ELRC397-23/24GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Commissioner: Evah Ngobeni
Case No: ELRC397-23/24GP
Date of Award: 21 February 2024

In the Dispute between:
Mahlaba Thembelihle
(Applicant)
And

Department of Education (GAUTENG)
(Respondent)

Applicant’s representative: In person
E-mail:
Fax:
Contact number:

Respondent’s representative: Peter Nkosi(Employee of the Respondent)
E-mail:
Fax:
Contact number:


DETAILS OF HEARING AND REPRESENTATION

1. This matter was heard at Ekurhuleni South District on 13 November 2023 and 22 January 2024, respectively. Both parties were in attendance and representation is as indicated above. Both parties submitted a bundle of documents in support of their case; and confirmed bundles of documents to be what they purport to be.

BACKGROUND OF THE DISPUTE

2. The Applicant Is employed by the Department of Education Gauteng as an Educator, post level 1 at Crystal Park High School. He applied for a Departmental Head vacancy no: EN43ED 1068. He majored in History, Geography and English. The second Respondent majored in Accounting and Life Orientation. Both the Applicant and the second Respondent were shortlisted and interviewed for the Department head position. The second Respondent scored higher than the Applicant. The second Respondent is the principal’s wife. Mr. Mabhayo was not part of the recruitment process as he recused himself.

ISSUE FOR DETERMINATION

3. I must determine whether the Respondent’s conduct to promote the second Respondent amounted to an unfair labour practice: promotion. If the Respondent’s act amounts to an unfair labour practice, I must determine the appropriate remedy.

SURVEY OF EVIDENCE AND ARGUMENTS
The Applicant testified as follows:

4. The department advertised a post for Department head with the requirements: English, History and Geography. Of the three (3) requirements, the Applicant met two: English and History. The second Respondent never majored in any of the required subjects. The Applicant majored in English and History and had experience in teaching Geography until grade 12. When he was appointed at the school, he was appointed for History and Geography. Based on the requirements of the post, he was the most suitable candidate for the job. Page 4 of A is a document with performance result printed on 6 November 2023. The results prove that he managed to achieve a 100% pass rate on the subject over the years.

5. The second Respondent adds little to no value to the curriculum with the experience she has. It is unfair to the department, the learners, and the team which the second Respondent should lead. The experience he has in teaching the subjects and managing the department supersedes that of the second Respondent. He headed the department at the same school for both history and geography. The interview results were premeditated hence there were no discussions held by the panel. All panel members did not know the qualifications of the second Respondent. There is no reason why the incumbent was shortlisted because she has no relevant qualification for the position.

6. Nepotism took its course because the second Respondent was shortlisted for three different positions. Under cross-examination he testified that Mrs. Nkosi is the one teaching Geography. When a version was put to him that he misrepresented information that he taught Geography for grade 8-12; his response was that the number of learners were few, and he focused on History for Grade 8-12. He was the head of History and Geography prior to a post being advertised. He conceded that he did not teach Geography for grade 8-12. When the post of Department Head was made a government post, more staff members were made available and subject allocation per teacher was reduced.

7. Around February / March 2023, he was removed from Geography and given History for Grade 10, 11 and 12. He assisted learners with Geography in grade 12 when he was an acting Department Head. He acknowledged that there is no department head for English because the person that currently fulfills the role is acting. When a version was put to him that the post requirement was English, Geography and History and that; he only had History not Geography; his response was that the only time he has not been teaching Geography was for less than a year.

8. He does not have a Geography qualification but has attended a course in Geography. He attached a certificate on Geography Information System as per page 19 of R. A version was put to him that experience was considered for shortlisting; his response was that qualifications and experience should have been considered. He argued that if a candidate is to be appointed, the post requirement is of paramount importance. He argued that he has qualifications and additional certificates whilst the second Respondent does not have qualification and experience for English, Geography and History. After acquiring her qualification as a teacher, the second Respondent never taught any of the subjects: Geography, History and English.

9. The requirement for the post should have been considered by the department. The second Respondent does not have the methodology to teach the subject because she lacks relevant experience for the position. When a version was put to him that the second Respondent has experience in English and Geography; his response was that the second Respondent was not a teacher at the time of acquiring the experience, therefore she does not have the requisite methodology. He argued that the second Respondent taught Tourism and there is no supporting document that she had History and Geography. The policy provides that an educator should have actual and appropriate educator’s experience.

10. He disputed the version that experience, and qualifications were considerations for shortlisting. A version was put to him that due to a shortage in a pool of educators for Geography, he was given an opportunity to attend interviews and he underperformed during an interview; his response was that the scoring was meant to advance the second Respondent. The intention of the SGB was for the second Respondent to be appointed as a department head for Life Orientation. The scores were adjusted to secure a department head position for the second Respondent. He was awarded best performing educator who achieved 100%.

11. When a version was put to him that the SGB broadened a pool of shortlisted candidates; his response was that the SGB acted on personal interest other than curriculum delivery. A version was put to him that even the third candidate did not have the required subjects but was shortlisted based on experience like the second Respondent; his response was that this emphasized the point that he was the best suitable candidate for the post with experience, qualification, and proven track record. He argued to have not underperformed below par, the allocation of scores was premeditated. Neither the second Respondent nor third candidate had anything of value to offer for the position.

The Respondent led the evidence of three (3) witness:

Phumi Mtsekana testified as follows:

12. She is employed as the Chief Personnel Officer and deals with recruitment. When shortlisting for a department head post, three years of experience is a prerequisite. Thereafter, one should check if the correct form has been used and the original signature appended. The vacant position number should correspond with the application form. After sifting the applications, the forms are captured and packaged for School Governing Body (SGB) screening. At the school, the SGB formulates its own criteria for the candidates.

13. When screening at the district office, they don’t check for qualifications and leadership skills. SGB screening includes experience, qualifications, equity, and other related issues. Experience referred to at shortlisting by the district office relates to the experience acquired as a teacher. When a candidate has 10 years of experience, such needs to be reflected on the application form. A score on experience is assigned to a candidate by the SGB. It is on the SGB to indicate what subjects they are looking for.

14. Under cross-examination she emphasized that the general requirement for a department head position is three years’ experience. When a version was put to her that leadership is a consideration; her response was that it depends on what the SGB agrees on. A member of the SGB and the Principal collected the package from the district office. The principal is expected to recuse himself when there is a conflict of interest.

15. Steven Maseko testified as the chairperson of the SGB. He has been chairperson for two years. He was part of the panel that appointed the second Respondent. Prior to shortlisting, he collected the parcel together with the principal. The principal could not go alone because he was conflicted. There were three packages to be collected: for deputy principal and three department head positions. The package was sealed and identifiable. They were informed that if the package is opened, they should report the issue to the district office. He locked the package in the principal’s office with a new lock.

16. There was a criterion formulated by the SGB prior to shortlisting. There is no possibility that one may know the candidates that are shortlisted from the district office. At the outset of the shortlisting process, members of the SGB were required to indicate if they had any conflict of interest. The principal, amongst others, recused himself from the process. The interview process was chaired by Ms. Kamanga. The second Respondent and the Applicant scored the same, there was no one lesser. The Applicant was shortlisted because he had the subjects that were to be considered. The Applicant was also teaching the subject at the school.

17. The second Respondent was appointed based on the scores she attained during the interview. They also considered qualification and experience. Under cross-examination he stated that the post requirement was English, Geography and History. They did not turn away anyone with qualifications and experience. He was the chairperson of the shortlisting committee and had with him other SGB members. An agenda was formulated because there is a clause which requires everyone to declare the process. He refuted the version that after collecting the package there was an SGB meeting. A version was put to him that a recusal of SGB members and principal happened after a panel was constituted.

18. Mabhayo B testified that he is the principal of the school. As a principal he represents the Head of Department and the district director. Whenever there are posts advertised, the recruitment package (from the district office) is kept inside a vault at the school. The chairperson of the SGB ensures that all processes run smoothly. He was not part of the recruitment process because Mrs. Mabhayo, his wife, had applied for the position. He was part of the people that went to collect the package from the district office because the office is not familiar to any parent. The requirement is that the package be locked away. The SGB is trained to consider experience and qualification so as not to disadvantage anyone with experience.

19. He recused himself on discovery that his wife had applied for the position. There is no policy which precludes family members or relatives from working within the same institution. The Applicant taught History and had taught creative arts in the past. There is no other subject that the Applicant taught because there is no teacher who teaches two subjects because of the size of the school. Basic requirements of the post were History and Geography. During the process of advertisement, a form GDE 79 outlines the subject for the post and the language for teaching and learning. English was incorrectly listed as a requirement, and such could not be corrected.

20. In his application form, the Applicant stated that he has History and English, whilst the latter subject was not a requirement. The Applicant may have taught Geography for three months during the period 2020/21. He did not teach Geography during 2021/22 because there were teachers assigned to teach Geography. It is incorrect that the Applicant taught Geography during the period 2022 for grade 10-12. When one is appointed with no experience, there is a Grade head with knowledge and content who is a specialist in the subject. Ms. Nkosi is a specialist and assists the department head due to the second Respondent having no required experience but qualification. There were people called in to assist teachers and the department head.

21. The responsibility of a department head is to ensure compliance with the annual teaching program of assessment and distribute documents to the department to ensure proper administration. Under cross-examination he argued that a recusal is not based on assumption, but one should recuse himself on realizing that he is conflicted. He recused himself when the package was opened and discovered that the second Respondent was a candidate for shortlisting. The package was locked away at the reception because there is no locking system in his office. It would have been a violation of policy If he stated that his wife applied for the position without any proof of this. He conceded that when the Applicant was appointed during 2017, he was appointed for Geography and History.

22. The Applicant taught Geography for grade 11 and 12, from 2016 until 2019. The 2nd Respondent was initially employed by the SGB candidate. He disputed the version that him being a principal worked in favor of the second Respondent’s appointment to a post of Head of Department. When asked what subjects the second Respondent was teaching at the school; his response was that she taught tourism and creative arts. He conceded that the Applicant was acting in a role of departmental head for Geography and History. He stated that he could not recall the position in which the second Respondent acted on. He further conceded that he was happy with the Applicant’s performance in the post.

23. When a version was put to him that during 2023, the Applicant was awarded an educator’s award by the SGB and the subjects were Geography and History; his response was that the award for a 100% rating, however a lot of learner grades ranged from 40-45. On History, the dissatisfaction was on the fact that there were no distinctions as it is considered a low hanging fruit. He refuted the version that the Applicant acted for two (2) years in the role of department head. A version was put to him that in 2022, the SGB paid the Applicant an allowance, thereafter in 2023, the department paid him for acting; his response was that the post was given to the school on or around January 2023 and the Applicant acted from that time until June 2023. He conceded that the Applicant has a lengthy experience within the department.

ANALYSIS OF EVIDENCE AND ARGUMENT

24. Section 186 (2) of the Labour Relations Act stipulates that “Unfair labour practice” means an unfair act or omission that arises between an employer and an employee involving _

a) Unfair conduct by an employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee. is not in dispute.

25. The onus to prove the unfair labour practice relating to promotion rests with the Applicant. It is common cause that the Applicant and the 2nd Respondent were shortlisted and interviewed for the post. Both of them did not satisfy the minimum requirements of the post except that they had three (3) years of teaching experience. The Applicant had a qualification in English and History but not Geography. According to the evidence of Mr. Mabhayo; English was captured in error because it is a medium of instruction. This version was not refuted by the Applicant. The second Respondent does not have any technical qualification for the listed subjects.

26. The first Respondent led evidence that all candidates shortlisted by the SGB met the selection criteria set by the SGB. There was no evidence placed before me to prove that this was so, especially when regard is had to the fact that the second Respondent did not have a qualification on any of the listed subjects. According to the signed pre-arb minutes, the second Respondent was appointed because she performed better than the Applicant during the interview. This assertion was contrary to the testimony of Maseko, the chairperson of the SGB, who testified that both the Applicant and second Respondent scored the same during the interview, and there was no one lesser.

27. The Labour Court noted in Ndlovu v CCMA and others [2000] ZALC 153, that in determining a dispute on promotion, one is to consider the experience, ability, and technical qualification such as university degrees. Secondly, one should consider whether a decision to appoint someone else to the post in preference to the complainant was unfair. Even if one is to accept the version that the second Respondent scored higher with 3 marks allocation, the Applicant’s skills, qualification, and relevant experience for the position supersedes that of the second Respondent. Evidence was led by Mr. Mabhayo that in instances where there is a lack of requisite experience on the incumbent, Ms. Nkosi as a subject specialist assists with the requirements necessary to achieve the desired outcome. He further mentioned that there were people sourced with the necessary skillset to assist teachers and the departmental head at the school.

28. I drew a negative inference to Mr. Mabhayo’s assertion that regardless of the lack of experience and technical qualification on the 2nd Respondent, the school had to place reliance on someone else to attend to the work which the 2nd Respondent was appointed for. When positions are advertised, what is of importance is the post requirements and the fact that the successful candidate is able to fulfil the intention for which the post was advertised. In Pamplin v Western Cape Education Department (C1034/2015) [2018] ZALCCT, the Court emphasised that:

“Whilst in unfair labour practice disputes relating to promotion the onus is on the Employee to demonstrate that the failure to promote was unfair, the Employer, is in the same token, obliged to defend the challenges on the substantive and procedural fairness, if it wishes to avoid a negative outcome. According to the court, there is an obligation on the Employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of evidence, it would be irrational and unreasonable to conclude that the employer acted fairly, regardless of where the onus lies’’.

29. The gap in the skillset of the second Respondent is a clear indication that certain requirements of the post will not be met and will be fulfilled by certain individuals other than herself. This adversely affect the betterment of the learners. Having considered the evidence placed before, it is apparent from the facts that the Applicant was a better candidate compared to the second Respondent. However, the Applicant led no evidence that he was the best of all candidates. The Labour Court in National Commissioner of the South African Police Service v Safety and Security Sectorial Bargaining Council and Others JR11802/2002 (21 April 2005) stated thus:

“I indicated to counsel during argument that I was prepared to accept that, on the evidence, the respondent was indeed better suited for the post than Nel and I then broached with counsel the subjects whether the respondent was the best of rest of the candidates. However, very little was known about others precisely because their applications, just like that of the respondent, had not been considered at all. Mr. Brandford could not find his way past the fact that it had not been established that the respondent was the best of all candidates. And the respondent did not deal specifically with such aspect in his evidence precisely because he had been preoccupied with exploding the myth that Nel was a better candidate than him’.

30. There was no evidence placed before me by the first to defend itself on the reason for which the second Respondent was preferred over the applicant. A failure to proffer evidence on the considerations made during selection and appointment of Mrs. Mabhayo, made me to conclude that the appointment of the second Respondent over the Applicant was arbitrary and unfair. Having considered the above, I find that the process undertaken to appoint the second Respondent was irregular. I order as follows:

AWARD

31. The appointment of the second Respondent, Mrs. Mabhayo, by the first Respondent, Department of Education – Gauteng, to the post of Departmental Head for Crystal Park High School is hereby set-aside on the following conditions:

a) The order is effective as from 1 March 2024.
b) The Second Respondent is entitled to her remuneration and benefits as Department Head Crystal Park High School, until 29 February 2024.

32. This order does not prevent the first Respondent, at its discretion, from appointing the second Respondent, or any other suitable candidate in an acting capacity, in accordance with the provision of C.4.2 of the Personnel Administrative Measures (PAM) as Departmental head in this post, pending the permanent filling of the post.

33. The first Respondent is directed to repeat the recruitment and selection process in relation to the post of Departmental Head, Crystal Park High School.

34. The recruitment and selection process must be repeated from the advertising stage / shortlisting stage. The shortlisting and interviews must be conducted by an independent panel appointed by the first Respondent. The independent panel appointed will make recommendation on ranking and preference of a candidate to a properly constituted SGB of Crystal Park High School, the SGB in turn to make a recommendation on the appointment of a suitable candidate as Departmental Head Crystal Park High School, subject to the provisions of the Personnel Administrative Measures (PAM), to the first Respondent.


Thus, done and signed in Johannesburg on 21 February 2024.

ELRC Panellist
Evah T. Ngobeni