ELRC669-22/23MP

IN THE ELRC ARBITRATION
BETWEEN:

SADTU obo Siphiwe Patricia Mnisi Applicant
and
DEPARTMENT OF EDUCATION – Mpumalanga Province Respondent

ARBITRATION AWARD

Case Number: ELRC669-22/23MP

Arbitration date: 26 May 2023

Date of ruling: 28 June 2023

Pitsi Maitsha
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. On 27 February 2023 this dispute came before me at arbitration hearing. The dispute was postponed. On 21 April 2023 an arbitration hearing was held face-to-face. A final arbitration was held on 26 May 2023. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 as Amended “The Act”. The award is issued in terms of section 138(7) of “The LRA”.

2. The applicant is Siphiwe Patricia Mnisi and she was represented by Mr. James Chibi, the SADTU representative. The first respondent is The Department of Education: Mpumalanga Province who was represented by Mr. Bongani Malaza, Labour Relations Officer. The second respondent, Ms. Zodwa Zulu also attended and was represented by Mr. Bonga, the union official from NATU.

3. The parties gave the evidence under oath. The proceedings were held at the Mpumalanga Provincial Department of Education, Building 5 Government Blvd, Riverside Park, Nelspruit. The proceedings were digitally recorded, and all the recordings are submitted to the Council.

ISSUE TO BE DECIDED
4. I am required to determine whether the conduct of the respondent in not to promote the applicant constituted an unfair labour practice. If so, make an appropriate order.

BACKGROUND DETAILS
5. The parties held a pre-arbitration meeting and agreed on the following in terms of the Pre-Arbitration Minutes:
6. In terms of common cause facts:
i. The applicant commenced employment with the respondent on 03 October 2002 as Post Level 1 Educator and she is currently the Deputy-Principal at E.J. Singwane Secondary School.

ii. The Post of the Principal became vacant at E.J. Singwane Secondary School and was advertised in December 2021. She applied for the post, and she was shortlisted. She attended the interview, and she was recommended as the best third candidate. She was not appointed, but the second respondent was appointed.

iii. FACTS IN DISPUTE: The applicant disputes the substance and procedure for including the second respondent.

iv. RELIEF SOUGHT: The applicant seeks to be appointed to the post of Principal; alternatively, the appointment of the successful incumbent be declared null, and void and the post be readvertised.

7. There was a first shortlisting that took place on 28 June 2022 and Ms Zulu was not on the list of shortlisted candidates. A second shortlisting was held on 18 July 2022. The applicant and the second respondent were as a result shortlisted.

8. On 18 July 2022 the union lodged a grievance about the second respondent being included in the shortlisting and wanted an explanation for her inclusion. A response from the District Director dated 29 July 2022 stated the following: “The Department received a grievance from the second respondent on 6 July 2022 wanting a reason for not being shortlisted. On enquiring with the Department representative, it was established that her application was not part of a long list and the applications dispatched to the school. The matter was referred to Human Resources to sift the candidate. HR confirmed that the applicant applied, and she was erroneously sifted out. Here is an attached copy of the application she had applied for from the HR. The recommendation by the School Governing Body is an essential prerequisite for the appointment of educator in the position. The Department will take over the process from the SGB”.

9. She is earning a gross salary of R41 737,62 per month.

10. Aggrieved by failure to appoint her, the applicant referred an alleged unfair labour practice dispute relating to promotion to the ELRC.

THE EVIDENCE OF THE APPLICANT

11. The applicant testified that the principal post was first advertised in 2019 and was readvertised in 2021.

12. She testified that she did apply for the post, and she was shortlisted. She attended the interview. On 28 June 2022 she received a call from the Interviewing Committee chairperson inviting her to the interviews that were due to take place on 18 July 2022. Whilst preparing for the interviews, she received a call from the interview committee chairperson again saying that they were going to reschedule the interviews as they have received something the interviewing committee needed to look at. He did not disclose what it was. He did not give her the reason why the interviews were not continuing.


13. She testified that she then received another call saying that the interviews would be held on 31 July 2022. Her union told her that there was someone that was included who was not there. On 15 November 2022 Ms Zulu was introduced as the principal of the school.

14. She testified that she went to the ELRC the next day. She felt that the SGB and the Circuit Manager played a role. She testified that there were four candidates who attended the interviews.

15. She testified under cross examination that Mr. Khoza told her that he did not have an answer. She agreed that there were two candidates who were shortlisted. The confirmation of shortlisting was signed by Dlamini. She testified that the date of stamp on the Application Form for Educators Post was 15 December 2021.

THE EVIDENCE OF LUCKY KHOZA:
16. He testified that he was aware of the post that existed at E.J. Singwane. At the interview he was an observer. As the observer, they deal with the integrity of the process.

17. He testified that observers are normally t shown the schedules. Shortlisting was done twice with two schedules.

18. He testified that after application forms have been sent to the district, the district sifts the applications, whereby those that do not meet requirements are put aside, they are not sent to the school. After that process, the unions are called to observe the sifted applications if there is an error in the sifting. If everything has been verified, they send them to the school.

19. He further testified that in this process he was not personally invited, but SADTU was invited. On 18 July 2022 there was supposed to have been interviews, he received a message that there was a grievance. There would be a second shortlisting to take place.

20. He testified that there was a grievance lodged with the District Director, but there was no response by the time they attended the second shortlisting. He asked the SGB why they should continue with shortlisting. He wrote a letter to the Director, and he was told over the telephone, however, he was not provided with evidence as to whether the reference should be made, why the second shortlisting was redone. He also testified that the application was brought by the Circuit Manager, Mr. Mabuza. The process lacked integrity. He testified under cross examination that he was an observer.

THE APPLICANT’ CLOSING ARGUMENTS
21. Mr. James Chibi argued that the first witness failed to explain before the proceedings that the unions are invited to check that all the sifted applications have valid reason attached to them before schedules are sent to schools. He stated that the Assistant Director for the Staffing acted outside the laid rules and according to them, it showed bias to Mrs. Z.S. Zulu’s application. He indicated that all panel members sign a code of confidentiality when shortlisting and interviewing takes place. The NATU observer could not stick to that principle because she had interest that Mrs. Zulu should be part of the shortlisted candidates even if she was not on the schedule. Hence, she divulged information that she was not supposed to divulge.

22. She argued that within the SGB, interviewing committee, Circuit Manager, the Assistant Director (Mr. Shabangu) and NATU, someone had verted interest on Mrs. Zulu. They collaborated her appointment to disadvantage the applicant of work. She also did not dispute the applicant’s version that the SGB must write to the Superintendent General of the provincial government and the latter should give permission in that regard for it to deviate from the panel. He stated that the respondent was intentionally disadvantaging the applicant by not appointing her as the second-best candidate before the appointed candidate. He submitted that he pleads with the Commissioner not to continue to punish the applicant as she has suffered unfair punishment and continues suffering prejudice due to the SGB and the Principal expectations in this matter.

THE EVIDENCE OF THE RESPONDENT
THE EVIDENCE OF JOSEPH SHABANGU: THE ASSISTANT DIRECTOR: HR STAFFING
23. He testified that his position entails verifying the vacant post, starting from circuit level to schools and to the district. He must engage managers of the circuit, schools, making him or her aware that there is a vacant post, circuit manager, district head and also to ensure that the schools comply with their given post provisioning, so that they do not have to appoint teachers beyond the post provisioning allocated. Should any school attempt to appoint beyond, he advises them that it no longer qualifies to appoint because the school would be correctly staffed. He ensures that the schools get the Level 1 teachers they need to appoint as soon as possible. He engages with different sectional managers, circuit managers and district head to discuss new upcoming HR policies and make them aware of the changes.

24. He testified that the first steps in appointing someone are that they first engage the principal from the school, if the position is that of principal, they engage the circuit manager that they need to advertise. They compile information and send it to the head office.

25. He testified that it is not possible that a person can submit an application after the closing date, because they strictly comply with the closing dates. They closed the books. The step after receiving application is to do the sifting, to see if there are applications not certified from the police station, experience, wrong captured reference numbers, and verification of qualification. If the RQV is incorrect they correct it. They sort applications according to their reference numbers. From sorting, they start capturing on the system schedule. There is a schedule for correct applications and sifting. This comes in case of complaints. After capturing them on the system, they pack them according to circuits so that circuit drivers could come to collect.

26. He further testified that a “reference number “represents the school, post and the circuit. The Circuit Managers will have to see that the SGB members are well capacitated. The Circuit Managers will strictly ensure that the process of shortlisting starts and interviews. If not capacitated, they approach the school to be capacitated. They will call the SGB to come and see the applications. Once the SGB has done with shortlisting, the file will be sent back to the district to check if the SGB has done the whole process in accordance with the Departments policy such as Legality Form is completed by panel members and SGB composition. Panel members consist of trade union members and parents, they have to ask questions to every candidate, capture the minutes, advice throughout the interview. The role of the Resource person is to advise the proceedings of the interview.

27. He also testified that if one is not shortlisted, they expect the teacher to lodge a complaint with Labour Relations, which will talk to the HR Relations section.

28. He testified that on 11July 2022 he signed a letter in which he instructed the District Director to stop the interview because there was a complaint that came from Labour stating that there was a missing application. E.J. Singwane made a complaint about a missing application. Ms Zulu was not included in the shortlisting and in the pack to the district. He testified that after receiving the complaint from the Labour Relations, the HR searched thoroughly the missing application from all received applications up until they went to the packs that went to Gert Sibande, Ekangala District, and Botshabelo District. They received a lot of applications from the Post Office. They found Ms Zulu’s application lying beneath the applications that were supposed to go to Get Sibande District. They went back to the system to capture it, issued a new schedule and a list to the district. He testified that Ms Zulu’s application was found, it was their fault, and they have Ms Zulu name appear on the system.

29. He testified that the long list was taken to the Circuit Manager and was handed to the SGB. Their duty was to correct the mistake and capture it in the revised schedule and send to the district. The SGB must decide whether to shortlist her or not.

30. He testified that Ms Zulu’s [EDU Form] for promotional post with Reference Number: 620841225 Post Level 1 was received on 15 December 2021. The application was received before the closing date. The date of submission and the date of stamp on the form Ms. Zulu signed when applying are the same. He testified that the allegations that Ms Zulu never applied, but was parachuted are not correct, are false and unfounded. He further testified that there is no policy stating that they were not supposed to have included Ms Zulu in the list. The RQV allows the candidate to be included.

31. Specifically, under cross examination he conceded that they did not call the unions to come and check if the applications that were sifted were correctly sifted or to check specifically for Ms Zulu. He testified that he did not know how Ms Zulu knew that she was not in the list, he sent the first schedule to the circuit. He testified that he did not investigate the matter. He also testified that quality assurance comes in when the unions are called. He testified that Ms. Zulu submitted her application to the district as the bundle of document. He further testified that when a person from Gert Sibande applies in person, it cannot find itself in E.J. Singwane, the challenge was that the department was using learners who make mistakes. He further testified that the factors that will make the post be readvertised are if the candidates do not meet the criteria, if there is a dispute amongst the candidates and if the labour sees the need to readvertise, it will be advertised. This one does not meet the criteria. He testified that he was interested in Ms Zulu’s application because it was his application.

THE EVIDENCE OF EDDIE BHILA: THE INTERVIEWING COMMITTEE CHAIRPERSON
32. He testified that he became the SGB member between April 2021 and November 2022. He was the treasurer. He testified that on the day they were supposed to hold interview, they received a call from the then Circuit Manager, Mr. Mabuza, notifying them that there was a letter from the District Director’s office to postpone the interview because there was an application that was lost.

33. He testified that when he received the letter, they first enquired from the resource person if such things do happen, and he advised that they do happen. SADTU objected, they noted the objection and promised to write a letter to the District Director.

34. He testified that the interviewing committee did not change the criteria. If Ms Zulu did not meet the criteria, she would not have qualified if her score was lesser than the two female scores, but if she scored lesser than the male candidates, she still had chance to be shortlisted. Ms Zulu had scored the highest 22, whilst the applicant scored 20.

35. He also testified that the panel was satisfied with the District Director’s response in which he provided that when Ms. Zulu signed for submission of her application. He testified that the panel did invite Ms. Zulu for the interview after shortlisting. The applicant was also shortlisted.

36. He testified that he no longer serves as the SGB member of E.J. Singwane. He resigned after the interview process. He testified that the members of the interviewing committee do sign a “Declaration of Confidentiality Form” during shortlisting and interviewing. He testified that the-then District Director brought a letter of complaint to the panel members. He did send it by “WhatsApp” to some of the panel members and they printed it. He further testified that the panel members did not ask anyone to read the letter, the resource person asked NATU rep to read it aloud from the testimony.

THE EVIDENCE OF THE SECOND RESPONDENT
37. Ms Zodwa Zulu testified that she wrote a letter of complaint because she is the NATU chairperson. She was aware of the schools shortlisting or conducting the interviews.

38. She testified that the evidence presented in these proceedings is enough to say she has applied.

39. She testified under cross examination that she knew that she was not shortlisted because she has the schedule. The Circuit Managers do give her the schedules.

THE RESPONDENT’s CLOSING ARGUMENTS
40. Mr. Bongani Malaza argued that it is immaterial as to who informed Ms Zulu or how she became aware that on 28 June 2022 she was not shortlisted. It was discovered that Mrs. Zulu complied with the requirements of the post. He submitted that section 3(2)(p) of the Employment of Educators Act, 76 of 1998 provides that applications are sifted with the aim to eliminate applicants who clearly do not meet the minimum requirements for the advertised post. He submitted that Ms Zulu’s application was discovered after it had been misplaced by the officials. He indicated that the application was erroneously sifted on reason that it was misplaced. He further submitted that the District Director requested the SGB to consider Ms Zulu’s application as per the criteria that had been set down in the previous shortlisting. No new criteria were set to suit Ms Zulu.

41. He also submitted that the labour organization that was affected or their member was omitted and was at all times aware of the development. He submitted that any other agreements beyond section 3(2) (d) of the “EEA “is not bidding and is unlawful, unless the parties produce an agreement that was concluded at the ELRC Chamber in which it permits union parties to peruse the applicants’ application. He further submitted that the respondent has given SADTU a full report of the incident in a formal correspondence. He indicated that in terms of section 3(3) (d) of the “EEA”, all applications that meet the requirements and provision shall be handed to the school governing body responsible for that specific public school. The first respondent has an obligation to give the SGB Ms Zulu’s application as she meets the requirements of the post and the provisions of the advertisement. He argued that the applicant was not prejudiced by the shortlisting of the second respondent. He stated that based on the testimony led by credible and/or reliable respondent’s witnesses and arguments, the act or conduct leading to the promotion of the second respondent was fair and lawful. He submitted that the respondent prays for the case to be dismissed.

ANALYSIS
42. This matter concerns an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the “LRA”. For the purpose of this award, the proof of the existence of an alleged unfair conduct by the respondent rests on the applicant. The parties had agreed to use one bundle for ease of reference. The applicant had called two witnesses. The respondent has also called two witnesses.

DEFINITION OF PROMOTION
43. The word [promotion] has been defined in a number of Labour Court, Labour Appeal Court, Supreme Court of Appeal and Constitutional Court judgements. In the Labour Court matter of the Department of Justice v Conciliation in which it defined “promotion” as follows: “Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving (a) unfair conduct by the employer relating to promotion [of an employee]. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.

44. Giving rise to this dispute is the fact that the post of the Principal at E.J. Singwane Secondary School became vacant and was advertised. It appears to me that the closing date for the post was 15 December 2021.

45. Having established the interview committee, the panel members met for the purposes of shortlisting and probably conduct the interviews. On 28 June 2022 the interview committee chairperson called the applicant to inform her that she has been shortlisted and invited her to the interviews. Apparently, the interviews were scheduled to take place on 18 July 2022. It is common cause that the second respondent, Ms Zulu, was not included in the shortlisting that took place on 28 June 2022.

46. Shortly after being informed of the date of the interview, the interviewing committee chairperson called the applicant again to inform her of the postponement of the interviews. At the time, it is not disputed that she was not informed of the exact reasons for postponing interviews. It is further common cause that on 18 July 2022 a second shortlisting took place for the same position. This second shortlisting included Ms Zulu in the list. It is this second shortlisting which is the crux of the dispute.

47. It is also common cause that the interviews were scheduled to take place on 31 July 2022. Pursuant to the shortlisting that took place on 28 June 2022, Ms Zulu submitted her complaint to the district office on 4 July 2022 relating to the shortlisting that took place at E.J. Singwane Secondary School. The Human Resource department investigated the matter, and her application was found underneath the applications that were supposed to be taken to Gert Sibande District.

48. Nonetheless, the Human Resources department investigated the matter and Ms Zulu’s application was found. Subsequently, then a second shortlisting took place on 18 July 2022. I pause here.

49. I now wish to reiterate or point out my duty in this matter as the arbitrator. According to the pre-arb minutes before me and which were read into record, there are two issues that I am required to determine namely: the reason to include Ms Zulu in the shortlisting that took place on 18 July 2022; the procedure followed to include her in shortlisting that took place on the same day.

WAS THERE ANY SUBSTANCE TO INCLUDE MS ZULU IN THE SECOND SHORTLISTING
50. Generally, the first step after the closing date of the advertised post is called “sifting”. The duty of sifting is vested with the district office of the Department of Basic Education. The purpose of sifting is to determine the applications that do not meet the requirements of the post and if found, they are put aside. Also, what is important to consider during sifting is that the trade unions are invited to observe the sifted applications to verify if there is an error in the sifting.

51. In the present case, sifting took place and pursuant to the completion, SADTU, like other trade unions, was called to observe sifted applications. Subsequently, after verifying, all applications were sent to school, specifically E.J. Singwane Secondary school. There is no evidence before me that there were errors that were discovered resulting from sifting.

52. Following sifting of applications above, the next step to follow is the shortlisting process. It is common cause that on 28 June 2022 shortlisting for the position of principal took place at E.J. Singwane Secondary School. It is also common cause that Ms Zulu’s application was not included in the applications meant for shortlisting on 28 June 2022. At this stage nothing was raised about Ms Zulu and her application.

53. It is further common cause that all shortlisted candidates were called following the conclusion of shortlisting by the interviewing committee. The chairperson of the interviewing committee called the candidates who were shortlisted, including the applicant. It is not disputed that in July 2022 Ms. Zulu lodged a grievance about the shortlisting that took place on 28 June 2022. Then the investigation to find her application commenced with high intensity.

54. It appears to me that a letter from Mr. Shabangu dated 11 July 2022 addressed to the District Director with the subject: “A REQUEST TO A DISTRICT DIRECTOR TO ASK THE SGB OF E.J. SINGWANE SECONDARY SCHOOL TO INTERIMLY STOP THE INTERVIEW PROCESS OF THE PRINCIPAL POST” was in response to Ms. Zulu’s grievance. The letter stated that the reference number in Ms. Zulu’s application was not incorrect. He determined it to be a mere human error which occurred during sifting, the application was discovered to have been stuck or trapped amongst Gert Sibande and Nkangala applications wrongly directed to Ehlanzeni, instead of their actual destinations.

55. There is no reference to a procedure a party relied on in relation to the missing or lost applications. I must criticize the conduct of Mr. Shabangu and the HR department regarding the way they handled this shortlisting process. Mr. Shabangu confirmed in these proceedings that after he discovered Ms. Zulu’s application, they captured it on the system, and issued the new schedule and list to the district. According to Mr. Shabangu, the list was handed to the Circuit Manager, who ought to give it to the SGB. Once the SGB received it, it was its duty as to whether to shortlist Ms. Zulu.

56. Nevertheless, it seems to me that Ms. Zulu’s application escaped sifting. If ever it was sifted, both trade unions, NATU and SADTU should have been invited to observe sifted application. Her application was directly put in the pack for shortlisting. I disagree with Mr.’s Shabangu’ s version that their duty was to correct the mistake, capture the application into the revised schedule and send it to the district office.

57. Moreover, he conceded under cross examination that they did not call the trade unions to come to check specifically Ms. Zulu’s application. The reason not to call the trade unions, according to Mr. Shabangu, was because the trade unions themselves did not inform the respondent of their intention to do so. This is a clear irregularity.

58. In the unreported decision of the Labour Court of Pamplin v Western Cape Education and others (C1034/2015) 2028- ZALCCT (9May 2018) the Labour Court said that the employer is also obliged in the case of unfair labour practice to defend attacks on the substantive and procedural fairness of its decisions in the event it wishes to avoid a negative outcome. In other words, the court said that there is an obligation on the part of the employer to place the evidence of fairness of the process followed and the rational for the appointment or non-appointment, to satisfy a tribunal that the appointment or non-appointment was rational and fair.

59. Mr. Shabangu said in his version that a reference number attached to the post represents the school, post, and the circuit. Given the above, it is evident that an error of this kind ought not to happen. It simply means that all posts with one and the same reference number should have been easily identified as they were packed one side. If indeed, Ms. Zulu’s application did have the wrong reference number, then it ought to have been packed with the applications for the same circuit, the correct school and with the same reference numbers.

60. Another contradiction by Mr. Shabangu was clearly demonstrated during cross examination when he admitted that a hand delivered application to E.J. Singwane is not possible to be found at Gert Sibande circuit. By including Ms. Zulu in second shortlisting, was in any event going to be suicide on the side of the respondent. A failure by the respondent to invite the trade unions and the SGB members or interviewing committee to observe the sifting of Ms. Zulu’s application and further to satisfy themselves that it complied with requirements of the post and the closing date set the path for criticism and unfairness.

61. It is not disputed that an Application for Educator’s Post Form was signed by Ms. Zulu on 15 December 2021. There is no dispute if her application was submitted outside the prescribed closing date. However, a failure by the respondent to restore the confidence of the stakeholders in the integrity of the interview process leaves many questions unanswered. I wish to record in this regard that Mr. Khoza’s version that on 18 July 2022 Mr. Mabuza, the Circuit Manager, brought Ms. Zulu’s application in person at the sitting of the interview committee. This version was corroborated by Mr. Bhila during cross examination. In addition, when Mr. Shabangu wrote a letter to the SGB he had stated that on 18 July 2022 the interview committee should use the opportunity for shortlisting. This is an indication that the process was biased.

62. In terms of section 6 (3) (b) (v) of “EEA”, the governing body ought to ensure that in considering the applications, the principles of equity, redress and representivity are complied with and the governing body or the council adhere to procedures that will ensure the recommendation is not obtained through undue influence on the members of the SGB. Given the above, I am of the view that the decision to include Ms. Zulu in the shortlisting without any justification is sufficient to conclude that the interview committee had failed to demonstrate that the process of shortlisting was in absence of due influence on any of the members. The resource person had requested a trade union representative from NATU to read Ms. Zulu’s CV. It is also worth stating that Ms. Zulu is a member of NATU.

63. Having regard to the above, I am of the view that the respondent’s decision to include Ms. Zulu in the shortlisting is substantively unfair.

WAS THE INCLUSION OF MS ZULU IN THE SHORTLISTING PROCEDURALLY FAIR
64. It is our tried law that the decision to promote or not to promote is the discretion of or falls within the prerogative of the employer. The respondent could have chosen to readvertise. I agree with Mr. Khoza’s version that the role of the observers at the interview is to protect the integrity of the process. For an employee to succeed in a dispute of promotion, such employee has the duty to demonstrate that the employer had exercised its discretion capriciously, for reasons that are unsubstantial, based upon any wrong principle, or bias manner, whether the employer did not comply with applicable procedural requirements relating to promotion.

65. To ensure that the decision to shortlist Ms. Zulu was done in bad faith, the Resource Person had requested the NATU representative to read the testimony of Ms. Zulu for the panel. The duty of the observers during the interview process is to observe. In the event they want to raise irregularities, such is allowed to be done after the process has been completed. In Noonan v Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 2596 (LAC), the Labour Appeal Court held that there is no right to promotion, but only a right to be given a fair opportunity to compete for a post.

66. The evidence before me is sufficient to conclude that the respondent’s decision to include Ms Zulu’s application in the shortlisting of the principal post on 18 July 2022 failed to comply with applicable procedural requirements relating to promotions. Also, the decision was taken in a biased manner. As already stated above, once the applications for an advertised post have been received, the first step is of applicable procedural requirements is conducting sifting. However, in the case of Ms. Zulu, the evidence shows that her application had escaped the sifting process. The trade unions were not called to observe her sifted application. Mr. Shabangu stated that the trade unions did not indicate that they wished to observe Ms. Zulu’s application after sifting. Mr. Shabangu ought to have known better. This is not an ordinary case in which the qualifications and the scores of the candidates need to be assessed or evaluated, but whether the application was submitted timeously and whether Ms. Zulu did apply for that position. This information ought to have been verified prior to the shortlisting by calling all relevant parties to observe the process, especially in the wake of an application that was missing.

67. Having regard to the above, I am satisfied that the applicant has succeeded to discharge the onus to establish that the conduct by the respondent to include Ms. Zulu in the shortlisting constituted an unfair labour practice.

68. Turning to an appropriate remedy, I wish to state that the applicant has indicated that she is seeking to be appointed to the post of Principal. I am however of the view that this request is not possible. In terms of section 6 (3) (e) of the “EEA”, I can consider two remedies namely: an order to readvertise the post or appoint the applicant. In the present case, the applicant did not claim to be the second best during the interview. The dispute is only considered based on failure by the respondent to comply with the applicable procedural requirements relating to promotion. I therefore consider re-advertising the post to be an appropriate remedy.

69. In the premises I find the following award competent.

AWARD
70. I find that the applicant, Siphiwe Patricia Mnisi, has succeeded to establish the existence of unfair labour practice relating to promotion.

71. As result of the above, the appointment of the second respondent, Ms. Zodwa Zulu as Principal at E.J. Singwane Secondary School is set-aside. I hereby direct the Department of Education: Mpumalanga Province, to readvertise the post of principal.


P. Maitsha
ELRC Panelist