ELRC529-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No: ELRC 529-22/23GP

In the matter between

Martin R Mukokie Applicant

And

Education Department of Gauteng 1st Respondent

Nobuhle Ngxakaza 2nd Respondent


ARBITRATION AWARD

Date: 14 December 2023

Parties present:

Arbitrator: C Khazamula
Applicant: M R Mokokie

1st Respondent’s Rep: P Nkosi

2nd Respondent: N Ngxakaza
2nd Respondent’s Rep: L C Skhosana

Interpreter: M Moloi


DETAILS OF HEARING AND REPRESENTATION

1. The matter was an unfair labour practice dispute related to a promotion, referred to in terms of section 186 (2) (a) of the Labour Relations Act, 66 of 1995 and Part C of the Council’s constitution.

2. The dispute was set down for arbitration before me on 9 December 2022 and continued intermittently for several days until it was concluded on 6 November 2023 both virtually and physically.

3. The Applicant was initially represented by a legal representative, Jacob Matlala and later represented by Amanda Moloto also a legal representative.

4. Parties relied on a common bundle of documents as evidence. Parties further submitted closing arguments before 15 November 2023 as I directed.

5. The proceedings were electronically recorded and where applicable the services of an interpreter were used.

ISSUE(S) TO BE DECIDED

6. I have to determine whether the 1st Respondent was fair in appointing the 2nd Respondent to the post of the Principal at Isekelo Primary School or not.
7. The relief sought by the Applicant is to be appointed to the post of the Principal at Isekelo Primary School alternatively protected promotion.

BACKGROUND TO THE ISSUE

8. The Applicant was employed as a Deputy Principal since 2015 at Isekelo Primary School (“Isekelo”).

9. The Applicant applied for the Principal post level 4 at Isekelo advertised by the 1st Respondent under post number EN4ED1006 in the vacancy circular of 2021.

10. The Applicant and the 2nd Respondent were shortlisted and interviewed by the School Governing Body (“SGB”).

11. The Applicant obtained a total score of 89 and was placed as number one whereas the 2nd Respondent obtained a total score of 87 and placed as number two in the list of recommended candidates.

12. The 1st Respondent’s Head of Department (“HOD”) appointed the 2nd Respondent and that led to the Applicant declaring this dispute before me.

SURVEY OF EVIDENCE AND ARGUMENT

The Applicant’s Testimony and Evidence

13. The Applicant testified that following the recruitment process, the SGB requested a staff meeting to provide feedback on the delay of the appointment process and the announcement of the successful candidate. The process started from June 2021 until February 2023.

14. After a few days, he was congratulated by three parents who attended the meeting with the SGB. A few of his colleagues also came to congratulate him.

15. On or about 21 or 22 September 2022, the District Director (“Director”) came to the school to make a formal announcement to the staff that the 2nd Respondent was appointed to the post contrary to what he was told earlier that year.

16. There was an investigation by the 1st Respondent’s District Office (“District”) before the Director announced the successful candidate which the Applicant was concerned about because he thought that it had something to do with the direction of the HOD.

17. No one provided feedback on why the Applicant was not appointed and why the 2nd Respondent was appointed. The Director announced the appointment without providing reasons. The Director informed the Applicant that it was possible, that the HOD could decide on any candidate in the list of recommended candidates by the SGB although it was not clear.

18. The Applicant after conducting his research, expected the post to be filled within 2 months however the HOD took about 15 Months to decide on an appointment. About the ELRC Collective Agreement 1 of 2021 , the Applicant submitted that clause 16.2 that the HOD should decline the recommendation of the SGB within 14 days and the HOD took about 13 months to do so.

19. The Director wrote a letter to the HOD on 11 August 2011, stating that she disagreed with the recommendation of the SGB and recommending the 2nd Respondent to be appointed to the post. The Director further communicated with the SGB and the SGB were insisting on the Applicant as a number one recommended candidate.

20. The Applicant testified on the extract of section 6 (3) (b) (I to v) and (c) Employment of Educators Act (“the EEA”) and submitted that the Director over-reached her function because she did not have the powers to recommend against the recommendation of the SGB. Only the HOD has those powers.

21. The Applicant testified about his work experience and submitted that he had more experience than the 2nd Respondent in terms of having worked in more institutions whereas the 2nd Respondent had been at Isekelo for 32 years.

22. The Applicant submitted that Circular 9 of 2020 (“Circular 9”) which dealt with gender equity had to be followed. The selection and interview panel took note of Circular 9 however the 1st Respondent used that against him. The Applicant suggested that Circular 9 was used twice at the SGB level and the Director level.

23. The Applicant believed that he was unfairly treated because the advert did not state that equity would be considered. The 1st Respondent wasted his time by shortlisting him if the recommendation was based on gender imbalance. He submitted that at the time of his application for vacancy two males were appointed to the Principal post.

24. The Applicant’s 2nd witness Lindikhaya Sityata (“Sityata”) testified that he was the chairperson of the SGB and the Chairperson of the selection and interview panel for the post of the Principal at Isekelo.

25. As the chairperson of the panel, his role was to ensure that the interviews that took place were correctly done. Sityata confirmed that he and other panel members received training on Circular 9 from the 1st Respondent’s Emily Mochele (“Mochele”) on how to conduct interviews after they received guidelines on how to conduct the interviews. The 1st Respondent’s District office representative was Mr Kgomo.

26. Mochele informed them that gender equity (“equity”) would be applied during the shortlisting process. During the interview process, equity was not applicable as the candidates had to sell themselves. In the shortlisting process, female candidates got two points automatically for equity.

27. Based on the guidelines, Mochele informed them that they should make a recommendation for candidates for appointment by order of preference and thereafter the file should be taken to the 1st Respondent.

28. If the 1st Respondent’s District office declines the recommendation, they must explain the reasons to them. If the SGB agrees with the explanation from the 1st Respondent’s District then the file will be handed to the 1st Respondent’s head office and thereafter the HOD will make the appointment. The guidelines stated that the Director had to respond to them within 20 days which did not occur.

29. On or about 26 or 27 July 2021, the SGB wrote to the Director because the Principal was supposed to commence the post on or about 3 August 2021. Satyata received a call from Mochele and he told Mochele that he was supposed to receive a call from the Director.

30. At around 9H00, Satyata received a call from the Director informing him that she received the letter even though the letter was insulting and proposed to meet with them because she was free on that day.

31. The purpose of the meeting was because the Director did not respond to SGB about the letter they wrote to her about the recommended candidates and that based on the guidelines the Director had to respond to the SGB within 20 days which was not the case. Further, if the Director did not respond to them about the recommended candidates within 20 days it meant that the SGB recommendation stood.

32. Satyata submitted that based on his understanding the Director violated the guidelines hence the SGB wrote letters informing her that she violated the guidelines.

33. The Applicant’s 3rd witness Peace Hlaheng (“Hlaheng”) testified he was the Secretary of SGB at Isekelo and his responsibilities inter-alia was to take minutes.

34. Hlaheng submitted that there was a ratification meeting where the SGB members were called by the Mochele on 28 June 2021 to explain the recruitment process. They informed the SGB that seven candidates applied for the post (5 x females and 2 x males).

35. During the shortlisting, the panel should look at the number of female Principals compared to male principals to address the imbalance. The application of equity would end at the shortlisting process and when it came to the interview process the candidates were expected to motivate and market themselves.

36. A day later after the interview, the file was submitted to the 1st Respondent’s district. The SGB’s recommended candidates based on their achieved score were as follows; (1) the Applicant, (2) the 2nd Respondent and (3) Ledwaba.

37. On or about September 2021, the SGB received an email from Mochele informing them that the Director had appointed the 2nd Respondent. The SGB did not have a problem with who was appointed however they questioned how the Director had appointed the 2nd Respondent.

38. One of the documents informed them that if the 1st Respondent’s HOD was not happy with the SGB recommendation they were supposed to meet with the Director to explain how she appointed the 2nd Respondent so that they could have a mutual understanding. They met with the Director in February 2022.

39. The SGB felt disregarded by the Director’s email response which came long after 14 days of consultation had elapsed. The SGB expected that if the 1st Respondent did not agree with the panel recommendation, a meeting would be called with the SGB to consult not with written correspondence.

40. Hlaheng submitted that section 6 (3) (b) of the EEA in that the HOD may decline the recommendation of the SGB was not followed because, in February 2022, they had a meeting with the Director where they discussed the appointment and the declination of the SGB recommendation.

41. The Director stopped Mochela over the telephone from sending the letter of appointment because of the parents’ complaints. They had a meeting with 1st Respondent Nkosi during the investigation of parent’s complaints and Mr Tau, the Chief Director.

42. In all meetings with the officials of the 1st Respondent, they discussed why the panel recommendation of the SGB was disregarded and why the 1st Respondent took longer than 14 days to decline the recommendation of the SGB. The last meeting was with Mr Nkosi of the district informing them that the Director had appointed the 2nd Respondent.

43. The Applicant's 4th witness Phumzile Mahlobo (“Mahlobo”) testified that she was the panelist during the shortlisting and interviews of the Principal post at Isekelo.

44. Mahlobo supported the version of Applicant’s Witnesses two and three in that equity would only be applied at the shortlisting stage. The SGB followed the process based on the training received from Mochele. Seven candidates were shortlisted for interviews ( 5 females & males)

45. After the interview process, they recommended a male and two females. The candidates were ranked according to the points they received from highest to lowest.

46. After the interview process, the SGB recommended the Applicant and the rule was that there must be a complaint within 21 days however the Chairperson was contacted long after 21 days had passed that the 1st Respondent had appointed the 2nd Respondent to the post. That raised a lot of questions.

47. The SGB requested the Director to visit them and offer an explanation. The Director stated that she requested Mochele to provide them with the explanation however they informed the Director that nothing was explained to them.

48. The Director instructed Mochele not to contact the 2nd Respondent to sign the appointment letter because she was in discussion with the HOD. The meeting between the Director and the SGB was minuted.

49. After the meeting with the Director, the SGB waited for the HOD to visit them. They asked similar questions to the one which was asked to the District Director. The HOD sent a representative, who told them that the HOD had applied equity to appoint the 2nd Responded and they were correct to recommend three candidates however they did not have a right to determine who should be appointed.

50. The SGB asked the HOD’s representative reasons why they were involved in the selection and recruitment process because they felt that they were being used if they did not have a right to appoint. The representative told them that he would report back to the HOD. The meeting ended like that and the 2nd Respondent was appointed as it was said.

51. The SGB did not agree with the decision of the Director and they came to the 1st Respondent district offices and left after 18H00 because they felt that the decision had already been made. In the end, they did not say anything and the Director said that the 1st Respondent was proceeding to appoint the 2nd Respondent.

52. The SGB was interviewed by Nkosi during the investigation. The investigation report of the Nkosi investigation was not provided to them as they were waiting for it. They were told that the investigation report was confidential. Mahlobo submitted that if she had seen Nkosi's report before, she would have told the 1st Respondent that the report recommended the Applicant.

53. Mahlobo submitted that the SGB needed a person who would manage the school properly and they did not favour anyone. According to the scoring, the Applicant was the top candidate.

The Respondent's Testimony and Evidence

54. The Respondent’s only witness Emily Molebogeng Tabia Mochela (“Mochela”) testified that she was employed by the 1st Respondent as the Assistant Director: HR with the responsibility of recruitment of school-based and office-based posts.

55. About the post of Principal at Isekelo, Mochela capacitated the SGB to make sure that they were ready to conduct the recruitment process. Part of the training included the presentation of documents which they need to use and policies.

56. During the training, she covered Collective Agreement 5 of 2005 and Circular 9 of 2020 (“Circular 9) which indicated that there was an underrepresentation of females in the principal posts in the Gauteng Province. The majority of the principal posts were occupied by males. The 1st Respondent had to set targets and Circular 9 indicated targets to be met to balance out the underrepresentation of females in the principal posts. This information was articulated to the SGB.

57. The equity had to be implemented at the shortlisting stage. The Director had to implement equity after the SGB had recommended the candidates for appointment. At the approval stage, the HOD also had to implement equity. This was explained to the SGB during the capacitation training in 2021.

58. Mochela testified about the route form . The SGB recommended the Applicant however the Director amended the SGB recommendation for the second candidate through a signature which was supported by the Director: of Recruitment and Selection, Chief Director: of Strategic HR Management, Deputy Director General: of Corporate Management and the HOD for the appointment of the 2nd Respondent .

59. Mochela submitted that the HOD may appoint any suitable candidate despite the order of preference . Mochela drafted a memorandum to the HOD after the Director had consulted with the SGB . The document indicated equity analysis of the applied candidates. In point 5 of the memorandum, the Director did not support the recommendation of the SGB.

60. The Director had to consult with the SGB either in writing or calling a meeting . The Director wrote to the SGB on 29 July 2021, that she rejects the list and stated the reason . Concerning the requirement of the HOD to call a meeting or provide full motivation within 14 days to discuss the rejection of the recommendation, Mochela submitted that upon receipt of the recommendation, there were processes which had to be followed. One of the challenges could be that the candidate's file would go back and forth to be rectified and that the recommended candidates had to go for verification. The process may be slow.

61. The HOD gave the Director instruction to submit a performance review report of the 2nd Respondent, to investigate allegations levelled against her post and personal development on the matter was found to require improvement from the HR point of view . The request was done.

62. The file went back after the SGB was given feedback but the SGB disagreed. The file went back to the HOD for consideration and he insisted on signing on 25 January 2022. The SGB still insisted that they did not want the 2nd Respondent. The file went back to the HOD who appointed the 2nd Respondent on 12 April 2022 which was the final date of approval.

63. Mochela disputed the evidence of Mahlobo in that they did not receive the investigation report. Mochele submitted that a meeting was convened between herself, Nkosi and the SGB. The report was read and explained. A copy of the report was handed to the SGB chairperson. Mochela again submitted that after the report back to the SGB, the Director changed her mind and supported the recommendation of the SGB to appoint the Applicant however the HOD had the final word.


ANALYSIS OF EVIDENCE AND ARGUMENTS

64. During the earliest days of this arbitration, it was determined that there was nothing wrong with the shortlisting and the interview process undertaken by the SGB. The main issue in dispute was the decision by the HOD to appoint the 2nd Respondent.

65. The proceedings were adjourned to allow the Applicant to subpoena the HOD because the onus of proof rested with the Applicant however the Applicant opted not to call the HOD to testify.

66. I disagree with the Applicant’s attempts in closing argument to shift the onus of proof to the Respondent concerning the HOD to testify because the Applicant was forewarned about the importance of the HOD to testify as he was the one who made the final decision to appoint the 2nd Respondent hence arbitration proceeding on 01 February 2023, inter-alia was adjourned to allow the Applicant to subpoena the HOD.

67. It was a common cause that the SGB recommended three candidates for appointment and the Applicant was ranked number one whereas the 2nd Respondent was ranked number two.

68. The Applicant referred a dispute because he was the number one candidate on the list of recommended candidates and again because he was congratulated by some parents that he was the successful candidate however the HOD appointed the 2nd Respondent.

69. I agree with the 1st Respondent’s closing argument that the Applicant did not substantiate his version by calling any witnesses to corroborate his version. It is not probable that the parents would congratulate the Applicant without any letter of appointment or formal communication from the 1st Respondent or the SGB about the appointment.

70. The Applicant did not receive communication from the 1st Respondent that may give a reasonable expectation that he was or may be a successful candidate. It was not clear on what basis the Applicant would believe the parents unless this was the Applicant’s invention to strengthen his case.

71. According to the evidence, not even the SGB or panel members can congratulate the Applicant based on the recommendation because it was a common cause that the HOD was the appointing authority, not the SGB and therefore it was only the HOD or his delegated responsibility that can pronounce on the appointment.

72. The Respondent’s case was that there was nothing wrong with the process undertaken by the SGB. This version was supported by Mochela’s testimony in that she trained the SGB to apply equity in the shortlisting process. It was a common cause that the HOD was an appointing authority.

73. I find that the evidence of who was better qualified between the Applicant and the 2nd Respondent irrelevant to this dispute. According to the evidence, the qualification and experience were a motivation to the HOD to appoint the 2nd Respondent. The primary reason for appointing the 2nd Respondent was gender representation which was a common cause to the parties that females are under-represented in the Principal post with males dominating.

74. It was a fact that the SGB were capacitated by Mochela about the processes of recruitment of the Principal post and the relevant statutes to ensure that they were ready to conduct the recruitment process.

75. Mochele expanded this version when she testified in her evidence-in-chief that as part of the capacitation of the SGB members, her training covered Circular 9 which was an implementation of the employment equity plan.

76. Mochela’s version that the equity had to be implemented by the SGB during the shortlisting stage, by the Director during the recommendation stage by the SGB and by the HOD during the approval stage was not disputed by the Applicant.

77. Mochela testified about the obligations of the SGB about Circular 9 which was also not disputed. Accordingly, the Applicant’s witnesses complied with Circular 9, by considering equity in the shortlisting however to suggest that application of equity ends at the shortlisting process will conflict with Circular 9 and its purpose.

78. Mochela’s version was probable, reliable and credible in that the equity had to be applied in all stages of the recruitment process and this was not disputed by the Applicant. What was disputed by the Applicant was the approval in the route form however there was consistency of the decision by officials of the 1st Respondent which supported Mochela’s version that the 2nd Respondent should be appointed based on equity.

79. I noted that the HODs became reluctant to approve the appointment of the 2nd Respondent and instructed the Director to investigate others primarily because the SGB did not agree with the appointment of the 2nd Respondent. The Director changed her mind in support of the 2nd Respondent based on the investigation report however it was not the Director who had the responsibility to appoint but her responsibility was limited to a recommendation.

80. Despite the Director’s change of mind and in line with Mochela’s version, the HOD also had the responsibility of applying equity and he was within the applicable laws to do so. I therefore find that the 1st Respondent acted per Circular 9 to appoint the 2nd Respondent and the HOD’s decision to appoint the 2nd Respondent was rational and fair.

81. The Applicant and his witnesses testified that the HOD had to object to the SGB recommendation within the stipulated time limit of 14 days but missed it. What should be noted was that the Applicant’s witnesses were contradicting themselves about the time limit. Mahlobo testified that the time limit was 21 days and Satyaa testified that it was 20 days. This contradiction suggests SGB’s limitation of the rules applicable to the appointment process.

82. The Applicant relied on Collective Agreement No. 1 of 2021 which read: “In cases where the Head of Department or his/her delegated authority declines the School Governing Body’s recommendation he/she must provide full motivation in writing within 14 days or call a meeting with the School Governing Body to discuss the rejection of the recommendation and to minute the decision taken in the meeting. Should there be no communique within 14 working days from the Head of Department of his/her delegated authority it will imply that the recommendation made by the School Governing Body stands”.

83. According to the Applicant’s version in this regard, the decision made by the SGB stands meaning that the HOD because he missed the 14 days limit, he was supposed to be appointed however I disagree with the Applicant’s interpretation because it does not take away the decision of the HOD to appoint. Mochela's version was that the HOD has the power to appoint any suitable candidate.

84. According to section 6 of the EEA, It was a common cause that the SGB made a recommendation to the HOD in line with sub-section (3) (a) and complied with sub-section (3) b (i to v) however the SGB testimony seems to be at odds with section 7 (1) which they obliged to comply to especially sub-clause 1 (b) which read: “the need to redress the imbalances of the past in order to achieve broad representation” which in my view supports the decision of the HOD.

85. The SGB must submit the recommendation of the candidates according to their order of preference to the HOD in terms of sub-section 3 (c) (i) for his consideration in terms of sub-section 3 (d) however the HOD before making an appointment must ensure that the governing body has met the requirements of sub-section 3 (b). The HOD can only decline the recommendation of the SGB if the SGB does not meet the requirement of sub-section 3 (b).

86. Sub-section 3 (f) empowers the HOD to appoint any suitable candidate despite the order of preference by the SGB. Both the Applicant and the 2nd Respondent were suitable candidates on the list. In this regard, the HOD is empowered to appoint any suitable candidate on the list, despite the SGB order of preference in the list of recommended candidates and only if the HOD is satisfied that the SGB met the requirement of sub-section 3 (b).

87. I do not agree with the Applicant's version that after the HOD had declined the recommendation of the SGB and did not consult with the SGB within 14 days and that the SGB recommendation stands, meant that the Applicant should automatically be appointed because he was a number one candidate in the order of preference of the list of recommended candidates by the SGB.

88. The order of preference is not the same as the recommendation but a part of the recommendation. This is because of the HOD’s empowerment to appoint any suitable candidate in the order of preference of the recommendation of the SGB. I therefore find that there was no requirement or basis for the HOD to comply with item 16.2 of the collective agreement no. 1 of 2021.

89. When the HOD declines the recommendation of the SGB meaning all the candidates in the list of recommended candidates by the SGB, the HOD is empowered by the EEA to consider all applications submitted to that post in terms sub-section 3 (g) (i) however item 16.2 of the collective agreement no. 1 of 2021 introduced additional requirement when the HOD declines the recommendation of the SGB. This means that the HOD before invoking his powers in terms of sub-section 3 (g) (i) must first comply with item 16.2 of the collective agreement no. 1 of 2021.

90. In practical terms, after the HOD has complied with item 16.2 of the collective agreement no. 1 of 2021, must consider all applications submitted to that post including those who were not shortlisted by the SGB. This means that the HOD must run the shortlisting process from the beginning without the SGB involvement because they failed to meet the requirements of sub-section 3 (b) (i) to (iv) and must apply this requirement in terms of sub-section 3 (g) (ii).

91. To conclude, I find that the Applicant failed to prove on the balance of probabilities the alleged unfair labour practice by the 1st Respondent. The 1st Respondent's decision to appoint the 2nd Respondent was rational, procedural and substantively fair.

AWARD
92. I, therefore, issue the following award;

92.1. The Applicant’s application of a dispute of unfair labour practice in terms of section 186(2) (a) related to promotion is dismissed.

92.2. The ELRC is directed to close the file.

Chance Khazamula (ELRC Panelist)
Date: 13 December 2023