bundle of the Applicant, rather than submitting its own respective bundles.

14) As provided for in terms of section 138(1) of the LRA I conducted the arbitration in a manner that I considered appropriate in order to determine the dispute fairly and quickly, dealing with the substantial merits of the dispute with the minimum of legal formalities.

15) In terms of s138(7)(a) of the LRA, I only include evidence I found particularly relevant in making a decision. Accordingly, below is a brief summary of the evidence I found pertinent in determining the outcome of the dispute.

The Applicant’s Evidence
16) The Applicant Ms Glenda McGear testified under oath that she has all the necessary qualifications to have been successful as candidate, but she was not. Her qualifications and school management experience is more than sufficient.

17) She is unhappy that the so-called independent panel did not refer its shortlist back to the SGB to ratify. Although this was not an issue in dispute, it was later conceded that, even if the top three recommended candidates had been put before the SGB to recommend on, the Applicant had been number 4 – therefore not included.

18) The Applicant explained that – as part of the SMT, and not the SGB – she was not in the meeting on 18 August 2020 when Mr Godlo and Ms Stokwe informed the SGB that it will not be bringing the panel who will select the new Principal. She was only in the SMT meeting thereafter – during which it was just fleetingly mentioned that an alternative independent panel will conduct the interviews. She expressed no objection to this, because after-all she was granted an interview. Only later, after she had been unsuccessful, she had only then realised that she was overlooked because she was an internal candidate, and not the pre-determined one the First Respondent had ‘earmarked’.

19) She added that Ms Stokwe mentioned that Mr Daaminds (at that time the SGB chair) had threatened her (Mrs Stokwe) when she had told them that they will use an independent panel to interview and appoint the new Principal. But she was not part of that meeting with the SGB, because she is only on the SMT – not on the SGB.

20) She explained how, after the old Principal retired in 2020, she had assisted Mr Alexander in running the school – she did most of the administrative work. She had HOD experience from previous schools, and extensive management experience, so she assisted seeing as the school even only had a new Deputy Principal appointed earlier this year (2022).

21) During cross-questioning the Applicant was asked why she had referred this dispute – this in light of her not having any documentary evidence to substantiate the allegations she is making regarding bias and illicit influence of the alternative panel during the appointment of Mr Perils. Ms McGear answered that she was asked by a departmental / district official – one whose impartiality she trusts implicitly – whether she had already received her appointment letter.

22) She believes therefore she was actually the recommended candidate – number one, maybe number two, on the list – for appointment as school principal, but definitely not number four. She believes she was knocked down because the First Respondent required an external candidate to be appointed, and Mr Perils was the person they wanted. She defended her anonymous ‘source’, saying this person had no vested interest in whether or not she was appointed, therefore she allotted substantial credibility to this person’s accusations.

23) She conceded she was not denied an opportunity to participate – after all she was interviewed – and there was no unreasonableness, malice or bad faith shown during the process. She was asked the same questions, treated with respect and consideration – it felt like any other interview she had had. She conceded that nothing was untoward with the processes during the interviews, said she walked out of the interviews saying to herself “I will see what will happen” because she feels she performed well. She had been in many interviews before, after all.

24) She was unfairly treated because the decision was taken by a group of people other than the SGB, that the SGB was replaced with a biased panel. She can also not say that any one of the panelists were biased – just that the decision that was yielded was biased against her as internal candidate, for the external candidate they preferred. There was a pre-determined outcome yielded.

25) The Applicant testified that she had no knowledge or involvement in the period after the interview – until the appointment was made. The Applicant explained she believes that she performed much better in her interview than the documentation rating her shows – much better than number 4. She strongly disagrees she was ‘not a strong candidate’ and that she should have been rated fourth.

26) She denied that she felt ‘entitled’ to be appointed because of having pulled more than her allocated weight in work after the Principal retired and the position was vacant, and she did most of the admin work. She believes this was an unfair labour practice because the outcome was biased. The interview ratings is not consistent with the truth, and she performed very well, in her own view she should have been rated first, maybe second, but definitely not fourth.

27) It was put to the Applicant that, even if the SGB had been allowed to ratify and recommend, she would have in any event been excluded, as she was fourth. Ratification and recommendation from the SGB also does not place her in the top-3 for recommendation by the SGB or the HOD.
28) The Applicant confirms she works very successfully alongside Mr Perils, as she did with Mr Thorne (retired Principal) and Mr Alexander (Acting Principal) before, too.

29) In conclusion the Applicant admits she had no gripe with the procedure during the interviews, nor did she at that time have a problem with the alternative panel, because she was granted an interview.

30) Ms Cynthia Cecily August testified under oath for the Applicant’s case, that she was part of the SGB at that time. She retired from 48 years of teaching service in 2018, to which she started serving on the SGB of Hankey SS, as a grandparent-guardian of her late daughter’s children. She served on many community forums, and she sent many a competent person to parliament, as she is a seasoned and well-read political person, who is known to be loud and clear.

31) She was in the meeting on 18 August 2020 with District Director Mr Godlo and Circuit Manager Ms Stokwe with the SGB, and was told – not asked – in no uncertain terms that the SGB will not have a say in the Principal chosen for the school – this because the SGB is dysfunctional and unable to perform the function due to the in-fighting and financial mismanagement being investigated. Ms August testified that in the meeting with the SGB on 18 August 2020 a colleague attached her and Mr Godlo did not protect her.

32) She added that no report or feedback or outcome has been provided about the so-called investigation, till today. No parent ever touched the money. The books and finances were handled by Mr van Rooyen – a teacher. And no apology for the false allegation regarding the finances were ever made.

33) The witness was referred to section 22 of the South African Schools Act (SASA) – that on reasonable grounds a function may be taken away from the SGB, but only if the SGB is firstly informed of the intention, and secondly provided reasons and given opportunity to make submissions.

34) She retorted that they were informed, but not properly – not in writing. They were not asked in August 2020, they were told. The HOD made the decision without giving them an opportunity to make representations. Later the witness was asked by the Second Respondent’s Mr Adams why the SGB did not make these objections in writing – this in terms of SASA providing the SGB with that right. She replied that they were told, not asked. It was further put to her that she had over 7 months, between August 2020 and April 2021 when the interviews’ shortlisting came out, to object to the SGB’s powers being usurped, but the SGB did nothing to object, as an entity. Ms August submitted that she as individual objected, albeit verbally only, but the SGB as a whole did not.

35) The urgency of taking the decision away from the SGB was explored, and Mr Adams later pointed out to the witness that the Constitution proves that, where the rights of children specifically is at stake, the rights of the child must be placed at top priority – from hence the urgency was the prerogative of the HOD, to solve the instability of in-fighting and financial mismanagement allegations and the SGB not performing as it should have. The children had to get a new Principal, the school was without a Principal and without a Deputy Principal.

36) Ms August was asked how often the SGB met, and she answered ‘sporadically maybe as often as necessary’ – she did not provide a clear answer.

37) The witness was asked whether she agrees with the documented recommendation in evidence of the 3 schools in the district having its SGBs’ powers to appoint the Principals removed and independent/alternative panels appointed instead to interview and select the Principals. She vehemently disagreed, adding that also because it was 3 schools in the district, and the decision clearly had already been made – a foregone conclusion – therefore they did not dispute the decision of the independent panel in writing afterwards.

38) The witness was referred to the document in evidence stating that the ‘community’ insisted the SGB due to in-fighting and discord can particularly not participate in the decision to select the school Principal, to which Ms August said she is ‘shocked’ to hear this, because she is fully involved in the ‘community’ and its forums, and she knows nothing of this or of the ‘dysfunctionality’ of the SGB being a problem. Ms August was asked why no other SGB members of the time is here also to testify with her, and she did not provide a reason.

39) Ms August also expressed her grievance that the independent panel never having given its recommendation of the particular candidate to the SGB to ratify. It was put to her that its ratification would have made no difference whatsoever even if it had been given to the SGB, because Ms McGear was placed at No.4, not even at No.3, No.2 or No.1 – it being trite that only the top 3 is put forward for ratification. Ms August expressed her disagreement with the rating Ms McGear had been given, and with the notes that Ms August was ‘not a strong candidate’ – this in terms of her belief that Ms McGear ‘would not have performed poorly’ or come across as a weak candidate.

40) Ms August conceded during cross-questioning that, in terms of the LRA and this being an unfair labour practice dispute specifically, the Applicant Ms McGear was not denied an opportunity to participate (in the interviews), and there was no unreasonableness or bad faith shown during the process; however, notwithstanding, she maintains that there was undue influence from the First Respondent for the panel to appoint someone it had in mind – ‘a name in the pocket’ – and that is what she has a problem with, because if she (referring to herself) had been on that panel, she would have made sure nobody selected a name from anyone’s ‘pocket’.

41) It was put to her that she portrayed bias through this averment, because she was not part of the panel, nor was she the person who questioned Ms McGear during the interviews, nor did she hear the interviews of the other candidates, therefore her expressing this opinion shows she is biased in favour or Ms McGear. The witness strongly disputed this, stating further that her integrity is of utmost importance to her, and she had no preference for Ms McGear to having been appointed – just for fairness and for the SGB not having been unfairly stripped of its rights to make the decision.

Respondent’s Evidence
42) The First Respondent’s witness Ms Thobeka Stokwe testified under oath for the First Respondent’s case. She was the Circuit Manager since 2020 tasked with fixing the situation at the school Hankey Secondary School. She explained that many of the members of the SGB had stopped attending SGB meetings because of the discord between the members – specifically Mrs August and Mr Draai (an Educator) was always at each other’s throats. Only Ms Skatra and Mr Daaminds (SGB Chair) was at that time actively involved in the SGB – they were the only ones attending SGB meetings because all other members were usually ‘not available’ – a great problem seeing as the school was a ‘serial underperforming’ school.

43) There were the issues with alleged financial mismanagement being investigated, there was at that time no money for paper, nor for nutrition for the learners, due to the mismanagement of the funds, as reported by an Educator of the school, Mr van Rooyen. The SGB at that time was dysfunctional to the extent that it was not capable to conduct interviews and elect a Principal.

44) For this reason herself and Mr Godlo the District Director was sent to the school to meet with the school’s management team (SMT) and the school governing body (SGB).

45) Because teaching and learning was also affected, herself and Mr Godlo also met with all staff members and stake holders, and the SGB.

46) During their meeting with the SGB there was an argument between two SGB members Cynthia August and Mr Draai about some politics, to which Mr Godlo intervened and told them to take their politics outside of this institution because there is no place for politics in the schooling system.

47) Thereafter Mr Godlo asked them “What do you want me to do. What support do you need me to provide to you, as your District Director, to get the school functional again?” – to which one Educator raised the point that the SGB is always fighting about promotional posts having been ‘promised to certain individuals’, to which it was suggested in the meeting that the First Respondent should ‘take the process from us’ – referring to the process of selecting the new Principal.

48) Ms Stokwe was asked how the process was taken away from the SGB, to which she replied there was a follow up meeting with the SGB during which many of its members supported the District Director to ‘take over’ the process and select a ‘strong Principal’ that can ‘take the school forward’.

49) She strongly disputed that the District Director had Mr Perils ‘in his pocket’ – as a pre-determined selected Principal. She pointed out that there were many candidates to the post, and neither her nor Mr Godlo was on the panel, nor were they in any way part of the recruitment process.

50) During cross-questioning it was put to Ms Stokwe that she is either testifying hearsay, or she got her dates wrong – the latter was later confirmed.

51) She confirmed the process followed with recruitment, and that the SGB was not given an opportunity to ratify the recommended candidates of the independent interview-panel, because she was not part of the recruitment-panel or the process. She further conceded that the SGB was not informed of the withdrawal of their function in writing. She says that the First Respondent might have missed a step or two, but after the function was taken away from the SGB, she was not involved – the District Director must answer for the recruitment process.

52) Mrs Stokwe confirmed that during the meeting with the SGB, they discussed with the SMT and with the SGB that, in terms of the internal conflict in the particularly the SGB, the First Respondent is removing the powers of the SGB to appoint the new school principal. This function will be taken over by an alternative specially-appointed panel who will handle the interviews, shortlisting and appointment of the new school principal, instead of the SGB performing this function – this in terms of the First Respondent deeming the SGB as dysfunctional.

53) Ms Stokwe confirmed that without a doubt from what she observed and experienced both on this day with Mr Godlo and before this as she served as Circuit Manager for the district, that this specific school’s problems were serious enough to justify taking the decision of appointment of the principal away from the SGB and into the hands of an alternative, specially appointed, independent panel.

54) She confirmed that currently there is great improvement at the school – the current SGB is active and meeting regularly. At the time she was having to intervene, in 2020, three Educators had applied for transfers, already. They were demoralised. She was directly involved and having to motivate the Educators to stay at the school.

ANALYSIS OF EVIDENCE AND ARGUMENT
55) I have considered all the evidence and argument lead by the parties in coming to my decision on this matter.

56) The onus is on the Applicant to prove that the First Respondent committed an unfair labour practice. This must be decided on a balance of probabilities.

57) During the Applicant’s testimony she was asked why she had referred this dispute in light of the lack of documentary evidence to substantiate her allegations of bias and illicit influence of the alternative panel. Notably, Ms McGear answered that she was informed of undue influence by an official – her anonymous source whom she trusts for this person’s detachment from the situation – that she was actually the number one on the list to be school principal. Understandably, the Applicant was unhappy about not being appointed.

58) The documents in evidence, however, then showed that she was the no.4 candidate, not no.1. The Applicant responded to this saying she strongly disagrees with the panel’s notes on her that says she was ‘not a strong candidate’ and she ‘spoke a lot without saying much’. The fact that she disagrees as a result of the seed of doubt planted by the anonymous official of the department/district. The Applicant admitted she would not have referred this dispute, were it not for the ‘story’ she’d been told.

59) My contention is that it is very dangerous indeed to lend one’s ears out to stories. Whether or not she chose to attribute great weight to this person’s testimony is irrelevant in light of the fact that the person was not willing to come forward and say what he/she said under oath. When the anonymous source’s story was then contradicted by the documentary evidence, as seen in the Applicant’s own bundle, instead of re-thinking the credibility of this person in terms of the cold hard evidence, black on white, she moves to disagreeing with the panel’s comments to further support her dispute.

60) From the testimony of the Applicant’s own witness, Ms August, it was clear to me that there was indeed a great amount of discord in the school’s SGB. Whether this justified the Respondent removing the SGB’s authority on who to appoint – this moves to a different legal argument. The Applicant’s Advocate Saayman fully convinced me that the Respondent did not follow the correct procedures to do what they did – their dispute to the procedure in removing the SGB’s autonomy on this appointment. However, bear in mind the aim of any procedure is for it to be a means to show respect to all entities and for the process to lead to a fair decision, in the end. I must apply my mind to substance over form, and whether any breach of procedure would have, even might have, lead to a different decision, to which I have not been convinced, from considering the evidence in totality, from all the witnesses, that the SGB was not dysfunctional enough to fail at selecting the appropriate Principal. Ms August went so far as to testify to an argument that broke out in the presence of Mr Godlo – that she was ‘attacked by an ex-colleague and Mr Godlo failed to protect her’ – entirely unbecoming of a competent group of decision-makers putting personal interests aside to root for the children in the school’s education. Further to this, Ms August conceded that, if the SGB had been ‘given a chance to get a panel together, they would have.’ This is consistent with the unchallenged statement made that, at the time, the SGB had only 2 active members. That the discord caused members not to attend meetings. Ms August was unclear about how regularly the SGB had meetings. She was told the issues were discussed at length in some of these meetings, to which she conceded that if she did not attend this / these SGB meetings it would have been because she ‘was not invited’. This all consistent with discord and resultantly, possibly dysfunctional decision-making that warranted intervention.

61) Although I agree fully with the Applicant party that the SGB was unfairly and contrary to the quoted legislation only consulted, in a meeting, about the decision being taken away from them. It was not in writing, but it was nevertheless done. They were told, and there was discussion around it between the SGB, Ms Stokwe and Mr Godlo – the meeting that lead to Ms August apparently being ‘attacked’ by a colleague – and many months later the process continued, as far as the evidence lead, with the interviews conducted and concluded, without any objection from the SGB. The decision was yielded and the appointment confirmed – still nothing from the SGB in objection to their autonomy having been removed – I can only conclude that this was because only Ms August as individual had objections – not the rest of the SGB – evident too from Ms August having had no explanation to provide Mr Adams why the rest of the SGB-members were not also testifying in the arbitration.

62) The next question remains – whether the clear procedural breach by the Respondent – albeit substantively fair, entitles the Applicant to compensation for the procedural breach by the Respondent in taking the decision away from the SGB. The answer is a simple and clear No.

63) Whether the Applicant grieves the decision of the alternative panel, as Ms August did – logically because she was unsuccessful, she would grieve the decision – but more importantly, I must consider whether the decision to set aside the SGB’s autonomy would have more probable than not lead to a more fair decision, I cannot say that it would have. The SGB, as it was at that time, was not all moonshine and roses. The fact that the Respondent’s Head of Department (HOD) failed to reduce its decision to writing would have in my view made no difference in the decision having been made. I respectfully disagree that it was the wrong decision. The SGB did not put in a grievance against the decision having been taken away from them – the Applicant only later is seemingly grieving on behalf of the SGB, through this dispute.

64) With regards to the procedure, if it had been the SGB as opposed to the Applicant who grieved the procedure, one might have been right to award some for procedural breach. But it was not the case.

65) The procedure around how the interviews were conducted was not in question. The panel of choice was for the SGB to dispute – not the Applicant – in my respectful view. And seeing as the part of the procedure relevant to the decision whether or not to appoint the Applicant was not disputed, therefore, how the group of individuals that made the decision came to make the decision, is not for the Applicant to dispute.

66) It is not incumbent on me as a commissioner to interfere with the managerial prerogative of employers in the employment selection and appointment process. In Provincial Administration of the Western Cape (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) at paragraph [29]–[32] the Labour Court holds: “There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this an area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination are present.”.

67) Nothing in the evidence – both documentary and verbal testimony – corroborated, or for that matter even remotely linked, to the account of the Applicant’s anonymous source. This person had lit a fire of doubt which was fuelled only by the disappointment of being unsuccessful – nothing else in terms of proof was forthcoming, that the Applicant was unfairly treated or unfairly overseen for promotion, during the promotion appointment process.

68) I can definitely not conclude that the decision which this alternative panel came to was one that a reasonable decision-maker could not have come to, under these circumstances. That puts to rest also the substantive dispute.

AWARD
69) The Respondent, Department of Education: Eastern Cape did not commit an unfair labour practice relating to promotion when they did not promote the Applicant, Ms Glenda McGear to the Principal’s post at Hankey Secondary School. The Applicant is not entitled to any relief.

Commissioner Sally-Jean Pabst
ELRC Arbitrator