ELRC877-23/24MP

Commissioner: NTATE MABILO
Case No.: ELRC877-23/24MP
Date of Award: 05 JULY 2024


In the ARBITRATION between:

Nkosazana Setsedi
(Union / Applicant)
and

Education Department of Mpumalanga
(Respondent)

Union/Applicant’s representative: Mr. Juan Schoeman, from Pretoria Society of Advocates.
Union/Applicant’s address:
Telephone:
Mobile:
Telefax:

Respondent’s representative: Mr. Sifiso Khoza
Respondent’s address: Mr. Mkhwanazi of SADTU on behalf of Mr. Nkosi (enjoined
Incumbent).

Telephone:
Facsimile:
Email:

DETAILS OF HEARING AND REPRESENTATION:

1. The arbitration of the Unfair Labour Practice dispute between Nkosazana Setsedi (Applicant) and the Education Department of Mpumalanga (Respondent) was held under the auspices of the Education Labour Relations Council (“ELRC”), at Education Department of Mpumalanga District Office in Ermelo on 14 June 2024 in terms of section 186(2)(a) of the Labour Relations Act 66 of 1996 (“LRA’’).

2. The applicant was represented by Mr. Juan Schoeman from Pretoria Society of Advocates while the respondent was represented by Mr. Sifiso Khoza, an employee of the respondent.
3. The proceedings were conducted in English and were manually and digitally recorded.

PRELIMINARY ISSUES
4. The applicant party raised an issue about the costs incurred by the applicant to defend her case and argued that the applicant was compelled to seek legal representation to defend herself against the mistakes of the respondent. The respondent party argued that the applicant made a choice to seek legal representation, while she belonged to a trade union.

5. Having listened to both parties, I decided to make the ruling part of this award as I hereby do. Legal representation at the tribunal was indeed a choice that the applicant made to ensure that she was well represented. She occupied a position of HOD which is a managerial position and could have come as a pro se applicant, alternatively she could have asked her trade union or alternatively sought legal representation as she did, depending on her affordability. I am therefore not persuaded to award costs.

ISSUES TO BE DECIDED
5. The dispute was referred to the ELRC by the applicant as an Unfair Labour Practice action on the part of the respondent, in respect of section 186(2)(b) of the LRA.

6. I was required to determine whether the respondent acted unfairly when they excluded the applicant from being shortlisted and from interviews and subsequently appointing another person into the advertised post. If so to determine the appropriate remedy.

7. Relief sought was to have the appointment set aside.

BACKGROUND TO THE DISPUTE
8. The applicant started working for the respondent from 08 June 1992.

9. She held the position of HOD and her monthly salary was R45 000.00.

10. The applicant became aware of the unfairness on 23 November 2023.

11. The applicant applied for an advertised post of Deputy Principal and was not shortlisted and therefore not appointed.

SURVEY OF EVIDENCE AND SUBMISSIONS:
Applicant party submissions:
The applicant, Nkosazana Conception Setsedi testified under oath and stated the following:
12. She was a teacher at Masizakhe Secondary School for the past 31 years. Currently she occupied the position of Head of Department (HOD). She was duly qualified with Secondary Teachers Diploma and Advanced Certificate in Education Management amongst others.

13. In March 2023 there was a vacancy list advertised and she applied for the post in question. After closing date she was she was invited for interviews. The process was disputed and called off.

14. In the second round of the process she was shortlisted and invited to interviews again. She lodged a dispute relating to the interview questions and there was a response that there was going to be a re-run. She waited and nothing happened.

15. On 8 November she heard rumours that there were going to be interviews on 9 November 2023 regarding the same post. She wrote a letter to the labour office lodging a dispute against the process. The letter was read into the record. The letter was not replied.

16. At a memorial service she heard it announced that someone was appointed in the post and referred the dispute.

17. She was fully qualified for the post than the incumbent that was appointed to the post.

18. Under cross examination, reference was made to an entry in her application wherein she stated that she was an HOD from the time she was employed, while she only became HOD in 2008.

Respondents party submissions:
19. There was no witness from the department to give the respondent’s version. The enjoined incumbent was also duly represented throughout the process and did not present any version to the contrary.

ANALYSIS OF EVIDENCE AND ARGUMENTS:
20. The dispute was referred as unfair promotion/ appointment action in terms of section 186(2) (a) of the Labour Relations Act 66 of 1995 as amended. According to the LRA there are specific actions that constitute unfair labour practice and they are stated as follows:

(a) unfair conduct by employer relating to the promotion, demotion, probation, training or provision of benefits.
(b) the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee.
(c) failure or refusal by an employer to re-instate or re-employ a former employee in terms of any agreement.
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act of 2000.
21. The applicant’s matter is directly linked to subsection (a) above.

22. I am required to determine the alleged unfairness of promotion/appointment action by the respondent to the applicant. Therefore, the onus rest with the applicant to show that the respondent’s action amounted to unfair labour practice.

23. I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.

24. In the case at hand, the applicant’s version is that she was not invited to the interviews without justification. She was left out and a less qualified employee ended up being appointed while she was more qualified for the post. According to her testimony the process was riddled with errors and she lodged disputes which were at first attended to in that the interviews were rescheduled. In the second interviews she disputed the questions asked. Another shortlist was done and she was no longer included. She only heard about the appointments being announced and realised that she was left out of the process. The applicant party argued that the process was riddled with errors and was therefore not a fair process. This was demonstrated with correspondences from the applicant and responses from the department acknowledging discrepancies. They prayed that it be reversed.

25. The respondent party had no witness to testify and therefore had no version to present. This includes the enjoined incumbent who attended the proceedings throughout and was represented by his trade union, SADTU. During cross examination of the applicant it was discovered that the applicant also contributed to the elimination by answering that she was an HOD since her appointment, which was not a correct picture.

26. In the absence of another version than that provided by the applicant under oath, I am persuaded to believe that the process was indeed not an error-free process and this compromised its fairness. It is therefore my finding that the process could not have been fair as pointed out by the applicant in her evidence stated under oath.

27. According to the evidence adduced, there was no problem with the advertisements and the challenges started at shortlisting of candidates to be interviewed. In the interest of speedy resolution and with the interest of learners in mind, there will be no need to have the post re-advertised.

28. Based on the above facts and all other evidence considered, I conclude with the following award:
Award:
1. The appointment of Mr Tau Nkosi as Deputy Principal is hereby reversed and nullified.
2. The appointment process should be redone, starting from shortlisting through interviews to appointment.
3. The Mpumalanga Department of Education is ordered to oblige and to speed up the appointment process.


Ntate Mabilo
ELRC Dispute Resolution Panellist