ELRC150-20/21KZN

IN THE ELRC ARBITRATION
BETWEEN:

KHOSA, A L The Applicant
and
THE HEAD OF THE DEPARTMENT OF EDUCATION
– KWAZULU-NATAL The First Respondent”
&
Zondi, BM The Second Respondent

ARBITRATION AWARD

Case Number: ELRC150-20/21KZN

Last date of arbitration: 8 November 2023

Date for submission of closing arguments: 15 November 2023
Date of award: 22 November 2023

J KIRBY
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration commenced on 5 June 2023 and was finalized on 8 November 2023, after which both parties elected to submit written closing arguments.

2. The Applicant, A L Khosa, was represented by Mr Ngcobo on 5 June 2023 and by Ms Dube on 8 November 2023, both of whom are officials of SADTU. A bundle of documents, marked as exhibit A was submitted on behalf of the Applicant, who testified along with another witness.

3. The First Respondent, the Head of the KwaZulu-Natal Department of Education, was represented by its employee, Mr Daniso. A single witness testified on behalf of the First Respondent.

4. The Second Respondent did not attend and was not represented at the hearing. I was satisfied that notice had been given to the Second Respondent and proceeded in his absence.

5. The proceedings were digitally recorded and interpreted.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

6. I am required to determine whether the Applicant was subjected to an unfair labour practice relating to promotion as provided for in section 186(1)(a) of the Labour Relations Act 66 of 1995 (LRA.)

BACKGROUND
7. The parties agree that the post in question is post 754 as advertised in circular HRM 36/2019, being that of the principalship of Maqongqo Primary School (the School.)

8. The Applicant at the time was an educator at the School.

9. The Applicant was shortlisted to be interviewed for the post.

10. The Applicant did not attend her interview.

11. The interviews of the other shortlisted candidates took place and the Second Respondent was recommended for the post by the interview committee and was ultimately appointed.

12. The Applicant avers that she was prevented from attending her interview as a result of threats received by her and that it was unfair of the First Respondent to have appointed the Second Applicant without having interviewed her.

13. The Applicant seeks to have the appointment of the Second Respondent set aside and the appointment process to be recommenced from the interview phase.

Survey of evidence
The Applicant
14. The Applicant testified that:
14.1. She was invited to the interviews to be held at the School on 19 December 2019;
14.2. On the morning of the interviews, she had received an “SMS” message. The gist of which was that should she attend the interview she would be murdered and her body dismembered. The message further stated that the preferred candidate was Shabane. (Shabane was interviewed but not recommended for the post;)
14.3. She immediately thought of contacting the resource official of the interview process. She then noticed that she had missed calls from him. On contacting him she told him about the threat. He said that he would discuss the issue with the Mvubu and revert to her. He did so, advising her to inform the police. The chairperson then called advising her to ask the police to escort her to her interview;
14.4. The police refused to grant her an escort indicating that the station has only one available vehicle. She had again contacted the resource official who advised her to try a different police station. She did so but received no assistance. It had been indicated to her that were she not to attend her interview on that day, she would forfeit the opportunity to be interviewed;
14.5. She had previously received a similar threat during October 2019;
14.6. The venue for the interviews could have been changed or her interview could have been held remotely to accommodate her.

15. Under cross-examination the Applicant stated that:
15.1. The original interview score for Shabane had been lowered after the intervention of the NATU representative;
15.2. As she had been invited for an interview, it was those who had invited her who had the responsibility of ensuring that it was safe for her to attend.

16. Thokozane Frieda Ngubane (Ngubane) is an educator at the School and she was a member of the interview committee and its secretary. She states that:
16.1. When the Applicant had called the resource official he had placed his phone on speaker mode so that the committee could hear what she had to say;
16.2. The Applicant had stated that she had been threatened;
16.3. The resource officer had indicated that he had not dealt with such a situation before and would seek advice;
16.4. The interview committee had discussed the issue. The resource official had suggested that they commence with the interviews and wait to see if the Applicant arrived. The committee followed this suggestion;
16.5. The Applicant had not arrived for her interview. The chairperson had suggested that they redo the interviews but this suggestion was opposed by the resource official;
16.6. The scores allocated to the candidates were a true reflection of the interview process but certain of the scores had been adjusted.

17. Under cross-examination when it was put to her that her evidence was not supported by the minutes of the interview committee (at pages 3-5 of exhibit A,) Ngubane disputed the correctness of the minutes and that she had signed them.

The Respondent
18. Dabazinhle Dube (Dube) is the circuit manager responsible for the School and he was the resource official for the interview committee. As the resource official he saw his responsibility as being to see to any procedural issues that may arise.

19. The candidates had been contacted to confirm that they were aware of the interviews. When he had contacted the Applicant she had told him that she would not be able to attend due to the threats received by her. He had told her that he would consult with his superior and revert to her. He did so and it was decided that she should approach the police for assistance as the interviews could not be suspended. He had told her as much and added that he would let her know when the last interview had concluded, after which she would give her one hour to arrive for her interview. This decision had been reached collectively by the interview committee. When he had phoned after the last interview she had told him that she would not be attending her interview as she was not getting any assistance from the police.

20. Both unions were present at the interviews.

21. The interview committee had decided to recommend the top scorer and as such, the Second Respondent was the recommended candidate.

22. Both unions’ representatives had signed the minutes indicating that they were satisfied with the proceedings. He disputed the evidence of Ngubane that she had not signed the minutes.

23. Under cross-examination Dube stated that:
23.1. All the candidates had been contacted before the interviews commenced. The Second Respondent had indicated that he had been unaware that the interviews were due to take place but that he would attend and the Applicant had reported the threat that she had received.

CLOSING ARGUMENT
24. It was submitted on behalf of the Applicant that:
24.1. On the day of the interviews, the Applicant had advised the interview committee of the threats received by her;
24.2. As advised she had reported the threats to the police but had received no assistance from them;
24.3. As such, the Applicant could not attend her interview;
24.4. The First Respondent was obliged to give her an opportunity to be interviewed and could not make an appointment without having done so;
24.5. The First Respondent should have dealt with her situation in a similar vein to the approach adopted during the COVID pandemic and allowed the Applicant to have been interviewed separately from the other candidates.

25. It was submitted on behalf of the Respondent that:
25.1. The evidence of Dube was uncontested;
25.2. The interview committee or school governing body could in no way be linked to the threatening message allegedly received by her;
25.3. The so-called preferred candidate, Thabane, had not been appointed and she had continued to teach at the School;
25.4. The interview committee had advised her to approach the police and had made arrangements for her to attend her interview after other candidates had left. She had not taken advantage of this arrangement.

ANALYSIS OF EVIDENCE
26. The Applicant is required to establish on a balance of probabilities that the First Respondent committed an unfair labour practice relating to promotion.

27. The Applicant does not allege and did not attempt to establish that she was the best candidate. She seeks to have the appointment of the Second Respondent set aside on the basis that she was denied an opportunity to compete for the post.

28. As such, she is required to prove that the First Respondent must be held responsible for unfair conduct by the School’s governing body or the interview committee during the recruitment and selection process.

29. No evidence was led linking the governing body or interview committee to the threat allegedly received by the Applicant. I thus need to determine whether the conduct of the interview committee, once it had been informed of the threat, rendered the process unfair towards the Applicant.

30. Two witnesses testified in respect of the conduct of the interview committee. Ngubane, the committee secretary, testified on behalf of the Applicant and Dube, the resource official for the committee, testified for the First Respondent. Ngubane disputed that she had signed the minutes of the interview committee meeting, which are included in exhibit A, and that the minutes were a true reflection of the proceedings. She never presented, however, the minutes that she would have prepared as secretary if those put up were not the minutes. Dube on the other hand indicated that given the lapse in time he could not recall everything that occurred but his recollection of the meeting was such that he confirmed that the minutes were a true record. The evidence of Dube was, in any event largely unchallenged and wherever it may differ from that of Ngubane, I accept the evidence of Dube. There is nevertheless no dispute over the key aspects of this case; namely, that the Applicant informed the interview committee of a threat received by her; she was advised to report the threat to the police; it was arranged that she would attend her interview after the other interviews had been held and she did not attend her interview. It was the evidence of Dube that this decision was taken collectively by the interview committee.

31. In her closing argument it was submitted that the conduct of the interview committee was unfair as it should have followed the guidelines developed during the COVID pandemic. HRM 43/2020 is titled “Adherence to COVID 19 protocols in the selection processes for filling posts” and provides that when only one candidate is not available for an interview at the appointed date and time, a separate interview be arranged for the candidate. This is what the interview committee did. It advised her to report the threat to the police and that it would hold over her interview until an hour after the last candidate had been interviewed. The Applicant chose not to attend the interview. No evidence was presented by the Applicant as to when or how the interview committee ought to have interviewed her and, in particular, why this decision of the committee was unfair.

32. In light of the above, I find that the Applicant has not established that the First Respondent committed an unfair labour practice relating to her promotion.

AWARD
33. The application brought by the Applicant, A L Khosa, against the First Respondent, the Head of the KwaZulu-Natal Department of Education, and the Second Respondent, B M Zondi, is dismissed.

J Kirby
Arbitrator 22 November 2023
ELRC150-20/21KZN