ELRC857-21/22KZN

IN THE ELRC ARBITRATION
BETWEEN:

SADTU obo DLOMO, J M Applicant
&
THE HEAD OF THE DEPARTMENT OF EDUCATION –KZN First Respondent
&
NGCOBO, Z Second Respondent

Award

Case Number: ELRC857-21/22KZN

Dates of arbitration: 11 April 2033, 7 & 13 June 2023, 1 August 2023 & 15 November 2023

Date for submission of closing arguments: 22 November 2023

Date of award: 30 November 2023

J KIRBY
ELRC Arbitrator

Education Labour Relations Council
ELRC Building

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was heard on 11 April 2023, 7 and 13 June 2023, 1 August 2023 and 15 November 2023. All hearings were held at the Durban Teachers’ Centre, Sydenham, Durban save for the hearing on 15 November 2023, which took place at Truro House, Durban.

2. The application is brought by SADTU on behalf of its member, Jabulele M Dlomo (the Applicant,) who was represented by Mr Mthimkhulu, an official of SADTU. Two bundles of documents that had been marked bundles A and B respectively were submitted on behalf of the Applicant. The Applicant and three other witnesses gave oral evidence.

3. The First Respondent, the Head of the KwaZulu-Natal Department of Education, was represented by its employee, Mr Ngcobo. Three witnesses testified on behalf of the First Respondent.

4. The Second Respondent, Z Ngcobo, was represented by Mr Buthelezi, an official of NATU. She did not testify.
5. The proceedings were digitally recorded.

TERMS OF REFERENCE AND ISSUE TO BE DECIDED

6. I am required to determine whether the First Respondent committed an unfair labour practice involving promotion as provided for in section 186(2)(b) of the Labour Relations Act 66 of 1995 (LRA) and, if so, what relief ought to be granted to the Applicant.

BACKGROUND
7. The parties entered into a pre-arbitration agreement.

8. It is not in dispute that:
8.1. The post in question is that of Departmental Head: Languages at Sisekelo High School (the School) and which was advertised in circular HRM 35 of 2021;
8.2. At the time the Applicant was an educator at the School;
8.3. The Applicant was not shortlisted;
8.4. A certain Mr Shezi who was a co-opted member of the shortlisting committee, was the principal of the school at which the Second Respondent was teaching at the time of the shortlisting.
9. The Applicants seeks to have the appointment of the Second Respondent set aside and the process to be redone from the shortlisting phase.

SUMMARY OF EVIDENCE
THE APPLICANT

10. The Applicant testified that she had taught at the School since 2016 and had approximately twenty years teaching experience.

11. At the time of applying for the post in question, she had also applied for two other posts. She had been shortlisted for the other posts. As she had relied upon the same curriculum vitae on each occasion, she submitted that she ought to also have been shortlisted for the post in question.

12. Under cross-examination by the First Respondent’s representative, she stated that she was unaware of the criteria applied by the three shortlisting committees. Neither did she know whether the same candidates had applied for the three posts.

13. Under cross-examination by the Second Respondent’s representative, she submitted that based upon the content of her curriculum vitae, she ought to have been shortlisted for the post at the School. She conceded that she was unaware of the qualifications of the other candidates.

14. S Magubane (Magubane) is an educator at the School and represents the educator component on its SGB.

15. With reference to bundle A, Magubane stated that he had been the scribe at the SGB meeting and that the minutes contained in bundle A were in his handwriting save for two entries on page 2. These two entries had been made after he had signed the minutes.

16. The two disputed entries are those of the names of Masikane and Cebekhulu, which are listed as the second and third reserves after Shezi under the heading “The reserves in case of absence.” Magubane submitted that Shezi had been contacted during the SGB meeting and that the SGB had agreed that he would act as a reserve in case any member of the shortlisting committee were to be unavailable. Attempts had been made unsuccessfully to identify and confirm the availability of other reserves. As such, the only reserve for the shortlisting committee agreed upon by the SGB was Shezi.

17. On the day of the shortlisting committee meeting, when he had arrived at the School he had found Cebekhulu already there. At the commencement of the shortlisting committee meeting the School principal who was also the resource person advising the committee, informed the committee that Mhlongo, a scoring member of the committee, and Shangase, the nominated secretary, were unavailable. He further informed them that Cebekhulu and Shezi were there to replace Mhlongo and Shangase but as they were both school principals, they could not be expected to act as the secretary. As such, he proposed that Magubane act as secretary and not as scorer. Magubane refused to be the secretary as such would have been contrary to the decision of the SGB that he should be a scoring member of the shortlisting committee as recorded on page 2 of exhibit A. He was not sure whether it was said that the School principal or the committee chairperson had contacted Cebekhulu and Masikane. On the day of the meeting, Masikane was not present but the committee had proceeded with Cebekhulu and Shezi as scoring members. He had not signed the minutes of the meeting as he objected to Cebekhulu being a member of the committee as he had not been appointed by the SGB.

18. On the morning of the shortlisting committee meeting the SGB had been present at the School. They had left after the School principal had told them that it was not necessary for them to be present.

19. Prior to the meeting commencing, it was noticed that union representatives were not present. On checking, it was discovered that the email notifying the union had been drafted but not sent. A representative was then contacted and attended the meeting.

20. Under cross-examination by the representative of the First Respondent, Magubane confirmed that he had participated in the shortlisting committee meeting as a scorer, the position to which he had been nominated by the SGB. He had declined to act as secretary as that was not the position to which he had been elected.

21. He had signed the minutes of the SGB meeting as they, in his own handwriting, had recorded the proceedings accurately. The names of Cebekhulu and Masikane had been added after he had signed the minutes.

22. The members of the SGB had been told by the School principal that they could leave, before Magubane had been made aware that the shortlisting committee was short of two members.

23. Under cross-examination by the Representative of the Second Respondent it was not disputed that HRM35/2021 states that the shortlisting committee (and not the SCG) would elect its chairperson and secretary.

24. Under re-examination Magubane maintained that only the SGB could appoint members of the shortlisting committee and thus as Cebekhulu had not been elected by the SGB, the shortlisting committee should not have proceeded until a full complement of members had been elected by the SGB.

25. B P Ximba (Ximba) is an educator at the School and was the union representative at the shortlisting committee meeting. She had been notified of the meeting literally minutes before it had commenced. She had not signed the minutes as she did not agree with the processes followed at the meeting and as she had been invited late.

26. She had lodged a grievance with the First Respondent after she had learnt that Shezi was the principal of the school at which the Second Respondent was employed as an educator. She had been unaware of this until she had perused the curriculum vitae of candidates. Shezi had not declared his relationship with the Second Respondent during the shortlisting meeting. She had not received a response to the grievance.

27. Under cross-examination by the representative of the First Respondent, Ximba stated that during the meeting the resource person had read out the curriculum vitae. The other members of the committee would not have had sight of them and as such, the committee members would not have known the identities of the candidates.

28. Under cross-examination on behalf of the Second Applicant she conceded that as a trade union representative it was her role to point out any irregularities that she observed. She had only realized the link between the Applicant and Shezi after the meeting when she perused the curriculum vitae of candidates. As the Second Respondent was an educator at his school, she submitted that Shezi was obliged to report this collegial relationship to the interview committee. She had no comment on it being put to her that the Act referred to the need to declare a personal relationship.

29. Ndumiso Mncwabe (Mncwabe) was a member of the SGB and interview committee. The SGB had agreed to co-opt Shezi as a member of the interview committee. He had been contacted during the SGB meeting and agreed to sit on the interview committee. Mncwabe could not confirm whether Masikane or Cebekhulu were reserves as they had not been contacted in his presence.

30. He confirmed that Cebekhulu had been a member of the interview committee.

31. Under cross-examination on behalf of the First Respondent he stated that he was satisfied with the manner in which the interview committee had been appointed. He initially testified that only Mhlongo of the original interview committee had not been available but later changed that to say that both Mhlongo and Shangase had not been available.

32. It was put to him that the School principal would testify that it was agreed that three alternative members, Shezi, Cebekhulu and Masikane, would be contacted but that they had only been able to contact Shezi during the SGB and hence his name was included in the minutes at the time when he confirmed that he was prepared to act as a reserve. Once Cebekhulu and Masikane had been contacted and confirmed their availability, their names had been added. In response Mncwabe stated that he could not recall whether it had been agreed to have a single or three reserves but only Shezi had been contacted during the meeting. In re-examination, he stated that it had not been agreed that reserves could be contacted after conclusion of the SGB meeting.

THE RESPONDENT
33. A N Khanyile (Khanyile) is the School principal.

34. Prior to the relevant SGB meeting the committee had attended two workshops dealing with the holding of interviews during the COVID 19 pandemic. The need for reserve members was discussed at these meetings.

35. During the SGB meeting he had been able to contact Shezi who had agreed to be a reserve member. They had been unable to contact Mkhize, a school principal at another school, or Cebekhulu and Masikane. He had managed to contact Cebekhulu and Masikane whilst driving home after the meeting and they had agreed to be reserve members of the interview committee. He had contacted Xulu, the interview committee chairperson, and informed him accordingly. He had subsequently added their names to the minutes of the SGB meeting as the second and third reserves.

36. At the shortlisting meeting he had nominated Magubane to be the secretary but he had refused and Mncwabe had volunteered to be the secretary. The scorers had accordingly been Magubane, Shezi and Cebekhulu. He had been the resource official.

37. He had read out the curriculum vitae of the candidates. He could not say whether the Applicant ought to have been shortlisted.

38. Under cross-examination Khanyile submitted that the minutes of the SGB meeting were an accurate record of proceedings but conceded that they did not record that reserves would be contacted after conclusion of the meeting.

39. No objections had been raised in respect of the process by the trade union representative.

40. Shezi did not state that he was from the same school as the Second Respondent. The names of candidates were not disclosed when he read out their curriculum vitae.

41. Under re-examination Khanyile submitted that Magubane and the Applicant both taught at the School and were members of the same trade union.

42. Somandla Shezi (Shezi) is a school principal who was co-opted on to the interview committee after he agreed to be a reserve. He subsequently was contacted by the School principal at about 7 am on the morning of the interviews informing him that he was required to attend the interview committee meeting.

43. At the meeting there had been some dispute over the roles each member was going to perform but ultimately consensus was reached.

44. The resource official had read out the curriculum vitae of candidates referring to each by a letter of the alphabet.

45. He did not know that the Second Respondent had applied for the post. As principal he validates curriculum vitae of his educators but he does not know for which posts they intend to apply.

46. Under cross-examination he could not state why the minutes of the interview committee meeting had not been signed by the trade union representative.

47. He had signed the minutes on the day of the meeting contrary to the school principal who had testified that they had been signed the following day.

48. Whilst he had testified that the curriculum vitae were called by reference to letters of the alphabet it is possible that they had been numbered.

49. Clement Mohane Mthethwa is the chief circuit manager for the School. It had been his advice in training interview committees that curriculum vitae ought to be referred to by way of a number and not name. This approach, however, is not obligatory.

50. A school principal would validate the qualifications of an educator.

51. There is nothing wrong with a superior of a candidate being part of an interview committee. What needs to be declared is any personal relationship between a candidate and a committee member.

52. Under cross-examination he stated that a principal would validate the alleged qualifications of an educator by reference to the educator’s personal file.

53. The First Respondent intended to call the chairperson of the SGB and member of the interview committee, L Xulu, as its next witness. An interpreter was required for this evidence but did not arrive at the venue. The hearing stood down to allow the representatives to meet and on their return I was advised that the following could be placed on record as if it were the evidence of Xulu.

54. The SGB had agreed to the appointment of reserves for the interview committee. He had contacted Shezi during the SGB meeting and he had agreed to be a reserve member. They had not got hold of Cebekhulu or Masikane.

55. The SGB had agreed that either he or the principal would continue to try and contact them. The principal had managed to do so and once it was confirmed that they would act as reserves, it was agreed that their names would be added to the minutes.

56. The minutes of the interview committee had been signed on the day of the meeting and not the following day as testified by the School principal.

CLOSING ARGUMENTS
RESPONDENT
57. It was submitted on behalf of the Applicant that:
57.1. It is of no significance that the Applicant had been shortlisted for other posts;
57.2. The Applicant had not established that she was the best candidate;
57.3. The interview committee had been properly constituted;
57.4. No grounds for the recusal of the interview committee, Shezi, had been proven by or on behalf of the Applicant.
APPLICANT
58. Closing arguments were not submitted on behalf of the Applicant.

ANALYSIS OF EVIDENCE AND ARGUMENT
64. The Applicant is required to establish on a balance of probabilities that the failure of the Respondent to promote her was procedurally and/substantively unfair.

65. The basis for the Applicant’s claim that the failure to promote her was substantially unfair rests on the argument that she had been shortlisted for two other posts and that this indicates that she was a suitable candidate. No evidence was, however, led on her behalf to establish that she was a better candidate than the Second Respondent or any of the other candidates who were shortlisted.

66. The Applicant does not seek to be appointed in the place of the Second Respondent. The relief she seeks is for the process to be redone from the shortlisting phase. In this regard, it has been held that unless an applicant can show that she has a realistic chance of being appointed should the process be repeated in a fair manner, it is pointless to set aside the process and direct that it must be repeated-Pityana v MEC, Department of Education, Eastern Cape Province (2009) 30 ILJ 2664 (Ck.) As already indicated no evidence was led in respect of the comparative abilities of the Applicant or any of the shortlisted candidates. The only evidence led in this regard was that the Applicant had been shortlisted for two other comparative posts. I do not know anything about the candidates for the other two posts. There is no right to be promoted and the mere fact that the Applicant might have met the minimum requirements for the post does not mean that she was entitled to be shortlisted and ultimately promoted. I am accordingly not satisfied the Applicant has established grounds for the process of the appointment of the Second Respondent to be set aside and recommenced from the shortlisting phase.

67. The Applicant challenged the procedural fairness of the process of appointing the Second Respondent on a number of grounds; namely, that Shezi ought to have recused himself and that the interview committee was improperly constituted in that all its members had not been elected by the SGB.

68. With regards to the conduct of Shezi, the Applicant held that he ought to have recused himself from the interview committee or at least have notified the committee that he was the principal of the school at which the Second Respondent was then teaching.

69. Ximba, the trade union representative at the shortlisting committee meeting, agreed with the evidence on behalf of the Respondent that the names of the candidates had not been disclosed when their curriculum vitae were read out. At the time of the Second Respondent having been shortlisted, her identity would not have been known to him. The argument of the Applicant is further that at least once it was known that the Second Respondent had been shortlisted, Shezi had a duty to disclose that he and her worked at the same school. No evidence was led to prove that Shezi was biased or would appear to the Applicant to be biased as a result of him and the Second Respondent having worked at the same school. I agree with the submission on behalf of the Respondent that in the absence of any evidence of a personal relationship between Shezi and the Second Respondent there was no obligation on him to make any disclosure to the interview committee.

70. The final complaint of the Applicant relates to the composition of the interview committee. In essence, it is submitted that the interview committee had not been selected by the SGB as it had not agreed to the appointment of Masikane and Cebekhulu. It is alleged that Khanyile, the School principal, had been acting on a frolic of his own when he had added Masikane and Cebekhulu to the list of reserves. Ultimately, only Cebekhulu had joined the interview committee along with the other reserve, Shezi. At the pre-arbitration meeting only the appointment of Shezi had been challenged but I shall consider the nomination of both Masikane and Cebekhulu as reserves for the interview committee.

71. It is not in dispute that Shezi was contacted during the relevant SGB meeting and that he agreed to be a reserve for the interview committee. Once he had agreed to be a reserve, his name had been included in the minutes by the Applicant’s witness, Magubane. The heading in the minutes under which Shezi’s name appears reads “The reserves in case of absence.” It is apparent from this heading that it was the intention of the SGB to have more than a single reserve. Magubane accepts that attempts were made to contact the other reserves during the meeting but as these attempts had been unsuccessful, he maintained that the SGB had not agreed to their appointment.

72. Mncwabe had testified on behalf of the Applicant that he had been at the meeting of the SGB and was a member of the interview committee. He confirmed that the SGB had agreed to appoint Shezi as a reserve for the interview committee. Under cross-examination he submitted that he could not remember whether it had been agreed to appoint one or more reserves.

73. On the other hand, it is the evidence of Khanyile and the “agreed evidence” of the chairperson of the SGB and member of the interview committee, L Xulu, that the SGB had agreed that either of them would continue to attempt to contact Mkhize, Cebekhulu and Masikane after conclusion of the SGB meeting and that they would act as reserve members if they so agreed. He had managed to contact Cebekhulu and Masikane.

74. It is common cause that during the SGB meeting Shezi had been successfully contacted and had agreed to be a reserve for the interview committee. It is not disputed by the Applicant that unsuccessful attempts were made to contact the others to act as reserves. What is in dispute is whether the SGB had agreed that Khanyile and Xulu could continue to attempt to contact Mkhize, Cebekhulu and Masikane after the meeting and that if they agreed, they would then act as reserves.

75. In weighing up the competing evidence I do not place any reliance on that of Mncwabe. I do not do so as he could not remember whether the SGB had agreed to only have a single reserve or whether it had agreed to have more whereas the evidence of Magubane is consistent with that of the witnesses for the First Respondent that attempts had been made during the meeting to contact others to act as reserves in addition to Shezi. I thus accept that the SGB had agreed in principle to appoint additional reserves. The remaining issue on which I need to decide is whether the SGB had agreed that Mkhize, Cebekhulu and/or Masikane would act as reserves if they agreed to once contacted after the meeting. The evidence of Khanyile and the agreed evidence of Xulu is consistent in all material respects in this regard; namely, that they were mandated to continue to contact the nominated three reserves after conclusion of the meeting. I thus find that the SGB had agreed that Cebekhulu would act as a reserve member for the interview committee and that the interview committee was properly constituted.

76. I accordingly find that the failure to promote the Applicant was not unfair.

AWARD
11. The application brought by the Applicant in respect of an alleged unfair labour practice relating to promotion is dismissed.




J Kirby
Arbitrator 30 November 2023
ELRC857-21/22 KZN