ELRC701-22/23EC & ELRC842-22/23EC

Case Number: ELRC701-22/23EC & ELRC842-22/23EC
Panelist: Hadley Saayman
Date of Award: 6 September 2023

In the ARBITRATION between

NAPTOSA obo Nonkululeko Nohesi
(1st Applicant)

SADTU obo Nozuko Mavuma
(2nd Applicant)

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

Mbulelo Mgubanto
(2nd Respondent)

1st Applicant’s representative: Mr. A Mhlonto
Applicant’s address: NAPTOSA
68 Recreation Road
East London
5200
Telephone:
E-mail: MhlontoAaron@gmail.com

2nd Applicant’s representative: Mr. S Jonas
Applicant’s address: SADTU
No.37 Belgravia Cresent
East London
5200
Telephone:
E-mail: Nozukozukib8@gmail.com


1st Respondent’s representative : Mr. B Nkuhlu
Department of Education
Ngcobo
Telephone:
E-mail: Fngwendu63@gmail.com

2nd Respondent’s representative :
Ms. N Saliwa
SADTU
No.37 Belgravia Cresent
East London
Telephone:
E-mail: mmgubanto@gmail.com


DETAILS OF HEARING AND REPRESENTATION

1. This matter was joined with case number ELRC842-22/23EC and was set down for arbitration in terms of

Section 186(2)(a) of the Labour Relations Act (LRA) for 15 and 16 August 2023. The 1st Applicant, Ms. N

Nohesi was represented by Mr. A Mhlonto a Union official of NAPTOSA, the 2nd Applicant, Ms. N

Mavuma was represented by Mr. S Jonas, a Union official of SADTU and the 1st Respondent, the

Department of Basic Education-EC was represented by Mr.B Nkuhlu, a Senior Education Specialist:

Labour Relations. The 2nd Respondent and incumbent, Mr. M Mgubanto was represented by Ms. N

Saliwa, a Union official of SADTU. The parties agreed to submit written closing arguments by 28 August

2023, which they have done.


ISSUE TO BE DECIDED

2. I am required to determine whether the 1st respondent committed an unfair labour practice as

contemplated by Section 186(2)(a) of the LRA.


BACKGROUND TO THE ISSUES

3. Both Applicants applied for a vacancy of a Head of Department at Cofimvaba Village Junior Secondary

School, which was advertised in Bulletin-Volume 2 of 2022. The Applicants were shortlisted and

interviewed. The Applicants were ranked number 2 and 3 respectively on the recommendation form by

the interview panel. The 2nd Respondent, Mr. M Mgubanto was ranked number 1, recommended and

appointed as Head of Department with effect 1 December 2022.


4. Regarding relief, the Applicants seeks the setting aside of the appointment of the Incumbent, 2nd

Respondent and the second Applicant wants to be appointed.


SURVEY OF EVIDENCE AND ARGUMENT

5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the

Labour Relations Act 66 of 1995 (LRA), relevant to the dispute at hand.

APPLICANTS EVIDENCE

6. The 1st Applicant, Ms. N Nohesi testified that she joined the school in 2004 as a foundation phase teacher

and was also teaching two years in the Intermediate phase at the school. She is currently a grade 2

teacher. She started teaching in 1991. She has a Junior Primary Diploma and a Further Diploma in

Education. She is also studying towards an Honours Degree. She serves on the SMT and is a key teacher

in the District. The vacancy was advertised for all learning areas, grade 1 to 7 and computer literacy. The

incumbent was not supposed to be shortlisted, because he did not complete section 19 on his application

form and was a FET teacher. The scorers of interview panel consist of two parents, one teacher. The School

Principal went to one of the scorers Ms Stemela, during the interview process.

7. The 2nd Applicant, Ms. N Mavuma, testified that she has a Diploma in Education (III), an Advance Diploma

(ACE) with computer integrated education, an Honours in Education Management. She is teaching Maths,

FAL, NS and Social Science grade 4 to 7. The incumbent did not meet the requirements for the vacancy,

because he was teaching at a Secondary School and he did not complete section 19 of his application

from. The chairperson of the interview panel, Mr L Nokhanya was not an SGB member. During the

interview process, the School Principal moved up and down, which disturbed her.

8. Mr. Awuwa, a NAPTOSA observer testified that he was present during the shortlisting process on 25

October 2022 and interview process on 1 November 2022. During the shortlisting process there were too

many SGB members and he advised that they should be the same as the number of the interview panel.

The SGB then went out and elected the panel. The interview process started late. When the 1st Applicant

was interviewed, the resource person was on his cell phone. When the 2nd Applicant was about to be

interviewed, he was enquiring what the resource person was doing by the scorer, Ms Stemela.

The resource person had to come to his school and signed the declaration form a week later

that confirmed the proceedings were fair. According to him there was no ratification meeting, because he

did not attend the same.

RESPONDENTS EVIDENCE

9. Mr. S Rulwa, the School Principal testified that it was his third time as a resource person. The profiling of

the vacancy was done in order for anyone to apply. During the shortlisting process as well as the interview

process a Union representative from both NAPTOSA and SADTU were involved. During the interview

process, he tried to stop the noise which someone made with the pulling of a gas-cylinder. The

chairperson of the interview panel requested him to assist one of the scorers who made a mistake on her

scoresheet. He first enquired from the Union representative if he could assist the scorer before he assisted

the scorer. The NAPTOSA representative failed or refused to sign the declaration form immediately after

the interview process. He had to go to the latter representative’s school who signed it after some time. None

of the Union representatives reported any irregularities at the interview process.


10. Mr. L Nokhonya, the chairperson of the interview panel testified that he was an Administrative Clerk

of the school. At the time of the recruitment process, he was not an SGB member. However, he was

elected as a non-teaching staff member to chair the interview process. During the shortlisting and

interview process both unions were present. During the interview process, one of the scorers had an

issue with her scoresheet. The School Principal approached the Union representative, who advised that

he may assist the scorer. No irregularities were reported during the processes. The SGB held the

ratification meeting and confirmed the recommendation of the candidates.

11. Mr. M Mgubanto, the incumbent testified that he applied for the vacancy, which was advertised in an open

bulletin. He applied because he noticed that the subjects required was what he was qualified to teach.

He holds a BEd: Economic and Management Science degree and also did a Mathematics Skills Upgrade

Programme. During his degree studies he did Skills and Life Orientation, which include computer literacy.

He taught Mathematics and EMS at his previous school, where he was already and HOD, post-level 2.

He was also the curriculum leader. He currently teaches Mathematics for grade 7. He is a qualified and

experienced teacher in Mathematics.


ANALYSIS OF EVIDENCE AND ARGUMENT

12. The parties were granted an opportunity to submit written closing arguments, which I have considered.

13. Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as

meaning inter alia:

(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an

employee involving —

(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes

about dismissals for a reason relating to probation) or training of an employee or relating to the provision

of benefits to an employee;…

14. The Labour Relations Act requires employers to treat employees fairly when they apply for promotions.

An employee who alleges that she is the victim of an unfair labour practice bears the onus of proving

all the elements of her claim on a balance of probabilities. The employee must prove not only the

existence of the labour practice, but also that it is unfair.


15. Fairness requires that the position and interests of both the employee and employer are taken into ac-count

in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or

value judgment to established facts and circumstances. In doing so, it must have proper regard to the

objectives sought to be achieved by the Act.

16. The Applicants submitted that the interview panel was not properly constituted. The Applicants also sub-
mitted that the incumbent should not have been shortlisted as he did not meet the minimum require-ments
for the vacancy and that the Applicants were suitably qualified for the position of Head of Department. The
Applicants further submitted that one of the scores was unduly influenced. The minutes of the interviews
were fraudulent in that it contains the same date stamp, 1 November 2022 as well as that the prema-turely
assumption of duty form. It was common cause that the shortlisting process was conducted on 25 Oc-tober
2022 and the interviews were held on 1 November 2023. It is clear that all the documents were date
stamped by the resource person when it was processed.

17. The Applicants took issue with the fact that the Applicant taught at a High School. The advertisement
stated grade 1 to 7 which they submitted falls within the General and Education Training (GET) band. The
Applicants also took issue with the fact that section 19 of the application form of the incumbent was not
completed. Section 19 required the highest REQV level and the highest NQF level. The educator em-ploy-
ment profile form (EDP 01) form combines the information in the standard application from and the stand
ard CV information into one Employment Profile Form. Although the standard form may still be used as
an alternative, SGBs require the maximum amount of information in order to shortlist candidates. The
Incumbent submitted that he was not sure about the REQV and NQF level, but he has included all his
qualification documents. It was common cause that the unions were part of the shortlisting process and
did not object to the inclusion of the incumbent on the shortlist.

18. The Department of Basic Education officially groups grades into two “bands” called General Education
and Training (GET), which includes grades 1 to 9 and Further Education and Training (FET), which in
cludes Grade 10 to 12 as well as non-higher education vocational training facilities. The incumbent sub-mitted that he taught from grade 8, which fall within the GET band. It was common cause that the
iIncumbent was a qualified educator who offered Mathematics and EMS. It is common cause that
mathematics is a critical school subject.

19. The incumbent submitted that he was the curriculum leader at his previous school. The incumbent also
submitted that the subjects in the GET band remain the same and that it is only the content that differs,
which is clearly stated in the CAPS documents. The Applicants submitted that the incumbent did
not have computer qualifications and therefore should not have been shortlisted. There was no such
requirement for the vacancy, it clearly stated computer literacy. The incumbent testified that during his
University studies he acquired computer skills, especially with the subject Skills and Life Orientation, which
he passed with distinction as per his academic record.

20. In respect of the Applicant’s issue with the composition of the interview panel and in particular the chair
person, who was not an SGB member at the time, the Chairperson, Mr Nokhonya, testified that he was
elected by the staff to form part of the interview process, because the other non-teaching staff member
was not available and he was a member of the SGB since 2009 until 2021. He had experience in the
recruitment process. Both the Applicants were part of the very same staff and they did not object to his
inclusion of the panel. Neither did the Unions object to him being on the interview panel. It was common
cause that the request for Mr Nokhonya’s inclusion of the interview panel was made in advance. It was
only signed by the District Director afterwards. Only when the outcome of the process was not in the
Applicants’ favour, they have raised the issue. The question is whether they would have raised the issue
if one of them had been appointed in the vacancy.

21. The Principal, Mr. Rulwa testified that he was instructed by the chairperson to assist one of the scorers,
Ms. Stemela, who had a problem with her form. Mr Rulwa also testified that he approached the Union
observer first for consent before attending to the scorer. The chairperson, Mr. Nokhonya confirmed that
he requested that the Principal attend to the scorer.

22. It is common cause that the incumbent was already an HOD since 2016 when he applied for the
vacancy. It was also not disputed that the incumbent was experienced in management and administra-tion

and duly qualified to teach mathematics.


23. The aim and duties of the HOD is to engage in class teaching, be responsible for the effective func-tioning
of the department and to organise relevant/related extra-curricular activities so as to ensure that the
subject, learning area or phase and the education of the learners is promoted in a proper manner, which
the incumbent testified he is competent in fulfilling. The duties and responsibilities of the job are
individual and varied, depending on the approaches and needs of the particular school.

24. The Applicants did not provide any constructive or substantive evidence of biasness by the interview
panel. It was common cause that both Union observers were present when the rankings were finalised. It
was further common cause that the SGB made the recommendation to the Department of Education.
None of the Union observers reported or declared any irregularities during the proceedings.

25. The Labour Appeal Court considered the balance that must be struck between the managerial

prerogative to promote employees and the principle that labour forums must intervene in the labour arena

if fairness so requires. The judgment in Ncane v Lyster 2017 38 ILJ 907 (LAC) confirms that labour

forums and the court will not easily interfere with an employer’s decision regarding who should and who

should not be promoted.

26. In Noonan v SSSBC and others [2012] 33 IJL 2597 (LAC), it was held that there is no right to promo-tion
in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that

denies an Employee an opportunity to compete for a post constitutes an unfair labour practice. If the

Employee is not denied the opportunity to compete for the post, the only justification for scrutinizing the
selection process is to determine whether the appointment was arbitrary or motivated by an unaccepta-ble
reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not
constitute unfairness justifying an interference with the decision to appoint.

27. Having considered the evidence in its totality, I am convinced that the 1st Respondent has granted the
Applicants a fair opportunity in presenting their candidature for the vacancy and that the Applicants failed
to discharge the onus to proof that the 1st Respondent committed an unfair labour practice as envisaged
by Section 186(2)(a) of the LRA.

28. I therefore find that the Applicants are not entitled to the relief sought.

AWARD

29. The 1st Respondent, the Department of Education-Eastern Cape, did not commit an unfair labour
practice as contemplated by Section 186(2)(a) of the LRA.

30. The Applicants Ms. N Nohesi and Ms. N Mavuma are not entitled to the relief sought.

31. No order as to costs.


Signature:

Commissioner: Hadley Saayman
Sector: Education