ELRC755-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MTHATHA
IN THE ARBITRATION
BETWEEN
NAPTOSA OBO TSHIQI M APPLICANT NO 1
SADTU REGION OBO MZANTSI N O APPLICANT NO 2
AND
DEPARTMENT OF EDUCATION – EC 1ST RESPONDENT
SADTU BRANCH OBO DLEKEDLA Z 2ND RESPONDENT

ARBITRATION AWARD

CASE NO ELRC755-22/23EC
DATE/S OF HEARING 10/05/2023,27-28/07/2023,19/09/2023 & 20-21/11/2023
DATE AWARD SUBMITTED 07/12/2023
NAME OF PANELIST SIZIWE GCAYI


DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (“LRA”) at the Department of Education offices in Mthatha on 10/05/2023, 27-28/07/2023, 19/09/2023 and 20-21/11/2023 at 09h00. Mr A Mhlontlo an official from NAPTOSA represented Applicant No 1[ Tshiqi M] , Mr A Tyantsi and Ms S Gazi officials from SADTU Region represented Applicant no 2 [Mzantsi O N]. Ms N Damane an official, represented the first Respondent, (Department of Education Eastern-Cape). Mr L Fazi an official from SADTU Branch represented the second Respondent, [ Ms Z Dlekedla].

2. The proceedings were electronically recorded and manually recorded. The parties handed in bundle of documents in support of their cases. The Applicants bundle was named bundle A, [Applicant No1] No bundle of documents from Applicant no 2. Respondent No1’s bundle named bundle B. No bundle of documents from Respondent no 2. The parties were given up until 1st of December 2023 to submit their closing arguments to the Council.

ISSUES TO BE DECIDED

3. I am required to determine whether an unfair labour practice relating to promotion was committed by 1st Respondent. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE
4. This is a promotion dispute involving post no 200- volume 1 of 2022 being the principal post for Zwelodumo Senior Secondary School.

5. After the post was advertised, Applicant no1, no2, the 2nd Respondent and other candidates applied for the post. The 2nd Respondent was appointed as the School principal at Zwelodumo SSS.

6. The Applicants alleged that the SGB recommended Applicant no2 .1st Respondent interfered with the SGB recommendation. The 1st Respondent was biased towards the 2nd Respondent. The relief sought by Applicant no1 and no2, that the appointment of 2nd Respondent be reviewed and set-aside. The post be advertised again.

SURVEY OF EVIDENCE
Employee’s case [ Applicant no1]
7. The Applicant testified himself and called two witness in support of his case. In summary, the Applicant testified as follows: On 23/09/2022 he attended interviews for the principal post of Zwelodumo Senior Secondary School. The interview questions focused on [1] management [2] qualifications [3] financial management & [4] improving of results. It was also his evidence that he performed very well, responded well to all questions. Bundle A pg 32 [marks for all candidates] they were read on record. Applicant no2 was ranked no1. 2nd Respondent was ranked no3. Panel was bias on 2nd Respondent. Bundle A pg 35 [Ratification meeting-held on 21/10/2022] It was held 29 days after the interviews. Bundle A pg 36- Mzantsi Nkwenkwezi was ranked no1. On pg 32 candidate no3 = 71 points, on pg 36 candidate no3 = 74 points. Bundle A pg 37 [Curriculum development] read on record. No questions asked on curriculum development during interviews. Pg 38- No question asked about Ms Ncokazi. Pg 39 No question asked about interaction. The motivation on pages 37, 38, 39 & 40 was in relation to someone already at the school. Pg 49 recommendation by the district director was made on equity grounds. Pg 46 [Analysis of candidate performance] the name of 2nd Respondent did not appear. The SGB and 1st Respondent were biased towards 2nd Respondent. It was his evidence that the procedures were not followed in the appointment of the 2nd Respondent, relief he sought was that the appointment of 2nd Respondent be reviewed and set-aside.

8. He further mentioned he had been a school principal since 2016, no meeting ever conducted about employment equity plan.

9. Mr Mbuyiselo Deleki [“Deleki”] testified as follows: He started working for department of education in 1990. From year 2000 he was promoted to various positions within the department. Currently he was holding a rank of circuit manager. In the employment process of Zwelodumo SSS, he was the resource person. He trained the SGB. Panel for shortlisting and interview was established by the SGB. He also mentioned that he guided the SGB. The shortlisting was conducted fairly, interviews conducted successful. It was his evidence that during interviews his role was that of an observer. After interviews, the next step was the ratification process involving the members of the SGB. At ratification meeting he maintained the observer status. Ratification meeting was conducted by the SGB. Bundle A pg 43-51 was completed by him. On pg 48 – Chairperson of the panel signed the document in his presence. On 23/09/2022 ratification meeting was held, he was part of it. On 21/10/2022 ratification meeting as per Bundle A pg 35, he was not part of it. He further mentioned that he has never witnessed the Employment Equity Plan period October 2021-September 2024. He has never trained the SGB on the Employment Equity Plan.

10. Mr Lindile Mcinga [“Mcinga”] testified as follows: He was the Deputy Director- Human Resources. He testified about Bundle B[ Employment Equity Plan] he was aware of it. First witnessed the document in May 2022. The MEC, HOD handled the Employment Equity Plan. Departmental components, districts, unions, ELRC & SGB associations were made aware of it. He further mentioned that on Bundle A pg 49 he signed the document on 14 November 2022.

Applicant no2
11. Applicant no2- SADTU Region obo Mzantsi ON, closed its case without leading evidence.
Respondent’s Case

The first Respondent.
12. The first Respondent called three witnesses. Their evidence is summarised below. Mr Khaliphe Dlabane [ “Dlabane”] testified as follows: He was employed by 1ST Respondent as an educator since 2014 .In relation to v1/2022 bulletin, he was the chairperson of the panel for the principal post of Zwelodumo SSS. He attended workshop for the SGB. They were trained by circuit managers. Shortlisting was conducted. 5 candidates shortlisted, two males and three females. After a week from shortlisting, interviews were conducted, 5 candidates interviewed. After interviews Mr Deleki invited the entire SGB. He further mentioned that he was requested by Mr Deleki to give the feedback to the SGB. Chairperson of the SGB [ Mr Matu ] was denied opportunity to ask questions by Mr Deleki. It was also his testimony that Mr Deleki gave them blank forms to sign. They did not know what they signed. Mr Deleki left with the forms. Secretary of the SGB was invited to the office of Mr Deleki with the school stamp. The following week, the entire SGB convened a meeting. They laid a complaint about the manner in which the ratification meeting was conducted. After a week, they were invited to a meeting by Mr Madaza,& Ms Songca. SGB members attended the meeting, Mr Deleki was also part of the meeting. At the meeting they expressed their dissatisfaction about the recommendation of Zwelodumo SSS. Mr Madaza confirmed that the department was at fault and promised to resolve their complaint. They were given a chance to write minutes and do their recommendation. They submitted the minutes. After three weeks Ms Songca in the company of Mr Madaza introduced 2nd Respondent as the school principal, following day she was introduced to the SGB. The circuit managers that conducted the training were: Mr Madaza, Mr Zoko,Mr Deleki & Ms Songca.The scores of the candidates during interviews were also read on record. Bundle A pg 29-32 [Minutes of the interviews] During the interviews the people in attendance were the panel members, observers & resource person. He further mentioned that he was intimidated by Mr Deleki the resource person. Mr Matu was shouted when he raised his hand. School stamp was needed for blank forms. Bundle A pg 35 [Ratification minutes of the meeting held on 21/10/2022]. They were read on record. They recommended candidate no3. Candidate no1 was not recommended because he was a male. As the SGB candidate no1 and no2 were not best candidates. SGB wanted female principal to address the imbalance of the past.

13. Ms Vuyisiwe Danisa Sibango [“ Sibango”] testified as follows: She was the secretary of the SGB. She was the panel member for the employment of Zwelodumo SSS. They were trained by Mr Deleki and others. After training they conducted shortlisting, interview process. At ratification stage, they were confused. Mr Dlabane was the chairperson of the panel. In the middle of the briefing by the chairperson, Mr Deleki took over from the chairperson and conducted the whole process. The forms were completed at Mr Deleki’s office. She further mentioned that the school stamp was requested by Mr Deleki. On Monday SGB convened a meeting about the manner how interviews were conducted. A letter was written to Mr Deleki and his seniors about the manner in which interviews were conducted. An invite was extended to SGB @ Botha Sigcau by the inspectors. Mr Deleki was part of the meeting. There was a 2nd meeting where SGB was granted an opportunity to conduct the ratification meeting. In relation to the positions awarded to candidates, she mentioned that Mr Nkwenkwezi was no1, Mr Tshiqi no2, Ms Dlekedla no3, and that she could not remember others. The signature on the school stamp was hers. Bundle A pg 29- She signed it. Bundle A pg 35[Minutes of ratification meeting] read on record. The meeting was chaired by Mr Dlabane. The 2nd Respondent was recommended because she was a female, at the workshop, they were advised to consider females.

14. Mr Victor Zolile Matu [“Matu”] testified as follows: He was the chairperson of the SGB of Zwelodumo SSS, since March 2021. During the employment process of Zwelodumo SSS, the SGB conducted shortlisting, appointed interview committee [IC]. He mentioned that the interviews were conducted, during ratification meeting, he raised his hand, before he could ask a question, the inspector informed him that they had recommended no1, no2 & no3. Inspector told them to be quite. He could not ask any questions. After two days from the interview process, SGB convened a meeting. A letter was written to 1ST Respondent requesting the entire interview process to start afresh. There was a 2nd letter written requesting candidate no3 to be the school principal. They received a reply to conduct their own ratification meeting. The 2nd ratification meeting was chaired by Mr Dlabane. Bundle A pg 35- read on record. He mentioned that he received no complaint about the recommendation of the SGB.

The Second Respondent

15. The second Respondent- SADTU branch obo Dlekedla Z closed its case without calling any witness.

ANALYSIS OF EVIDENCE AND ARGUMENT
16. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2)(a) of the Labour Relations Act (“LRA”) was committed by the Respondent. The Applicants have to convince the arbitrator that the conduct of the 1st Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.

17. I have considered the departmental guidelines for sifting, shortlisting, interview procedures.

18. I have also considered the Recruitment and Selection Policy for the department of Education-Eastern-cape. [“RSP”]

19. I have also considered, the advert in question, Open post bulletin for principals’ volume 1 of 2022. I have also considered the Employment of Educators Act 76 of 1998, Revised PAM document.

20. Section 186(2)(a) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.

21. I have to decide whether the 1st Respondent acted fairly or not, in not promoting Applicant No2 or Applicant No1 for the position of the school principal at Zwelodumo SSS.

22. It is important to note that there is no right to promotion however there is a right to be given a fair opportunity. In the present case the Applicants were given an opportunity to compete for the post. They were shortlisted, they were invited for the interviews which they attended. The outcome of the interviews was not satisfactory to them. They lodged an unfair labour practice dispute relating to promotion to the Council.

23. In NOONAN v SSSBC & OTHERS [2012] 33 ILJ 2597 [LAC], “the Court held that there was 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 constitute an unfair labour practice. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by unacceptable reason”.

24. In MONYAKENI v SSSBC & OTHERS [JA 64/13] [2015] ZALAC 17 , the Court stated that there are two components to a complaint regarding a failure to promote, an employee as an unfair labour practice. The one relates to the procedure followed by the employer, the other relates to the substantive merits and it concerns the suitability of the candidate for promotion to the post in question. The conduct of the employer may be substantively and / or procedural unfair. Substantive unfairness relates to the reason for not promoting the employee, whereas procedural unfairness relates to an unfair process applied by an employer during the course of the recruitment and selection process. [ ELRC Collective Agreement 3 of 2016]

25. It is common cause that Applicants no1[ Tshiqi] ,no2 [Mzantsi] ,2nd Respondent [Dlekedla], and other two candidates were all shortlisted and attended interviews.

26. It is also common cause on Bundle A pg 43- ANNEXURE 12-Recommended candidates, two names: of Mzantsi Nkwenkwezi and Tshiqi Mvuyisi to be submitted to the HOD.

27. PAM Chapter B para B.5.4.12 provides that “ At the conclusion of the interviews, the interview committee must rank the candidates in order of preference, together with a brief motivation and submit this to the SGB for their recommendation to the relevant employing department.” B.5.4.13 “ The SGB must after having ensured that the principles and processes stipulated in para B.5.4 have been adhered to submit to the HOD a list of at least three names of recommended candidates or fewer than three candidates in consultation with the HOD [Section 6{c} EEA 1998]”

28. There is no evidence placed before me by 1st Respondent for the recommendation of two names instead of three names. There is also no evidence that consultation took place with the HOD for the fewer candidates by 1st Respondent.

29. Conduct of the Resource person. It is also common cause that there were two ratification meetings. 1st meeting held on that day of interviews [23/09/2022] 2nd meeting held on 21/10/2022. The 2nd ratification meeting was conducted after the SGB wrote to the district director complaining about the conduct of the resource person [Deleki]. It was the evidence of three witnesses: Dlabane, Sibango & Matu, conduct of Deleki during ratification meeting was dissatisfactory, he overtook their entire process. He made them sign documents that they did not know what they contained. They distanced themselves on the recommendation of Mzantsi O, as contained in Annexure 12, bundle A pg 42.

30. In terms of the RSP, the departmental representative [observer/resource person] act as advisor and observer. They only play an observer role and not take part in the decision making, when recommendations are done. Resource person advise the panel pertaining to the relevant departmental policies, rules and regulations. As well as appropriate legislation.

31. In the current matter – Deleki did not adhere to the RSP. He provided no guidance to the SGB instead during ratification meeting he conducted the process in the manner that pleased him, according to the witnesses. He did not maintain the observer status when recommendations were made.

32. Appointment of 2nd Respondent. Defence of 1st Respondent is affirmative action. It is common cause that on the 2nd ratification meeting held on 21/10/2022, the SGB recommended 2nd Respondent. It is also common cause that 2nd Respondent was not the best candidate but 3rd best candidate. The first best candidate was Mzantsi O N[ Applicant no2] . The SGB made submissions for the appointment of 2nd Respondent. Inter alia, school needed a change, a female school principal. During their training they were advised to consider females. There were few female principals. It was also the evidence of Mcinga that the SGB members were trained on Employment Equity Plan [EEP]. I must mention that it is not clear as to when the training was conducted, and who facilitated the training. The resource person [Deleki] distanced himself from training SGB members on the EEP. It was his evidence that he never witnessed the EEP. It was also his evidence that he conducted the training for the SGB. Dlabane on cross-examination by Mr Mhlontlo confirmed that he knew nothing about the EEP. Question is who conducted the training on the EEP for SGB members of Zwelodumo SSS?

33. It was submitted by NAPTOSA that EEP was an afterthought by 1ST Respondent to cover up its unfair conduct on the two Applicants. In all the 7 posts advertised for ORTI [ OR TAMBO INLAND] only one female principal was appointed. In all other schools, male principals were promoted & appointed. Submission by NAPTOSA was not rebutted by 1st Respondent. Should I reject the submission of NAPTOSA? On what basis? Why out of seven schools only one female principal was appointed if 1st Respondent was advocating for affirmative action? Why did 1st Respondent see it fit to implement the affirmative action at Zwelodumo SSS and in all other six schools not be applicable. According to the RSP, it was the responsibility of the resource person to advise the SGB on relevant departmental policies. Deleki distanced himself on the EEP. It was also the evidence of Matu that they wished to have a female principal in their school even before interviews were conducted. The SGB wrote two letters to the district director. On the 2nd letter they requested 2nd Respondent to be appointed as the school principal at Zwelodumo SSS. Seven pages of motivation for her appointment was read on record. The motivation confirmed the version of Matu, that before the interviews they knew they wanted 2nd Respondent. I must mention that 2nd Respondent was the acting principal of Zwelodumo SSS. There is no one who trained the SGB on EEP. Mr Matu appeared to be an honest witness. He maintained his version all throughout. Where he made a mistake, he would be able to say so.

34. With this background, can we then safely say 1st Respondent applied affirmative action in a fair manner? The Eastern Cape department of Education Employment Equity Plan [2021-2024] pg 10 provides “The ECDOE subscribes to the provisions of the constitution of the Republic of South Africa and those of the EEA 55 of 1998 as amended, which seeks to provide the all citizens of the Country with equal employment opportunities. Therefore, the department is committed to address all the previous employment disparities that prevented the equity at the workplace & it has to respond equally to the DPSA’s call for 50-50 gender split and racial balance at all management level positions”.

35. It is within the rights of 1st Respondent to apply affirmative action, however in doing so, not to infringe on the Constitutional rights of other candidates. Affirmative action has to be applied in a fair manner. Affirmative action measures are designed to ensure that suitable qualified people from designated groups have equal employment opportunities and are equally represented in all occupational categories and levels in the workforce of a designated employer. Did the 1st Respondent apply affirmative action fairly in the appointment of the 2nd Respondent? The answer is NO, based on what I have highlighted above. I am also inclined to accept that it was indeed an afterthought from 1st Respondent, aiming to do damage control but it was very late.

36. Complaints raised during interview processes. There were two letters written to the district director about the manner in which the interview processes were conduct. The letters were from the SGB. The RSP section 7 deals with the handling of complaints. 7.1 provides “ any complaint raised by a representative of a trade union or any other party to the shortlisting and or interview process must be dealt with according to PAM chapter G or any other agreed upon resolution.” No evidence placed before me that complaints raised by the SGB were in deed dealt with in terms of PAM chapter G despite RSP on section 7 prescribing such. PAM chapter G provides guidelines on how to deal with grievances. In the event 1st Respondent dealt with the complaints as provided in chapter 7 of RSP, no dispute would have been declared. The 1st Respondent contributed to the dispute that has been declared by not applying its own policies. The conduct of the 1st Respondent has disadvantaged the school to properly function. I must mention that 3rd or 5th candidate could still be appointed as a school principal when there are justifiable reasons to do so. That 2nd Respondent was the ranked no 3, did not disqualify her to be appointed as the school principal. In the event 1st Respondent properly applied the affirmative action, and there were no irregularities in her appointment, I am certain that I would have arrived at a different conclusion than the one I would make. The SGB was misled by the 1st Respondent in both meetings they had after the interviews. No evidence placed before me by the 1st Respondent for non-investigation on the incident that occurred on 23 September 2023. No evidence placed before me for the outcome of the complaints lodged by the SGB to the 1st Respondent. I repeat the 1st Respondent was the author of this dispute by not applying its own policies. Where does this leave the learners when the new principal keeps on being away from the school to attend cases. How does the school function?

37. Section 6(3)(a) of Employment of Educators Act 76 of 1998 provides ”subject to par (d) any appointment, promotion,or transfer to any other post on the educator establishment of a public school or a further education and training institute, may only be made on the recommendation of the governing body of public school, or the council of the further training institution as the case maybe, if there are educators in the provincial department of education concerned who are in excess of the educator establishment of public school or further education and training institution, due to operational requirements , that that recommendation may only be made from candidates identified by Head of Department who are in excess and suitable for the post concerned.”

38. In order to have a sustainable recruitment and selection process, the results of which could be regarded as fair in all respects (both procedurally and substantively). The first Respondent ought to make the appointment to promotional position on the basis of a credible process. The SGB did not perform its functions fairly and in so doing, they infringed on the Applicants right to fair labour practices as enshrined in section 23 of the Constitution Act 108 of 1996.

39. In appointing the 2nd Respondent, the 1st Respondent relied on the fatally recommendations of the SGB. Before interviews were conducted, the SGB already had a candidate in mind which was 2nd Respondent. It is clear even on the minutes of the 2nd ratification meeting. There is no sufficient evidence placed before me by 1st Respondent for the non-appointment of Applicant no2- Mr Mzantsi O who was the best candidate or Mr Tshiqi M who was the 2nd best candidate. In the absence of a credible explanation, the glaring departures to the prescribed procedures supports the probability the SGB had preconceived the end result of this recruitment and selection process to support the appointment of the 2nd Respondent. In Aries v CCMA and others (2006) 27 ILJ 2324(LC) the Court held 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 biased manner.” To determine if the failure to promote the employee was unfair the Court in Ndlovu v CCMA and others (2000) 21 ILJ 1653(LC) stated that: “it can never suffice in relation to any such question for the complainant to say that he/she is qualified by experience, ability and technical qualifications such as university degree and the like for the post, that is merely the hurdle. The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair”.

40. The Applicants bears the onus to prove that the 1st Respondent committed unfair labour practice relating to promotion and furthermore that there was some form of unfair conduct on the part of the 1st Respondent during the promotion process and that such unfair conduct constituted an unfair labour practice and they are entitled to the relief sought.

41. Based on the evidence before me, and on what I have highlighted above, I find that the Applicants discharged the onus placed on them. The first Respondent committed unfair labour practice to the Applicants based on the reasons highlighted above. In the result, the appointment of the second Respondent into the position of Principal at Zwelodumo SSS cannot be sustained and stands to be set aside as I hereby do set it aside.

AWARD
42. I find that the first Respondent committed unfair labour practice relating to promotion as intended in section 186[2] [a] of the LRA 66 of 1995 against the Applicants.

43. The entire process that led to the appointment of 2nd Respondent as the school principal of Zwelodumo SSS is set aside and her appointment is set-aside.

44. The first Respondent hereby directed to start afresh the entire recruitment and selection process and appoint a selection panel comprising of different individuals/independent selection panel that not involved in the debacle that led to this award is appointed.
Signature:

Commissioner: Siziwe Gcayi
Sector: Basic Education