ELRC764-23/24GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN VIRTUALLY

CASE NO.: ELRC 764-23/24 GP
In the matter between: -

SADTU obo NP GXAGXAMA APPLICANT
and

DEPARTMENT OF EDUCATION- GAUTENG 1ST RESPONDENT
N. LAMULA 2ND RESPONDENT

ARBITRATOR : MMAMAHLOLA GLORIA RABYANYANA
HEARD : 13 June and 03 July 2024
CLOSING ARGUMENTS : 10 July 2024
DATE OF AWARD : 24 July 2024


SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice by employer relating to promotion.

ARBITRATION AWARD


DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 13 June and 03 July 2024.The applicant was represented by Mr T. Hlatswayo, union official of SADTU. Ms N.H Mamabolo represented the applicant on 03 July 2024. The respondent was represented by Mr D. Manas, its Labour Relations Officer. The second respondent was present on 03 July 2024. The proceedings were recorded digitally. The parties were granted indulgence to submit their closing arguments by 10 July 2024.

BACKGROUND TO THE ISSUE
2. The applicant and the second respondent with two other candidates were during 2023 shortlisted and invited for interview for the promotional post Head of Department (HOD) for isiZulu and isiXhosa. The post JN43ED1028 was advertised in April 2023. The applicant and the second respondent attended the interview. There other two other candidates who declined the invitation. The second respondent Ms Ximba, who was the successful candidate, has since changed her married surname to Lamula. She was appointed to the post in February 2024.

3. The applicant referred the dispute of an unfair labour practice relating to promotion to the Council for conciliation. The dispute could not be resolved and a certificate of non -resolution was issued. The applicant requested that the dispute be arbitrated.

ISSUE TO BE DECIDED
4. I am required to decide whether the respondent’s failure to appoint the applicant to the position of Head of Department (HOD) for isiZulu and isiXhosa, constitutes an unfair labour practice i.e. substantively if the applicant was the best suitable candidate. I must further determine if the respondent’s failure to obtain the respondent’s HOD approval for the appointment of Independent Interview Panel, lack of signature on the score sheet, alleged absence of resource person and union representatives had rendered the process procedurally unfair.

5. Should I find in favour of the applicant, I will further determine the appropriate relief. The applicant seeks that the decision to appoint the second respondent be set aside and be appointed on the position in dispute.

SURVEY OF EVIDENCE AND ARGUMENTS
AGREED FACTORS

6. The parties agreed to the following factors being common course: -
6.1 The applicant is employed by the respondent as an Educator, post level 1
at Blue Eagle High School. She had been at the school since January 2011.

6.2 She applied and was shortlisted for a Departmental Head vacancy no:
JN43ED1028 for IsiZulu and isiXhoza. It was only the Applicant and the
second respondent who were interviewed for the position.

6.3 The second respondent scored higher than the applicant and ranked number 1. The SGB recommended her appointment. She was appointed to the position. The second respondent had previously acted in another
HOD position whilst the applicant had not acted before.
6.4 The second respondent met the minimum requirements for the position.

7. Nomawethu Patricia Gxagxama testified that the post was erroneously advertised. The post should have been advertised as IsiXhosa Departmental head because Ms Mashiloane was already occupying the post of HOD for English and Isizulu since 2022. Therefore, it was a duplication intended solely to favour Ms Lamula. Ms Lamula did not qualify for the post because she had never taught IsiXhosa. Ms Lamula joined the school in 2018.

8. She met the requirements for IsiXhosa as it is her home language. She was never afforded an opportunity to act as HOD. Only new educators were given opportunity to act. R41 is the Selection Committee interview score with no signatures. The document is not original because it was not signed. There were four panelists. Therefore, there were supposed to be four scores. She is the most suitable for the position as she is more experienced.

9. During cross examination she indicated that she is more experienced and did IsiXhosa at school and university. She has a long experience as an educator since 2011 beating Ms Lamula who commenced teaching in 2018. The score sheet is not original because it is typed and not handwritten. She taught isiXhosa for few months in 2011.However, the subject was discontinued because of a low roll. She conceded that the recommendations of Ms Lamula on R13, R14 and R15 were in her favour. However, it was based on wrong information that she taught IsiXhosa. She, the applicant does not have experience in IsiZulu.

10. Ntebeleng Hendrina Mamabolo testified for the applicant that she is a site SADTU steward at the school. The environment at the school is not good. The post was not correctly advertised deliberately to favour Ms Lamula, since isiZulu language was already occupied by Ms Mashiloane. It is only IsiXhosa which needed to be advertised. In terms of R14 motivation, Lamula lacks competency in isiXhosa.

11. R41 is not valid because it is not signed. After every interview the panelist must sign the score sheet. The typed document was constructed in November 2023, despite the interviews having been conducted in September 2023.

12. During cross examination when asked about the applicant’s interview remarks in R13, R14 and R15, her response was that it was not correct. The documents were not signed. She was not a member of the SMT. When they queried the incorrect advert, the department advised them that the Director would deal with it. When asked who determines the need for an HOD at school, she said it is the SGB, staff and union.

13. She is aware that Ms Mashilwane has since March 2024 been occupying the post of HOD English, no longer for the two subjects. She was relieved of IsiZulu. Lamula has been occupying HOD for isiZulu and isiXhosa since February 2024.

14. Mr Aaron Mathang Motaung testified for the applicant, that he is the former HOD for African Languages since 2017. Ms, Mashilwane was appointed in 2022 as HoD Isizulu / English. The applicant has more teaching experience than the second respondent. R41 is not authentic for lack of signatures.

15. During cross examination he said that IsiZulu ought not to have been advertised, because the post was already filled. He left the school on 30 April 2024.At the time he was HOD for Sesotho languages (Sepedi and Setswana). During 2022 the African languages were split into Nguni and Sesotho. Mashiloane occupied isiZulu and English HOD since 2022.

16. Patricia Ndlala testified for the respondent that she is the principal of the School. The post that was advertised for IsiZulu and isiXhosa Languages (HoD) in 2023. The languages consisted of Nguni and Sesotho languages.

17. The shortlisting and interview process was taken to the district office for the District Director to appoint an independent panel. The SGB of the school felt that it was compelling because educators were of the view that they were entitled to the posts. There were internal fights amongst educators, union and the SMT.
18. She had a meeting with the SGB and a decision to hand the process to the district office was taken as on R27. The applicant has been teaching LO and Creative Arts and never taught IsiXhosa. The incumbent has been teaching and assisting Motaung in moderating isiZulu since 2018 to date.

19. During cross examination she said she sent the request to the District not the HOD because they interact with the HR at the District Office not the HOD. The appointment of school HOD is done by the District Director at the district level not HOD. They obtained the approval from the District Director.

20. The applicant never taught IsiXhosa. Mr. Motaung’s workload was heavy and the SMT decided to advertise the post for Isizulu and IsiXhosa.(to regroup the African Languages).It is the prerogative of the SMT to reshuffle and regroup according to the needs of the school. In 2023 they regrouped Nguni languages and combined isiZulu and isiXhosa. Ms Mashilwane is now HOD for English only.

21. The union is against the SMT, hence the representative failed to attend the selection process despite the fact that the invitation was extended to them. The HOD does not have to teach the subject. The HOD for Geography and Technology does not teach Technology. Ms Lamula is not teaching isiXhosa but isiZulu. She denied that she appointed her favorites. Hence, she took the process outside the school to avoid such accusations.

22. Maureen Selaelo Kgoale testified for the respondent that she is a Chief Education Specialist responsible for further education and training i.e. grade 10 to 12. She was an interview panelist. The interview was based on scores which were determined by the performance of the candidates. The outcome of the interviews determined the most successful candidate. The applicant scored 32 lower than Ms Lamula who scored 68. They were ranked in terms of their scores and were both recommended to the District director for appointment.

23. The African languages were during 2023 regrouped in Nguni and Sesotho. The issue of post is informed by the enrolment of the learners as the school grows. The post is advertised in accordance with the needs of the school. The school took a decision to split the Sesotho and Nguni languages.

24. Experience is not only the determining factor in selecting the best suitable candidate and determining such appointment. If that was the case, there would be no need for interviews. Based on her performance during the interview, qualification and experience Lamula was found to be the best suitable candidate.

25. During cross examination when asked why unions were not present, she indicated that they were invited but did not turn out for the interview process. There was a resource person who oversaw that the process was fair. The HR person played the role of a resource and scriber. The ranking of candidates during the interview was influenced by how they answered the questions.

26. Obakeng Boya testified that he was a resource person and scriber during the interview process. R18 is the request from the school. The District Director approved the appointment of the independent interview Panel, as it was within her prerogative to do so not that of the HOD.

27. According to R27 the school followed a proper procedure, unless there was a grievance lodged with the principal and SGB. It is normal to request an independent panel if there are issues relating to conflicts and bias. A recommendation is not an appointment. The District Director is vested with delegated authority to appoint candidates at school level. The candidates are ranked according to their performance during the interview.

28. During cross examination he said that R41 does not have much bearing. It was for him to punch the scores on the computer. It forms part of the package handed to the District Director. The scores were captured in the minutes and the motivation for the appointment of the candidates on R32 and R33 was duly signed which score was consistent with R41

29. He reiterated that his duties were that of a resource person on the day of the interviews. He followed every procedure that was required of him as a resource person in terms of A 55, Collective Agreement 1 of 2021.The approval of the independent Panel at school is vested with the District Director.

CLOSING ARGUMENTS

30. The applicant argued that the Ms Mashiloane was appointed HOD of IsiZulu and English in 2022. Therefore, the school had two IsiZulu HODs. R14 incorrectly motivated Ms Lamula as having demonstrated complete overall knowledge and understanding of IsiZulu and IsiXhosa. Lamula never taught isiXhosa and lacked such competency. Ms Ndlala misled the commission that the decision for regrouping is done by the SMT.

31. According to section 20, 21, and 16 of South African Schools Act, no 84 of 1996 (SA) it is clearly stated that the profiling of the posts is the duty of the SGB. She should be well aware of such as a school principal. Mr Motaung who was a member of SMT at the time, testified that the only regrouping of languages was done in 2022 when IsiZulu was merged with English.

32. Ms Ndlala misled the Council that the applicant never taught IsiXhosa at the school. However, during cross examination she changed to that perhaps she taught it before she arrived at the school. Ms Ndlala misled the Council that the post of English and IsiZulu was advertised for only English. However, she conceded when the advert was presented to her which stated English and IsiZulu.

33. The respondent argued that it had proved on the balance of probabilities that it had complied with the provisions of Section 6 subsection (3)(a) of the Employment of Educators Act no 76 of 1998 (EEA).

34. The District Director had placed significant weight on the order of preference of the independent panel. When the District Director considers the recommendation, he/she must ensure that the independent panel meets the statutory requirements as imposed in terms of the section 6 (3) of the EEA. It is against this background that they submit that the recruitment and selection process was fair and reasonable.

35. The applicant failed to prove that the decision not to appoint her was unfair merely because she is more experienced – Ndlovu v CCMA (2000) 21 ILJ 1653 (LC) case no. D544/99. In Klaas Nkosi and NUM v Eskom Holdings and others (JR251/2011) (2016) ZALCJHB 152, the Court stated that appropriate/or considerable weight should be placed on uncontested evidence and the Labour Court in Dunlop Mixing and Technical Services (Pty) Ltd v Numsa obo Nganezi (D345/14) [2016] ZALCD 9 stated that an inference may be drawn from the proven and uncontested evidence,


ANALYSIS OF EVIDENCE AND ARGUMENT

36. The applicant bears the onus to prove that the respondent committed an unfair labour practice when it did not appoint her to the promotional post of HOD IsiZulu and isiXhosa. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC, the court held that in promotion disputes, it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for an employee to show that the breach of the procedure had unfairly prejudiced him/her. This means that the employee must not merely show that he/she was the suitable candidate for consideration, but that he/she was the best candidate.

37. The applicant `s contention that the post for isiZulu and isiXhosa HOD was incorrectly advertised, is misplaced and disingenuous. The vacancy that arose and was advertised was for HOD isiZulu and IsiXhosa. The applicant and the incumbent applied and were shortlisted for this post and not that of HOD IsiXhosa. She cannot turn around when she was not successful and usurp the right and power to establish posts for the respondent. It is improbable that she would have cried foul if the outcome was in her favour.

38. The Council’s jurisdiction is to determine fairness of promotional appointment i.e. to ensure that the Applicant had a fair opportunity to compete for the post. However, it lacks jurisdiction to impose posts on the respondent and interfere with the establishment of the posts. It is the respondent`s prerogative to create posts when there is need.

39. The respondent determined a need to regroup the Nguni languages and created a post of HOD for IsiZulu and IsiXhoza. Furthermore, it is common cause that once the incumbent was promoted to the post in February 2024, Ms Mashilwane who was previously the HOD for English and IsiZulu since 2022 was relieved of IsiZulu.

40. It is not sufficient for the applicant to establish that she met the minimum advertised qualification and experience. In this case it is common cause that both the applicant and the incumbent met the minimum requirements in accordance with the advert.

41. The Court in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC), held that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was motivated by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer had failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.

42. It is not in dispute that the assessment and outcome of the performance of the candidates during the interview contributed to the incumbent ranking higher than the applicant. Furthermore, it is not disputed that the HOD is not required to teach the subject that he/she is overseeing. An example was made of the HOD for Geography and Technology who does not teach Technology. This was corroborated by the applicant `s witness Mr Motaung, who was HOD for African languages. He did not teach IsiZulu, despite heading its department.

43. It is common cause to the parties that the current incumbent in the post never taught and does not teach isiXhosa. Therefore, the error contained in her motivation for appointment that she is competent in IsiXhosa is an error. An error common to the parties does not constitute bad faith (mala fides). This does not assist the applicant`s case any further. I am persuaded that the applicant and the incumbent were shortlisted because they were both conversant in either IsiZulu or IsiXhosa respectively.

44. The applicant contends that she was the best suitable candidate because she was more experienced in actual teaching as she started in 2011. Whereas the incumbent started in 2018.The applicant `s contention fails on many grounds. It is common cause that the incumbent met the required experience for the post in terms of the advert. Ms Kgoale the Chief Education Specialist`s unchallenged testimony, which is in alignment with the court decision, is that the appointment is not based only on experience or else there would not be a need for interview.

45. Indeed, if the applicant’s principle that experience especially actual experience was the only acceptable determination for promotion posts it would be unfair for new educators. This would mean that only long serving educators would be eligible for promotional posts. Furthermore, the applicant fails to appreciate the distinction between her minimal teaching experience of the language that she applied to head (isiXhosa) which even if I agree with her, was for a few months in 2011.

46. It did not escape my mind that she did not prove this short stint of teaching isiXhosa in 2011. However, it was not a minimum requirement, hence she was shortlisted. She mentioned it to prove that she was the best suitable candidate. It is not in dispute that the incumbent has been teaching IsiZulu since 2018 to date.

47. The applicant failed to prove that she was the best suitable candidate for the post. Therefore, she failed to prove that the respondent`s decision of not appointing her but instead appointing the incumbent was irrational and unreasonable. Her dispute is clouded with unhappiness, emotions and speculations which substantively do not constitute unfair conduct on the part of respondent.

48. The applicant contends further that the procedure to appoint the Second Respondent was unfair for the following grounds: lack of the Head of the Department’s approval of the Independent Panel to conduct the interview; the unions were not invited to the interviews and there was no resource person to ensure that the process was fair.

49. The court in Observatory Girls Primary School & Another v Head of Department of Education Province of Gauteng Case 02/15349, [2006] JOL 17802(W) held reference to paragraph 3 of Chapter B of PAM that strict compliance with PAM is not necessary, and that it should not be elevated above substance. Therefore, Arbitrators are warned to be careful of not finding too easily that unfair labour practice was committed where there was some form of procedural irregularity, if there was substantial compliance (not strict) with PAM. Substantial compliance is sufficient to negate an unfair labour practice as it is not realistic to expect compliance with PAM to the letter.

50. I must determine if it is a requirement for the HOD to approve the independent interview panel. If I find in favour of the applicant, I must determine if lack of such approval constitutes gross irregularity justifying unfair labour conduct.

51. Paragraph 8 of Collective Agreement No1 of 2021 for the Gauteng Department of Education (CA) makes provision for the Head of the Department to appoint an independent interview committee after having followed due process in line with sections 22(1) and 25(1) of the SA. The decisions to appoint and approve the independent panel can only be made by the Head of Department. This is applicable when the HOD took a decision to withdraw the function of the SGB which was not the case.

52. In this case the SGB requested and motivated for the appointment of the Independent Interview panel. The CA makes further provision for the SGB to request the HOD or Delegated authority to appoint an Independent Interview Committee in writing with reasons. Minutes and attendance registers must be part of the request letter.

53. It is not in dispute that in terms of the Gauteng Department education delegation Framework, the authority to approve appointment for post level 2 and 3 of school based educators is vested with the District Director. It is common cause that the chairperson and secretary of the SGB together with the principal had requested the District Director to appoint the Independent interview Panel in a motivation letter dated 24 April 2024 on R27. The Human Resource recommended the request which was approved by the District Director.

54. The District Director is vested with authority to approve the appointment of an Independent Interview Panel terms of the delegation Framework read with the CA. The applicant’s contention that it was imperative for the approval to be issued by the HOD is baseless. I find that there was no irregularity in the appointment of the Independent Interview Panel. It was properly instituted.

55. The SATDU and NAPTOSA unions were invited by the respondent by emails on 08 September 2023 R21-26. Both Unions elected not to attend the selection process. However, paragraph 8.1.2 (vi) of the CA provides that non- attendance by union representatives does not invalidate the process. What is required is that records and proof of invitations should be kept and form part of the submission to the district. This requirement was met.

56. The applicant did not only fail to challenge Mr Boya’s testimony that he was a scriber and a resource person on the day of the interviews and that he had followed every procedure that was required of him as a resource person in terms of the CA. She failed to prove that she suffered prejudice.

57. Boya testified that R41 (the score sheet) did not have much bearing as it was meant for him to insert the scores, which he did. The fact that it was not signed does not nullify the outcome. It is not in dispute that the scores were captured in the minutes and the motivation for the appointment of the candidates on R32 and R33 was duly signed which score was consistent with R41. The recommendations were ratified were ratified on R36 and R37. Therefore, I am satisfied that the lack of signature on R41 did not discredit the process.

58. The applicant was able to prove that he was the suitable candidate in terms of the minimum requirements for the post. However, she failed to prove on balance of probabilities that she was the best suitable candidate for the position as required by the court decision in Sun International, supra. The applicant failed to discharge her onus in proving that the decision taken by the respondent in not promoting her was based on any of the negative aspects mentioned in the City of Cape Town case supra. In the premise, she failed to prove on the balance of probabilities that the respondent committed an act of unfair labour practice.
AWARD
53. The applicant’s dispute referral is dismissed.

Signed and dated at Pretoria on 24 day of July 2024.


MG Rabyanyana

M.G Rabyanyana
ELRC Panelist