ELRC759-22/23KZN
Award  Date:
04 June 2024

IN THE ELRC ARBITRATION
BETWEEN:
NAPTOSA obo Ebrahim S “the Applicant”
And
THE HEAD OF DOE KwaZulu Natal “the 1st Respondent”
And
SADTU obo Buthelezi J “the 2nd Respondent”
ARBITRATION AWARD

Case Number: ELRC759-22/23KZN

Date of arbitration: 05 April 2023, 25 May 2023, 29 August 2023, 15 September 2023 & 27 March 2024.

Date of award: 04 June 2024

Lungisani Mkhize
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearings were held at the Chatsworth Teachers Centre in Durban at the dates mentioned on the first page of this award except on 05 April 2023 where it was held online.

2. The Applicant, Mr. Saleem Ebrahim was present and represented by Mr. Rishal Juguth, a National Professional Teachers’ Organization of South Africa Union Official. The 1st Respondent, the Head of Department of Education in KwaZulu Natal, was represented by Mr. Indran Pillay, its Employment Relations Officer from the Human Resource Management and Development Section. The 2nd Respondent, Mr. I J Buthelezi was present and represented by Mr. P. M. M. Shandu, a South African Democratic Teachers’ Union Official. The parties provided documentary evidence and called witnesses to testify.

3. The proceedings were held in English and digitally recorded.

4. The services of an interpreter were not requested.

ISSUE TO BE DECIDED

5. I am required to determine whether there was procedural and substantive unfairness in not appointing the Applicant for the position of Principal (Post Number 369). The Applicant sought the setting aside of the appointment made for the position and his retrospective appointment. Alternatively, retrospective acquisition of a protected promotion within the UMlazi circuit.

BACKGROUND

6. The Applicant worked as an Educator in the private sector from January 2006 to March 2016. In March 2016, the Applicant was employed on a permanent basis as a Post Level 1 Educator by the Respondent. In October 2019, the Applicant was appointed to Head of Department: Languages by the Respondent. In January 2022, he was promoted to the Deputy Principal position by the Respondent. In March 2022, the Applicant acted as Principal for Asoka Secondary School.

7. On 14 March 2022, the Applicant applied for the position of Principal in response to circular number 5 of 2022. The Applicant was shortlisted, participated in an interview and scored. At an interview meeting that took place on 04 June 2022, the Applicant was removed from the candidates as he allegedly did not meet the minimum teaching years’ requirement of seven years. On 05 December 2022, the 1st Respondent appointed Mr. Innocent Jabulani Buthelezi, the 2nd Respondent to the position of Principal (Post 369) at Asoka Secondary School.

8. Aggrieved about not being appointed to the Principal post 369 as he believed he would have been the most suitable candidate, would have exceeded the requirements of the school and that the process was procedurally and substantively flawed, the Applicant, the Applicant referred an unfair labour practice dispute relating to promotion to the ELRC in December 2022.

9. The ELRC then set the matter for conciliation but remained unresolved. The Applicant then requested the matter to be arbitrated and the ELRC then scheduled the matter to be arbitrated before me as shown on paragraph [1] of this award.

SUMMARY OF EVIDENCE AND ARGUMENTS

10. The Applicant Representative called 3 witnesses including the Applicant who testified under oath. He submitted a bundle of documents referred to as Applicant Bundle. The 1st Respondent Representative provided a bundle of documents and presented the 1st Respondent’s case. The 2nd Respondent Representative presented the 2nd Respondent’s case and did not call any witnesses. I only summarized evidence which I regarded to be relevant to the dispute and which helped me to reach my decision as guided by section 138 of the LRA as amended.

The Applicant’s Case

11. In his opening statements, the Applicant Union Representative, Mr. Rishal Juguth submitted that the Applicant was appointed as a Deputy Principal and disputing the Principal post 369 appointment. He was acting principal at the time of the appointment. The interview process was procedurally and substantively unfair and he would be most suitable for the position. The Applicant party will lead evidence through witnesses and documentation in the provided bundle. The Applicant sought the setting aside of the appointment and that the interviews be redone.

12. Mr. Rishal Juguth called the Applicant, Mr. Saleem Ebrahim who testified under oath as follows: He began his teaching career in 2006 at the Darul Falah College. The school was registered with the Department of Education and it taught the main stream syllabus. When he applied for the position in question, he had about 16 to 17 years of service. In 2016, he was a substitute educator at Asoka Secondary School for 6 months and then permanently employed on 11 August 2016 as a post level 1 educator. He applied for the deputy principal position in 2021, was appointed and no grievance was lodged against the appointment. He was a deputy principal at Asoka Secondary School.

13. In March 2022 when he was the acting principal, he applied for the principal post 369 of 2022. His application was validated for qualifications, experience, identity etc… by Mrs. G. L. Mnyende the Circuit Manager. He made two applications, one hand written and one typed. Before 22 March 2022, he made a hand written application. Around the middle of April 2022, he submitted a typed application. He was shortlisted and attended an interview. The Applicant’s CVs were 7 and 12. The CVs were combined and CV number 7 scored the highest. He was the first to be interviewed between 10:00 and 10:45.

14. The interview was tense and he had waited 3 hours before he was interviewed. He is a diabetic and it was hot on the day of the interview. The setup was neat. The Unions and the School Governing Body was at the interviews. He answered the interview questions fairly. The interview minutes indicated that the Applicant was removed from the list of candidates as he did not meet the criteria for the number of years. When the Applicant was interviewed, none of the Committee Members asked him his years of experience. The advertisement stipulated that 7 years of actual teaching experience were a minimum requirement.

15. Under cross examination by the 2nd Respondent’s Representative, Mr. P Shandu, a SADTU Official, the Applicant testified that he had proof that he possessed an SAICE certificate. He had been employed for 7 years, 6 months under the Educators Act. From August 2016 to April 2022 (closing date of the post 369 application), it was 6 years’ service.

16. He became an HOD in October 2019. In February 2022, he became a Deputy Principal. It took him 3 years to be promoted from HOD to Deputy Principal. It took the Applicant 6 years to be promoted to Deputy Principal from Post level 1.

17. Under cross examination by the 1st Respondent’s Representative, Mr. Indran Pillay, Mr. Saleem Ebrahim testified that from the time he qualified to applying for post 369, he had 6 years’ service. At the time of applying for post 369, the 2nd Respondent had 10 years’ service with the Department of Education. From qualification to HOD position, it took him 4 years which meant he was at post level 1 for 4 years.

18. He had been an HOD for 2 years and 5 months October 2019 to January 2022. On 15 January 2022, he was appointed a Deputy Principal. When he applied for the Principal post 369, he had 4months experience as a Deputy Principal. In 2022, the school demographics showed that there was 75% black learners. He confirmed that the 2nd Respondent qualified in 2013 whilst he qualified in 2016. He also confirmed that the SGB made a recommendation and that his CV was considered for the selection process. He was disappointed for not being appointed. He did not submit an unsigned CV for his shortlisting. He did not know how one of his CVs was found with Mrs. Khan which caused suspicion of undue influence at the SGB.

19. Mrs. Mnyende called him to go to Asoka Secondary School when he was out of work and was contemplating going overseas. The DOE was looking for a manager and not a teacher. The 2nd Respondent had more management experience as HOD and Deputy Principal. The 2nd Respondent was the most suitable out of those who applied. The recommended candidates list must state that two people were removed. The minutes of the SGB meeting held on 4 June 2022 were signed by the SGB.

20. In re-examination, the Applicant testified that he was due to start his interview at 10:00 but only started at 13:00.After candidates were scored, he was brought down to 3 by union members. At the time of applying for the Principal post 369, he had 7 years actual teaching experience. There was no clause in the circular that one had to be employed by the Department of Education. He lodged a dispute after the appointment was made. He did not submit a CV with red underlining for this post. His CV was a different color. His CV was validated. His name does not appear in the CV number. His CV number is 7 and he was not made aware before, during and afterwards.

21. Mr. Rishal Juguth called his 2nd witness, Mr. L Khan, the Chairman of Asoka Secondary School who testified under oath: He was the interview committee chairman. It was the first time that he was involved in a promotion process. He is also chairperson of the SGB. The members of the Interviewing Committee were also new to the promotion process. The DBE Representative was Mrs. Mnyende. He was work-shopped on how to conduct an interview process on the morning of the shortlisting by Mrs. Mnyende and they were satisfied they could proceed.

22. Mrs. Mnyende discussed the overview of the criteria required to shortlist in detail verbally without any document in hand. They were not told they could eliminate candidates but told once shortlisting is done, they should gather the best. Two CVs were duplicated. No candidates’ names were given. After scoring, Mr. Saleem Ebrahim scored highest. He was not aware that there was a sifting process before a CV was admitted. He realized afterwards. They were not told they could further sift out CVs. After scoring, no one raised any concerns about any of the CVs. The Applicant was punctual for the interview and there was no delay and all went according to the scheduled time.

23. The Applicant scored the highest, the 2nd Respondent was second, Naidoo was 3rd, Cassim was 4th and Langa was fifth. The Applicant met the requirements and his name was included in the recommended list by the Interviewing Committee. The Applicant’s name was not included in the recommended candidates’ list as the IC committee was advised by Mrs. Mnyende and the Union Representatives that the Applicant did not meet the minimum requirements and his name had to be removed. This was an instruction and he objected to it. Mr. Pillay and Naicker also objected to the reason that the Applicant did not have enough service. The IC Committee was not satisfied with the instruction but they were misled and told that was procedure. They signed off as Mrs. Mnyende misled them on criteria and told the position had to be filled as soon as possible.

24. After the interviews and all the candidates had left, there was a discussion as to why they scored the candidates like they did. They were also asked why they scored the Applicant as they did and they responded and others were questioned as well. The IC was not satisfied with the decision from the resource person; they thought she knew what she was doing. They felt misled and afterwards they found out. The performance of the Applicant and the 2nd Respondent was a close call but the Applicant scored higher than the 2nd Respondent. They questioned why the Applicant’s CV was removed after the scoring.

25. Under cross examination by the 1st Respondent Representative, Mr. Khan testified as follows: He was misled as in terms of the process, each candidate qualified but later it turned out one person did not meet requirements. He agreed that the Department of Education specified 7 years actual teaching experience. The Recommended candidates list was presented to the SGB for ratification after the Applicant’s CV was pulled out. There were Union Representatives and a Departmental Observer present and a recommendation was made to the HOD to make an appointment.

26. He confirmed the 2nd Respondent met the requirements and there were no issues with regards to his years of service. They were misled in that they were told that CVs were sifted and that the one who scored the highest would be appointed and it was not going to be about years of service. Before the interviews, the Applicant was known by the IC as the principal and none of the other candidates were known. There was no reason why the Applicant was called first to the interview, they just agreed. He was not called to set a benchmark. Due to concerns that were raised with scoring, they had to alter as required by Mr. Shandu as they scored other people high. He confirmed that demographics in the school were 90% African.

27. Under cross examination by the 2nd Respondent Representative, Mr. Khan testified that the interview process was free and fair. The IC members signed a secrecy form. During the interview process, Mrs. Khan was his ex-wife. Mrs. Mnyende found a CV next to the Secretary and she said she did not know how it got there. The CV was found in the bundle of documents and not in her possession. He signed the candidate list after he was advised by Mrs. Mnyende and Mr. Shandu that the Applicant did not meet the minimum requirements in terms of years of service.

28. In re-examination, Mr. Khan testified that Qualifications were read to them at the beginning of the shortlisting of candidates. At that point, there was no reason for the Applicant’s CV to be removed. To soft out CVs was the job of the department. CVs were drawn randomly. At the end of the interview process, the IC was informed who scored the highest. After the scoring, the IC went back and reviewed the candidates’ qualifications and years of service. It was then raised that the Applicant did not meet the criteria and his name will be removed and the position offered to the next candidate. The Union Representative requested them to alter scores and they questioned how they could be asked to score higher or lower.

29. The Applicant Union Representative, Mr. Juguth called his third witness Mrs. Arisha Pillay, a parent member of the Asoka Secondary School SGB at the time of the interviews for post 369 who testified under oath as follows: She is not in the Education Sector. She was no longer of the Asoka Secondary School SGB. She played the role of a scorer together with 3 others who were the parent component.

30. She had no experience as an interview committee member. The Interview Committee was got a crash course on the day of the shortlisting from Mrs. Mnyende. They were told they would go through part of CVs to see who would be eligible for shortlisting. They were not told they could remove CVs but it happened. Some CVs were duplicated. Dr. Bhabal and part of Union members read out CVs and they did not know whose it was. After CVs were scored, no one raised any issue about anybody’s Cv. The Applicant started on the interviews and scored highest.

31. The 2nd Respondent was nervous and kept picking his pants, gave the same answers for different questions. After all the interviews, there was a discussion about the coring. Mr. Shandu saw inconsistencies and asked that the Applicant’s score be reduced. Mr. Khan argued about inconsistencies. Afterwards, the Applicant got the highest marks. They were told by Mr. Shandu and Mrs. Mnyende that the Applicant did not qualify due to the number of years as a teacher.

32. Mr. Khan questioned the removal of the Applicant’s CV and Mr. Shandu responded. The ratification meeting took place a week later than the interviews but was not finalized on the same day as the secretary fell ill and she was asked to help. There was no agreement on who would be recommended for appointment for the post. There was a lot of judgement and they were told not to thumb suck.

33. Five people’s names were on the list but the Applicant’s and Langa’s names were removed. They wanted to know why. She signed the document but she was misled when she signed. They were not told they did not have to sign the document as they did not agree to the process. Mrs. Mnyende, Mr. Shandu and Mrs. Ezekiel made it seem as though it was imperative that they signed. The whole SGB was not satisfied.

34. Under cross examination by the 1st Respondent Representative, Mrs. Arisha Pillay testified as follows: She, the Chairperson and Mr. A Naicker scored as parent members. Prior to forming the Interview Committee, she knew the Applicant as the Acting Principal and she interviewed and scored him. She did not score the Applicant highest because she knew him personally as the others scored him high as well. Two observers from two unions had issues with the scores as they spoke to each other but Mr. Shandu addressed them.

35. She was satisfied with the shortlisting but not with interview scores. She was not happy with the removal of two candidates from the list of recommended candidates. Her signature appeared on the minute’s dates 04 June 2022 but her disagreement was not shown. All members of the IC signed the recommended candidates list. They were not told they did not have to sign the document if they were not happy. Mr. Khan wrote a letter to the Department complaining about the interview process but she did not know why he did not mention that when he testified. She denied that she favored the candidate that was not appointed as the reason why she was unhappy the removal of two candidates.

36. She disagreed that there was undue influence as contemplated in Section 6 (1) of the Education Act brought by the Interview Committee. The Applicant was accepted as he was the Acting Principal. They were told he did not meet the criteria in terms of the number of years. They came to the Teachers’ Centre to sign the dispute brought forward but Mr. Shandu would not come to sign when they were supposed to sign on 27 July 2022. Mrs. Mnyende was not there. They wanted two CVs to be put back. She wanted both the Applicant and Langa’s CVs to be put back in even though Langa scored low. She did not know Langa scored low. She did not know what the outcome would have been had the Applicant’s CV been included. Her desired outcome was not important but procedure mattered. Khans and Naickers were married and part of the IC.

37. She denied that during the questioning phase, nobody opened CVs and showed that the Applicant did not meet the required 7 years. She denied that ratification was not done but there was agreement for the Applicant to get the post. She was not forced to sign the recommended candidates list but was misled. She was not misled on the Applicant’s 7 years’ experience not being there. The IC signed the recommended candidates list on 04 June 2022 and submitted on 05 August 2022.

38. Under cross examination by the 2nd Respondent Representative, Mrs. Pillay testified that she was aware of the role of the Resource Person in an interview process. Shandu put to her that clause 12.1.3 and clause 12.1.8 of the 1st Respondent’s selection and recruitment procedure (page 11 of bundle b) stated that the role of the Resource Person was to enhance understanding and to address any challenges that could arise respectively. Shandu further put to her that the role of the Union Observer was to bring any unfair process to the attention of the IC and had a right to intervene if he/she deemed there was a deviation. She did not know the role of the Union Observer. She denied that the interview process was free and fair.

39. The guidelines she used to determine the performance of the candidates was to ask certain questions and base the answers received on the answer sheet and not on preconceived ideas. She was there to score and not to check people that were nervous. She was not influenced by anybody during the interviews. There were no scores in the interview minutes but she knew the Applicant’s score was the highest and could not remember what it was. She could not comment on that the recommended candidate list from the SGB proved that the 2nd Respondent was the highest performer.

40. In re-examination, Mrs. Pillay testified as follows: The interview took place on 04 June 2022. The ratification process was scheduled to place on 11 June 2022 but there was a dispute. The whole governing body did not meet before the signing of the recommended candidates list. She only discovered later after signing. The purpose for the meeting of the 11th of June 2022 was to discuss the dispute she and other IC members had when they felt that the two candidates that were removed had to be included and sent to the Department. The meeting of 11 June 2022 took place but it was short and some SGB members did not attend. She was not aware that the recommended candidates’ list document had been sent to the Department but she had signed it.

41. When the Committee was scoring CVs, she was not aware who they were scoring but only referred to them as numbers. She knew the Applicant was shortlisted at the end of the process. She had to bring documents at the meeting of 11 June 2022 as Mrs. Khan had fallen sick. Mr. Shandu was supposed to sign but he needed a day’s notice. On the day agreed, Mr. Shandu and Mrs. Mnyende were rude and cut the call. The documents were taken from her and given to Mrs. Mnyende when she came later on. Mrs. Mnyende took the score sheets for the Applicant and Mrs. Langa.

42. No closing arguments were submitted by the Applicant Union Representative, Mr. Rishal Juguth.

The 1st Respondent’s Case

43. In his opening statements, the 1st Respondent Representative, Mr. Indran Pillay submitted that the Applicant and the 2nd Respondent both applied for the post and were interviewed. After the interview, it was discovered that the Applicant had not met the minimum required teaching experience within the KZN Department of Education. Even if the Applicant met the minimum requirements, the Applicant would not be the most suitable person as he only had 6 years’ experience at the time and the 2nd Respondent had 14 years at the time. The Applicant qualified in April 2016. In January 2022, the Applicant was appointed Deputy Principal when he did not meet the minimum requirements and in March 2022, the Applicant applied for a principal post.

44. The 2nd Respondent had 5 years’ experience in post level 1, 2 years as an HOD and 8 years as a deputy principal.

45. The school demographics reflect 90% enrolment of African learners. The Applicant qualified in 2016 and the 2nd Respondent in 2013. The SGB only makes a recommendation and the Department of Education appoints. Section 82 of the Educators Act states that the interests of the child are paramount. Whilst the qualifications are similar, there is a vast difference on the experience of both the Applicant and the 2nd Respondent within the public school management structure. The 2nd Respondent has more experience and it made more sense to appoint him as leader of the school. There was no unfair labour practices committed against the Applicant. As time progresses, the Applicant will become promotable.

46. The 2nd Respondent Representative submitted that he concurred with the 1st Respondent’s submissions as opening statements.

47. The 1st Respondent Representative, Mr. Indran Pillay testified under oath as follows: He was the Deputy Director in the UMlazi Circuit for the Department of Basic Education. There is a Director and there is HR. Posts are advertised in the bulletin at district level. Applicants submit their CVs tot eh District Office. Then their CVs are distributed to the relevant schools for the SGB to conduct shortlisting, interviews and recommendations. Section 6 of the SA schools Act and Section 6 of the SA Employment of Educators Act states that the SGB must submit 3 names to the HOD in order.

48. Once the SGB concludes the process, they then forward names to the District Office which checks whether all documents were in order and whether due processes were followed. They deal with any complaints lodged. Districts then collate those documents and ensure compliance to the Act. If satisfied, they then submit documents which include HRM in order of preference for appointment to the HOD. The HOD then makes the appointment. Section 6 of the SA schools Act states that the SGB does not make the appointment but the HOD. Thus, in such matters as these, the HOD is the 1st Respondent and not the SGB.

49. The Post was advertised in HRM 5 of 2022 and the Applicant applied for the post. The documents in the Respondent bundle were not disputed. The Applicant was shortlisted, interviewed but rejected due to not meeting the minimum requirements. The SGB was represented. The Applicant had 6 years of service with the Department and there was no recognition of prior learning application. The 2nd Respondent had 14 years’ service with the Department on the other hand.

50. The Applicant was appointed at post level 1 in March 2016 until 2019 and got 3 years’ experience. He was then appointed to Head of Department between 2019 and 2022 and got 3 years’ experience. In 2022, he was appointed Deputy Principal and got 2 months experience when the post 369 was advertised. In 2013, the 2nd Respondent was appointed an HOD and in 2016 appointed Deputy Principal. Thus, he had 5 years’ experience as HOD and 8 years’ experience as a Deputy Principal at the time of applying for the post in question. The Applicant was paid for acting as a Principal.

51. Under cross examination by the Applicant Union Representative, Mr. Indran Pillay testified that HRM 5 of 2022 would serve as procedure and the custodian would be the HR component even though it was taken to the chamber by Unions and the Department. The HOD is the custodian. CVs were distributed to schools after a sifting process. The purpose of the sifting process was to ensure relevant fields were filled, relevant pages signed and CVs were valid for the application. He conceded that the Circuit Office had to upon receiving CVs and applications, eliminate Applicants that did not meet the minimum requirements as per clauses 7.1.2 and 7.1.3 of the procedure.

52. In HRM 5 of 2022, it stated that a minimum of 7 years actual teaching experience was required. Actual teaching experience referred to state schools which the Department dealt with and where Educators were employed as per section 6 of the Employment of Educator’s Act. The Applicant’s CV was not eliminated as he stated he had 17 years’ experience. On 23 August 2016, the Applicant applied to the Department for the first time appointment as an educator.

53. Clause 4.21 on eligibility stated that permanent, temporary and non-serving applicants were eligible to apply. This included educators that resigned for health reasons and those dismissed for misconduct. Educators in the private sector were excluded from the eligibility clause as they did not fall under the SA Education Act unless they apply for recognition of their experience.

54. The Resource Person, Mrs. Mnyende’s role was to guide the interview process which included the decision to bring down the number of candidates to three. It was procedural for a candidate to be shortlisted, scored and then removed as guided by the Ritchie Khumalo v MEC for Education matter. The sifter took it at face value that the Applicant had 17 years’ experience. The Resource Person was the supervisor of the Principal and Acting Principal and known to the Applicant. Had the union disagreed, they would have checked with the Department. Parents were advised but were unhappy.

55. The purpose of shortlisting CVs was to compare them with qualifications, confirm experience of candidates, guide and decide. According to the Ritchie Khumalo case, at any point when a wrong is discovered, it must be corrected. He denied that the Applicant was sifted in because he qualified and that he was removed by the Resource Person. He was removed due to not having the minimum requirement. The 7 years of actual teaching experience could not be read in isolation. It had to be looked at in conjunction with the definition. .

56. There were no closing arguments from the 1st Respondent Representative, Mr. Indran Pillay.

2nd Respondent’s Case

57. The 2nd Respondent’s Union Representative, Mr. P. M. M. Shandu did not present a case for the 2nd Respondent.

58. There were no closing arguments from the 2nd Respondent Union Representative, Mr. P. M. M Shandu.

ANALYSIS OF EVIDENCE AND ARGUMENT

59. Section 186(2) (a) of the LRA stipulates that an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the 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.
60. This is a dispute relating to promotion and therefore, my determination will focus on whether there was unfair conduct by the first Respondent against the Applicant concerning procedure of appointing the second Respondent instead of the Applicant to post 369 of Principalship at Asoka Secondary School in response to Circular No 5 of 2022.
61. In Buffalo City Public FET College v CCMA and others (P372/12) [2016] ZALCPE 18 (handed down on 4 November 2016) it was held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the Employee to prove that he/she is a suitable and better candidate for the position in question. Mr. Saleem Ebrahim then had the burden of proof and started leading evidence.

62. In City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held, with reference to the Aries case that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the Employee it is relevant to consider the following:

a) Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the Employer; or
b) Whether the Employer’s decision was arbitrary, or capricious, or unfair; or
c) Whether the Employer failed to apply its mind to the promotion of the Employee;
d) Whether the Employer’s decision not to promote was motivated by bad faith;
e) Whether the Employer’s decision not to promote was discriminatory;
f) the law requires the Employee to show the existence of the conduct or decision complained of. Therefore, the onus rests with the Employee. It follows that if the Employee is challenging the process and that decision or conduct by the Employer is not established by the Employee, then that is the end of the issue.

63. The Applicant’s overall allegation was that he was shortlisted and interviewed and would have been the most suitable candidate but was removed form a list of recommended candidates even though he scored highest out of all the candidates. The main issue was that the post advertisement stated that actual teaching experience of a minimum of seven years was required. The Applicant submitted in his application that he had 17 years teaching experience.

64. From the evidence presented, it was testified that the Applicant was known to the Circuit Manager, Mrs. Mnyende as he reported to her as acting principal of Asoka Secondary School. The reporting relationship between the Applicant and the Circuit Manager could have caused the Circuit Manager to take it at face value that the Applicant had seven years teaching experience and not noticed how many years of the actual teaching experience was from the Private Sector and how many from the Public Sector.

65. The experience of both the Applicant and the 2nd Respondent within the public school management structure was the course for the dispute. The 1st Respondent only recognized public sector experience. Mr. Indran Pillay testified that for private sector teaching experience to be recognized an application had to be made to the 1st Respondent as the private sector content and teaching methodologies could differ from that of the 1st Respondent. This necessitated an analysis to be done so that actual years of experience receiving prior to working in the public sector could be determined and declared for consideration as specified number of year’s equivalent in the public sector.

66. Other than the above-mentioned, when an Educator is appointed for the first time, that is the start of their teaching experience as far as the 1st Respondent is concerned. Mr. Indran Pillay, the 1st Respondent’s Representative and witness conceded that the Circuit Office had to upon receiving CVs and applications, eliminate Applicants that did not meet the minimum requirements as per clauses 7.1.2 and 7.1.3 of the selection and recruitment procedure but this did not happen.

67. The previous paragraph explained how the Applicant got to be invited to an interview. He was the acting principal in the same school after all. The members of the School Governing Body testified that they had never been involved in a selection and recruitment process like they did in the post 369 appointment before and they only received training on the process on the morning of the interviews. Thus, they were not in a position to identify or question the type of experience the candidates had.

68. Observers from the Unions also did not scrutinize the shortlisted CVs prior to the interviews. Thus, the Applicant was interviewed and scored. However, during the scoring process, two of the Union observers noticed some irregularities which suggested that there was some undue influence by the SGB Interview Committee as contemplated in Section 6 (1) of the Education Act brought by the Interview Committee after Mrs. Mnyende found a CV (Applicant’s) next to the Secretary and she said she did not know how it got there.

69. Mr. Khan, the SGB Chairperson testified that the CV was found in a bundle of documents and not in the Secretary’s possession. Mr. Shandu, the SADTU Union observer asked the suspicious act to be noted in the minutes and that Mrs. Khan had taken candidates CVs to her home which was against SGB rules. Mrs. Khan explained that there was no safe place to documents at school and she acted in the best interest of the SGB.

70. Mr. Shandu further asked the SGB members to revise their scores for the Applicant as they were allegedly very high as part of his duties as a Union Observer. During ratification of the candidates list, Mrs. Mnyende and Mr. Shandu noticed that the Applicant did not meet the minimum seven years teaching experience requirement in the public sector and then asked for his name to be removed from the recommended candidates list.

71. It has to be determined whether the act of removing the Applicant’s name from the list of recommended candidates amounted to unfair labour practice or not. The Applicant was appointed for the first time in public service in August 2016 after acquiring his Post Graduate Certificate in Education on 20 April 2016 and registering with the South African Council for Educators as a professional educator.

72. According to Section 1 (v) of the Employment of Educators Act No. 76 of 1998, the definition for educator in terms of the act is any person who teaches, educates or trains other persons or who provides professional educational services, including professional 10 therapy and education psychological services, at any public school, further education and training institution, departmental office or adult basic education center and who is appointed in a post of any educator establishment under this Act.

73. Section 2 (a) to (d) of the Employment of Educators Act states that the provisions of this Act shall apply in respect of the employment of educators at public schools, further education and training institutions, department offices and adult basic education centers. The Applicant was not appointed to any of the above-mentioned public sector institutions prior to his appointment in August 2016 with the 1st Respondent.

74. The Applicant was not appointed by the 1st Respondent according to the Employment of Educators Act prior to August 20216. Thus, according to the 1st Respondent, his professional teaching career started in August 2016. This then means the Applicant had 6 years public service experience when he applied for post 369 in March 2022. This he did not meet the minimum required experience of seven years as stipulated in HRM 5 of 2022.

75. In his application for post 369, the Applicant submitted that he had 17 years’ experience and this led to the District Office taking through his CV so that he was called for an interview. The District office erred in presenting his CV to the Interview committee for interviewing. However, the Circuit Manager (Mrs. Mnyende) and the SADTU Union Observer (Mr. Shandu) identified the error and corrected it by removing the Applicant’s name from a list of recommended candidates. This guidance assisted the interviewing committee to present an error free lost to the SGB for recommending to the 1st Respondent who actually does the appointment.

76. The Resource Person’s duty was to guide the interview process, address any challenges that could arise by correcting any errors that were made as required in clause 12.1.3 and clause 12.1.8 of the 1st Respondent’s selection and recruitment procedure. The Union Observer had a duty to bring any irregularity to the attention of the Interview Committee Chairperson and this was done when the Applicant’s public service experience discrepancy was discovered.

77. The actions by Mrs. Mnyende and Mr. Shandu are in line with Section 195 (1) and (2) of the Constitution of the Republic of South Africa which provides for a number of values to guide decision makers in the context of public-sector employment including a high standard of professional ethics to be promoted and maintained, services to be provided impartially, fairly, equitably and without bias, good human resource management and this applied to every sphere of government, organs of state and public enterprises.

78. Even if the Applicant was incorrectly appointed to the position of principal at Asoka Secondary School, his appointment letter from the 1st Respondent would have stated that the Department reserved the right to withdraw his placement to the post 369 should it be found that He did not meet the requirements for the post, his application was based on incorrect information, his placement was based on procedural incorrectness and a dispute had been lodged against the post. This further aligns with the principles of ensuring eradication of any irregularities in the public sector in support of section 195 of the Constitution. In this matter, the error was discovered before recommendation of a list of candidates by the SGB Interviewing Committee to the 1st Respondent. The 2nd Respondent’s placement letter (page 14 of the 1st Respondent Bundle A) dated 05 December 2022 contains the above mentioned right of the 1st Respondent to withdraw the placement on line 4.

79. Initially, the 1st Respondent did not do due diligence by taking through the Applicant’s CVs in the sifting process. However, the 1st Respondent officials were duty bound to correct the error and this was successfully done before recommending the Applicant as a candidate to the 1st Respondent.

80. Based on the evidence before me, it is my finding that the Applicant failed to prove that the 1st Respondent any unfair labour practice by removing the Applicant’s name on the recommended candidate list and presenting a revised to the Interview Committee Chairperson to avert an error that could have resulted had the Applicant been mistakenly appointed when he did not meet the minimum 7 years’ experience required as per HRM Circular 5 of 2022.

AWARD

81. I hereby find that the 1st Respondent, Head of DOE-KwaZulu Natal did not commit any unfair labour practice against the Applicant, NAPTOSA obo Ebrahim S by appointing the 2nd Respondent, SADTU obo Buthelezi J.

82. Accordingly, the Applicant’s Case is dismissed.

83. There is no order as to costs.

L Mkhize

Arbitrator 04 June 2024
ELRC759-22/23 KZN

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