ELRC205-19/20EC
ELRC205-19/20EC
Award Date:
22 February 2021
Case Number: ELRC205-19/20EC
Province: Eastern Cape
Applicant: PSA obo BOTTOMAN-MPEKULA
Respondent: 1st Respondent DEPARTMENT OF EDUCATION, EASTERN CAPE, 2nd Respondent NKWENKWEZI OUPA MZANTSI
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Zoom
Award Date: 22 February 2021
Arbitrator: MBULELO SAFA
Case Number: ELRC205-19/20EC
Commissioner: MBULELO SAFA
Date of Award: 22 February 2021
In the ARBITRATION between: -
PSA obo BOTTOMAN-MPEKULA
Applicant
DEPARTMENT OF EDUCATION, EASTERN CAPE
1st RESPONDENT
And
NKWENKWEZI OUPA MZANTSI
2nd Respondent
Applicant’s representative: Mr Gilbert Seakamela
Applicant’s Address: Private Bag 52560
Telephone: 0475012500
Telefax 0745012510
E-mail seakamela@psa.co.za
1st Respondent’s Representative: Mr Tsiu Liphaphang
1st Respondent’s Address: Department of Education, P/Bag 5100,MTHATHA
Telephone 0475024200/04
Telefax
E-mail : tsiulip803@gmail.com linda.matoti@yahoo.com
2nd Respondent Representative: Mr Ayanda Tyantsi
2nd Respondent Address: SADTU, KSD Region
Telephone : 0635021698
Telefax :
Email :
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was set down for arbitration on the 29th September 2019, 27th November 2019, 24th February 2020, 27th January 2021 and 28th January 2021 at the offices of the First Respondent in Mthatha. On the 27th and 28th January 2021 the proceedings were conducted virtually on Zoom
2. The Applicant, Bottoman-Mpekula was represented by Mr Seakamela from PSA on all other days except the 27th January 2021 when the Applicant was represented by Mr Mzuku from PSA. The First Respondent, Department of Education: Eastern Cape was represented by Ms Ntombomzi Damane on the 29th September 2019 and represented by Mr Tsiu Liphaphang on the other days. The Second Respondent, Nkwenkwezi Oupa Mzantsi represented by Mr Tyantsi from SADTU on all other days except the 24th February 2020 and 27th January 2021 when he was represented by Mr Mbongeni Magosa also from the union SADTU.
3. The proceedings were recorded in an audio tape.
ISSUES TO BE DECIDED
4. Whether or not the decision of the 1st Respondent not to appoint the Applicant to the post of Principal of Ngcendese SPS was substantively and procedurally unfair, and make an appropriate award.
BACKGROUND TO THE ISSUE
5. The First Respondent advertised the post of the Principal of Ngcendese SPS in their bulletin Volume 5 of 2018.
6. The Applicant applied for the post, was shortlisted, interviewed but was not appointed. Instead the Second Respondent was appointed.
7. Unhappy with the fact that she was not appointed the Applicant referred an Unfair Labour Practice dispute to ELRC. The dispute remained unresolved at conciliation and it was then referred to arbitration.
8. The relief sought by the Applicant is the setting aside of the promotion of the Second Respondent and re-advertisement of the post. The alternative relief she sought was the appointment of the second best candidate.
SURVEY OF EVIDENCE AND ARGUMENT
9. The Applicant led evidence herself and also had two other witnesses and one bundle of documents.
10. The First Respondent led evidence through three witnesses and also had one bundle of documents. The second Respondent did not lead evidence.
11. At the conclusion of the arbitration on the 28 January 2021 the parties were ordered to submit their written closing arguments by not later than 4th February 2021. On that day only the Second Respondent did not submit their closing arguments and by the date of the issue of the award they have not yet submitted.
APPLICANT’S EVEDENCE AND ARGUMENT
12. The Applicant testified that she was currently the HOD of Ngcendese SPS.
13. The Respondent advertised a post of Principal at Ngcendese SPS (Post Number 467). The advert stated that the person who was wanted was someone with management.
14. The qualifications she has are; Matric, JSTC, Diploma in Secondary Education (English and Geography), BA (English, Education and Religious Studies), Bed (Curriculum Studies and Administration). She also attended a courses on Managing the School as an Organisation, Computer Literacy and School Management.
15. She was shortlisted together with four others including the Second Respondent.
16. The Interview Committee constituted of the Grade R Educator and two parent members of the SGB. One parent member was not trained in the process of appointment. The members of the SGB were all invited to the training but some members did not attend because of prior commitments.
17. The SGB had written a letter to the First Respondent requesting that an independent panel be appointed to handle the appointment process. The First Respondent did not heed the request after some members of the SGB insisted that the SGB must conduct the process of appointment.
18. The incumbent was a post level one educator and she did not know what his qualification are except seeing her entering SPTD and ACE on SASAMS. The incumbent does not have management and therefore did not meet the requirements. She understood management to mean that the applicant has a qualification in management or was occupying a management position. However, in terms of teaching experience the incumbent met the requirements.
19. The interview committee should have been constituted by two parents and an educator who is in a higher post that the post being advertised.
20. The resource person, Ms Songca, was coaching the interview committee, asking them when to ask questions and when to allocate points. The resource person was supposed to only provide the tools to be used and not guide. She did not know if the guidance given to the members of the committee had an impact in the allocation of marks. The people who were allocating scores were the two parents and the Grade R educator and witness did not found any fault in that.
21. There was an SGB meeting to ratify the decision of the interview committee.
22. In cross-examination she stated that the ‘old’ SGB asked for the Independent panel and the ‘new’ SGB was against it.
23. Referred to the letter written by the SGB to the First Respondent she said the letter referred to both the post of Principal and that of HOD, though the post of the principal was not yet advertised. The SGB asked for the independent because previously there were disputes about the appointments to senior positions at the school.
24. She admitted that she knew that the recommendation for the independent panel needed to be approved by the Head of Department and if the Head of Department did not approve the EDO was supposed to have given a feedback to the SGB. She believed that the First Respondent refused the appointment of the independent panel because they wanted to influence the process.
25. Another witness of the Applicant, Mrs Nothobile Mhlabeni, testified that she was the chairperson of the SGB and was elected towards the end of 2018. She was the signatory of both letters written to the First Respondent.
26. They wrote the letter requesting the independent panel because they felt the SGB was not united and would not be able to do the process. Other members of the SGB did not sign the letter because they did not support the idea of the independent panel.
27. When the appointment of the principal was done she was not involved. She was just invited to sign something but she refused saying she could not sign for something she was not part of. She never signed any document for the appointment of the incumbent. She was however not aware if other members signed.
28. Some members of the SGB asked for the independent panel because they always clashed and in dispute regarding the appointments. They then asked for an independent panel because they anticipated that there was going to be a problem. Other members of the SGB did not sign the letter requesting the independent panel because they did not support the idea of the independent panel.
29. She was invited to the training of the SGB but because of other commitments she could not attend. She was aware that she could not be part of the interview committee if she did not attend the training. Only three of them out of eight members were in favour of the independent panel.
30. She was not aware that, as the chairperson of the SGB, she was expected to attend the ratification meeting to ratify the decision of the interview committee. She said there was no ratification meeting of the SGB.
31. The other witness of the Applicant, Mr Manduleli Ngcukana, testified that he was also the member of the SGB and also an employee of the school. The SGB had eight members with the principal being the ninth. During the period in question, the chairperson of the SGB was Mrs Mhlabeni.
32. He testified that he was initially part of the process of employing the principal but later withdrew because of the letter they wrote. They were informed that only the members of the SGB who were trained were to be part of the interview panel. Some members, including himself, were not informed about the training. However, they were trained about the general roles of the SGB in the meetings of the SGB. They then decided to withdraw from the process after writing the letter to the First Respondent (addressed to the Head of the District, Mrs Mchotshelwa). After withdrawing the Circuit Manager informed them that the members who were trained were going to continue with the process. He thought Mrs Songca had the powers to stop the interviews. He could recall that only two members of the SGB attended the training. The trained members were Mrs Mgxokolo, Mrs Daweti and Mrs Gom.
33. On the date of the interviews, the Circuit Manager told them that she was going to add an untrained member to the panel.
34. Together with other members who were not part of the panel they were not part of the interview process and were not allowed to communicate with any of the members of the panel until after the results were announced.
35. They were not satisfied with the process from the beginning as they wanted the interviews not to be held at the school but in town. He said that was what was said by the members of the SGB who wrote the letter to the First Respondent. He confirmed that the letter on page 23 of the Applicant Bundle was the letter they wrote to the First Respondent requesting the appointment of the independent interview committee. They only received a verbal response to the letter.
36. In the meeting in which they decided to write the letter there were three members of the SGB. They decided to write the letter as the other five members had also decided to attend the training without telling them. He did not see anything wrong with writing a letter without the secretary of the SGB. Since the chairperson of the SGB was part of the meeting he believed the meeting was legal.
37. He said the meeting took place at the house of the Headman (Great Place). He admitted that it was not the usual place for them to hold the meetings but it was where the meetings of the community were held.
38. He was not aware if the interviews proceeded went off well or not, but he did not want them to proceed. He admitted that they agreed with Mrs Songca for the interviews to proceed but further told her that they were not accepting the decision of the First Respondent. Mrs Songca told them that in her experience she knew that people do not always go in one direction. Mrs Songca also advised the chairperson of the SGB that the school was not hers and she (chairperson) must not be a stumbling block.
39. He testified that he was not part of the ratification meeting. They however allowed the process to continue. He heard that there was a ratification meeting though he was not part of it.
FIRST RESPONDENT’S EVIDENCE AND ARGUMENT
40. The first witness of the First Respondent was Mrs Nomtha Songca who is the Circuit Manager and played the role of being the resource person in the process. Her duty was to ensure that the process went according to the policy.
41. She testified that there was a training for all the schools that had vacant posts advertised. The members of the SGB who were trained were expected to train those who did not attend the training.
42. She was informed by Mrs Mcutshenge that she received a letter of complaint from the Applicant saying she was complaining about the Grade R educator who was part of the interview committee.
43. When they got to the school for the interviews the SGB had already elected members to form part of the interview panel. They first met the educators to enquire about the letter of complaint. The educators distanced themselves from the letter. It was explained in that meeting that the Grade R educator qualified to be in the interview committee (panel).
44. During the shortlisting process there were no complaints. A day before the interviews, the Circuit Manager received another letter from some members of the SGB who said they wanted an independent panel.
45. When the witness arrived at the school she convened a meeting of the SGB to talk about the letter. The members of the SGB who were not signatories to the letter claimed that they were not aware of it. The writers of the letter confirmed that they wrote it.
46. The other members, except Mrs Mhlabeni, claimed that they signed the letter because they were told to. Mrs Mhlabeni said she was advised to write the letter to tell the First Respondent to conduct the process of appointment themselves due to the problems previously experienced. She pointed out that the letter on page 24 was the amended version of the original letter dated on the same day.
47. She acknowledged that the SGB was the statutory body empowered to take their decisions.
48. After an explanation was given in the meeting, the complainants gave a green light that the process must continue.
49. Because another member of the SGB who was trained was not in attendance, the SGB members were directed to appoint another member. The SGB agreed and they later came back with the name of the replacement.
50. The new member of the panel together with other members and the observers from the unions were there and then trained on the process. Witness made it sure that they understood what they were going to do. The new member of the panel was involved in asking questions and scoring. She was also guided on how to scrutinize the applications.
51. The interviews were on the 13th November 2018. During the interviews, there were no complaints from either the unions or the SGB. The process on that day was fair. Soon after the interviews the SGB members were convened in a meeting but others could not be found. The ratification meeting could therefore not take place on the day of the interviews.
52. On the 23rd November 2018 the witness convened the ratification meeting and attended it together with the Circuit Manager. In the ratification meeting it was only the Chairperson who had the dissenting view and said she wanted the Applicant. The chairperson was corrected and told that she cannot direct the meeting because she is the chairperson.
53. The initial complaint letter did not have signatures and was attached to another letter which had signatures, school stamp and referred to the post of the HOD.
54. She said it was not true that the ratification meeting was not properly communicated. The first meeting was properly communicated. The second meeting was convened by the Circuit Manager and she (witness) was there to see to it that the ratification went well. The chairperson of the SGB did not attend the meeting but she was aware of it. When it was found that she was not in the meeting she (chairperson) was called on her cellphone. According to the procedure if the chairperson is absent the deputy chairperson or other members of the SGB take over.
55. Witness thought the chairperson of the SGB deliberately absented herself from the meeting. The Chairperson was called on several occasions and advised to convene the ratification meeting and she may have thought that she had powers on whom to appoint. The chairperson even wrote a letter to say the Applicant must be appointed.
56. She testified that the Second respondent met all the requirements of the advert. He denied that the documents of the Second Respondent were only certified in 2009. She said they checked all the documents and all of them were properly certified. She said the documents submitted were not like those submitted at arbitration. She denied that the application documents of the Second Respondent should not have been accepted. She stated that she was not involved in compiling documents for the interview but they submitted everything and it was in order.
57. Witness denied that she rushed the appointment process even stating that they even postponed the unsuccessful ratification meeting.
58. The other witness of the First Respondent, Ms Phyllis Nomvuzo Naye-Daweti, testified, she was part of the interview committee and she was representing the educators. All three members of the interview committee asked questions. On the day of the interviews they were delayed by a letter from Mrs Songca which was said to be written by three SGB members but the letter was purported to be coming from all the members of the SGB. However, other members of the SGB distanced themselves from the letter.
59. They also received another letter complaining that the witness, who is a Grade R educator should not be part of the interview panel. In the meeting Mrs Songca explained that the witness was eligible to be the member of the SGB.
60. Referred to page 35 witness said she was surprised by the letter which had three writings, she also stated that they usually append their signatures when they write a letter. As the SGB they never wrote a letter to the First Respondent requesting them to appoint the principal on their behalf. She said they only wrote a letter to the First Respondent asking for an independent panel for the appointment of the HOD.
61. She first got the letter from the Applicant who was making copies of the letter. The Applicant also kept the school stamp when she was the Acting principal.
62. Some members of the SGB did not attend the training. When a member of the SGB, Mrs Gom, who attended the training could not come for the shortlisting, the SGB met aside and appointed a replacement. The SGB chose Nobenathi Mdleleni. She was there and then trained on the process. The other members of the panel were previously trained and were also retrained on the day of the interviews. They were thoroughly trained to the extent that the interviews started late.
63. During the shortlisting, the panel had access to the application forms, including that of the Second Respondent, but they did not see the names as the names were covered. All files had copies of qualifications. There was no stage when there was a complaint about the certification of the documents.
64. She was not part of the three SGB members who wrote the letter to the First Respondent. The letter was signed by the previous chairperson before her term came to an end.
65. She said she first saw the letter when the Applicant was making copies thereof. Even though her name was in the letter but she did not write it herself. She did not complain about her name being in the letter. She could not complain to anyone because the Applicant was her (witness) boss.
66. The other witness of the First Respondent, Ms Albertina Nobongile Mngxokolo, testified that she was the member of the SGB during the period. She recalled that the post of the HOD was advertised and that as the entire SGB they wrote a letter to the First Respondent requesting them to conduct the appointment process themselves (First Respondent). They did not have reasons to make the request to the First Respondent. The post of the principal was advertised later in the year long after they have written the letter about the post of the HOD. That was the only letter they wrote to the First Respondent.
67. Referred to page 35 of the bundle he confirmed that they wrote the letter but it did not have the part that refers to Volume 2 and to the deceased male teacher.
68. She was the chairperson of the interview panel. During the shortlisting for the post of the principal the members of the panel and the observers from the unions were there. As the panel they checked all the certificates and found them to be in order. He refuted the view that the Second Respondent did not meet the requirements for appointment into the post. During both the shortlisting and interviews there were no queries from anyone.
69. All the members of the SGB recommended the Second Respondent. They recommended the Second Respondent because of the way he respondent to their questions at the interviews. They discovered that the Applicant was not happy with the success of the Second Respondent when the second Respondent was introduced at the school. The Applicant was rated number four (04) at the interviews.
70. There was a meeting of the SGB to ratify the decision of the interview committee (panel). The members of the SGB were called to the meeting on the day of the interviews but some members were not available, even on the following day the same members could not come. Ultimately the meeting proceeded with five (05) members present out of the eight (08) total members on the 23rd November 2018.
71. The recommendation of appointment to the First Respondent is supposed to be made signed by the chairperson of the SGB together with other members.
72. Witness stated that even though she signed as the chairperson on page 23 of the bundle but the person who was supposed to have signed was the chairperson of the SGB, Mrs Mhlabeni. The signature written as A. Mgxokolo was her signature but the signature written N.N. Mgxokolo was not her signature.
73. She also admitted that if the Applicant was appointed she would have worked well with her, as all they wanted was the principal.
74. The other witness of the First Respondent, Nobenathi Mdleleni, testified that she was the secretary of the SGB and part of the interview committee in 2018 when the principal was appointed.
75. Referred to page 23 and 35 of the bundle she confirmed the signatures thereto.
76. She testified that that after the interviews they met as members of the SGB where they recommended the Second Respondent. There was no objection from any member of the SGB on the recommendation of the Second Respondent.
77. They got to know about the complaint of the Applicant on the day of the interviews. The Applicant was one of the candidates who were interviewed and she was rated number three after the interviews.
78. She stated that as the panel members they were trained to do the work but she could not remember the date of the training. The person who conducted the 30-minute training was a lady whom she confirmed was Ms Songca.
79. The procedure after the interviews was that they were supposed to meet as the entire SGB. Indeed, the SGB met about four days after the interviews. In that meeting there were five members of the SGB in attendance out of seven members in total.
80. The meeting of the SGB was on the 23rd November 2018. The witness joined the meeting later at about 13h00. When she arrived the meeting was still discussing the outcomes of the interviews.
81. Referred to page 23 she said the signature purported to hers on the page was not appended by her and was not her signature.
82. Referred to page 35 she confirmed that her signature thereto. She said they wrote the letter to the First Respondent requesting their assistance during the appointment of the Head of Department (HOD). They had no reason to seek the assistance of the First Respondent.
83. She testified that the letter on page 35 was not the original letter. In the original letter there was nothing that referred to ‘volume 2’. The sentence that has ‘volume 2’ was not in the original letter and was also not her own writing. Hence the letter was fraudulently tempered with.
84. She confirmed that the documents on page 24 of Applicant bundle and page 26 of Respondent bundle were similar but that that the other letter has the addition that was written by her.
85. She confirmed that the curriculum vitae (CV) of the Second Respondent which is part of the record was the one they perused during the shortlisting and interviews. In the CV, the school indicated as the last school the Second Respondent taught at was Tyhalarha JSS.
ANALYSIS OF EVIDENCE AND ARGUMENT
86. This dispute was referred as an unfair labour practice dispute related to promotion in terms of section 186(2)(a) of the Labour Relations Act(LRA). It is trite in law that in an unfair labour practice dispute the Applicant bears the onus of proof.
87. Clause G of the Guidelines in ELRC Resolution 3 of 2016 provides the guide on how an arbitrator must approach substantive issues when dealing with promotion disputes.
88. In particular clause G (38) of the Resolution provides that the arbitrator or the court is not the employer. Their role is not to decide whether the employer has arrived at the correct decision but to oversee whether the employer has not acted unfairly towards a candidate that was supposed to be promoted.
89. Clause H of the Resolution provides guidelines on how to approach procedural issues when dealing with promotion disputes. The clause refers to Personnel Administrative Measures (PAM) and ELRC Resolutions (resolution 5 of 1998). The Eastern Cape province of ELRC also signed a Provincial Resolution 2 of 2002 which is aimed at interpreting ELRC Resolution 5 of 1998.
90. Both PAM and the Resolutions provide procedures and guidelines to be followed during the appointment and promotion of educators. Clause H (51) of the resolution holds it that strict compliance with the guidelines is not necessary; substantial compliance was sufficient.
91. In the referral to arbitration, the Applicant stated that she was aggrieved by the following:
• The incumbent did not meet the minimum requirements of the post.
• The interview panel was not properly constituted.
• The SGB did not ratify the appointment of the incumbent.
• The panel was coached to allocate most score to the incumbent.
• Employer refused to appoint an independent panel.
92. The Applicant testified that she did not know the qualifications of the Second Respondent but she knew that he did not have a management qualification and was only a post level one educator, and therefore did not meet the minimum requirements.
93. Clause B.3.2.1 of PAM holds that the minimum requirements for appointment in the post of the principal are; matric plus three year teaching qualification (REQV 13), registration with South African Council of Educators and seven years actual teaching experience.
94. The documentary evidence submitted by the Second Respondent shows that he passed Senior Primary Teachers Diploma, which is a three-year diploma after matric, and also has the Advanced Certificate in Education specializing in Educational Leadership. According to the undisputed Curriculum Vitae submitted by the Second Respondent he started teaching in 1994.
95. The profile of the Second Respondent shows clearly that he met the minimum requirements as prescribed by PAM. The evidence of the Applicant was therefore proved to be incorrect.
96. With regards to the way the interview committee (panel) was constituted the Applicant had an issue with the presence of the Grade R educator in the panel. The grade R educator is an educator as defined in the Employment of Educators Act and it was common cause that the educator was a member of the SGB and was duly elected by the SGB to be the member of the panel. The further evidence of the Applicant that the educator who is part of the panel must be of a senior post than the advertised post is not supported by any provision in the PAM or the resolution, and therefore cannot be sustained.
97. The other evidence of the Applicant witness, Manduleli Ngcukana, was that one member of the panel was not trained in the process. This, according to Mr Ngcukana, was based on the fact that only two SGB members attended the training conducted by the First Respondent before the process started. The evidence of the First Respondent witness was consistent that indeed there was a member of the panel who did not attend the initial training because she was elected on the day of the shortlisting when the member who was attended the training could not come. The undisputed evidence of the First Respondent was that before the shortlisting there was another training for the members of the panel including the new member. There are also minutes attached in the Respondent Bundle which capture the training. The witness may not know what transpired during the shortlisting because he was not part of the panel and was not there when the training was conducted. The evidence of the Applicant can again not be sustained and falls to be dismissed.
98. With regards to the ratification the Applicant testified that there was no meeting of the SGB to ratify the appointment of the Second Respondent. When the bundle of the First Respondent was introduced it was clear that there was a ratification meeting. I thought that the Applicant would abandon this claim, but it was not to be.
99. The evidence led by both the witnesses of the Applicant and those of the First Respondent prove that there was a ratification meeting. There were even minutes of the ratification meeting attached in the bundle of the Respondents. The Applicant representative argued that because the two witnesses of the Respondent who were members of the SGB did not confirm their signatures in a certain form that meant the ratification of the appointment of the Second Respondent was null and void. The procedure as captured in PAM and in the collective agreements requires that the SGB must hold a meeting to ratify the decision of the interview committee (panel). The procedure does not say anything about who signs which form and when. Those are administrative processes of the First Respondent. The Applicant failed to discharge her onus of proof that there was no ratification meeting.
100. The allegation of the coaching of the panel could also not be proved by the Applicant. Even in her evidence, the Applicant testified that the resource person was telling the panelist when to ask questions and when to enter marks after a question has been responded to. There was nothing in her evidence that suggests that the panel members were coached on how much marks to allocate to each candidate. The assistance of the Resource person is understandable given that most of the parents are illiterate.
101. The Applicant testified about the fact that the SGB wrote a letter requesting the First Respondent to appoint an independent panel. The witness of the Applicant, Mrs Mhlabeni, admitted during cross-examination that only three (03) members of the SGB out of eight (08) members wanted the independent panel. This means that the whole idea of the independent panel failed at the initial democratic processes of the SGB.
102. Even if the idea was a majority decision of the SGB it still needed the First Respondent to exercise their discretion to approve it since it was going to be a deviation from the normal statutory procedure. The exercise of that discretion is not the subject of this dispute. The evidence of Ms Songca was that in the meeting of the SGB after the explanation was given the members of the SGB abandoned the request and gave green light that the process can continue. This is confirmed by the minutes of the SGB attached in the bundle. In his evidence, the Applicant witness, Mr Manduleli Ngcukana, also testified that they agreed with the resource person that the interviews must continue but they (three members of the SGB who wanted an Independent Panel) withdrew from the process.
103. The undisputed evidence led by the Respondent witnesses was that the Applicant was rated number four after the interviews with a score of 55% as against the score of the Second Respondent which was 86,6%. The second rated candidate got a score of 71,6% and the third rated candidate got a score of 65%. The members of the panel who had the opportunity to listen to the responses of the candidates to the questions posed rated the candidates in the way they did. There was no evidence led to suggest that the panel unfairly exercised their discretion in awarding these scores.
104. The Labour Appeal Court in Ncane v SSSBC and Others DA 27/15 others (DA 27/15) [2017] ZALAC 1; (2017) 38 ILJ 907 (LAC) noted that when it comes to evaluating suitable candidates for promotion it was expected of the employer to act fairly. The court further acknowledged that the process was a not a mechanical one and that there is a justifiable element of subjectivity or discretion involved. The court then concluded that the arbitrator may only interfere with the decision of the employer where it is irrational, grossly unreasonable and mala fides. In this matter there is no justification for interference.
105. My findings are that in this dispute the Applicant could not discharge her onus to prove that there was unfairness on the part of the First respondent which warrants an interference by me in this award.
106. In the circumstances I hereby issue the following award;
AWARD
107. The promotion process of the Second Respondent was substantively and procedurally fair and hence this application fails
108. The Applicant is not entitled to the relief she sought.
Mbulelo Safa : ELRC
Province: Eastern Cape
Applicant: PSA obo BOTTOMAN-MPEKULA
Respondent: 1st Respondent DEPARTMENT OF EDUCATION, EASTERN CAPE, 2nd Respondent NKWENKWEZI OUPA MZANTSI
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Zoom
Award Date: 22 February 2021
Arbitrator: MBULELO SAFA
Case Number: ELRC205-19/20EC
Commissioner: MBULELO SAFA
Date of Award: 22 February 2021
In the ARBITRATION between: -
PSA obo BOTTOMAN-MPEKULA
Applicant
DEPARTMENT OF EDUCATION, EASTERN CAPE
1st RESPONDENT
And
NKWENKWEZI OUPA MZANTSI
2nd Respondent
Applicant’s representative: Mr Gilbert Seakamela
Applicant’s Address: Private Bag 52560
Telephone: 0475012500
Telefax 0745012510
E-mail seakamela@psa.co.za
1st Respondent’s Representative: Mr Tsiu Liphaphang
1st Respondent’s Address: Department of Education, P/Bag 5100,MTHATHA
Telephone 0475024200/04
Telefax
E-mail : tsiulip803@gmail.com linda.matoti@yahoo.com
2nd Respondent Representative: Mr Ayanda Tyantsi
2nd Respondent Address: SADTU, KSD Region
Telephone : 0635021698
Telefax :
Email :
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was set down for arbitration on the 29th September 2019, 27th November 2019, 24th February 2020, 27th January 2021 and 28th January 2021 at the offices of the First Respondent in Mthatha. On the 27th and 28th January 2021 the proceedings were conducted virtually on Zoom
2. The Applicant, Bottoman-Mpekula was represented by Mr Seakamela from PSA on all other days except the 27th January 2021 when the Applicant was represented by Mr Mzuku from PSA. The First Respondent, Department of Education: Eastern Cape was represented by Ms Ntombomzi Damane on the 29th September 2019 and represented by Mr Tsiu Liphaphang on the other days. The Second Respondent, Nkwenkwezi Oupa Mzantsi represented by Mr Tyantsi from SADTU on all other days except the 24th February 2020 and 27th January 2021 when he was represented by Mr Mbongeni Magosa also from the union SADTU.
3. The proceedings were recorded in an audio tape.
ISSUES TO BE DECIDED
4. Whether or not the decision of the 1st Respondent not to appoint the Applicant to the post of Principal of Ngcendese SPS was substantively and procedurally unfair, and make an appropriate award.
BACKGROUND TO THE ISSUE
5. The First Respondent advertised the post of the Principal of Ngcendese SPS in their bulletin Volume 5 of 2018.
6. The Applicant applied for the post, was shortlisted, interviewed but was not appointed. Instead the Second Respondent was appointed.
7. Unhappy with the fact that she was not appointed the Applicant referred an Unfair Labour Practice dispute to ELRC. The dispute remained unresolved at conciliation and it was then referred to arbitration.
8. The relief sought by the Applicant is the setting aside of the promotion of the Second Respondent and re-advertisement of the post. The alternative relief she sought was the appointment of the second best candidate.
SURVEY OF EVIDENCE AND ARGUMENT
9. The Applicant led evidence herself and also had two other witnesses and one bundle of documents.
10. The First Respondent led evidence through three witnesses and also had one bundle of documents. The second Respondent did not lead evidence.
11. At the conclusion of the arbitration on the 28 January 2021 the parties were ordered to submit their written closing arguments by not later than 4th February 2021. On that day only the Second Respondent did not submit their closing arguments and by the date of the issue of the award they have not yet submitted.
APPLICANT’S EVEDENCE AND ARGUMENT
12. The Applicant testified that she was currently the HOD of Ngcendese SPS.
13. The Respondent advertised a post of Principal at Ngcendese SPS (Post Number 467). The advert stated that the person who was wanted was someone with management.
14. The qualifications she has are; Matric, JSTC, Diploma in Secondary Education (English and Geography), BA (English, Education and Religious Studies), Bed (Curriculum Studies and Administration). She also attended a courses on Managing the School as an Organisation, Computer Literacy and School Management.
15. She was shortlisted together with four others including the Second Respondent.
16. The Interview Committee constituted of the Grade R Educator and two parent members of the SGB. One parent member was not trained in the process of appointment. The members of the SGB were all invited to the training but some members did not attend because of prior commitments.
17. The SGB had written a letter to the First Respondent requesting that an independent panel be appointed to handle the appointment process. The First Respondent did not heed the request after some members of the SGB insisted that the SGB must conduct the process of appointment.
18. The incumbent was a post level one educator and she did not know what his qualification are except seeing her entering SPTD and ACE on SASAMS. The incumbent does not have management and therefore did not meet the requirements. She understood management to mean that the applicant has a qualification in management or was occupying a management position. However, in terms of teaching experience the incumbent met the requirements.
19. The interview committee should have been constituted by two parents and an educator who is in a higher post that the post being advertised.
20. The resource person, Ms Songca, was coaching the interview committee, asking them when to ask questions and when to allocate points. The resource person was supposed to only provide the tools to be used and not guide. She did not know if the guidance given to the members of the committee had an impact in the allocation of marks. The people who were allocating scores were the two parents and the Grade R educator and witness did not found any fault in that.
21. There was an SGB meeting to ratify the decision of the interview committee.
22. In cross-examination she stated that the ‘old’ SGB asked for the Independent panel and the ‘new’ SGB was against it.
23. Referred to the letter written by the SGB to the First Respondent she said the letter referred to both the post of Principal and that of HOD, though the post of the principal was not yet advertised. The SGB asked for the independent because previously there were disputes about the appointments to senior positions at the school.
24. She admitted that she knew that the recommendation for the independent panel needed to be approved by the Head of Department and if the Head of Department did not approve the EDO was supposed to have given a feedback to the SGB. She believed that the First Respondent refused the appointment of the independent panel because they wanted to influence the process.
25. Another witness of the Applicant, Mrs Nothobile Mhlabeni, testified that she was the chairperson of the SGB and was elected towards the end of 2018. She was the signatory of both letters written to the First Respondent.
26. They wrote the letter requesting the independent panel because they felt the SGB was not united and would not be able to do the process. Other members of the SGB did not sign the letter because they did not support the idea of the independent panel.
27. When the appointment of the principal was done she was not involved. She was just invited to sign something but she refused saying she could not sign for something she was not part of. She never signed any document for the appointment of the incumbent. She was however not aware if other members signed.
28. Some members of the SGB asked for the independent panel because they always clashed and in dispute regarding the appointments. They then asked for an independent panel because they anticipated that there was going to be a problem. Other members of the SGB did not sign the letter requesting the independent panel because they did not support the idea of the independent panel.
29. She was invited to the training of the SGB but because of other commitments she could not attend. She was aware that she could not be part of the interview committee if she did not attend the training. Only three of them out of eight members were in favour of the independent panel.
30. She was not aware that, as the chairperson of the SGB, she was expected to attend the ratification meeting to ratify the decision of the interview committee. She said there was no ratification meeting of the SGB.
31. The other witness of the Applicant, Mr Manduleli Ngcukana, testified that he was also the member of the SGB and also an employee of the school. The SGB had eight members with the principal being the ninth. During the period in question, the chairperson of the SGB was Mrs Mhlabeni.
32. He testified that he was initially part of the process of employing the principal but later withdrew because of the letter they wrote. They were informed that only the members of the SGB who were trained were to be part of the interview panel. Some members, including himself, were not informed about the training. However, they were trained about the general roles of the SGB in the meetings of the SGB. They then decided to withdraw from the process after writing the letter to the First Respondent (addressed to the Head of the District, Mrs Mchotshelwa). After withdrawing the Circuit Manager informed them that the members who were trained were going to continue with the process. He thought Mrs Songca had the powers to stop the interviews. He could recall that only two members of the SGB attended the training. The trained members were Mrs Mgxokolo, Mrs Daweti and Mrs Gom.
33. On the date of the interviews, the Circuit Manager told them that she was going to add an untrained member to the panel.
34. Together with other members who were not part of the panel they were not part of the interview process and were not allowed to communicate with any of the members of the panel until after the results were announced.
35. They were not satisfied with the process from the beginning as they wanted the interviews not to be held at the school but in town. He said that was what was said by the members of the SGB who wrote the letter to the First Respondent. He confirmed that the letter on page 23 of the Applicant Bundle was the letter they wrote to the First Respondent requesting the appointment of the independent interview committee. They only received a verbal response to the letter.
36. In the meeting in which they decided to write the letter there were three members of the SGB. They decided to write the letter as the other five members had also decided to attend the training without telling them. He did not see anything wrong with writing a letter without the secretary of the SGB. Since the chairperson of the SGB was part of the meeting he believed the meeting was legal.
37. He said the meeting took place at the house of the Headman (Great Place). He admitted that it was not the usual place for them to hold the meetings but it was where the meetings of the community were held.
38. He was not aware if the interviews proceeded went off well or not, but he did not want them to proceed. He admitted that they agreed with Mrs Songca for the interviews to proceed but further told her that they were not accepting the decision of the First Respondent. Mrs Songca told them that in her experience she knew that people do not always go in one direction. Mrs Songca also advised the chairperson of the SGB that the school was not hers and she (chairperson) must not be a stumbling block.
39. He testified that he was not part of the ratification meeting. They however allowed the process to continue. He heard that there was a ratification meeting though he was not part of it.
FIRST RESPONDENT’S EVIDENCE AND ARGUMENT
40. The first witness of the First Respondent was Mrs Nomtha Songca who is the Circuit Manager and played the role of being the resource person in the process. Her duty was to ensure that the process went according to the policy.
41. She testified that there was a training for all the schools that had vacant posts advertised. The members of the SGB who were trained were expected to train those who did not attend the training.
42. She was informed by Mrs Mcutshenge that she received a letter of complaint from the Applicant saying she was complaining about the Grade R educator who was part of the interview committee.
43. When they got to the school for the interviews the SGB had already elected members to form part of the interview panel. They first met the educators to enquire about the letter of complaint. The educators distanced themselves from the letter. It was explained in that meeting that the Grade R educator qualified to be in the interview committee (panel).
44. During the shortlisting process there were no complaints. A day before the interviews, the Circuit Manager received another letter from some members of the SGB who said they wanted an independent panel.
45. When the witness arrived at the school she convened a meeting of the SGB to talk about the letter. The members of the SGB who were not signatories to the letter claimed that they were not aware of it. The writers of the letter confirmed that they wrote it.
46. The other members, except Mrs Mhlabeni, claimed that they signed the letter because they were told to. Mrs Mhlabeni said she was advised to write the letter to tell the First Respondent to conduct the process of appointment themselves due to the problems previously experienced. She pointed out that the letter on page 24 was the amended version of the original letter dated on the same day.
47. She acknowledged that the SGB was the statutory body empowered to take their decisions.
48. After an explanation was given in the meeting, the complainants gave a green light that the process must continue.
49. Because another member of the SGB who was trained was not in attendance, the SGB members were directed to appoint another member. The SGB agreed and they later came back with the name of the replacement.
50. The new member of the panel together with other members and the observers from the unions were there and then trained on the process. Witness made it sure that they understood what they were going to do. The new member of the panel was involved in asking questions and scoring. She was also guided on how to scrutinize the applications.
51. The interviews were on the 13th November 2018. During the interviews, there were no complaints from either the unions or the SGB. The process on that day was fair. Soon after the interviews the SGB members were convened in a meeting but others could not be found. The ratification meeting could therefore not take place on the day of the interviews.
52. On the 23rd November 2018 the witness convened the ratification meeting and attended it together with the Circuit Manager. In the ratification meeting it was only the Chairperson who had the dissenting view and said she wanted the Applicant. The chairperson was corrected and told that she cannot direct the meeting because she is the chairperson.
53. The initial complaint letter did not have signatures and was attached to another letter which had signatures, school stamp and referred to the post of the HOD.
54. She said it was not true that the ratification meeting was not properly communicated. The first meeting was properly communicated. The second meeting was convened by the Circuit Manager and she (witness) was there to see to it that the ratification went well. The chairperson of the SGB did not attend the meeting but she was aware of it. When it was found that she was not in the meeting she (chairperson) was called on her cellphone. According to the procedure if the chairperson is absent the deputy chairperson or other members of the SGB take over.
55. Witness thought the chairperson of the SGB deliberately absented herself from the meeting. The Chairperson was called on several occasions and advised to convene the ratification meeting and she may have thought that she had powers on whom to appoint. The chairperson even wrote a letter to say the Applicant must be appointed.
56. She testified that the Second respondent met all the requirements of the advert. He denied that the documents of the Second Respondent were only certified in 2009. She said they checked all the documents and all of them were properly certified. She said the documents submitted were not like those submitted at arbitration. She denied that the application documents of the Second Respondent should not have been accepted. She stated that she was not involved in compiling documents for the interview but they submitted everything and it was in order.
57. Witness denied that she rushed the appointment process even stating that they even postponed the unsuccessful ratification meeting.
58. The other witness of the First Respondent, Ms Phyllis Nomvuzo Naye-Daweti, testified, she was part of the interview committee and she was representing the educators. All three members of the interview committee asked questions. On the day of the interviews they were delayed by a letter from Mrs Songca which was said to be written by three SGB members but the letter was purported to be coming from all the members of the SGB. However, other members of the SGB distanced themselves from the letter.
59. They also received another letter complaining that the witness, who is a Grade R educator should not be part of the interview panel. In the meeting Mrs Songca explained that the witness was eligible to be the member of the SGB.
60. Referred to page 35 witness said she was surprised by the letter which had three writings, she also stated that they usually append their signatures when they write a letter. As the SGB they never wrote a letter to the First Respondent requesting them to appoint the principal on their behalf. She said they only wrote a letter to the First Respondent asking for an independent panel for the appointment of the HOD.
61. She first got the letter from the Applicant who was making copies of the letter. The Applicant also kept the school stamp when she was the Acting principal.
62. Some members of the SGB did not attend the training. When a member of the SGB, Mrs Gom, who attended the training could not come for the shortlisting, the SGB met aside and appointed a replacement. The SGB chose Nobenathi Mdleleni. She was there and then trained on the process. The other members of the panel were previously trained and were also retrained on the day of the interviews. They were thoroughly trained to the extent that the interviews started late.
63. During the shortlisting, the panel had access to the application forms, including that of the Second Respondent, but they did not see the names as the names were covered. All files had copies of qualifications. There was no stage when there was a complaint about the certification of the documents.
64. She was not part of the three SGB members who wrote the letter to the First Respondent. The letter was signed by the previous chairperson before her term came to an end.
65. She said she first saw the letter when the Applicant was making copies thereof. Even though her name was in the letter but she did not write it herself. She did not complain about her name being in the letter. She could not complain to anyone because the Applicant was her (witness) boss.
66. The other witness of the First Respondent, Ms Albertina Nobongile Mngxokolo, testified that she was the member of the SGB during the period. She recalled that the post of the HOD was advertised and that as the entire SGB they wrote a letter to the First Respondent requesting them to conduct the appointment process themselves (First Respondent). They did not have reasons to make the request to the First Respondent. The post of the principal was advertised later in the year long after they have written the letter about the post of the HOD. That was the only letter they wrote to the First Respondent.
67. Referred to page 35 of the bundle he confirmed that they wrote the letter but it did not have the part that refers to Volume 2 and to the deceased male teacher.
68. She was the chairperson of the interview panel. During the shortlisting for the post of the principal the members of the panel and the observers from the unions were there. As the panel they checked all the certificates and found them to be in order. He refuted the view that the Second Respondent did not meet the requirements for appointment into the post. During both the shortlisting and interviews there were no queries from anyone.
69. All the members of the SGB recommended the Second Respondent. They recommended the Second Respondent because of the way he respondent to their questions at the interviews. They discovered that the Applicant was not happy with the success of the Second Respondent when the second Respondent was introduced at the school. The Applicant was rated number four (04) at the interviews.
70. There was a meeting of the SGB to ratify the decision of the interview committee (panel). The members of the SGB were called to the meeting on the day of the interviews but some members were not available, even on the following day the same members could not come. Ultimately the meeting proceeded with five (05) members present out of the eight (08) total members on the 23rd November 2018.
71. The recommendation of appointment to the First Respondent is supposed to be made signed by the chairperson of the SGB together with other members.
72. Witness stated that even though she signed as the chairperson on page 23 of the bundle but the person who was supposed to have signed was the chairperson of the SGB, Mrs Mhlabeni. The signature written as A. Mgxokolo was her signature but the signature written N.N. Mgxokolo was not her signature.
73. She also admitted that if the Applicant was appointed she would have worked well with her, as all they wanted was the principal.
74. The other witness of the First Respondent, Nobenathi Mdleleni, testified that she was the secretary of the SGB and part of the interview committee in 2018 when the principal was appointed.
75. Referred to page 23 and 35 of the bundle she confirmed the signatures thereto.
76. She testified that that after the interviews they met as members of the SGB where they recommended the Second Respondent. There was no objection from any member of the SGB on the recommendation of the Second Respondent.
77. They got to know about the complaint of the Applicant on the day of the interviews. The Applicant was one of the candidates who were interviewed and she was rated number three after the interviews.
78. She stated that as the panel members they were trained to do the work but she could not remember the date of the training. The person who conducted the 30-minute training was a lady whom she confirmed was Ms Songca.
79. The procedure after the interviews was that they were supposed to meet as the entire SGB. Indeed, the SGB met about four days after the interviews. In that meeting there were five members of the SGB in attendance out of seven members in total.
80. The meeting of the SGB was on the 23rd November 2018. The witness joined the meeting later at about 13h00. When she arrived the meeting was still discussing the outcomes of the interviews.
81. Referred to page 23 she said the signature purported to hers on the page was not appended by her and was not her signature.
82. Referred to page 35 she confirmed that her signature thereto. She said they wrote the letter to the First Respondent requesting their assistance during the appointment of the Head of Department (HOD). They had no reason to seek the assistance of the First Respondent.
83. She testified that the letter on page 35 was not the original letter. In the original letter there was nothing that referred to ‘volume 2’. The sentence that has ‘volume 2’ was not in the original letter and was also not her own writing. Hence the letter was fraudulently tempered with.
84. She confirmed that the documents on page 24 of Applicant bundle and page 26 of Respondent bundle were similar but that that the other letter has the addition that was written by her.
85. She confirmed that the curriculum vitae (CV) of the Second Respondent which is part of the record was the one they perused during the shortlisting and interviews. In the CV, the school indicated as the last school the Second Respondent taught at was Tyhalarha JSS.
ANALYSIS OF EVIDENCE AND ARGUMENT
86. This dispute was referred as an unfair labour practice dispute related to promotion in terms of section 186(2)(a) of the Labour Relations Act(LRA). It is trite in law that in an unfair labour practice dispute the Applicant bears the onus of proof.
87. Clause G of the Guidelines in ELRC Resolution 3 of 2016 provides the guide on how an arbitrator must approach substantive issues when dealing with promotion disputes.
88. In particular clause G (38) of the Resolution provides that the arbitrator or the court is not the employer. Their role is not to decide whether the employer has arrived at the correct decision but to oversee whether the employer has not acted unfairly towards a candidate that was supposed to be promoted.
89. Clause H of the Resolution provides guidelines on how to approach procedural issues when dealing with promotion disputes. The clause refers to Personnel Administrative Measures (PAM) and ELRC Resolutions (resolution 5 of 1998). The Eastern Cape province of ELRC also signed a Provincial Resolution 2 of 2002 which is aimed at interpreting ELRC Resolution 5 of 1998.
90. Both PAM and the Resolutions provide procedures and guidelines to be followed during the appointment and promotion of educators. Clause H (51) of the resolution holds it that strict compliance with the guidelines is not necessary; substantial compliance was sufficient.
91. In the referral to arbitration, the Applicant stated that she was aggrieved by the following:
• The incumbent did not meet the minimum requirements of the post.
• The interview panel was not properly constituted.
• The SGB did not ratify the appointment of the incumbent.
• The panel was coached to allocate most score to the incumbent.
• Employer refused to appoint an independent panel.
92. The Applicant testified that she did not know the qualifications of the Second Respondent but she knew that he did not have a management qualification and was only a post level one educator, and therefore did not meet the minimum requirements.
93. Clause B.3.2.1 of PAM holds that the minimum requirements for appointment in the post of the principal are; matric plus three year teaching qualification (REQV 13), registration with South African Council of Educators and seven years actual teaching experience.
94. The documentary evidence submitted by the Second Respondent shows that he passed Senior Primary Teachers Diploma, which is a three-year diploma after matric, and also has the Advanced Certificate in Education specializing in Educational Leadership. According to the undisputed Curriculum Vitae submitted by the Second Respondent he started teaching in 1994.
95. The profile of the Second Respondent shows clearly that he met the minimum requirements as prescribed by PAM. The evidence of the Applicant was therefore proved to be incorrect.
96. With regards to the way the interview committee (panel) was constituted the Applicant had an issue with the presence of the Grade R educator in the panel. The grade R educator is an educator as defined in the Employment of Educators Act and it was common cause that the educator was a member of the SGB and was duly elected by the SGB to be the member of the panel. The further evidence of the Applicant that the educator who is part of the panel must be of a senior post than the advertised post is not supported by any provision in the PAM or the resolution, and therefore cannot be sustained.
97. The other evidence of the Applicant witness, Manduleli Ngcukana, was that one member of the panel was not trained in the process. This, according to Mr Ngcukana, was based on the fact that only two SGB members attended the training conducted by the First Respondent before the process started. The evidence of the First Respondent witness was consistent that indeed there was a member of the panel who did not attend the initial training because she was elected on the day of the shortlisting when the member who was attended the training could not come. The undisputed evidence of the First Respondent was that before the shortlisting there was another training for the members of the panel including the new member. There are also minutes attached in the Respondent Bundle which capture the training. The witness may not know what transpired during the shortlisting because he was not part of the panel and was not there when the training was conducted. The evidence of the Applicant can again not be sustained and falls to be dismissed.
98. With regards to the ratification the Applicant testified that there was no meeting of the SGB to ratify the appointment of the Second Respondent. When the bundle of the First Respondent was introduced it was clear that there was a ratification meeting. I thought that the Applicant would abandon this claim, but it was not to be.
99. The evidence led by both the witnesses of the Applicant and those of the First Respondent prove that there was a ratification meeting. There were even minutes of the ratification meeting attached in the bundle of the Respondents. The Applicant representative argued that because the two witnesses of the Respondent who were members of the SGB did not confirm their signatures in a certain form that meant the ratification of the appointment of the Second Respondent was null and void. The procedure as captured in PAM and in the collective agreements requires that the SGB must hold a meeting to ratify the decision of the interview committee (panel). The procedure does not say anything about who signs which form and when. Those are administrative processes of the First Respondent. The Applicant failed to discharge her onus of proof that there was no ratification meeting.
100. The allegation of the coaching of the panel could also not be proved by the Applicant. Even in her evidence, the Applicant testified that the resource person was telling the panelist when to ask questions and when to enter marks after a question has been responded to. There was nothing in her evidence that suggests that the panel members were coached on how much marks to allocate to each candidate. The assistance of the Resource person is understandable given that most of the parents are illiterate.
101. The Applicant testified about the fact that the SGB wrote a letter requesting the First Respondent to appoint an independent panel. The witness of the Applicant, Mrs Mhlabeni, admitted during cross-examination that only three (03) members of the SGB out of eight (08) members wanted the independent panel. This means that the whole idea of the independent panel failed at the initial democratic processes of the SGB.
102. Even if the idea was a majority decision of the SGB it still needed the First Respondent to exercise their discretion to approve it since it was going to be a deviation from the normal statutory procedure. The exercise of that discretion is not the subject of this dispute. The evidence of Ms Songca was that in the meeting of the SGB after the explanation was given the members of the SGB abandoned the request and gave green light that the process can continue. This is confirmed by the minutes of the SGB attached in the bundle. In his evidence, the Applicant witness, Mr Manduleli Ngcukana, also testified that they agreed with the resource person that the interviews must continue but they (three members of the SGB who wanted an Independent Panel) withdrew from the process.
103. The undisputed evidence led by the Respondent witnesses was that the Applicant was rated number four after the interviews with a score of 55% as against the score of the Second Respondent which was 86,6%. The second rated candidate got a score of 71,6% and the third rated candidate got a score of 65%. The members of the panel who had the opportunity to listen to the responses of the candidates to the questions posed rated the candidates in the way they did. There was no evidence led to suggest that the panel unfairly exercised their discretion in awarding these scores.
104. The Labour Appeal Court in Ncane v SSSBC and Others DA 27/15 others (DA 27/15) [2017] ZALAC 1; (2017) 38 ILJ 907 (LAC) noted that when it comes to evaluating suitable candidates for promotion it was expected of the employer to act fairly. The court further acknowledged that the process was a not a mechanical one and that there is a justifiable element of subjectivity or discretion involved. The court then concluded that the arbitrator may only interfere with the decision of the employer where it is irrational, grossly unreasonable and mala fides. In this matter there is no justification for interference.
105. My findings are that in this dispute the Applicant could not discharge her onus to prove that there was unfairness on the part of the First respondent which warrants an interference by me in this award.
106. In the circumstances I hereby issue the following award;
AWARD
107. The promotion process of the Second Respondent was substantively and procedurally fair and hence this application fails
108. The Applicant is not entitled to the relief she sought.
Mbulelo Safa : ELRC