ELRC716-22/23 EC

Case Number: ELRC716-22/23 EC
Panelists: Malusi Mbuli
Date of Award: 07-08-2023

In the ARBITRATION between

NAPTOSA obo NOKWANDA GLORIA MABUDE
(Applicant)

And

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

SITHEMBISO MALIZO RABI
(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 29th & 30th of May 2023 and on the 19th of July 2023 before Commissioner M. Mbuli.

2. The applicant Ms. Nokwanda Gloria Mabude 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 Mr. Mlahleni Thobelani an official of the respondent.

3. The 2nd respondent Mr. Sithembiso Malizo Rabi was also present at the hearing and was represented by Mr. Xolani Phalane a shop steward of the applicant’s trade union SADTU.

4. The matter was finalized on the 19th of July 2023 and the parties agreed to file their closing arguments not later than the 27th of July 2023.

ISSUE TO BE DECIDED

5. 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

6. The applicant, Ms. Nokwanda Gloria Mabude applied for the position of Departmental Head at Vukuzenzele Special Senior Secondary School in the Alfred Nzo East District in the Eastern Cape Province which is post level 2 post.

7. At the time of the application, the applicant was occupying an educator post level 1 post at the same school i.e. Vukuzenzele Special Senior Secondary School. Because this is a senior post at level 2 it is a promotion post and has higher status and salary level than post level 1 post she was occupying.

8. The applicant was not shortlisted and interviewed for the said position and the applicant expected that she was going to be shortlisted, interviewed and even recommended by the SGB for appointment but instead the respondent appointed the 2nd respondent. Applicant met all the requirements of the job. The applicant through his Union – NAPTOSA challenged the appointment of the 2nd respondent at the ELRC.

9. Candidates were recommended for appointment by the interviewing panel in terms of section 6 of the Employment of Educators Act including the 2nd respondent. The Department of Education – Eastern Cape appointed the 2nd respondent Mr. Sithebiso Malizo Rabi who is now occupying the position in question.

10. The applicant felt that the process that led to the appointment of the 2nd respondent and his non – appointment was unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the LRA.

11. 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 fair short listing process. 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 and not appointing the applicant. The applicant seek reversal of the process of appointment as remedy to her unfair labour practice dispute.

12. 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 19th of July 2023 and the closing arguments were delivered on or before the 27th of July 2023.

SURVEY OF EVIDENCE

Applicant’s submissions.

13. The applicant Ms. Nokwanda Gloria Mabude testified that she applied for the position of the H.O.D at Vukuzenzele Senior Special School at the Alfred Nzo East District in Bizana and was not short listed or considered for appointment to the said position. She averred that she started working for the respondent in 2014 as a level 1 educator and is still a level educator to date.

14. She stated that before the recruitment for the said H.O.D post in question around July 2022 there were SGB positions that were vacate and one was that of the educator representative and it was filled by Mrs. Mayeza in a staff meeting that was chaired by the Principal. She averred that Mrs. Mayeza represented the teacher component at the SGB meeting of the 14th of October 2022 that elected the panel and were told by the principal that that he was co – opted but was a union member.

15. She stated that she was part of that extended SGB meeting together with Mavana who was the Circuit Manager and the Circuit Manager was there to deal and resolve the misunderstanding that was between the SGB members and the staff in the school and was not related to the post.

16. She stated that the appointed candidate to this position is expected to have all the for subjects required i.e. Xhosa, English, Math’s & NST and only 2 from those who were shot listed had the four subjects and that also none of the applicants had special needs as required by the respondents criteria set. She added that all had a SACE certificate and three years’ experience.

17. She confirmed that she does not have Math’s and NST just like the other candidates who were shortlisted and the appointed candidate Mr. Malizo Rabi has Math’s and English and has reflected incorrect experience on the application form. She stated that the inconcorrectly filled application form or a form with gaps is supposed to be discarded and disqualified.

18. She averred that some forms that were incorrectly filled was that of Mr. Mgambi on the column of racial groups that was not filled and also had 2 subjects. She stated that the scored presented by the respondent were typed or computerized scores and it looks like they do not represent the true reflection of the scores taken in the interview process.

19. She pointed out that on the scores presented the appointed candidate is given all the maximum marks of 5 by all the 3 scorers on the 27th of October 2022 the date of the interview and that the other scorers are illiterate and could not have reflected the scores in a computerized format.

20. She pointed the hearing to the 2 sets of minutes of the ratification meeting appearing on pages 72 and 73 presented by the respondent and demonstrated that they are 2 different sets of minutes and are even bearing different signature’s. She stated that in terms of the advert all the shortlisted candidates were not supposed to be short listed.

21. She further stated that the criteria that was introduced for shortlisting was wrong in law and also unfair because it accommodated people with 2 subjects instead of 4 subjects on the advert and added that the criteria must be reliable, fair and consistent with the bulletin.

Respondent’s submissions

22. The respondents 1st witness was Mr. Malinge Mfundisa who testified that he works for the respondent as a Deputy Principal at Vukuzenzele Senior Special School since 2018. He averred that he was delegated by the Principal to be a resource person and help in conducting the interview process in relation to this post in the bulletin volume 2 of 2022 and was trained on the recruitment process by the Principal.

23. He stated that they received the documents of the applicants who qualified and those who did not qualify and the SGB elected the panel and conducted shortlisting on the 19th of October 2023 and the criteria was set. He testified that they found 2 candidates who qualified and had broaden the criteria in order to at least get 3 more candidates.

24. He averred that the applicant was not short listed because she did not have the 4 subjected that were required in the advert and only had 2 subjects English and Xhosa. He testified that they set for the ratification meeting after the interviews and the 2nd respondent was recommended for appointments to the position in question.

25. He stated that there were three scorers in the interviews, no educators scoring in the panel of interviews as they recused themselves and that Mr. Rabi qualified for appointment to the position of an HOD in question. He also stated that the unions did not dispute the process. He however testified that all components of the SGB are supposed to be represented at the interview panel.

26. He further stated that the criteria that was introduced for shortlisting was not wrong in law, not unfair and that it did not amount to the re profiling of a post. He conceded that most of the forms of the shortlisted candidates were not properly filled and were sometime incomplete or incorrectly filled.


27. The 2nd witness of the respondent was Mr. Mziwamadoda Mlamani who testified that he works for the respondent as a Principal at Vukuzenzele Senior Special School from 2017 as a Principal and has been there for 18 years. He confirmed that he is aware of the recruitment that happened in this school towards the end of the year for an HOD post.

28. He stated that he attended the workshop with the applicant and Maconjwa on the 13th of October 2022 who left the workshop and was left with Mayeza who was a shop steward. She confirmed that they had a meeting with Mayeza because the Circuit Manager was not aware if he was a shop steward. On the 14th of October 2022 they formed the panel as SGB and only SADTU attended the workshop.

29. He confirmed that the panel did not have the teacher component in the interview which happened because Ms. Mabude was a candidate and Mrs. Maconjwa was her friend and could not participate in the interviews. He further confirmed that that on the date of the interviews he had a provincial meeting and delegated the resource person duties to his deputy Mr. Mr. Malinge Mfundisa. He averred that he was advised by the Circuit Manager to do a mop up training on the 18th of October 2022 and he trained the Deputy Principal who later reported to him after the interviews t.

30. He stated that he know Mr. Mazwi from the teaching fraternity, was an HOD in his circuit and was a Deputy Principal at Siyakhula Junior Secondary School in his locality and does not know about him being a Principal. He stated that the applicant Mrs. Mabude was not short listed because she did not meet the curriculum needs of the school and only had English and Xhosa from those languages that were required.

31. He stated that the 2nd respondent has English, Xhosa, Math’s and NST. He stated that the interview panel was legitimate and it is not compulsory that the panel must represent all the components of the SGB. He conceded that the 2nd respondent’s application form and averred that it is not a requirement that the form must be properly filled when applying for the post and cannot disqualify a candidate and that there were transcripts accompanying the application of Mr. Rabi.

32. He stated that the scores as they stand are a true reflection of the outcomes of the interviews. He averred that Ms. Mayeza was co – opted by the SGB and that on the 03rd of August 2022 the educators were invited and did not attend because they only attend meetings that they want to attend. He further stated that the educators are in a program of subortaging the programe of the school.

33. He stated that the SGB accepted the report of the interview panel and agreed with the interview panel to recommend Mr. Rabi for appointment to the position in question. He further said that he was not part of the shortlisting and that the criteria that was set for this position was accommodative. He confirmed that the ratification meeting of the SGB had 2 different minutes.

34. The 3rd and last witness of the respondent was Mr. Nkosinathi Magwaca who testified that he works for the respondent as a (CES) Circuit Manager & Employee Relations. He averred that part of his duties are to maintain good working relations in the District and to facilitate programs like disciplinary hearings and arbitration hearings including organizing and preparing documentation.

35. He stated that the documents related to this matter were shared physically with the applicant’s representative through Mr. Mbanjwa and that Ms. Mabudes documents were not part of the package because she was not shortlisted and therefore her documents were not in the custody of the Department of Education.

36. He stated that he did not know the applicant and documents are only shared with him when there is a dispute and normally relate to applicants who were shortlisted and that all forms for shortlisted people are stamped and have numbers. She disputed the document produced by the applicant as an application form and stated that it is not stamped, does not have a number and it did not come from his office.

37. He confirmed that the documents that were given to the applicant’s representative also were the documents of another case dispute ELRC715-22-23 EC and that he did not notice that the forms were properly filled or correctly completed at the point of application. He stated that there would be no need for him to temper with the documents related to this post recruitment because he was not part of that recruitment process.

38. He confirmed that the SGB has the responsibility to establish the panel of interviews and when they set the criteria they can be accommodative in order to widen the scope where the suitable candidates cannot be found.

39. The respondent intended to call other witnesses or witness but decided to close their case when the employer representative could not make it to the hearing on the 19th of July 2023.

ANALYSIS OF EVIDENCE AND ARGUMENT

40. 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.

41. 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 shortlist her and consider her for appointment to the position in question and appointing the 2nd respondent.

42. The respondent appointed the 2nd respondent Mr. Malizo Sithembiso Rabi who was recommended by the interviewing panel and later allegedly by the SGB. It is in dispute that both candidates meet the minimum requirements of the position of HOD as in relation to all the attributes as the respondent maintain that the applicant did not meet the minimum requirements of the post because she only had 2 subjects from the 4 subjects required for the post.

43. As indicated above the applicant contests the procedural as well as substantive fairness of the appointment of the 2nd respondent and her non - appointment. On the procedural aspect the applicant raised a number of issues and the applicant’s dispute is premised more on the procedural aspects.

44. The applicant feels that the there is no reason why she was not shortlisted and that it is because the members of the SGB were influenced and most importantly that they had a problem with the teacher component of the SGB at that school. 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. The substantive issue was also placed in dispute because the applicant feel that she was supposed to be accommodated as well in terms of the criteria set by the SGB.

45. It seems from what was provided that that the 2 candidates who are a subject of this dispute meet the minimum requirements for the said position after the set criteria and that both of them are or were eligible for appointment to the post of the HOD. The applicant’s representative led evidence of the applicant in advancing the applicants case and her 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 shortlisted except that the SGB had a problem with her and the teacher component of the SGB at their school.

46. 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 respondents form was completed and wrong information was provided and the minutes of the ratification meeting. These issues are interrelated and I must say that the respondent did not call a number of witnesses who were directly to give direct evidence who were directly involved in the process and to corroborate the evidence of the other witnesses.

47. 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.

48. The 3 parent component panelists and the SGBs who are at the center of this dispute were supposed to be called and are the ones who 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 circumstance affecting him or her that might reasonably create a suspicion that that that person is biased.

49. The applicant alleged that the panelists all scored the incumbent appointed, 2nd respondent the highest marks 5s meaning 100 % and this appears on the score sheets produced by the respondent. As much as this is possible in the circumstances where it was all three parent component members of the SGB at the interviews the applicant’s complaint is justified.

50. As indicated above even these witnesses’ panelists at the interviews were not called to take the hearing to confidence as they were the only scorers in this interview. The employer did not call these witnesses even when this aspect was sharply raised by the applicant in her opening statement and her evidence.

51. The other very important issues that is raised by this dispute is that the most important ratification meeting was not properly held and it is not in dispute that the respondent presented 2 different sets of minutes of this ratification and the minutes are different and signatures are not the same. Again in the circumstances where there were only parent’s component in the interviews and ratification on a balance of probabilities the presentation of 2 sets of ratification cannot be justified.

52. The applicant testified and confirmed that the 2nd respondent maybe related to one of these panelists but were not presented to be cross questioned by the applicant’s representative we do not know how these witnesses were going to respond to these allegations.

53. There are a number of relationships that give rise to bias like, family relationship, pecuniary relationship and family relationship. The candidates in the education sector at district level are usually known to the SGBs or officials for that matter and that is why this part has to be approached with caution. This cannot be overlooked because all the other allegations of influence emanate from this fact.

54. I do not agree that the SGB and the panel had no predetermined decision on who they wanted to appoint in the position of this HOD when all the parents panelist scored the 2nd respondent 5 out of 5 marks. The issue of bias does not have to be a real one but a perception of bias is sufficient to constitute bias. In the circumstances it therefore makes sense in the circumstances for the applicant to argue that such in this manner.

55. The applicant’s representative further argued that the panel meeting held on 19th of October 2022 does not have the minutes which reflect clearly what transpired in that meeting and further the meeting held on 27th October 2023 does not have the minutes which reflect clearly what transpired there and were never signed by both the chairperson and the secretary.

56. The other issue raised by the applicant is that the application form of an applicant was completely, accurately and correctly filled with no defects, whereas all the forms of the shortlisted candidates have gaps blank spaces and are not filled. This point does not exist alone and must be assessed in consideration of others. It was confirmed on the documents that the application form of an incumbent was incorrectly filled whereas it is supposed to be.

57. The other application forms of the other candidates including the applicant were incorrectly filled. The requirements of the post as advertised were Xhosa, English, NS & Technology and Mathematics. The argument that the reason why the applicant was not shortlisted was because she had two subjects and not four same as the above shortlisted candidates is not consistent with the relaxed criteria that was adopted.

58. 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), 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.

59. 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. As I have indicated above the procedural irregularity must be of such a nature as to render the process unfair because it prejudices the other candidates or places the appointed candidate at an unfair advantage than the other candidates.

60. I have also made a point that these issues cannot be dealt with or interpreted in isolation and all these factors must be considered together because they talk to each other. e.g. the issue of inconsistency, if all the forms are not considered because they are not properly filled that then that practice must apply to all the candidates because it is unfair to treat candidates in the same post and circumstances differently.

61. I do accept that the ratification meeting was done properly in this dispute because there is no rational explanation why the respondent has 2 different sets of minutes signed by different people. The SGB according respondent simple confirmed in this dispute the 100 % score of the parent component of the SGB. This cannot be interpreted to be a fair practice.

62. The fact that there was no complaint registered at that point of the interviews does not automatically translate to a fair process. These issues compromised the fairness of the process. Similarly the fact that union representatives declare process fair from shortlisting to the recommendation does not mean that the process cannot be challenged.

63. 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 shortlist and appoint the applicant was procedurally unfair based on the evidence and argument advanced above in this matter.

64. 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.

65. 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.

66. 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.

67. 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.

68. 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.

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

70. Whilst I agree with this principle it must be noted that the applicant’s contention of this appointment is mostly on procedural grounds and the procedural irregularities should not be of such a nature that other candidates are prejudiced. If that happens it obviously affect the fairness of the outcome and this is what happened in this dispute, the nature and extent of the irregularities prejudiced the applicant and possible other candidates as discussed above.

71. There will be interference with the exercise of discretionary power when they are unfair, arbitrary and unreasonable. The appointment or promotion of the 2nd respondent stands to be set aside because it was effected procedurally unfairly.

72. 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 she would like the Council to set aside and reverse the appointment or promotion.

73. 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 the applicant did not even compete because of non – shortlisting.

74. This does not mean that the applicant nor the 2nd respondent must be automatically shortlisted but simple means that the process was unfair and the outcome of an unfair process cannot stand or cannot produce a fair result.

75. The applicant has requested that I make an order stating that the appointment be set aside and the process be started afresh and this is not an unreasonable remedy to request.

76. In the circumstances I make the following award.

AWARD

77. The appointment of the 2nd respondent Mr. Sithembiso Malizo Rabi is hereby set aside with effect from the 30th of September 2023.

78. The respondent Department of Education – Eastern Cape is ordered to re – advertise the position of the Head of Department (the position in question) not later than the 30th of September 2023 and advise the applicant and 2nd respondent specifically to apply for that position.

79. There is no order as to costs.


Signature:

Commissioner: Malusi Mbuli