ELRC1085-19/20 KZN
ELRC1085-19/20 KZN
Award Date:
26 November 2020
Case Number: ELRC1085-19/20 KZN
Province: KwaZulu-Natal
Applicant: Mr Sipheshihle Bhunu Buthelezi
Respondent: 1st Respondent Department of Education KwaZulu-Natal and 2nd Respondent Ms FT Mthethwa
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 26 November 2020
Arbitrator: A. DEYZEL
Panelist: A. DEYZEL
Case: ELRC1085-19/20 KZN
Date of Award: 26 November 2020
In the matter between
Mr Sipheshihle Bhunu Buthelezi Employee party
and
Department of Education, KZN Employer party
Ms FT Mthethwa
Successful candidate
Employee’s representative: Lungile Zibani
Employee’s address: 20 Benville Street
Glencoe
Telephone 0313321342; 0789117748
e-mail lungile.legal@natu.org.
Employer’s representative: Mr S. Ngcobo
Employer’s address:
Ms F.T. Mthethwa
Pinetown
Telephone 0761486938
Fax Phakanyile506@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. The applicant, Mr Buthelezi, referred a dispute to the Council. He alleged that the Department committed an unfair labour practice relating to promotion by failing to promote him to the post of principal of the Siyabonga Primary School.
2. The matter could not be resolved through conciliation and a certificate to such effect was issued.
3. The arbitration hearing was held on 27 September 2020 and 3 November 2020.
4. At their request the parties were allowed to file written argument and the written arguments were received on 10 November 2020.
5. The applicant was represented by Ms Lungile Zibani, a union official, and the Department was represented by Mr S. Ngcobo.
ISSUE TO BE DECIDED
6. The issue to be decided was whether the department’s failure to promote the applicant to the post of principal of the Siyabonga Primary School (“the school.”) constituted an unfair labour practice and, if so, what relief is to be awarded.
7. The relief sought by the applicant included the setting aside of the appointment of Ms Mthethwa and promoting the applicant to the post with retrospective effect.
BACKGROUND
8. The applicant (Mr Buthelezi) and Ms Pakhanyile Mthethwa (“Ms Mthethwa) were at all material times employed by the Department of Education KwaZulu-Natal. They were educators at the Siyabonga Primary School (“the school.”)
9. The post of principal at the school was advertised on 20 September 2019 as Post No. 1004 in HRM36/2019 and Mr Buthelezi as well as Ms Mthethwa applied for the post.
10. The school governing body (“the SGB”) elected an interview committee (“the IC”).
11. The IC interviewed the three candidates who were short listed including Mr Buthelezi and Ms Mthethwa.
12. During the interviews the candidates were asked questions and were awarded scores.
13. The case for the applicant was that the IC recommended to the SGB that Mr Buthelezi be appointed to the advertised principal post and that such recommendation should be made to the provincial head of department.
14. The SGB did not recommend to the provincial head of department that Mr Buthelezi be appointed. The case for the applicant was that SGB changed the rank order and Ms Mthethwa was in the end appointed to the post.
15. In the event that the SGB at the ratification stage decided to change the rank order of preference of the IC the following had to be adhered to:
Such deliberation and decisions on why the rank order of the recommended candidates was changed, must be accurately recorded;
Such changes must be separately motivated in writing and forwarded back to the interview committee to review the change in rank order of the recommended candidate.
16. The motivation must clearly indicate:
The reasons for recommending a change in the rank order of the IC.
If and how after consulting any referees it influenced the SGB to change the rank order of the interview committee.
Clear comments indicating why each candidate recommended was not suitable, if applicable.
How after applying its selection criteria, the interview committee may have not correctly ranked the candidates.
17. All the information referred to above had to be submitted by the SGB chairperson to the IC for review and consideration. In considering such recommendation it should be ensured that no unfair discrimination was practiced.
18. In the event that the IC concurs with the recommendation of the SGB it must change the rank order of the recommended candidates and forward such to the SGB for ratification.
19. In making an appointment the general principles in HRM36/2019 must be taken into account and adhered to, including
• the ability of the candidate;
• the need to redress the imbalances of the past in order to achieve broad representation;
• the obligation to achieve equality in the workplace in accordance with the provisions of the Employment Equity Act, 1998.
SUMMARY OF EVIDENCE AND ARGUMENT
20. The applicant gave evidence in support of his case and
• Ms Thandiwe Shabangu, a NATU union observer during the interview processes; and
21. The Department called the following witnesses:
• Mr Absalom Zwane, the HR director;
• Mr Mandla Ngcobo, the principal of another school and a departmental representative, a resource person and member of the IC; and
• Mr Mdunge; a member of the IC and was a scorer when Mr Buthelezi and Ms Mthethwa were interviewed;
22. It was common cause that the shortlisted candidates were interviewed and awarded scores during the interview process. An EHR11 form was completed by the IC reflecting the rank order of the three recommended candidates who were interviewed.
23. According to Mr Mdunge, Mr Buthelezi was the highest scoring candidate and he was ranked first on the EHR 11 Form. Ms Mthethwa was the third highest scoring candidate and she was ranked third. Mr Mdunge was one of the IC Members who signed the EHR 11 form. According to him, he was not aware that the rank order was changed. He was however aware that the SGB preferred someone else and that the SGB sent the EHR 11 Form back to the IC with a submission that the IC should change the rank order. He was not present when the Rank Order Form was changed. Under cross-examination, it was put to Mr Mdunge that he did not tell the union that Mr Buthelezi was ranked Number One. Mr Mdunge then testified that the union was aware that he was going to testify in the arbitration hearing as he was told to come to the arbitration hearing to testify. The Union became aware during the arbitration that Mr Buthelezi was ranked number one on the EHR 11 Form. It was put to Mr Mdunge that the SGB had to submit the names of three candidates for appointment and that the Head of Department could appoint any one of the three. Mr Mdunge denied that that was so.
24. The department called Mr Mandla Ngcobo as a witness. Mr Ngcobo was a principal at another school and he acted as a resource person during the interviews. Mr Ngcobo testified that the SGB was not satisfied with the findings of the IC. The SGB members were called to a ratification meeting which took place immediately after the interviews. Some IC members i.e. the three scorers, left the meeting before the ratification was done and were not present when the rank order was changed. Mr Mdunge, the chairperson of the IC, the Secretary of the IC and one of the union observers attended the ratification meeting.
25. Some SGB members were not happy with the recommendation on the EHR 11 document and were not prepared to sign it. Mr Mandla Ngcobo advised them to sign the form and to attach a letter addressed to the head of department expressing their views on who should be appointed. He further indicated that he would send a report on the outcome to the circuit manager.
26. Mr Mandla Ngcobo was the departmental nominee as well as the resource person. Mr Ngcobo did not see any change of the rank order during the interviews. He denied that the change of the ranking of the candidates took take place during the interviews. Three candidates were interviewed and scored. Mr Buthelezi was ranked third. The rank order was not changed by the time that the IC members were called to the SGB ratification meeting. During the ratification process, the members of the SGB raised concerns regarding the outcome of the interview process. Mr Ngcobo advised the SGB members to write to the district office. The change of ranking procedure entailed that the SGB should make a written motivation and send it to the IC to review the change of rank order. Some members of the IC including the three scorers, left after the SGB ratification meeting. The IC Members who remained behind had a meeting with the SGB.
27. Mr Buthelezi gave evidence in support of his case. According to Mr Buthelezi the change of rank order process did not occur during the interview process. Mr Buthelezi testified that he was not appointed despite him being recommended as the most preferred candidate. The procedural manual contained in HRM 36/2019 and in particular Clause 16 thereof prescribed what procedure had to be followed.
28. Ms Shabangu testified that she was present as a NATU union observer during the interviews. During the interviews Mr Buthelezi scored the highest score and was ranked as first preferred candidate. Ms Shabangu could not recollect whether the scores were changed and, if so, how it was done.
29. The representatives of the parties accepted that the rank order of the preferred candidates was changed. Where and when and why it was changed was unclear because of the serious discrepancies between the SGB and IC members who testified.
30. The submissions of the parties appear from their written argument.
31. The applicant sought relief on the grounds that he was selected by the IC as the first ranked candidate and that Ms Mthethwa was the third recommended candidate. The crux of the Mr Buthelezi’s case was that the rank order was changed without following the procedure prescribed by clause 16 of procedural manual and that that caused him not to be promoted.
32. The applicant submitted that four witnesses testified that they were part of the interview process and that there should have been a change of rank order process dealing with the concerns of the SGB. Such procedure was not followed.
33. It was submitted on behalf of Mr Buthelezi that he was selected by the interview committee as the first ranked candidate and that the rank order was changed without due process. Mr Buthelezi was the first preferred candidate of the IC but Ms Mthethwa was appointed to the post despite being ranked as the third preferred candidate, so it was contended.
34. The ranking of a candidate recommended by the IC may only be changed by the SGB following the procedure referred to in paragraph 16 of the procedure manual. It was not in dispute that the SGB did not submit the relevant documents and information to the IC and that the prescribed review process was not followed by the IC.
35. The witnesses called by Mr Buthelezi testified that he was the first recommended candidate of the IC. Mr Mdunge testified that Mr Buthelezi was the highest scoring and the most preferred candidate and that this was reflected on the EHR 11 Form. The effect of Mr Mdunge’s evidence was that the rank order on the form was not changed.
36. If the rank order was changed, the change must have entailed a change resulting in the EHR 11 Form reflecting that the applicant was the most preferred candidate and reflecting that Ms Mthethwa as the third preferred candidate.
37. The effect of Mr Mandla Ngcobo’s evidence was that the rank order on the EHR 11 Form was not changed during the ratification process as he advised against it and advised the SGB to write a separate letter motivating the appointment of somebody else. On his evidence the EHR 11 form reflected that Mr Buthelezi was ranked third. How Mr Buthelezi came to be ranked one was not explained on Mr Ngcobo’s version of events.
38. Mr Buthelezi’s case was that he was ranked number one on the EHR 11 form during the interview process. This part of his case was inconsistent with the evidence other witnesses referred to above.
39. Neither party led evidence proving that it would be fair to set aside Ms Mthethwa’s appointment and to appoint Mr Buthelezi instead. In my view it would be unfair to set aside an employee party’s appointment as principal of a school in the absence of evidence regarding the competence and ability of such candidate and the other recommended candidates. In this regard there was no evidence that it would be fair to set aside Ms Mthethwa’s appointment. In this regard I refer to the lack of evidence indicating the respective competence and abilities of the recommended candidates. In the absence of such evidence Mr Buthelezi failed to prove on a balance of probabilities that failure to promote him was unfair.
40. Mr Buthelezi and his representative as well as Mr Ngcobo and Ms Mthethwa clearly approached the arbitration on the basis that the outcome of the matter depended whether the procedure in Clause 16 of the procedure manual should have been followed and, if so, whether it was followed. That clause only applies if the SGB at the ratification meeting decided to consider changing the rank order of preference of the recommended candidates. The evidence led during the arbitration proved on a balance of probabilities that the rank order preference must have been changed after the ratification meeting. The circumstances were not such the rank order could be changed by the IC if referred back to them to review their recommendation. All IC members were not present and the IC was not properly convened. Mr Buthelezi’s case was all along that he was the first preferred candidate. It was argued on his behalf that it was only the procedural change of rank order process that caused him not to be appointed.
41. In the light thereof that no evidence was led to prove that the applicant had some projects of success to be promoted, if his Section 16 review application was considered it would have been arguable that it would be fair to order that the process be redone. The absence of evidence dealing with the merits of the applicant’s application to be promoted Mr Buthelezi did not make out a case that the failure to promote him to the principal post constituted an unfair labour practice.
42. An arbitrator may only interfere if an employee proves that the employer in not promoting the said employee and appointing another candidate acted irrationally, grossly unreasonably, capriciously or arbitrarily or was actuated by bias, malice or fraud. [See Kimberly Junior School v Head of the Northern Cape Education Department (278/08) [2009] ZASCA 58 (28 May 2009)]
AWARD
43. The failure of the respondent to promote the applicant Sipheshihle Bhunu Buthelezi, to the post of principal of the Siyabonga Primary School, did not constitute an unfair labour practice.
44. The applicant is not entitled to relief.
Signed at DURBAN this 26th day of NOVEMBER 2020
A. DEYZEL
PANELIST
Province: KwaZulu-Natal
Applicant: Mr Sipheshihle Bhunu Buthelezi
Respondent: 1st Respondent Department of Education KwaZulu-Natal and 2nd Respondent Ms FT Mthethwa
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 26 November 2020
Arbitrator: A. DEYZEL
Panelist: A. DEYZEL
Case: ELRC1085-19/20 KZN
Date of Award: 26 November 2020
In the matter between
Mr Sipheshihle Bhunu Buthelezi Employee party
and
Department of Education, KZN Employer party
Ms FT Mthethwa
Successful candidate
Employee’s representative: Lungile Zibani
Employee’s address: 20 Benville Street
Glencoe
Telephone 0313321342; 0789117748
e-mail lungile.legal@natu.org.
Employer’s representative: Mr S. Ngcobo
Employer’s address:
Ms F.T. Mthethwa
Pinetown
Telephone 0761486938
Fax Phakanyile506@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. The applicant, Mr Buthelezi, referred a dispute to the Council. He alleged that the Department committed an unfair labour practice relating to promotion by failing to promote him to the post of principal of the Siyabonga Primary School.
2. The matter could not be resolved through conciliation and a certificate to such effect was issued.
3. The arbitration hearing was held on 27 September 2020 and 3 November 2020.
4. At their request the parties were allowed to file written argument and the written arguments were received on 10 November 2020.
5. The applicant was represented by Ms Lungile Zibani, a union official, and the Department was represented by Mr S. Ngcobo.
ISSUE TO BE DECIDED
6. The issue to be decided was whether the department’s failure to promote the applicant to the post of principal of the Siyabonga Primary School (“the school.”) constituted an unfair labour practice and, if so, what relief is to be awarded.
7. The relief sought by the applicant included the setting aside of the appointment of Ms Mthethwa and promoting the applicant to the post with retrospective effect.
BACKGROUND
8. The applicant (Mr Buthelezi) and Ms Pakhanyile Mthethwa (“Ms Mthethwa) were at all material times employed by the Department of Education KwaZulu-Natal. They were educators at the Siyabonga Primary School (“the school.”)
9. The post of principal at the school was advertised on 20 September 2019 as Post No. 1004 in HRM36/2019 and Mr Buthelezi as well as Ms Mthethwa applied for the post.
10. The school governing body (“the SGB”) elected an interview committee (“the IC”).
11. The IC interviewed the three candidates who were short listed including Mr Buthelezi and Ms Mthethwa.
12. During the interviews the candidates were asked questions and were awarded scores.
13. The case for the applicant was that the IC recommended to the SGB that Mr Buthelezi be appointed to the advertised principal post and that such recommendation should be made to the provincial head of department.
14. The SGB did not recommend to the provincial head of department that Mr Buthelezi be appointed. The case for the applicant was that SGB changed the rank order and Ms Mthethwa was in the end appointed to the post.
15. In the event that the SGB at the ratification stage decided to change the rank order of preference of the IC the following had to be adhered to:
Such deliberation and decisions on why the rank order of the recommended candidates was changed, must be accurately recorded;
Such changes must be separately motivated in writing and forwarded back to the interview committee to review the change in rank order of the recommended candidate.
16. The motivation must clearly indicate:
The reasons for recommending a change in the rank order of the IC.
If and how after consulting any referees it influenced the SGB to change the rank order of the interview committee.
Clear comments indicating why each candidate recommended was not suitable, if applicable.
How after applying its selection criteria, the interview committee may have not correctly ranked the candidates.
17. All the information referred to above had to be submitted by the SGB chairperson to the IC for review and consideration. In considering such recommendation it should be ensured that no unfair discrimination was practiced.
18. In the event that the IC concurs with the recommendation of the SGB it must change the rank order of the recommended candidates and forward such to the SGB for ratification.
19. In making an appointment the general principles in HRM36/2019 must be taken into account and adhered to, including
• the ability of the candidate;
• the need to redress the imbalances of the past in order to achieve broad representation;
• the obligation to achieve equality in the workplace in accordance with the provisions of the Employment Equity Act, 1998.
SUMMARY OF EVIDENCE AND ARGUMENT
20. The applicant gave evidence in support of his case and
• Ms Thandiwe Shabangu, a NATU union observer during the interview processes; and
21. The Department called the following witnesses:
• Mr Absalom Zwane, the HR director;
• Mr Mandla Ngcobo, the principal of another school and a departmental representative, a resource person and member of the IC; and
• Mr Mdunge; a member of the IC and was a scorer when Mr Buthelezi and Ms Mthethwa were interviewed;
22. It was common cause that the shortlisted candidates were interviewed and awarded scores during the interview process. An EHR11 form was completed by the IC reflecting the rank order of the three recommended candidates who were interviewed.
23. According to Mr Mdunge, Mr Buthelezi was the highest scoring candidate and he was ranked first on the EHR 11 Form. Ms Mthethwa was the third highest scoring candidate and she was ranked third. Mr Mdunge was one of the IC Members who signed the EHR 11 form. According to him, he was not aware that the rank order was changed. He was however aware that the SGB preferred someone else and that the SGB sent the EHR 11 Form back to the IC with a submission that the IC should change the rank order. He was not present when the Rank Order Form was changed. Under cross-examination, it was put to Mr Mdunge that he did not tell the union that Mr Buthelezi was ranked Number One. Mr Mdunge then testified that the union was aware that he was going to testify in the arbitration hearing as he was told to come to the arbitration hearing to testify. The Union became aware during the arbitration that Mr Buthelezi was ranked number one on the EHR 11 Form. It was put to Mr Mdunge that the SGB had to submit the names of three candidates for appointment and that the Head of Department could appoint any one of the three. Mr Mdunge denied that that was so.
24. The department called Mr Mandla Ngcobo as a witness. Mr Ngcobo was a principal at another school and he acted as a resource person during the interviews. Mr Ngcobo testified that the SGB was not satisfied with the findings of the IC. The SGB members were called to a ratification meeting which took place immediately after the interviews. Some IC members i.e. the three scorers, left the meeting before the ratification was done and were not present when the rank order was changed. Mr Mdunge, the chairperson of the IC, the Secretary of the IC and one of the union observers attended the ratification meeting.
25. Some SGB members were not happy with the recommendation on the EHR 11 document and were not prepared to sign it. Mr Mandla Ngcobo advised them to sign the form and to attach a letter addressed to the head of department expressing their views on who should be appointed. He further indicated that he would send a report on the outcome to the circuit manager.
26. Mr Mandla Ngcobo was the departmental nominee as well as the resource person. Mr Ngcobo did not see any change of the rank order during the interviews. He denied that the change of the ranking of the candidates took take place during the interviews. Three candidates were interviewed and scored. Mr Buthelezi was ranked third. The rank order was not changed by the time that the IC members were called to the SGB ratification meeting. During the ratification process, the members of the SGB raised concerns regarding the outcome of the interview process. Mr Ngcobo advised the SGB members to write to the district office. The change of ranking procedure entailed that the SGB should make a written motivation and send it to the IC to review the change of rank order. Some members of the IC including the three scorers, left after the SGB ratification meeting. The IC Members who remained behind had a meeting with the SGB.
27. Mr Buthelezi gave evidence in support of his case. According to Mr Buthelezi the change of rank order process did not occur during the interview process. Mr Buthelezi testified that he was not appointed despite him being recommended as the most preferred candidate. The procedural manual contained in HRM 36/2019 and in particular Clause 16 thereof prescribed what procedure had to be followed.
28. Ms Shabangu testified that she was present as a NATU union observer during the interviews. During the interviews Mr Buthelezi scored the highest score and was ranked as first preferred candidate. Ms Shabangu could not recollect whether the scores were changed and, if so, how it was done.
29. The representatives of the parties accepted that the rank order of the preferred candidates was changed. Where and when and why it was changed was unclear because of the serious discrepancies between the SGB and IC members who testified.
30. The submissions of the parties appear from their written argument.
31. The applicant sought relief on the grounds that he was selected by the IC as the first ranked candidate and that Ms Mthethwa was the third recommended candidate. The crux of the Mr Buthelezi’s case was that the rank order was changed without following the procedure prescribed by clause 16 of procedural manual and that that caused him not to be promoted.
32. The applicant submitted that four witnesses testified that they were part of the interview process and that there should have been a change of rank order process dealing with the concerns of the SGB. Such procedure was not followed.
33. It was submitted on behalf of Mr Buthelezi that he was selected by the interview committee as the first ranked candidate and that the rank order was changed without due process. Mr Buthelezi was the first preferred candidate of the IC but Ms Mthethwa was appointed to the post despite being ranked as the third preferred candidate, so it was contended.
34. The ranking of a candidate recommended by the IC may only be changed by the SGB following the procedure referred to in paragraph 16 of the procedure manual. It was not in dispute that the SGB did not submit the relevant documents and information to the IC and that the prescribed review process was not followed by the IC.
35. The witnesses called by Mr Buthelezi testified that he was the first recommended candidate of the IC. Mr Mdunge testified that Mr Buthelezi was the highest scoring and the most preferred candidate and that this was reflected on the EHR 11 Form. The effect of Mr Mdunge’s evidence was that the rank order on the form was not changed.
36. If the rank order was changed, the change must have entailed a change resulting in the EHR 11 Form reflecting that the applicant was the most preferred candidate and reflecting that Ms Mthethwa as the third preferred candidate.
37. The effect of Mr Mandla Ngcobo’s evidence was that the rank order on the EHR 11 Form was not changed during the ratification process as he advised against it and advised the SGB to write a separate letter motivating the appointment of somebody else. On his evidence the EHR 11 form reflected that Mr Buthelezi was ranked third. How Mr Buthelezi came to be ranked one was not explained on Mr Ngcobo’s version of events.
38. Mr Buthelezi’s case was that he was ranked number one on the EHR 11 form during the interview process. This part of his case was inconsistent with the evidence other witnesses referred to above.
39. Neither party led evidence proving that it would be fair to set aside Ms Mthethwa’s appointment and to appoint Mr Buthelezi instead. In my view it would be unfair to set aside an employee party’s appointment as principal of a school in the absence of evidence regarding the competence and ability of such candidate and the other recommended candidates. In this regard there was no evidence that it would be fair to set aside Ms Mthethwa’s appointment. In this regard I refer to the lack of evidence indicating the respective competence and abilities of the recommended candidates. In the absence of such evidence Mr Buthelezi failed to prove on a balance of probabilities that failure to promote him was unfair.
40. Mr Buthelezi and his representative as well as Mr Ngcobo and Ms Mthethwa clearly approached the arbitration on the basis that the outcome of the matter depended whether the procedure in Clause 16 of the procedure manual should have been followed and, if so, whether it was followed. That clause only applies if the SGB at the ratification meeting decided to consider changing the rank order of preference of the recommended candidates. The evidence led during the arbitration proved on a balance of probabilities that the rank order preference must have been changed after the ratification meeting. The circumstances were not such the rank order could be changed by the IC if referred back to them to review their recommendation. All IC members were not present and the IC was not properly convened. Mr Buthelezi’s case was all along that he was the first preferred candidate. It was argued on his behalf that it was only the procedural change of rank order process that caused him not to be appointed.
41. In the light thereof that no evidence was led to prove that the applicant had some projects of success to be promoted, if his Section 16 review application was considered it would have been arguable that it would be fair to order that the process be redone. The absence of evidence dealing with the merits of the applicant’s application to be promoted Mr Buthelezi did not make out a case that the failure to promote him to the principal post constituted an unfair labour practice.
42. An arbitrator may only interfere if an employee proves that the employer in not promoting the said employee and appointing another candidate acted irrationally, grossly unreasonably, capriciously or arbitrarily or was actuated by bias, malice or fraud. [See Kimberly Junior School v Head of the Northern Cape Education Department (278/08) [2009] ZASCA 58 (28 May 2009)]
AWARD
43. The failure of the respondent to promote the applicant Sipheshihle Bhunu Buthelezi, to the post of principal of the Siyabonga Primary School, did not constitute an unfair labour practice.
44. The applicant is not entitled to relief.
Signed at DURBAN this 26th day of NOVEMBER 2020
A. DEYZEL
PANELIST