ELRC870-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC870-22/23EC

In the matter between

NAPTOSA obo HLALELENI, MZWANELE Applicant

and

THE DEPARTMENT OF EDUCATION: EASTERN CAPE First Respondent

EBK NORMAN Second Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 19 April 2024

SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice in terms of section 186(2)(a) - unfair conduct relating to promotion.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a)(v) of the Labour Relations Act 66, 1995, (the LRA). The arbitration was heard on 12 May 2023, 27 -28 June 2023, 28 - 30 August 2023, 25 - 27 October 2023, 29-31 January 2024 and finalised on 25 March 2024,at Bathandwa Ndondo Office Park in Queenstown. The Applicant, Mr Mzwanele Hlaleleni, was represented by Mr Aaron Mhlontlo, an official of NAPTOSA, the First Respondent, the Eastern Cape Department of Education, was represented by Mr Thando Makina, the Director: Labour Relations and the Second Respondent, Mr Khaya E.B. Norman, was represented by Ms Nomtha Yawa, an official of SADTU.

2. The parties agreed to submit written closing arguments by no later than 12 April 2024 and both parties complied.

3. The proceedings were electronically recorded

BACKGROUND TO THE ISSUES

4. The Applicant applied for a position of Principal (P4) for Ithembelihle Public Primary School in Queenstown and was shortlisted and invited for interviews. He was not successful in his application. The Applicant upon receiving the outcome after the interviews, referred a dispute to the ELRC of an unfair labour practice relating to promotion, in which he is challenging the following:
a. That the panel was bias in favour of the Second Respondent;
b. That some of the SGB panel members were not eligible to be SGB member;
c. The Deputy Principal participated in interviews whilst s/he was not an SGB member;
d. The environment of the interviews was intimidating;
e. The appointment of the Second Respondent was therefore defective and procedurally unfair.
f. Substantively, the Second Respondent did not meet the minimum requirements;
g. He was strategically transferred to Ithembelihle to ‘prepare’ him for the position; planned by the First Respondent.

5. The Applicant prays for the appointment to be set aside and process to start afresh or compensation.

SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s Version

6. The version of the Applicant was led through the evidence of 4 witnesses and a bundle of documents;

7. The first witness, Mr Mzwanele Hlaleleni (the Applicant) testified that he started as a Post Level 1 Educator in 2005 and moved to another School in Ngquthura Junior Secondary School (JSS) in Cofimvaba in the same capacity. He moved to a position of HoD and later became Principal in Willowvale and moved to Lady Frere, Ndzondelelo to a Post Level 2 position. Due to rationalisation Ndzondelelo merged with Swartwater. He became Principal at Yona JSS. In 2022 he was asked by the department to choose whether to stay at Yona or move and he chose to go to Whittlesea Primary School as SMT member not as Principal.

8. In terms of his educational qualifications, after Matric, he went to Masibulele College and qualified with a Primary Teachers Diploma and upgraded with an Advanced Certificate in Education from the University of Pretoria and further did Computer Literacy, after which he did a Bachelor of Education: Honours at the University of Pretoria. With these qualifications and experience the Applicant believed he could make a difference and ensure that the department's policies are implemented and applied to be Principal of Ithembelihle Primary School.

9. The advert to which he respondent stated that one must have a Management Qualification, work experience. The panel adopted the following criteria:
a. Completeness of the form;
b. Experience
c. Teaching experience;
d. Management qualifications; and
e. The bar would be raised in respect of experience, if needs be.

10. Other requirements were that:
a. Applications to be made on the Eastern Cape Province Form;
b. Accompanied by all relevant documents:
i. Curriculum Vitae(CV);
ii. South African identity document;
iii. Certified copies of all academic qualifications;
iv. Certified academic record or statement of results; and
v. A copy of SACE registration (or proof of application).

11. His understanding of the requirement of completeness of the form was that the form must be filled in correctly and have no spaces. On the part of previous racial grouping it refers to Coloured, White, Indian, Black and the Second Respondent stated N/A meaning he does not belong to any racial grouping. The form also states, on the declaration, that any false statement constitutes misrepresentation. In his form the information provided means that he is not South African but at No. 9 he states that he is South African.

12. The 2nd Respondent also indicated no management qualification and that means the panel was bias because the 2nd Respondent did not meet the criteria in respect of a management qualification. The requirements for a Principal were:
a. A 3-4 year qualification, including professional teacher education;
b. Certificate in Management and Leadership will be an advantage.

13. The Principal’s post was a Post Level 4 for Ithembelihle Primary School. The Applicant’s form indicated that he was a Principal but applied for the same post, and to the Applicant it shows that the post was earmarked for the Second Respondent. The payroll of Ithembelihle Primary records the Applicant as follows, showing that the Applicant declared himself as Principal, knowing that the SGB would appoint him.
a. EBK Norman: Principal

14. The Second Respondent was placed as Administrator of the School in a letter dated 15 April 2021, the organogram of the department does not have Administrator in their post provisions and grading norms. It shows that the department was creating the post to suit the person so that he is already there and can be interviewed.

15. The SGB panel meeting did not mention the positions of SGB members on the panel list. There was confusion as to the dates as the panel was selected on 8 September 2022 yet there was a meeting held on 22 August 2022. On his experience of the day of the interviews, the Applicant stated that they were invited in writing and given times. His interview started after 14h00. He entered a room that was full and some people were introduced and some not introduced. He does not know who those people were. When he sat he was terrified because of the room that was full as he expected the panel and the trade union observers. There were people whose roles he did not know. He left after his interview.

16. Whilst in the waiting room he checked the times of other candidates and noted that some had much more time than others. Whilst they were told that their allocated time was 25 minutes, some exceeded. Nothing was said about languages and the fifth candidate, which is the incumbent, took 29 minutes. In terms of the PAM document all interviewees must get similar treatment. The excess time given to the Second Respondent shows that the panel was bias in favour of him and that the Applicant got less time and was told nothing about languages. On the recommendation letter it is said that the aim is to seek approval of the HoD to appoint in a vacant post. The Applicant also read the EDO’s comments on the recommendation that reads as follows:
“The recommendation is in line with the Portfolio Committee resolution and thus recommended highly. The teachers who did not sign attendance are part of the clique to collapse the institution.”

17. The Applicant’s interpretation of the comment was that the incumbent had already been recommended by the Portfolio Committee.

18. Under cross-examination the Applicant testified that he did his research and his findings were that Ithembelihle was like any other school, he was not aware of any instability but understands that sometimes teachers will have groups. If there was any instability he would manage it as a Principal of the school. He also stated that he is not familiar with the position of Administrator as such a position is not in the department’s organogram.

19. The Applicant further confirmed that he was intimidated by the full room but that he performed very well. He had been interviewed where he was not shortlisted because he forgot to attach his ID copy. In the full room some people were not introduced and he rushed his answers so he could get out quickly. He disputes being placed at No. 5. The bias of the panel is in so far as unfairness of time allocation and the language issues.

20. The Applicant further stated that he does not know the reason the Portfolio Committee visited the school as he said they visit school. The Applicant confirmed that the Second Respondent was given more time and said that he was prejudiced because he had to rush to cover everything in 25 minutes. He also criticised the completeness of the form and stated that the Second Respondent should not have been shortlisted, that is the prejudice he suffered.

21. The second witness Mr Fezile Qononda (Mr Qononda) testified that he started working for the department in 2002 in the Mthatha District and has been at Ithembelihle Primary since 2016. Other than teaching he also serves in the SGB, elected in 2021, Sport, Maintenance Committee and is a member of the Disciplinary Committee. The enrolment of the school is approximately 1100 and must have a total of 11 members of the SGB. He confirmed that 50% of 11 is 5.5 to be rounded off to the nearest number of 6. Mr Maka presided over the SGB elections.

22. Mr Qononda stated that he knows Mr Zola Bebeza as they are from the same area and had played football together and is a married man. He stated that whilst he is a member of the SGB of Ithembelihle Primary, he has no child in the school as he took his son to Louis Rex School. He confirmed that there is a child Undithandile Rautsana, whose mother is Akhona Rautsana. Mr Qononda confirmed that the mother works in King Williamstown and is a mother of 3 children, staying at Nomzamo Location. Mr Qononda further said that Mr Bebeza is not the father of Undithandile Rautsana as the only parent recorded is Akhona.

23. Mr Qononda confirmed further that there was correspondence received on 5 September 2022 regarding allegations about the legal status of the SGB. They were informed about the meeting in which Mr Matuntu was accompanied by Ms Nojekwa (departmental officials) who clarified the letter and confirmed that if one has no child in a school, they can’t stand for SGB election. The department told them to remove such parents from the SGB. There were 2 SGB members who had no children at their school, Mr Ngemntu and Mr Bebeza, but only Mr Ngemntu was removed. He stated that currently Mr Bebeza no longer serves in the SGB. He left the school after the department appointed a new Principal about September 2022, brought to the school by Mr Gongqa.

24. In the SGB meeting held on 8 September 2022 Mr Qononda is recorded as Deputy Secretary. In the meeting Mrs Peter (the Deputy Principal) was not an elected SGB member but because the Principal was a candidate, she had to stand in for the Principal who could not participate due to his candidacy. They were advised to arrange as such by the Chairperson because the Principal was a candidate. The meeting resolved that all SGB members will attend the interviews and 3 members will score.

25. He took the arbitration through the criteria adopted and noted that one of the criteria was Management Qualification and he did not spot one for the Second Respondent. He stated that at the shortlisting meeting the Second Respondent’s application was put aside and the Chairperson told them that they will look for 4 candidates, because the Second Respondent was already at school (acting). During the interviews they agreed to conduct them in English and isiXhosa but did not inform candidates on the languages to be used. They allocated 25 minutes for each candidate. Time taken by candidates is recorded as follows:
a. Candidate 2 - 36.9 minutes
b. Candidate 5 - 29 minutes
c. Other candidates within 25 minutes.

26. In the interviews the candidates who exceeded time were not reminded of the time, Candidate 2 spent a lot of time on the second question and was reminded that he had 7 minutes remaining. He does not know why the chairperson reminded this candidate of time whilst he failed to remind others. He read the declarations which I summarise as follows:
a. Mr Mxoli declared that the process was free and as for fairness he was not going to comment.
b. Mrs Shenxane declared the process free but time taken was too long to start and complete the process.
c. Mr Qononda raised the issue of time taken by some candidates.
d. Ms Zakade declared the process free and fair but shared the same sentiments with Mr Qononda in respect of time.
e. Mr Yawa (NAPTOSA observer) declared the process fair but raised the time issue of the 2 candidates that exceeded.
f. Ms Qwabi (SADTU observer) was concerned about the fact that the chairperson warned the last candidate about time and yet he did not do it with others. Ms Qwabi further said that it was not fair that the chairperson warned the last candidate but did not do so with others.
g. The Chairperson said he saw that candidate 2 was exceeding but did not want to disturb him. Mr Qononda raised the fact that Candidate 2 took 36 minutes at a stage where scores were handed over and no further discussions on the matter.

27. The scores were presented as follows:

No. Candidate Average Score Ranking
1. LN Klaas 15.3 3
2. PR Thobeko 17.6 2
3. TH Pere 13.3 4
4. M Hlaleleni 11.6 5
5. EBK Norman 18.3 1

28. The following panel members did not sign the route form:
a. Ms Qwabi felt fairness was compromised in respect of chairperson warning one candidate about time and not the other;
b. Mr Mxoli said scores do not reflect the performance in the interview;
c. Mr Qononda said time taken was not fair as the last candidate was warned about time;
d. Mr Yawa said he intended to consult before signing.

29. He also read the recommendations stating that the recommendation was in line with the Portfolio Committee resolution and that 2 teachers were part of a clique to collapse the institution. The comments regarding the two teachers was referring to Mr Qononda and Mr Qwabi. Mr Qononda said he did not belong to any clique and has no intentions of collapsing the school. The ratification meeting was held on 30 September 2022 was read to confirm the credentials in that the minutes reflect that Mrs Klaas and Mrs Mhlalisi could not attend due to work commitments. Ms Mdlela to join the meeting later and Mr Mxoli refused to attend the meeting and Mr Qononda was still marking. In all 5 members were absent in the meeting and there were 6 members left and that 50% of 11 is 6 and 50% + 1 = 7. Mr Qononda stated that the quorum was not conducive for the meeting to proceed.

30. After the interviews Mr Qononda met Mr Mrali, who is a CMC Head, in town who told him that he is the one that does not want them to employ a Principal in that school and is going to be charged. Mr Qononda asked if they are going to discuss departmental issues in the street and Mr Mrali said whether he likes it or not a Principal is going to be employed in that school. This issue did not sit well with Mr Qononda and he sought advice.

31. Under cross-examination Mr Qononda said that he does not distance himself from the decisions of the SGB. He stated that when he arrived at the school in 2016 it was stable under a certain Mr Rani’s principalship. After Mr Rani it was Ms Mdlela who had a conflict with Mr Mkhatywa. The Portfolio Committee visited the school twice, first to resolve issues between Mdlela and Mkhatywa. They resolved to take them both out of the school. They remained without a Principal, the SGB and the department took the Second Respondent. Mr Qononda said that he was in support of a person who will stabilise the school, not necessarily the Second Respondent. When he was the Principal he supported him.

32. The second visit of the Portfolio Committee was to follow up on their decision to see that the school is in good condition and see the renovations. He stated that the Second Respondent did not stabilise the school, although he would not refer to that as a failure but challenges. He confirmed that the Second Respondent was not brought by the Portflolio Committee. When the Portfolio Committee visited the Second Respondent was already there, brought by Mr Mrali and Mr or Ms Bucwa. He agrees with the main reason for someone who would stabilise the school.

33. On Mr Bebeza he said that he took his child out of the school but understands a guardian to be a person who looks after the child in the absence of the parent/s. He could not comment on Mr Bebeza being a guardian of the child in question, but said he would be eligible to serve if his name is on the school system. He said if he took his child out of the school he cannot be interested in the school and is not eligible to be in the SGB if he took his child out of the school.

34. Regarding ratification Mr Qononda stated that he did not count apologies because such people were not in the meeting. He disputed that the Second Respondent met the minimum criteria in terms of the Bulletin, but could not recall what minimum requirements they based the shortlisting on but recalled School Management which he noticed that it appears in his subjects. He further confirmed that SMT duties are to manage the school and that a Deputy Principal’s duties are to assist the Principal, ensure the school runs properly and to assist HoDs. He stated that he would recognise a person with about 8 years as SMT to be experienced in School Management.

35. Mr Qononda said that other defects in the recruitment process related to the recording of interviews as the device was tested and were told it was working, although they did not listen to it. The other factor was time allocation, as far as he could recall.

36. Mr Mfundo Mxoli (Mr Mxoli) testified that he is an Educator from 2002 and was redeployed to Ithembelihle to-date. He teaches Maths, Natural Science and Social Sciences. He also serves as a Soccer Coach and is the Site Committee Secretary, as well as an SGB member, in his 3rd term.

37. He testified that Mr Maka presided over the SGB elections and before him and Ms Mdlela and Mr Qononda. Before Ms Mdlela it was Ms Sophazi who was transferred and during bi-elections Ms Mdlela was Secretary. Parent component was made by Mr Bebeza, Mr Nofemele, Mrs Shenxane, Ms Mhlalisi, Ms Klaas and Mr Ngemntu and Mr Bebeza was elected in an SGB meeting. He knows that Mr Bebeza is married and they live in the same location. He confirmed that Mr Bebeza’s child is at Louis Rex school and left Ithembelihle in 2021. A decision was taken that Mr Ngemntu who had no child at school must vacate the position. In one SGB meeting they identified that Mr Ngemntu and Mr Bebeza had no children in the school, but only Mr Ngemntu had to vacate as they all of a sudden Mr Bebeza had a child Undithandile Rautsana but on the system the parent recorded was Akhona Rautsana. He confirmed that he knows the parents because they all live in Nomzamo Location and knows no blood relations between Mr Bebeza and the child.

38. Mr Mxoli confirmed that they were informed by Mr Nofemele that Mr Bebeza no longer had a child at the school. At this point Mr Bebeza is no longer serving in the SGB and this was communicated in a meeting with general parents to hold bi-elections. On the day of the interviews they had to set questions. He raised an issue that the observers and the resource person should not be involved at this stage but the resource person (Mr Gongqa) was and in terms of the PAM document his participation was unlawful.

39. The second issue was the recording device, which was tested by Mr Gongqa to be working and Mr Mxoli can therefore confirmed that the interviews were electronically recorded. Further the panel must do the shortlisting and interviews. All SGB members were present in the interviews. As a SADTU member he has played the role of an observer in other schools. In other schools it was only the panel that sat in interviews, not the entire SGB. In the case of Ithembelihle it was a resolution of the SGB that they all attend. The resource person said nothing about it or gave no guidance.

40. In terms of time keeping, there was a watch facing the candidates and the chairperson told them there would be 5 questions to be answered in 25 minutes, meaning 5 minutes per question and Candidate 5 was in the second question in 18 minutes. Mr Mxoli said that the scores do not reflect the performance and the recording, if availed, would assist to confirm this fact. The candidate dwelt on irrelevant responses regarding his union involvement instead of dealing with the question asked.

41. He also commented on the recommendations relating to cliques, and said that he belongs to no clique and is the first time he heard about such an allegation. He stated that the purpose of a ratification meeting is for the panel to see if they did right and review what transpired. They had to review what the panel recommended, what happened on the 28th if the SGB rejected the decision, should have been nullified.

42. In terms of shortlisting, the criteria adopted was completeness of the form, among others. On racial groups there should have been the known racial groups, black, white, coloured and Indian. The Second Respondent wrote N/A meaning he does not fall in any racial group. His understanding of the management qualifications is that each and every candidate should have done Management. In the Second Respondent’s form there appears nothing on specialisation in Education Management. The positions that perform management functions are Principals at Post Level 4, Deputies at Post Level 3 and HoDs at Post Level 2. He understands that the post advertised was that of a Principal and that the incumbent was already a Principal.

43. Mr Mxoli stated that during shortlisting he suggested that an application must go through at least 3 hands and the Chairperson told him there were many applications and the Second Respondent’s application was in his hands. They had to have 5 applications and his suggestion was not exercised. When adopting criteria on an acting person it was said that one is entitled to be shortlisted if one acted more than 12 months provided one meets the minimum criteria. The Second Respondent’s teaching qualification has School Management as a module and he believes that the module deals with how one manages the classroom and the learners.

44. With regards to the Deputy Principal (Mrs Peter) of the school, Mr Mxoli stated that she was never elected to the SGB. The SGB resolved that Mrs Peter must participate because there was no Principal as the Principal was a candidate. Reading from the PAM document Clause 5.4.2, he stated that nowhere does the section allow for a Deputy to replace the Principal. The clause reads as follows:
“5.4.2 The interview committee must comprise:
5.4.2.1 One departmental representative (who may be the school principal), as
an observer and resource person.
5.4.2.2 The principal of the school (if he/she is not the departmental
representative), except in the case where she/she is an applicant.

45. Regarding the ratification meeting the school had above 1000 learners and qualified for 11 SGB members. Because there was no Principal the school had 10 members. All present except the following:
a. Mrs Klaas
b. Mrs Mhlalisi - apology
c. Mrs Mdlela - to join late
d. Mr Mxoli - refused
e. Mr Qononda - busy marking, pleaded for a postponement

46. In essence 5 of the members were not part of the meeting. He confirmed that 50%+1 of 10 is 6. The value of an apology according to him is a decency to inform members and does not mean you are part of the meeting. In his view the meeting did not quorate and the status of the decision is null and void.

47. Under cross-examination he confirmed that he started to distance himself from the process at the stage of setting of questions but takes ownership of the decisions as he was present. To him the process was not fair and his declaration was that the process was free but that he would not comment on fairness. It was free in the sense that every candidate was free to express themselves. The other issue about Mr Gongqa participating but could not confirm from the minutes as that is not recorded as well as in the pre-arb minute, but maintained that he was present but was not the scriber.

48. Mr Mxoli further confirmed that Mr Bebeza participated because he said he was happy with candidate no.5 although he left during the process for a personal matter. He (Bebeza) did not score in the interview although elected because he had a personal commitment. His involvement was therefore limited to the comments he made. He stated that should he for example work out of town e.g. in Gqeberha and have a child at Komani Primary School, he would appoint a legal guardian. In the case of Mr Bebeza he denied that Undithandile Rautsana’s mother, Akhona worked in King Williamstown because he sees her frequently, at least weekly but not during the week.

49. In checking Mr Bebeza’s legitimacy they requested the application but could not find it in the school. They then checked the SA-SAMS system and Mr Bebeza was recorded as the guardian of the child. At the time they were aware that he took his child out of the school and that is when they questioned his eligibility to be elected into the SGB. They further double checked the child’s name and confirmed that it was Umthandile, a learner he taught at Grade 6 but on SA-SAMS there is Undithandile.

50. Mr Mxoli further confirmed that he was also scoring in the interview but does not recall how he scored the Applicant and the Second Respondent. When they consolidated the scores he found out that they were not a true reflection of what transpired. He recalls that the Applicant’s performance on how he would take the school to another level was satisfactory to him and would have probably scored him a 3. He confirmed that he scored the Second Respondent as follows:
a. 1 x 2 (fair)
b. 2 x 3 (good)
c. 2 x 4 (very good)

51. Mr Mxoli did not respond when he was asked to compare the scores between the Applicant and the Second Respondent, as to who got the best scores and still confirmed that he takes ownership of the decisions. He also said he does not agree with the consolidated scores that rank the Applicant last. He did not sign as a panellist because he was not happy with the manner things were done as they, as SGB, had times when they did not see eye to eye. He maintained that not all the candidates were treated the same, in respect of time. The chairperson did not caution candidate 2 of the time but cautioned candidate 5 and should have reminded the candidate that took 36 minutes but confirmed that candidate no. 2 was not disqualified for exceeding 25 minutes.

52. When cross-examined by the Second Respondent Mr Mxoli confirmed that around October and November, Mr Bebeza was no longer in the SGB but the child was still doing Grade 7 in the school. He said that he accepted the decision for the SGB to be in the room as a majority decision.

53. The last witness for the Applicant Ms Beatrice Ncinci Dondolo (Ms Dondolo) testified that she started working the department on 25 October 2006, starting at Ndlovukazi Preschool and went to Ithembelihle on 25 October 2006 as a Grade-R Teacher. She had 2 classes in 2021 with about 40 learners. The process of admitting learners starts with applications from parents, where they are advised on requirements or stuff to bring, and the documents are submitted to the school through the Clerk. The Clerk gives the documentation to the teachers to record in a specific book that is kept in a dedicated file. She read the name of Undithandile Achumisiwe Rautsana who was allocated in her class - Grade R1DON. She recalls the learner having started in 2021 and her mother is Akhona.

54. Their interaction with the parents is mainly through letters that are given to the learners to give to parents in respect of school activities like the GradeR graduation or outings. Ms Dondolo cannot recall if Akhona attended the graduation as at some point she got a job in East London and would take her child. She did not indicate to her who would take care of the child and she received no documentation to that effect. She stated that she does not know Mr Bebeza in relation to Rautsana, Undithandile, but knows him generally. In 2021 MrBebeza was SGB Chairperson. She is not aware of where Undithandile was in 2022 as a child spends one year in her class and Akhona also indicated to her that she would take her child. She has no knowledge regarding Mr Bebeza and Akhona as she never interacted with Mr Bebeza regarding the child in her class.

55. Under cross-examination she stated that she does not recall all parents of children in her class. In the case of Rautsana she recalls the mother Akhona, although she understands that a child must have a father figure. She confirmed knowing the Second Respondent as her Principal, whose appointment she supports and that with him the school is running normally. She also alluded to visits by the Portfolio Committee when there was a squabble between Ms Mdlela and Ms Khatywa that affected the school negatively.

Respondent’s Version

56. The Respondent led the evidence of five witnesses, a bundle of documents, and an inspection in loco of the SA-SAMS system. The evidence is summarised below:

57. Mr Samkelo Tyelenkosi Maka (Mr Maka) testified that he is an Educator from 1995 based at John Noah School and was appointed as the Principal on 1 May 2015. He was elected as Electoral Officer and has performed such duties at Edlelweni Primary School about 2018 and also did Ithembelihle and ran elections for the second time in 2021. For the term starting in 2021 he started with the Educator component on 13 April 2021. On 14 April 2021 he did the parent component. There were tensions with the Educator component. For the parent component there was national monitoring by Mr Ndebele who was available. They had to follow the prescripts of the South African Schools Act (SASA) to the latter. They did the introduction, outlined the process, Mr Ndebele’s purpose of attending explained to be that of encouraging parents to be involved in school matters. The election commenced.

58. They were impressed with the parent turnout, they were eager and showed interest, no glitches on gender equity and promoted inclusiveness. He disputed that there was any issues of improper establishment of the SGB.

59. Under cross-examination he confirmed that Mr Ndebele’s role was purely for advocacy. He confirmed that he was trained as an Electoral Officer and was aware of the National Guidelines of 2014 and the +15 templates that must be used from school level to national. Verification is done through data in the school and SASAMS. He confirmed that Bundle 3 of the Respondent is the Family Report of Ithembelihle. He used the computerised Voters Roll, although it could not be made available in the arbitration due to a short notice request. The family report is the same as the voters roll because the only change is the heading.

60. Mr Maka further confirmed that documents used in the elections were generated from SASAMS and one uses available data as it has all parent details. The heading was Voters Roll. When parent information is requested from EMIS it would be sent in the form of a spreadsheet. As Electoral Officer he has a duty to verify a parent that is nominated that is the procedure followed with Mr Ndebele. They elected and submitted their report and their task was done once a declaration was made that the election was free and fair. Mr Ndebele had no personal interest and the allegations that the SGB was not properly constituted are unfounded.

61. Mr Zola Bebeza (Mr Bebeza) testified that about 2022 he participated in the recruitment and appointment process of the Principal at Ithembelihle. He testified that Undithandile Rautsana is his biological child with Akhona. He stated that during elections, when one is nominated, the department has a system of checking if one is a parent or guardian. He confirmed that he is the biological parent of Undithandile and after the issue was raised, the system was checked and it was found that there was no such. During elections one of the members of parliament was present and there could be no issue of irregularities.

62. Under cross-examination he confirmed that Mr Ndebele was present from Provincial Legislature, although he cannot confirm the exact structure he came from. He was made to sign acceptance of nomination. Mr Maka had a number of documents he worked on in the conduct of the elections. His child, Undithandile, left the school in December 2022, after elections were conducted. He confirmed that he had another child who left the school in 2021 whom he registered at Louis Rex, and after the other child left, the department verified if he is the biological father of Undithandile, whose date of birth he does not recall. He confirmed that he is married and had Undithandile out of wedlock. He was not part of registering the child as the mother was still based in Queenstown. He confirmed that he registered the child with the Clerk, having agreed with the mother to register the child at Ithembelihle because he loved the school.

63. During the recruitment he confirmed that Ms Peter was the Deputy Principal of Ithembelihle and stood in the place of the Principal but was not an elected member of the SGB. The school had no Principal. He also indicated that he is not familiar with the hierarchy of positions in the department as he was just a parent. He confirmed that the ratification meeting was held on 30 September 2022 and interviews were conducted on 28 September 2022. He confirmed that all members of the SGB were present in the interviews and he was one of them but did not score.

64. Mr Bebeza confirmed that he signed the recommendation and did the ratification later on 30 September 2022 and the ratification echoed the recommendation of the panel. He does not know how the Applicant was prejudiced by such an action. He would not be amongst the recommended candidates even if the Second Respondent were to decline the post. In any event they planned to have the ratification meeting on the same day but Mr Qononda pleaded for the following day, which shocked them as the plan was to finalise everything on the same day. He also recalled a meeting that was collapsed by Mr Mxoli and Mr Qononda. They also did not sign the recommendation. They were also part of the Educators who wrote to the department challenging his status in the SGB, an issue that was resolved by the department visiting the school. In his view the department applied its mind to the recommendations of the panel and therefore the Second Respondent qualified.

65. Mr Thembinkosi Immanuel Nofemele (Mr Nofemele) testified that he is the SGB Chairperson at Ithembelihle for the third term that started in 2021. His role in the recruitment and selection of the Principal was that of panel chairperson. On 22 September 2022 they did the shortlisting and the process went very well. He testified that all CVs came in a sealed bag and were opened in front of the panel by the resource person, there is therefore no CV that came on the side. He stated that he has been involved in shortlisting of candidates as this is his third term as SGB member/Chairperson. Any recruitment process is preceded by training and in that time there was training.

66. In terms of the criteria adopted, Management Qualification, is one and they found in the Second Respondent’s CV, that in his subjects, there is management. Secondly he was already in a management position by the time of the interviews. The shortlisting process was fair. His acting in the Principal’s post was brought about by a visit of the Portfolio Committee in the school because of problems and a decision was taken for him to act as Principal, as there were fights between the then Principal and her Deputy, causing instability in the school. Ms Mdlela was the Principal and was moved to another school. The performance of the school during her time was bad, the SGB could not hold any meetings as there would always be fights and that caused cliques and groups amongst the Educators. Their conduct was dividing the school.

67. When the Second Respondent got to Ithembelihle, he got a chaotic school where reports were not received in time, and currently the school is stable and the performance is better, children do homework. The school is getting to its former glory of being the best school. The improvement became evident when the Second Respondent set foot in the school. He would deny any allegations of favouritism and can confirm that his management style was good especially to parents of the school, as his style contributes to improved communication, being in good terms with his staff and parent attendance and participation in meetings improved.

68. On 28 September 2022 the whole SGB was in the interviews and in terms of scores, the Second Respondent performed well and there was no contrary view to the scores, even before the interviews there were no objections against him. Before the interviews no one had anything against the Applicant and the performance was fair. He confirmed that the candidates were allocated 25 minutes each and confirmed also that the Second Respondent took 29 minutes and another candidate took 36 minutes and 3 other candidates were within time. There was a candidate no. 2 who took long and as chairperson he was reprimanded by the panel not to allow candidates to take more than the allocated time. After that he reminded candidate no. 5 when he noted he was taking a long time. He does not find anything sinister about that, in fact he expected the candidate to complain, but he also noted that they were advised in their training not to disturb candidates. After the interviews they asked each other on how they conducted the process and they each declared the process fair. Only after the scores were announced, problems arose, mainly around the time taken but when criteria were set there was no remedy regarding time exceeded.

69. The Applicant was not prejudiced by the issue of time as he was within. After Mr Yawa raised the time issue they found something to hold on, having agreed that interviews were free and fair before scores were announced. He was not unfair in reminding candidate no.5 about time because he was reprimanded by the panel. The decision did not affect the Applicant at all. The SGB Chairperson signed the recommendation on the same day and it was correct of him. They were under pressure because posts had to be filled immediately and they had to finalise the process on the same day. They lost all HoD posts through not finishing the process in time. Signing on the same was also informed by the fact the whole SGB was in the interviews and there was no need to postpone and because of time they had to finish.

70. Mr Xolanisi Michael Gongqa (Mr Gongqa) testified that he is the Circuit Manager from 2012, before which he was Principal from 1996. His duties include Leadership, Management, Governance, and Capacity Building for Schools, SGBs and Principals and ensuring functionality and performance of schools. Ithembelihle Primary falls under his circuit. For SGBs they train the SGBs at the end of the term to prepare them for elections.

71. Mr Gongqa testified that on the day of elections for Ithembelihle he was present with Mr Ndebele the national monitor. He checked if everything ran properly. The voter's roll is checked against nominees to see if one has a child in that school, and that was done in his presence. Whenever there is recruitment, after the bulletin closes, they conduct a refresher course to eliminate disputes that lead to delay in appointments. That was done with Ithembelihle as well. He preferred that panel members must have attended the refresher course, but if not he would still accommodate.

72. The shortlisting process for the Principal’s post was conducted at the school. The 5 point criteria were adopted. When they arrived at the school the applications were in a sealed envelope. The PAM document requires them to shortlist down to 5 applications, they re-do what HR did by checking again. The chairperson takes applications and the number is verified. He denied the allegation of setting aside the Second Respondent’s application; it is a mistake he will never commit based on his experience. Forms are packed by HR and the Second Respondent’s application form was subjected to the same scrutiny. The question of acting was raised and it was confirmed that if one acted in a position for 12 months is shortlisted if one meets the minimum requirements, and at that point the criteria do not apply. They cannot raise the bar on an acting person if basic minimum requirements are met and in this case that did not happen. After completion of shortlisting they were left with the 5 candidates.

73. The declarations made had no dissenting voice, including observers. On the allegation of incomplete forms Mr Gongqa stated that each form was subject to scrutiny by himself, the panel and union observers. Information on the form was enough to enable the panel to shortlist or not. On section 24 of Professional activities Mr Gongqa stated that the Second Respondent correctly filled the form as the numbering is not exhaustive, it is only a question of space, and nothing wrong if one does not fill in all the spaces. There is nothing sinister about the omission of not indicating that one is acting in a post.

74. The minimum requirements for a Principal are REQV13, to include professional training, the Second Respondent has a Secondary Teachers diploma which is REQV 13 and a Bachelor of Education and can therefore contest any post. Some principals only have the diploma in his circuit. Management qualification as a criteria was used to raise the bar and would have been an added advantage, only useful when they eliminate to get to the 5 candidates. The Second Respondent was a permanent Deputy Principal. Management and leadership was an added advantage, in terms of the bulletin, not a basic minimum requirement, he is qualified beyond the diploma.

75. Mr Gongqa mentioned that he was the resource person in the interviews and the entire SGB attended but the decision was taken by the panel. On 5 September 2022 the first shortlisting meeting collapsed and the SGB decided on 3 panellists, the third panellist did not pitch. The Chairperson said that the former Principal is related to one candidate, information they could have sent earlier. The second meeting decided that the entire SGB to be in the panel because they did not want the same situation as there was a deliberate intent to delay the recruitment.

76. He has not seen a provision that says the entire SGB cannot all be in the panel, PAM or otherwise. In the Lukhanji Circuit, there are Model C schools who have the entire SGB in the panel as long as parents are in the majority and exclude Educators who are applicants. The issue of having the whole SGB is not unique to Ithembelihle and experience tells him that there is no provision that says it cannot be done. On the day of the interviews 3 members of the panel scored and other members observed.

77. The process of recruitment and selection has four stages. There is:
a. Panel selection
b. Shortlisting
c. Interviews; and
d. Ratification.

78. In this matter ratification was a mere formality because the whole SGB attended. Mr Gongqa told the SGB to conclude ratification once they leave they could have done it in 5 minutes. Immediately after interviews everybody declared and deference to another day would waste time as they all attended and there has to be ratification minutes and in this case it did not warrant to be done on another day as it was Unnecessary. The fact that ratification sat 2 days after the interviews is not an irregularity but could have happened immediately after the interviews.

79. Mr Frank Sibusiso Lumkwana (Mr Lumkwana) explained the workings of the SA-SAMS system. He stated that the personnel that have access to the system are:
a. The Administration Clerk
b. Educators - to capture marks
c. Head of Department - to verify marks; and
d. Principal - to verify marks

80. The system has module 16 that deals with security and database functions. One must have a username and password. There was a Circular issued by the department for users to keep their passwords safe. The different users access individually, for example if one is an HoD cannot access other modules for example if one has rights of Curriculum one would access only that which is relevant to his role. For example an Educator has no access to the school finances module.

81. On the question of ability to edit information on the database he stated that information on the system can be edited if one has such access rights. Module 16.5 shows who logged on, when, time and actions done. If there is information for example about a learner, the database cannot be accessed without the school’s login details.

82. Information on the system can be requested from the warehouse and be compared with the available or information presented, for example a voters roll. They have to change the date of the laptop to get information for previous years, e.g when children lose reports they then can access the reports. The information is editable because it does not come out of the system as PDF documents. System notes/audits reflect the user and time taken on the system. Information can only be requested by a school through the Principal to the district office which will submit to the warehouse.

83. Mr Lumkwana identified the parent Zola Bebeza and Undithandile Rautsana from the bundle submitted by the First Respondent of the parent information document taken from the SA-SAMS, and that the information would be that which is captured on admission. Further on the documents requested from the warehouse they appeared on the list. He also stated that the system does not allow one to capture a learner without a parent as parent information is very important. If for example the school’s laptop crashes or is lost information is requested from the warehouse (EMIS head office), that is the office that would have the school's information from previous years, for example if a learner’s report is requested. EMIS has a digital warehouse where all the databases are kept. Information comes out only on request, and is safe. For EMIS to edit they require a lot of information. When the request was made for the Ithembelihle database, he made a request that the document be password protected so that it is not editable and ensured that everyone sees the document at the same time.

84. The Voters Roll is made out of the Learner/Parent information contained in Module 3.1.13 of SA-SAMS system and that information makes the voters roll and SGB elections are based on parents who appear on the parent/learner information. The document will not give the date of 2021 and learners did not print out in alphabetical order. The school can fix information if the school requests, they would, on approval,fix the errors and send the database. The warehouse/EMIS does not accept duplicates, the school must write a letter and explain the changes, the Circuit Manager and EMIS must also write an explanation and only then the warehouse will make the changes.

ANALYSIS OF EVIDENCE AND ARGUMENT

85. Section 185 of the LRA provides that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices. This section gives effect to section 23 of the Constitution of the Republic of South Africa. The dispute referred is an unfair labour practice relating to promotion and the employee bears the onus of proof.

86. In this matter it is common cause that the Open Post Bulletin for Principals, Volume 1 of 2022 was issued on 18 July 2022 advertising all the vacant principal posts in the province. It is further common cause that the Applicant applied for the post of Ithembelihle Public Primary School. It is further common cause that the Applicant was shortlisted and invited for an interview for the post, with 4 other candidates. It is further common cause that the Applicant was not successful in his application, hence the present dispute.

87. On procedure the Applicant argued that the first issue to be considered is the composition of the SGB. The contentious issue of Mr Bebeza’s election to the SGB in that he took his child out of the school in 2021 and was therefore not eligible to be elected in the SGB. The parent/learner information contained Mr Bebeza’s name with a child Undithandile Rautsana, whose mother is Akhona. Initially Akhona appeared as the only parent of the child and later Mr Bebeza was recorded as a parent.

88. Mr Bebeza himself testified that the child is his biological child out of wedlock. The mother of the child got a job opportunity in King Williamstown and left the child in his care, although he did not stay with him, but in the absence of the mother he had to be responsible for the child. He updated the information with the Clerk at school. Mr Mxoli disputed this and stated that he had the same child in Grade 6, Umthandile and cannot be Mr Bebeza’s child. Ms Dondolo, the Grade-R teacher confirmed that the child Undithandile Rautsana was in her class and confirmed that the mother is Akhona. She further confirmed that she was informed by Akhona that she got a job in King Wiliamstown and at some point would take her child out of the school. She was not involved in the update of the parent information and had no interaction with Mr Bebeza regarding the child.

89. The Applicant’s further contention regarding the Bebeza issue was to query the SA-SAMS information as being tampered with or edited to suit Mr Bebeza. In this regard an inspection in loco was done on the system to check the possibility of fraud on the system in so far as editing information. Mr Lumkwana was the witness in this regard and Bundle 3 of the Respondent was solely the printout of the learner/parent information from SA-SAMS in which Mr Bebeza appears. Based on the fact that the Applicant was not satisfied with this information, another request for information from the system was made during the arbitration to confirm if Mr Bebeza indeed was registered as Undithandile’s parent. The information was requested and a password protected Excel spreadsheet was produced in which Mr Bebeza still appears.

90. The Applicant then queried the fact that the document was not in alphabetical order or not the exact same copy as Bundle 3. Mr Lumkwana indicated that it may be a system issue. The evidence of Mr Bebeza confirmed that he is the biological parent of the child and, other than queries of him not knowing the date of birth and the First Respondent not providing documentary evidence of the child’s application and birth certificate, it is not for us to dispute Mr Bebeza’s evidence of taking ownership of the child, and in these proceedings it needed not be proved beyond any reasonable doubt.

91. I accept Mr Bebeza’s evidence that he is the parent of Undithandile Rautsana and that the child was a learner at Ithembelihle and both parents duly recorded in the parent/learner information database of the school. Mr Mxoli contradicted the Applicant’s evidence in this regard when he linked the child to Grade 6’s Umthandile. He therefore was eligible to stand for election in the SGB. It is common cause that he was elected and at that point had to participate in SGB activities, including recruitment and selection.

92. Another issue on process was the voters’ roll that was not produced by the department, although Mr Maka alluded to having the document and Mr Lumkwana confirmed that the document is derived from the learner/parent information from which nominees are verified. The parent/learner information was provided showing Mr Bebeza as a parent of the child in question. Elections were held in 2021 and issues pertinent thereto should have been raised then. The department was informed of this issue and attended to it and resulted in the removal of Mr Ngemntu from the SGB. I cannot find from the SA-SAMS information and system that there was tampering with information or any fraudulent activitiy and the system notes did show who accessed the system with no connection to addition of Mr Bebeza.

93. The contentions argued by the Applicant are to the extent that there was a material breach of procedure, policy and regulations in the appointment of the Second Respondent, on the substantive side, and that there was bias of the SGB in favour of the incumbent and that his forms misled the panel in stating that he was the Principal.

94. The procedural challenges are that the First Respondent deviated from PAM provisions in that the recruitment and selection policy of the department requires that the panel must not be changed but in this matter Mr Bebeza had an emergency and was changed. The panel must consist of a minimum of 3 and up to 6 members, but in this case the whole SGB formed the panel and actively participated which is inconsistent with the recruitment policy. From the documents presented a meeting to elect the panel was convened on 22 August 2022, as per minutes appearing in the Applicant’s bundle and it was followed by another meeting to elect the chairperson of the panel, wherein Mr Nofemele was elected and he remained the chairperson of the panel throughout the process.

95. In terms of shortlisting I do not find any material error or incompleteness of the Second Respondent’s application form and I accept that the form indicated that he was South African and the nitty gritty of the racial grouping omission is not material as not to shortlist. The employer applied its discretion to shortlist and the relevant committees in the recruitment and selection process came across the forms and shortlisted the Second Respondent. Mr Mxoli was part of the panel and at no stage did he raise any issues. Blank spaces cannot be faulted because for example in No. 24 of the form there’s space to fill Professional Activities from 24.1 to 24.5 and the Applicant filled information up to 24.3 and left 24.4 and 24.5 blank. He cannot write that 24.4 and 24.5 is not applicable (N/A) when there were professional activities he was involved in. I do not understand this counts as incompleteness in this regard as the Second Respondent provided 3 out of 5 activities. That puts the panel in a position to appreciate the Second Respondent’s involvement in professional activities. The same person who had an opportunity to nit-pick the application form from shortlisting up to the interviews must accept that if there is anything incorrect must be blamed on his own negligence.

96. Messrs Mxoli, Qononda and Nofemele confirmed that they agreed that the whole SGB to attend and observe the interviews, so it is a collective decision of the SGB. According to Mr Gongqa such an approach would have assisted in having the ratification immediately after the panel recommends. Mr Nofemele also confirmed this fact but Mr Qononda requested the ratification meeting to be held on another day. Mr Mxoli refused to participate in the ratification meeting. There is then a strong contention that the ratification meeting did not make the quorum and was therefore null and void. Out of 11 SGB members 6 attended the ratification meeting, which Mxoli refused to attend, for reasons not clear but he later challenges the quorum. In my view the percentage split of 6/11 gives a 54% which makes the quorum. The ratification meeting was held on 30 September 2022.

97. Mr Gongqa is criticised for signing the recommendation on the day of the interviews on 28 September 2022 before the ratification meeting that sat on 30 September 2022 and further that the Deputy Principal is not a member of the SGB but participated in the process.

98. The Applicant further argued that the SGB was bias in that it scored the Second Respondent higher and through a material breach of policy, regulation and procedure. From the scores Mr Mxoli, who is a witness of the Applicant scored the Applicant and the Second Respondent equally. If we were to consider the Applicant’s argument in this regard, from his own witness’s opinion, Mr Mxoli, the Applicant was not the best of all the candidates, he ranked equal to the Second Respondent. In terms of performance, even if the Second Respondent was not shortlisted, the Applicant, in terms of ranking, would not have made it.

99. In so far as the procedural deviations, PAM document outlines the following steps for recruitment and selection:
a. Vacancy identified
b. Advertisement
c. Sifting by the department
d. Shortlisting by Interview Committee
e. Interviews by Interview Committee
f. Recommendation by SGB
g. Appointment by HoD

100. In this matter all the stages outlined above were followed. Some stages were affected by circumstances, for example Bebeza being changed due to a personal commitment. PAM document at B5.4.5 requires the panel to inform candidates within 5 working days. Gongqa testified that they called candidates on 22 September 2022 for interviews to be held on 28 September 2022 and in his view 5 days were given because all the candidates agreed to the date. It is not clear how the time period is calculated but the 22nd was a Thursday and the 28th a Wednesday of the following week and that given 5 working days including the 22nd. There was also a weekend in between which cannot prejudice any of the candidates. In any event none of the candidates complained or raised any concern regarding this time period. The panel also declared that the interviews were free, according to Mr Mxoli in that all candidates were given an opportunity to express themselves, and reserved his comment on fairness.

101. The further biggest gripe after the interviews was that candidates were not treated equally because of time allocation as some exceeded 25 minutes allocated to each, including the Second Respondent. It is an error of the interviewing committee to not manage time and no fault of any candidate. The Applicant kept to the 25 minutes and was not prejudiced by the extra few minutes taken by the Second Respondent and the 36 minutes of the other candidate. It was also confirmed that this aspect was not agreed to be a disqualifying criteria as nobody was disqualified for exceeding time allocated. The chairperson of the panel alluded that he was reprimanded by the panel for being flexible on the time issue after the second candidate exceeded, thereafter he reminded candidates who took long to answer questions.

102. In terms of PAM provisions at B5.4.9 provides that an educator who has been acting in the advertised post for 12 months and more and has applied for the post must be shortlisted. The Applicant contends that the Second Respondent should not have been shortlisted, as the issues around completeness of the form and that he did not have a management qualification. The Second Respondent was a Deputy Principal at Edlelweni Primary before being appointed to act as Principal at Ithembelihle. That shows he had been a member of SMT and that in his teaching diploma he passed school management as a subject/module. According to the Respondent that was sufficient considering his experience. According to Mr Gongqa the Second Respondent met the requirement of section B.5.4.9 of PAM. There is further no dispute that the Applicant met the minimum criteria as the management qualification was an added advantage not a requirement for the post.

103. In terms of the steps to be taken the contentious aspect is the ratification meeting where the Applicant attacks Mr Gongqa for signing a route form on the day of the interviews, 28 September 2022. Mr Gongqa and Mr Nofemele corroborated each other when they said the entire SGB was present in the interviews and directed to ratify as a mere formality as the decision was supported there and then. There were issues with educator members of the SGB who did not want the ratification to be done the same day, citing various reasons and ultimately met on 30 September 2022, with Mr Mxoli refusing to attend the ratification meeting. A ratification meeting was held and a recommendation made to the HOD. Again Mr Mxoli and Mr Qononda did not sign the route form.

104. In so far as the alleged unfairness by SGB of bias, it remains unclear as to how they were biased when the process involved all members of the SGB and there is no evidence of undue influence by any of the SGB members, the incumbent or the district office. From the evidence attempts to frustrate the recruitment process are evident on the part of SGB members in the educator component, to the extent of refusing to attend a ratification meeting by Mr Mxoli. No complaints raised at any forum other than acts of not attending ratification, not signing route form. The only critique was the time taken which is not prejudicial to the Applicant and does not warrant any change in the decision taken. There was also an allegation that the Second Respondent was prepared for the post when he was made Acting Principal of the school but no evidence as to how.

105. History was provided to the extent that the decision to appoint him to act in the position was brought about by infighting between the former principal and her deputy to the extent of involving the Portfolio Committee, whose intervention saw the former principal and deputy transferred to other schools and the Second Respondent acting in the principal’s position. The allegation that the Second Respondent was appointed because of the Portfolio Committee is therefore unfounded as the decision was taken to address a challenge faced by the school at the time.

106. I must reiterate the fact that substantively there is no evidence that shows that the Applicant was the best of all candidates and should have been appointed. On the substantive part based on the lack of evidence in this regard, coupled with the fact that compared to other candidates the Applicant came last in terms of performance and the scoring is not challenged, there is no nexus between the alleged irregularities and the failure to promote the Applicant. Substantive fairness requirements in the matter have therefore been met by the First Respondent, as employer.

107. In Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng, Case No 02/15349 [2006] JOL 17802 (W) it was held that:
“The question then arose whether the multitude of the applicable laws and regulations which prescribed the procedure to be followed in the appointment of new teachers were peremptory or merely directory. In either event, the first question arose whether exact compliance was required or whether substantial compliance was sufficient. Accepting for present purposes, that the prescribed procedure was peremptory, strict compliance was not necessary. All that was called for was substantial compliance.

Held, further, that the procedure that the school had followed fully achieved the purposes of the legislation of ensuring that there was a fair and transparent procedure in place for appointing teachers to fill vacancies.”

108. In this matter the attack on each and every stage of the recruitment process over-proceduralised the process unnecessarily as attempts to comply with each step were made. Form over substance was elevated indeed. There were also aims to conduct the process efficiently for example the SGB availed themselves for the interviews with a view to ratify the same day but such efforts were frustrated. There is no provision from PAM at least that the approach of having the full SGB is prohibited. In line with the sentiments in the Observatory Girls matter substantial compliance with PAM was achieved in the recruitment process leading to the appointment of the Second Respondent. There was further no prejudice on any of the candidates as the process substantially complied with the required procedures.

109. In Ndlovu v CCMA & others [2000] 12 BLLR 1462 (LC), the Court held at par 1462:
“It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.

The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing qualities of the two candidates. Provided a decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise”.

110. From the case cited above there is no evidence that the decision to appoint the Second Respondent was not rational. The Second Respondent was already in the school, acting as Principal and evidence led was that the school was now running smooth. From Ms Dondolo’s evidence, who was a witness for the Applicant, she said that she supports the appointment of the Second Respondent as the school was better than before. Another witness alluded to him getting a school with challenges, and it was common cause that the Portfolio Committee had to intervene because of infighting in the school. A decision that seeks to ensure stability in a school is rational. Mr Qononda also said that he would support a decision taken to stabilise the school.

111. In Goliath v Medscheme (Pty) Ltd (1996) ILJ 760 (IC), it was held that it is quite possible that the assessment made of the candidates [by the employer] and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion.

112. In Noonan v SSSBC and others [2012] 56 ILJ (LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity to compete for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.

113. It is also trite that where an employee fails to prove that he was the best of all the candidates who applied for the job, then in order to the employee to prove an unfair labour practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest and misled the interview panel or employer.

114. It was alleged that the Second Respondent presented himself as principal of Ithembelihle and failed to indicate that he was acting. This issue was common cause in that if he was principal he would not have applied for the same post in the same school. Departmental documents have space for the principal to sign and as acting principal he had to sign documents as such, and that does not amount to imposing himself or self-appointing, he simply acted in a Post Level 4 position and fulfilled that role. I do not find that such was motivated by dishonesty on his part because the position of the principal was advertised and he had to apply and be subjected to the same process other candidates were subject to.

115. Section 28(2) of the Constitution requires consideration of children’s interests in matters involving children or only affecting them. In this matter Ithembelihle is a big school with an enrolment of over 1000 learners. Evidence was led that the school is stabilised by the presence of the Second Respondent, and further the Grade-R teacher, Ms Dondolo, also indicated that she supports the appointment. It is those Educators that were in the SGB who suddenly had tendencies after the interview outcome, e.g refusal to attend ratification, refusal to sign route form. Mr Nofemele, as SGB Chairperson indicated that communication improved and they hold regular meetings. Mr Maka also hailed participation of parents in the SGB which was a challenge the department faced. The decision to appoint the Second Respondent can therefore not be interfered with considering that the school is stable and the interests of the children are served, after a period where it was said that even reports were issued late in the previous administration which was a concern from parents.

116. A further consideration is public interest, and in this matter the parents of Ithembelihle and their children have an interest in how the school is run. A decision that would interfere with the decision of the employer would not serve the interests of the community, particularly based on minor procedural defects as alleged by the Applicant, for which a finding of substantial compliance has been made. I find, therefore, that the decision of the HOD to appoint the Second Respondent was rational, fair and reasonable and does not need to be interfered with. I therefore find that the Applicant failed to discharge the onus to prove that he is the suitable candidate for the position, that the failure to promote him was unfair and that the process followed was unfair.

117. In the circumstances, I make the following award:

AWARD

118. The conduct of the First Respondent, Department of Education: Eastern Cape, in not promoting the Applicant, Mr Mzwanele Hlaleleni, does not constitute an unfair labour practice.

119. The Applicant, Mr Mzwanele Hlaleleni, is not entitled to any relief.

PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL