PSES182-18/19KZN
PSES182-18/19KZN
Award Date:
22 November 2019
Case Number: PSES182-18/19KZN
Province: KwaZulu-Natal
Applicant: SIBIS N M
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Offices of the Department of Education in Stanger
Award Date: 22 November 2019
Arbitrator: NOZIPHO B KHUMALO
Case Number: PSES182-18/19KZN
Last date of arbitration: 28 OCTOBER 2019
Date of award: 22 NOVEMBER 2019
Closing Arguments: 08 NOVEMEBR 2019
NOZIPHO B KHUMALO
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set-down for arbitration in terms of section 182(a) of the Labour Relations Act 66 of 1995 as amended (LRA) at the offices of the Department of Education in Stanger, and concluded on 28 October 2019. Mr. Zulu appeared for the First Respondent, Mr M Mathabela an official of NATU represented the second Respondent. The Applicant, Mr Sibisi was represented by Mr Zuma an official of SADTU.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
2 The Applicant is employed by the Respondent as an educator at Shakaskraal SA Primary School. In 2015 to 2017 he acted in the position of principal. In 2017 the post for principal was advertised in terms of HRM39/2017.
3 The Applicant applied for the post and was short listed for an interview. The Applicant was not appointed, the Second Respondent, Doctor Ngema was appointed in the position.
4 The Applicant seeks that the school governing body be found to be improperly constituted and the appointment of the Second Respondent to be set aside.
5 The Applicant handed in Annexure “B” and “C” whilst the Respondent handed in Annexure “A”.
6 I have to decide whether the Respondent committed an unfair labour practice by not appointing the Applicant in the post of principal at Shakaskraal SA Primary School, “Shakaskraal”. Based on the finding decide on the appropriate relief, if any is applicable.
PRELIMINARY ISSUES
7. The Respondent raised preliminary points contending that firstly the Second Respondent was not served with the notice of set down, secondly that the Applicant has not exchanged its bundle with the Respondents and therefore the Respondent is not ready to proceed. The Applicant also raised a point that it has not received documents from the Respondents as per the agreement at the pre-arbitration meeting.
8. A ruling was issued that the parties exchange documents on the 22 October 2019. It was also decided amongst the parties that the document be dropped off and picked up at the District Office at 10:00.
SUMMARY OF EVIDENCE AND ARGUMENTS
Applicant’s case
9. The Applicant testified and called Three (3) witnesses, Njabulo Lindokuhle Zungu,” Zungu” Gerald Mduduzi Mashazi, “Mashazi” and Bafana Ellias Khoza, “Khoza” their evidence is summarised as follows. The Applicant is currently employed as a deputy principal at Shakaskraal Secondary School. He started work as a deputy principal in 2001.
10. The Applicant stated that in July 2017, when he was appointed as acting principal he started participating in the school governing body although he was not given any training. Amongst other school governing body members there was BP Maphumulo, Themba Yalo and TT Qhanqiso. Themba Yalo does not have a child registered under his name at the school. TT Qhanqiso also does not have a child registered under his name. Although there is a child by the name of Sifiso Qhannqiso at the school. The only parent appearing on the system as his parent/s is Thembeka and not TT Qhanqiso. BP Maphumulo who was the secretary of the SGB, of the five (5) meetings that the school governing body held in 2017, she has never attended any and also failed to render any apology. The only reason stated for her failure to attend was that she was employed elsewhere. Her position was left vacant.
11. The school governing body later co-opted a member by the name of Zandile Zondi. Mr Nokhonjwa was told that he cannot participate in the school governing body as he did not have a child at the school. Although Ntuli allowed Nokhonjwa to stay in the school governing body but Khuzwayo suggested that someone be co-opted in the position. This happened within a period of less than six (6) months. The school governing body during the time of the principal’s post was not in good standing. The Applicant came to realise this after the election of the new school governing body in March 2018. He learned that the voter’s role was tempered with. The name of Themba Yalo was now written in pen as the parent of Buhle Cele, “B”1. Also appearing in the voter’s role, “B”2 is the name of Thandeka Qhanqiso who was registered as the biological mother of Sifiso Qhanqiso and not TT Qhanqiso. There was also no apology on behalf of Maphumulo on the minutes of the SGB meeting which took place on the 26/10/2017, “B”3 and 07/09/2017, “B”6.
12. Zungu stated that she was a member of the school governing body during the period 2015 to 2018 representing the educator component. Bongiwe Maphumulo was the secretary of the school governing body. She failed to attend two (2) consecutive school governing body meetings on the 26 October 2017 and 07 September 2017 and therefore should not have been serving in the school governing body. At the meeting of 07 September 2107 one of the items of discussion was checking the legitimacy of the school governing body. This was because the school governing body was not in good standing. Nokhomba was a member of the school governing body but did not have a child in the school.
13. At the meeting which took place on the 17 January 2018 where interview committee was elected, there were no union observers present. The scoring was discussed in this meeting and the resources person said that this must not be included in the minutes.
14. All the candidates were given 9:00am as the time of the interview. There were four (4) candidates present at the interview, the fourth candidate did not arrive. Zungu was informed by Khoza who was one of the interview committee members that three (3) of the candidates arrived before the set time and one candidate, the Second Respondent arrived after the set time. Khoza also told Zungu that the resources person also arrived late. The panel members were not workshopped in preparation for the interview. The questions used during the interviews came with the resources person and he said that the questions came from the department and the panel had to choose from that list. The panel took the list from the resources person and selected the questions that they were going to use. Panel members were told to use their discretion in terms of the answers as there were no expected answers.
15. Mashazi is employed at Shakaskraal as a level one educator and has been a member of the school governing body since 2015 representing the educator component. In terms of “G”16 section 29(1) and “G”20 section 31(2) the school governing body at the time of the post was illegal. During the time of the post, the school governing body members were informed by the Applicant verbally that the circuit manager would like to have a meeting with school governing body members. There was no formal notice issued before the meeting. At that meeting school governing body members were informed about the upcoming interviews and that they must elect an interview committee which was elected at that same time. There were no union representatives present at that meeting. Yalo was elected as the chairperson and Zungu as the secretary. Mashazi was given the task of reading cvs and also as a scorer at the interviews. Yalo, and Ndundu were also elected as a scorer. However, the union observer suggested that educators might have an interest if there is anyone from the school that has applied for the position and Mashazi was forced to step down.
16. There was a grievance lodged with regards to the legitimacy of the school governing body and the role of the resources person. This lead to two (2) rectification processes. The interview questions came with the resources person but there were no suggested answers. The panel members were requested to choose the questions from the list submitted by the resources person. There was no training provided to panel members before the commencement of the recruitment process.
17. Khoza is employed at Shakaskraal as a general worker. He has been a member of the school governing body for eleven (11) years representing the non-educator component. Yalo, Ndundu, Bongiwe and Qhanqiso were elected in the parent’s meeting. Zondo came in the place of Nokhomba who was taken out as she no longer had a child in the school. This meeting was chaired by Ninela the circuit manager.
The Respondent’s case
18. The Respondent called four witnesses by the names of Doctor Ngema, “Second Respondent”, Themba Yalo,”Yalo” Thuleleni Teressa Qhanqiso, “Qhanqiso” and Khulekani Patric Ninela, “Ninela”. Their evidence is summarised as follows. The Second Respondent stated that a post was advertised by the Respondent late 2017. The post was for principal at Shakaskraal. The requirements for the post were three years’ qualification in education, seven years’ experience as an educator and SACE registration. He met all the requirements. He applied for the post and was invited for an interview. When he arrived at Shakaskraal on the day of the interview, he found three other candidates at the waiting area. The Applicant was also one of the candidates. A lady who was part of the interview committee greeted them all and informed them that they will be called in. All the candidates were addressed at the same time.
19. The Second Respondent stated he only knows Ninela from when he was an educator and they were in the same cluster but worked at different schools. Currently Ninela is the circuit manager at Shakaskraal and he reports to him. Either than that work relationship, there is no other relationship.
20. The Second Respondent further stated that he knows all the school governing body members except for Zondo, “D”6. He has never received any complaints either from the public or anyone regarding the formation of the school governing body. Had he received any complaints he would have informed the circuit manager. Either than that, there is a structure at the district office that deals with school governing body governance.
21. Yalo stated that he was the chairperson of the school governing body at Shakaskraal. He was also the chairperson of the interview committee. In order for one to qualify as a member of the school governing body, one needs to have a child in the school. The name of his child is Buhle Precious Cele and the mother is Nontuthuzelo. At the time of the interview his child Buhle was in the school. He is the biological father of Buhle and does not fall within the list in “E”1. There were allegations made that he is not the biological father of Buhle, he therefore had to make an affidavit at the Mhlali police station, “F”2.
22. Yalo is also a signatory in the school bank account, alongside the Applicant and Qhanqiso, “B”4. Checking the legitimacy of the school governing body was normal practise when all members meet. There were no issues raised regarding Qhanqiso and Yalo. “D”6 was completed and signed by the principal. He therefore cannot say that the school governing body was illegitimate, that will be a mistake. The school governing body elected the interview committee which he was also part of. As the chairperson of the interview committee, he informed all other members that what is being discussed during the interview process may not be disclosed to anyone outside of the committee. Five (5) candidates were shortlisted but only four (4) were interviewed. Each candidate was given a set of questions to read but the questions were also read to them. Each question was to be answered within a particular time. All the candidates were asked the same questions. After the interviews were done, the interview committee reported to the school governing body and the school governing body accepted everything.
23. Qhanqiso stated that she is a parent as well as a school governing body member at Shakaskraal. She serves as a secretary in the school governing body. She was elected by other parents. She has served in the school governing body for three terms. There was no complaint about the formation of the school governing body. She was also a scorer at the interviews. The shortlisting as well as the interview processes were followed accordingly as per HRM Circular No.39 of 2017. The committee agreed to use questions from the guidelines. The four (4) candidates that were interviewed were all asked the same questions. Each question had to be answered within a set time and there were marks allocated to each question. Rectification was also done. Nobody forced them to appoint the Second Respondent, Ngema.
24. Ninela stated that he is employed as the circuit manager of Umhlali region. Shakaskraal is one of the schools that he services. His involvement in the filling of the principal post was that of a resources person. His duty was to ensure that the school governing body was correctly formed and that the people appointed by the school governing body and the department know what is expected of them. In ensuring that the school governing body was in good standing, he sent a form to the principal of the school, which the principal completes and send back to him, “D”5. In ensuring that the school governing body members know what is expected of them, there are workshops and he personally meets with the school governing body and explain to them that there is a post that is being advertised and what is expected of them.
25. As a resources person he also had to ensure that the committee members are aware of the HMR Circular No 39 of 2017, “C” which contains all the rules and procedures for filling of promotional posts and that it is complied with. The policy speaks of the involvement of union during shortlisting which was complied with. It also speaks of the role of the interview committee which was also complied with. It also speaks of the ratification process which was also done and the school governing body concurred with the outcome of the interview committee.
26. He came with the suggested questions on the day of the interview which he suggested to the interview committee. The secretary said that she has these questions. Copies of the questions were made and given to all members. Members were also made aware that they change the questions in any way they saw fit. In terms of training, it is the department that provides training but there was a meeting that he conducted on the 21/10/2018 where the applicant was also present. Ninela asked the applicant if had applied for the post and informed him that he may not be part of the meeting since he has applied.
27. Ninela also stated that the was grievance lodged where it was said that he and the Second Respondent have a person relationship. It was said the Second Respondent was a groom’s man at Ninela’s wedding. He explained that he only knows the Second Respondent from when he, Ninela was an educator and was in the same cluster as the Second Respondent. He also knows the Applicant as a chairperson of a union and the Second Respondent as a secretary of another union.
SUMMARY OF ARGUMENTS
28. The First Respondent argued that it led a very convincing evidence to prove that the selection process went on very well. There were no procedural defects. The fact that there was no dispute lodged against that process confirmed that the selection process was fair. The applicant did not attempt to prove that he was the best candidate compared to other candidates and therefore was the best person to be appointed. It is therefore clear that, the applicant had absolutely no case and it is prayed therefore that the dispute be dismissed entirely.
29. The Second Respondent argued that an issue of SGB elections could have be dealt with in terms of Provincial Gazette dated 09 November 2017 and grievances be dealt with terms of the provisions and time lines suggested in the gazette (Annexure D, page 28-29, paragraph 24 – read wholly) and that the Commissioner has no jurisdiction. The Applicant failed to proof any unfair procedure meted on him which might have given the Second Respondent an unfair advantage.
30. The Applicant argued that the second respondent and the resource person have known each other before he got married in 2008, at least 11 years. Therefore, the first Respondent acted unfairly relating to promotion in respect of post number 82 of HRM 39 of 2017. The first respondent subjected the Applicant to an unfair labour practice as envisaged in section 186(2)(a) of the LRA. The Applicant made reference to the award of Case Number: PSES 584-16/17KZN which proved beyond reasonable doubt that Respondent subjected an educator to an unfair labour practice relating to promotion since the Interview Committee (the “IC”) was not properly constituted. In that the SGB was not legitimate. The two cases (PSES 584-16/17KZN and PSES182-18/19KZN) are more or less the same. An illegitimate school governing body cannot run any process.
ANALYSIS OF EVIDENCE AND ARGUMENT
31. In this case it is common cause that there were vacancies at Shakaskraal for principal. It is also common cause that the Applicant applied and was interviewed for the post. It is also common cause that the Applicant was acting in the position of principal until the appointment was made. It is further common cause that the Applicant was also a member of the SGB. The Applicant argued that the SGB was not in good standing and therefore was not fit to run the interview process. The Applicant stated under cross examination that he completed the school governing body audit form, “D”6 as a requirement of the department. the form states Themba Yalo as the Chairperson, Bongiwe Maphumulo as the Secretary and Thuleleni Qhanqiso as the Treasurer. The Applicant is captured as an additional member. The form was completed in November 2017. This was around the time when the vacancy was advertised.
32. The Applicant also stated under cross examination that the reason why he completed this form is because he was required to. It was also not effecting him at the time therefore he had no problem completing it. In terms of “B”1, the Applicant stated that his document was used for the purposes of voters’ role and it was completed by the clerk. However, it was him who submitted it to the electoral office. He further stated that he did not check the document before submitting it, therefore he does not know whether the name of Yalo was there or not. This is contradictory because it was him who complete “D”6 and put Yalo as the Chairperson of the SGB. He did not see a need to question this.
33. I also do not except the evidence of Zungu as she was part of the school governing body and yet never bothered to question the formation of the school governing body. Zungu also stated that one of the reasons why the school governing body was not in good standing was because the appointment of Nonkomba was not done procedurally. This she said was because when Nonkomba was appointed the educators were not present, it was only the parents. Later on during cross examination Zungu said that it was not wrong for the parents to co-opt Nonkomba as she fell under the parent component. Further contradiction arose when she said that according to “B”3, Nzama, who is an educator was present in the meeting that co-opted Nonkomba. Mashazi’s evidence was all based on personal opinion. Khoza’s stated that Yalo, Ndundu, Maphumulo and Qhanqiso were all elected in the parent’s meeting. This evidence was not disputed. Yalo stated in his undisputed evidence that no issues were raised about the legitimacy of the SGB since he has been part thereof. This goes for Qhanqiso as well.
34. The Applicant further challenges the role of the resources person during the interview process. Evidence presented was that the resources person came with a set of question to be used in the interview. He also took over the chairperson’s role. This was disputed by Yalo who was the chairperson of interview committee. I therefore, accept Yalo’s evidence because he was the chairperson and did not see anything wrong that was done to him or somewhat undermined his position. Furthermore, there was no evidence lead to suggest that the panel members disputed or disagreed with the questions presented by the resources person.
35. The issue of the relationship between the resources person and the Second Respondent was also dealt with intensively by the Applicant. The evidence presented by the Second Respondent is that he knows the resources person from when they used to teach the same subject but in different schools. They were in the same cluster but were not friends. This was corroborated by Ninela who further stated that he also knows the Second Respondent as a secretary of a particular union and the Applicant as a chairperson of another union. I find it unnecessary for the resources person to disclose this during the processes simply because, either than this there was no other evidence presented to suggest a close friendship or any other close relationship.
36. The suggestion that the resources person came an hour later on the day of the interview and was followed by the Second Respondent I find to be fabricated and hearsay. Zungu stated under cross-examination that she did not see the Second Respondent arrive but heard from Khoza that this is what transpired. She further said that this late coming. If there was any, did not affect the interviews in any way. Suddenly after the appointment, this becomes an issue which might possibly render the whole recruitment process null and void.
37. It is trite that an employee who alleges that he is a victim of unfair labour practice bears the onus not only to prove the existence of an unfair labour practice but also that the conduct of the employer was unfair. Furthermore, any unfair conduct by the governing body during the recruitment process becomes the responsibility of the department. Based on my above analysis, I find that there was no unfair conduct committed by the school governing body. This I base on the arguments and evidence from both the Applicant and the Respondent. No evidence was presented to prove that the school governing body was biased in some way or another.
38. In SAPS v SSBC [2010] 8 BLLR 892 (LC) the courts have held that when an employee complains that another was promoted, he or she must show that; he or she has the necessary skill; and the person who was promoted does not possess the same or same level of skills. In this case I find that the Applicant failed to prove that he has the necessary skill. The fact that he, while acting as principal submitted a list school governing body members to the department and later on questions his own submission proves him to be somewhat unskilled.
FINDING
39. I therefore find that the conduct of the Respondent did not constitute any unfairness. There was no unfair labour practice.
AWARD
40. The application of the Applicant is dismissed. I make no order as to costs.
Commissioner: Nozipho B Khumalo
Date: 22/11/2019
Province: KwaZulu-Natal
Applicant: SIBIS N M
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Offices of the Department of Education in Stanger
Award Date: 22 November 2019
Arbitrator: NOZIPHO B KHUMALO
Case Number: PSES182-18/19KZN
Last date of arbitration: 28 OCTOBER 2019
Date of award: 22 NOVEMBER 2019
Closing Arguments: 08 NOVEMEBR 2019
NOZIPHO B KHUMALO
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set-down for arbitration in terms of section 182(a) of the Labour Relations Act 66 of 1995 as amended (LRA) at the offices of the Department of Education in Stanger, and concluded on 28 October 2019. Mr. Zulu appeared for the First Respondent, Mr M Mathabela an official of NATU represented the second Respondent. The Applicant, Mr Sibisi was represented by Mr Zuma an official of SADTU.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
2 The Applicant is employed by the Respondent as an educator at Shakaskraal SA Primary School. In 2015 to 2017 he acted in the position of principal. In 2017 the post for principal was advertised in terms of HRM39/2017.
3 The Applicant applied for the post and was short listed for an interview. The Applicant was not appointed, the Second Respondent, Doctor Ngema was appointed in the position.
4 The Applicant seeks that the school governing body be found to be improperly constituted and the appointment of the Second Respondent to be set aside.
5 The Applicant handed in Annexure “B” and “C” whilst the Respondent handed in Annexure “A”.
6 I have to decide whether the Respondent committed an unfair labour practice by not appointing the Applicant in the post of principal at Shakaskraal SA Primary School, “Shakaskraal”. Based on the finding decide on the appropriate relief, if any is applicable.
PRELIMINARY ISSUES
7. The Respondent raised preliminary points contending that firstly the Second Respondent was not served with the notice of set down, secondly that the Applicant has not exchanged its bundle with the Respondents and therefore the Respondent is not ready to proceed. The Applicant also raised a point that it has not received documents from the Respondents as per the agreement at the pre-arbitration meeting.
8. A ruling was issued that the parties exchange documents on the 22 October 2019. It was also decided amongst the parties that the document be dropped off and picked up at the District Office at 10:00.
SUMMARY OF EVIDENCE AND ARGUMENTS
Applicant’s case
9. The Applicant testified and called Three (3) witnesses, Njabulo Lindokuhle Zungu,” Zungu” Gerald Mduduzi Mashazi, “Mashazi” and Bafana Ellias Khoza, “Khoza” their evidence is summarised as follows. The Applicant is currently employed as a deputy principal at Shakaskraal Secondary School. He started work as a deputy principal in 2001.
10. The Applicant stated that in July 2017, when he was appointed as acting principal he started participating in the school governing body although he was not given any training. Amongst other school governing body members there was BP Maphumulo, Themba Yalo and TT Qhanqiso. Themba Yalo does not have a child registered under his name at the school. TT Qhanqiso also does not have a child registered under his name. Although there is a child by the name of Sifiso Qhannqiso at the school. The only parent appearing on the system as his parent/s is Thembeka and not TT Qhanqiso. BP Maphumulo who was the secretary of the SGB, of the five (5) meetings that the school governing body held in 2017, she has never attended any and also failed to render any apology. The only reason stated for her failure to attend was that she was employed elsewhere. Her position was left vacant.
11. The school governing body later co-opted a member by the name of Zandile Zondi. Mr Nokhonjwa was told that he cannot participate in the school governing body as he did not have a child at the school. Although Ntuli allowed Nokhonjwa to stay in the school governing body but Khuzwayo suggested that someone be co-opted in the position. This happened within a period of less than six (6) months. The school governing body during the time of the principal’s post was not in good standing. The Applicant came to realise this after the election of the new school governing body in March 2018. He learned that the voter’s role was tempered with. The name of Themba Yalo was now written in pen as the parent of Buhle Cele, “B”1. Also appearing in the voter’s role, “B”2 is the name of Thandeka Qhanqiso who was registered as the biological mother of Sifiso Qhanqiso and not TT Qhanqiso. There was also no apology on behalf of Maphumulo on the minutes of the SGB meeting which took place on the 26/10/2017, “B”3 and 07/09/2017, “B”6.
12. Zungu stated that she was a member of the school governing body during the period 2015 to 2018 representing the educator component. Bongiwe Maphumulo was the secretary of the school governing body. She failed to attend two (2) consecutive school governing body meetings on the 26 October 2017 and 07 September 2017 and therefore should not have been serving in the school governing body. At the meeting of 07 September 2107 one of the items of discussion was checking the legitimacy of the school governing body. This was because the school governing body was not in good standing. Nokhomba was a member of the school governing body but did not have a child in the school.
13. At the meeting which took place on the 17 January 2018 where interview committee was elected, there were no union observers present. The scoring was discussed in this meeting and the resources person said that this must not be included in the minutes.
14. All the candidates were given 9:00am as the time of the interview. There were four (4) candidates present at the interview, the fourth candidate did not arrive. Zungu was informed by Khoza who was one of the interview committee members that three (3) of the candidates arrived before the set time and one candidate, the Second Respondent arrived after the set time. Khoza also told Zungu that the resources person also arrived late. The panel members were not workshopped in preparation for the interview. The questions used during the interviews came with the resources person and he said that the questions came from the department and the panel had to choose from that list. The panel took the list from the resources person and selected the questions that they were going to use. Panel members were told to use their discretion in terms of the answers as there were no expected answers.
15. Mashazi is employed at Shakaskraal as a level one educator and has been a member of the school governing body since 2015 representing the educator component. In terms of “G”16 section 29(1) and “G”20 section 31(2) the school governing body at the time of the post was illegal. During the time of the post, the school governing body members were informed by the Applicant verbally that the circuit manager would like to have a meeting with school governing body members. There was no formal notice issued before the meeting. At that meeting school governing body members were informed about the upcoming interviews and that they must elect an interview committee which was elected at that same time. There were no union representatives present at that meeting. Yalo was elected as the chairperson and Zungu as the secretary. Mashazi was given the task of reading cvs and also as a scorer at the interviews. Yalo, and Ndundu were also elected as a scorer. However, the union observer suggested that educators might have an interest if there is anyone from the school that has applied for the position and Mashazi was forced to step down.
16. There was a grievance lodged with regards to the legitimacy of the school governing body and the role of the resources person. This lead to two (2) rectification processes. The interview questions came with the resources person but there were no suggested answers. The panel members were requested to choose the questions from the list submitted by the resources person. There was no training provided to panel members before the commencement of the recruitment process.
17. Khoza is employed at Shakaskraal as a general worker. He has been a member of the school governing body for eleven (11) years representing the non-educator component. Yalo, Ndundu, Bongiwe and Qhanqiso were elected in the parent’s meeting. Zondo came in the place of Nokhomba who was taken out as she no longer had a child in the school. This meeting was chaired by Ninela the circuit manager.
The Respondent’s case
18. The Respondent called four witnesses by the names of Doctor Ngema, “Second Respondent”, Themba Yalo,”Yalo” Thuleleni Teressa Qhanqiso, “Qhanqiso” and Khulekani Patric Ninela, “Ninela”. Their evidence is summarised as follows. The Second Respondent stated that a post was advertised by the Respondent late 2017. The post was for principal at Shakaskraal. The requirements for the post were three years’ qualification in education, seven years’ experience as an educator and SACE registration. He met all the requirements. He applied for the post and was invited for an interview. When he arrived at Shakaskraal on the day of the interview, he found three other candidates at the waiting area. The Applicant was also one of the candidates. A lady who was part of the interview committee greeted them all and informed them that they will be called in. All the candidates were addressed at the same time.
19. The Second Respondent stated he only knows Ninela from when he was an educator and they were in the same cluster but worked at different schools. Currently Ninela is the circuit manager at Shakaskraal and he reports to him. Either than that work relationship, there is no other relationship.
20. The Second Respondent further stated that he knows all the school governing body members except for Zondo, “D”6. He has never received any complaints either from the public or anyone regarding the formation of the school governing body. Had he received any complaints he would have informed the circuit manager. Either than that, there is a structure at the district office that deals with school governing body governance.
21. Yalo stated that he was the chairperson of the school governing body at Shakaskraal. He was also the chairperson of the interview committee. In order for one to qualify as a member of the school governing body, one needs to have a child in the school. The name of his child is Buhle Precious Cele and the mother is Nontuthuzelo. At the time of the interview his child Buhle was in the school. He is the biological father of Buhle and does not fall within the list in “E”1. There were allegations made that he is not the biological father of Buhle, he therefore had to make an affidavit at the Mhlali police station, “F”2.
22. Yalo is also a signatory in the school bank account, alongside the Applicant and Qhanqiso, “B”4. Checking the legitimacy of the school governing body was normal practise when all members meet. There were no issues raised regarding Qhanqiso and Yalo. “D”6 was completed and signed by the principal. He therefore cannot say that the school governing body was illegitimate, that will be a mistake. The school governing body elected the interview committee which he was also part of. As the chairperson of the interview committee, he informed all other members that what is being discussed during the interview process may not be disclosed to anyone outside of the committee. Five (5) candidates were shortlisted but only four (4) were interviewed. Each candidate was given a set of questions to read but the questions were also read to them. Each question was to be answered within a particular time. All the candidates were asked the same questions. After the interviews were done, the interview committee reported to the school governing body and the school governing body accepted everything.
23. Qhanqiso stated that she is a parent as well as a school governing body member at Shakaskraal. She serves as a secretary in the school governing body. She was elected by other parents. She has served in the school governing body for three terms. There was no complaint about the formation of the school governing body. She was also a scorer at the interviews. The shortlisting as well as the interview processes were followed accordingly as per HRM Circular No.39 of 2017. The committee agreed to use questions from the guidelines. The four (4) candidates that were interviewed were all asked the same questions. Each question had to be answered within a set time and there were marks allocated to each question. Rectification was also done. Nobody forced them to appoint the Second Respondent, Ngema.
24. Ninela stated that he is employed as the circuit manager of Umhlali region. Shakaskraal is one of the schools that he services. His involvement in the filling of the principal post was that of a resources person. His duty was to ensure that the school governing body was correctly formed and that the people appointed by the school governing body and the department know what is expected of them. In ensuring that the school governing body was in good standing, he sent a form to the principal of the school, which the principal completes and send back to him, “D”5. In ensuring that the school governing body members know what is expected of them, there are workshops and he personally meets with the school governing body and explain to them that there is a post that is being advertised and what is expected of them.
25. As a resources person he also had to ensure that the committee members are aware of the HMR Circular No 39 of 2017, “C” which contains all the rules and procedures for filling of promotional posts and that it is complied with. The policy speaks of the involvement of union during shortlisting which was complied with. It also speaks of the role of the interview committee which was also complied with. It also speaks of the ratification process which was also done and the school governing body concurred with the outcome of the interview committee.
26. He came with the suggested questions on the day of the interview which he suggested to the interview committee. The secretary said that she has these questions. Copies of the questions were made and given to all members. Members were also made aware that they change the questions in any way they saw fit. In terms of training, it is the department that provides training but there was a meeting that he conducted on the 21/10/2018 where the applicant was also present. Ninela asked the applicant if had applied for the post and informed him that he may not be part of the meeting since he has applied.
27. Ninela also stated that the was grievance lodged where it was said that he and the Second Respondent have a person relationship. It was said the Second Respondent was a groom’s man at Ninela’s wedding. He explained that he only knows the Second Respondent from when he, Ninela was an educator and was in the same cluster as the Second Respondent. He also knows the Applicant as a chairperson of a union and the Second Respondent as a secretary of another union.
SUMMARY OF ARGUMENTS
28. The First Respondent argued that it led a very convincing evidence to prove that the selection process went on very well. There were no procedural defects. The fact that there was no dispute lodged against that process confirmed that the selection process was fair. The applicant did not attempt to prove that he was the best candidate compared to other candidates and therefore was the best person to be appointed. It is therefore clear that, the applicant had absolutely no case and it is prayed therefore that the dispute be dismissed entirely.
29. The Second Respondent argued that an issue of SGB elections could have be dealt with in terms of Provincial Gazette dated 09 November 2017 and grievances be dealt with terms of the provisions and time lines suggested in the gazette (Annexure D, page 28-29, paragraph 24 – read wholly) and that the Commissioner has no jurisdiction. The Applicant failed to proof any unfair procedure meted on him which might have given the Second Respondent an unfair advantage.
30. The Applicant argued that the second respondent and the resource person have known each other before he got married in 2008, at least 11 years. Therefore, the first Respondent acted unfairly relating to promotion in respect of post number 82 of HRM 39 of 2017. The first respondent subjected the Applicant to an unfair labour practice as envisaged in section 186(2)(a) of the LRA. The Applicant made reference to the award of Case Number: PSES 584-16/17KZN which proved beyond reasonable doubt that Respondent subjected an educator to an unfair labour practice relating to promotion since the Interview Committee (the “IC”) was not properly constituted. In that the SGB was not legitimate. The two cases (PSES 584-16/17KZN and PSES182-18/19KZN) are more or less the same. An illegitimate school governing body cannot run any process.
ANALYSIS OF EVIDENCE AND ARGUMENT
31. In this case it is common cause that there were vacancies at Shakaskraal for principal. It is also common cause that the Applicant applied and was interviewed for the post. It is also common cause that the Applicant was acting in the position of principal until the appointment was made. It is further common cause that the Applicant was also a member of the SGB. The Applicant argued that the SGB was not in good standing and therefore was not fit to run the interview process. The Applicant stated under cross examination that he completed the school governing body audit form, “D”6 as a requirement of the department. the form states Themba Yalo as the Chairperson, Bongiwe Maphumulo as the Secretary and Thuleleni Qhanqiso as the Treasurer. The Applicant is captured as an additional member. The form was completed in November 2017. This was around the time when the vacancy was advertised.
32. The Applicant also stated under cross examination that the reason why he completed this form is because he was required to. It was also not effecting him at the time therefore he had no problem completing it. In terms of “B”1, the Applicant stated that his document was used for the purposes of voters’ role and it was completed by the clerk. However, it was him who submitted it to the electoral office. He further stated that he did not check the document before submitting it, therefore he does not know whether the name of Yalo was there or not. This is contradictory because it was him who complete “D”6 and put Yalo as the Chairperson of the SGB. He did not see a need to question this.
33. I also do not except the evidence of Zungu as she was part of the school governing body and yet never bothered to question the formation of the school governing body. Zungu also stated that one of the reasons why the school governing body was not in good standing was because the appointment of Nonkomba was not done procedurally. This she said was because when Nonkomba was appointed the educators were not present, it was only the parents. Later on during cross examination Zungu said that it was not wrong for the parents to co-opt Nonkomba as she fell under the parent component. Further contradiction arose when she said that according to “B”3, Nzama, who is an educator was present in the meeting that co-opted Nonkomba. Mashazi’s evidence was all based on personal opinion. Khoza’s stated that Yalo, Ndundu, Maphumulo and Qhanqiso were all elected in the parent’s meeting. This evidence was not disputed. Yalo stated in his undisputed evidence that no issues were raised about the legitimacy of the SGB since he has been part thereof. This goes for Qhanqiso as well.
34. The Applicant further challenges the role of the resources person during the interview process. Evidence presented was that the resources person came with a set of question to be used in the interview. He also took over the chairperson’s role. This was disputed by Yalo who was the chairperson of interview committee. I therefore, accept Yalo’s evidence because he was the chairperson and did not see anything wrong that was done to him or somewhat undermined his position. Furthermore, there was no evidence lead to suggest that the panel members disputed or disagreed with the questions presented by the resources person.
35. The issue of the relationship between the resources person and the Second Respondent was also dealt with intensively by the Applicant. The evidence presented by the Second Respondent is that he knows the resources person from when they used to teach the same subject but in different schools. They were in the same cluster but were not friends. This was corroborated by Ninela who further stated that he also knows the Second Respondent as a secretary of a particular union and the Applicant as a chairperson of another union. I find it unnecessary for the resources person to disclose this during the processes simply because, either than this there was no other evidence presented to suggest a close friendship or any other close relationship.
36. The suggestion that the resources person came an hour later on the day of the interview and was followed by the Second Respondent I find to be fabricated and hearsay. Zungu stated under cross-examination that she did not see the Second Respondent arrive but heard from Khoza that this is what transpired. She further said that this late coming. If there was any, did not affect the interviews in any way. Suddenly after the appointment, this becomes an issue which might possibly render the whole recruitment process null and void.
37. It is trite that an employee who alleges that he is a victim of unfair labour practice bears the onus not only to prove the existence of an unfair labour practice but also that the conduct of the employer was unfair. Furthermore, any unfair conduct by the governing body during the recruitment process becomes the responsibility of the department. Based on my above analysis, I find that there was no unfair conduct committed by the school governing body. This I base on the arguments and evidence from both the Applicant and the Respondent. No evidence was presented to prove that the school governing body was biased in some way or another.
38. In SAPS v SSBC [2010] 8 BLLR 892 (LC) the courts have held that when an employee complains that another was promoted, he or she must show that; he or she has the necessary skill; and the person who was promoted does not possess the same or same level of skills. In this case I find that the Applicant failed to prove that he has the necessary skill. The fact that he, while acting as principal submitted a list school governing body members to the department and later on questions his own submission proves him to be somewhat unskilled.
FINDING
39. I therefore find that the conduct of the Respondent did not constitute any unfairness. There was no unfair labour practice.
AWARD
40. The application of the Applicant is dismissed. I make no order as to costs.
Commissioner: Nozipho B Khumalo
Date: 22/11/2019