PSES 875 18/19 KZN

Award  Date:

12 April 2021

Commissioner: Gail McEwan
Case No.: PSES436-20/21 WC
Date of Award: 12 April 2021

In the ARBITRATION between:

SADTU obo WAYNE ANTHONY
(Employee)

and

THE DEPARTMENT OF EDUCATION WESTERN CAPE and JARDINE JAPPIE
(Employer) (Interested Party)

Union/Employee’s representative: Sibongiseni Nqindi (SADTU)
Union/Employee’s address: 840 4th Avenue,
Kayamandi
Stellenbosch
7600

Telephone: 064 0178 114
Email: nqindi@gmail.com

Employer’s representative: Jordan Horne
Employer’s address: Private Bag X9114
Cape Town
8000

Telephone: 083 416 0105
Email: Jordan.Horne@westerncape.gov.za


PARTICULARS OF PROCEEDINGS AND REPRESENTATION

(1) Arbitration was held virtually via Zoom on 12 February 2021, 26 February 2021, 18 March 2021 and 26 March 2021 with the consent of the parties. Present was Wayne Anthony (employee) who was represented by Sibongiseni Nqindi (SADTU). The Department of Education (DOE) (employer) was represented by Jordan Horne (senior labour relations officer). The certificate of outcome declaring the matter unresolved at conciliation is on file and is dated 19 December 2020. These proceedings were digitally recorded and both parties submitted bundles of documents electronically. An Afrikaans interpreter was present.

THE ISSUE IN DISPUTE

(2) I am required to determine on a balance of probabilities whether the employer committed an unfair labour practice when Anthony was not promoted to the position of principal – Weber Gedenk Primary School. The position was filled by Jardine Jappie and he was joined to these proceedings on 22 January 2021 as an interested party. Jappie had however told SADTU and the employer that he would not be attending and he then did not log into the arbitration held virtually until the last day. The issues in dispute were narrowed to the following in a pre-arbitration minute agreed by the parties: (1) On the procedural side Anthony felt that as the circuit manager (Willy Maliwa) had not attended the interviews as the resource person then the interviews should be invalidated; whether or not the independent panel had to consist of a majority of the School Governing Body (SGB) members and whether the independent panel was chosen in a manner that would negatively affect Anthony. (2) On the substantive side it must be decided whether Anthony was the best candidate for the job; whether or not additional criteria were used over and above the interview scores when nominating a candidate and whether the Department of Education (DOE) erred in not informing the SGB of the final appointment prior to making this decision.

(3) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.

THE BACKGROUND TO THE DISPUTE

(4) Anthony started working for the employer on 1 July 1994; works as a level 2 educator; earned R264 000.00 per annum; and claimed the employer committed an unfair labour practice when he was not appointed to the position of principal at Weber Gedenk Primary School. Anthony seeks to be appointed as principal as advertised on post number 872 list 1 of 2019 and to be placed on P3 - principal salary level from the effective date of this post. Alternatively the DOE must re-do the interview process where proper procedures/processes would be followed.

SUMMARY OF EVIDENCE AND ARGUMENT

The employee’s version and testimony was as follows:-

(5) Wayne Anthony testified that he had been at the Weber Gedenk Primary School for twenty six years. In February 2020 he was promoted to a post level 2 position and had been acting principal since Gilroy Williams (previous principal) resigned with effect from 31 May 2020. Anthony received a call from Willy Maliwa (circuit manager) to ask that Anthony act as the school principal with effect from 1 June 2020. In his role as acting principal Anthony checked to ensure that the SGB was functioning correctly when he came across the minutes of the SGB meeting held on 7 September 2020 which had listed Anthony as the preferred candidate for the post of principal. On 4 September 2020 Maliwa had handed Anthony a letter of appointment which appointed Jardine Jappie as the principal. This was contradictory to what Anthony had seen in the minutes from the SGB meeting. The same evening Anthony received a WhatsApp message from Maliwa to give the letter of appointment of Jappie to the SGB. On ER bundle page 34 is a letter dated 14 September 2020 addressed to Maliwa from the SGB in which they confirmed that the preferred candidate had been Anthony and not Jappie. In essence the SGB was objecting to the appointment of Jappie. In the letter it states; “We would also like to inform you that Anthony has the support of the staff, parents, community and that it would be unsafe for Jappie to enter the school’s premises on 1 October 2020 or any other date. We (SGB) will not take responsibility for his safety.” Anthony became aware of the letter from the SGB so had met with them where Anthony said he would follow the dispute route with the ELRC regarding his non-appointment to the principal post. The SGB said they would lodge their own dispute with the DOE. Anthony was interviewed for the post on 23 October 2019 at which Dr. Johan Burger had chaired the interview. Maliwa was not present. The panel was made up of Dr. Johan Burger (chair), Ivan Taurijo (treasurer of SGB), Burton Williams (parent), Helmein Slabber (Principal of Rhenish Girls’ High School) and Anthea Williams (Principal of Dorothea School). The then principal of Weber Gedenk Primary School, Gilroy Williams, was not present as he was a candidate for the position. According to the process in the absence of the principal the deputy principal should have been present but that was Anthony who was also a candidate. In such circumstances a representative as a resource must be present which in this instance was Maliwa in his capacity as the circuit manager. Referring to EE bundle page 33 is a diagram setting out the members of the panel, their status, function and level of involvement. In the column headed level of involvement for the principal there are three bullet points which state: “(1) If the school principal is a candidate who has applied for the post vacancy, he/she must be replaced by an official from the Provincial Education Department or the deputy principal of the school (2) The school principal or his/her replacement must be invited to attend and must attend all shortlisting, interviewing and selection proceedings and (3) If the school principal or his/her replacement is unable to attend all parts of the shortlisting, interviewing and selection proceedings, his/her absence will invalidate these proceedings.” It was for this reason that Anthony believed that the process followed should be invalidated. Referring to ER bundle page 30 is the minutes of a meeting held by the SGB on 23 January 2020 in which it is confirmed that Anthony is listed as their first candidate. When Anthony came across this letter he was very happy. The SGB wrote to Werner Fredericks (in charge of e-recruitment for the Winelands District) asking for reasons why Anthony had not been appointed. Fredericks had not responded and when the SGB followed up on the matter they were told to take the matter up with SADTU. On the summary sheet of the interview process on ER bundle page 31 it is seen that Jappie scored a total of 67.24 points whilst on ER bundle page 32 Anthony scored a total of 66.86 points. Anthony pointed out that there is only a difference of 0.38 between them. Jordan Horne had said that Jappie had been appointed based on the scores. In the minutes from the interview panel on ER bundle page 22 is a summary of the scores and the top three candidates are placed in the following order: 1 Jappie; 2 Anthony and 3 Gilroy Williams. Yet on ER bundle page 27 in the same minutes Anthony was placed in third position on the preference list. Jappie had been expected to start as principal on 1 October 2020 but he had been kept away for a month due to protests at the gates as the SGB were unhappy with his appointment and he eventually only started in the post on 1 November 2020. Anthony pointed out that the SGB had protested of their own accord and he had followed the dispute route. SADTU confirmed that this concluded the leading evidence of Anthony. I reminded SADTU of the issues narrowed to be in dispute and they confirmed that such evidence would be led by their two witnesses.

(6) In cross-examination it was put to Anthony that at that time, as Burger and Maliwa will testify there had been lots of conflict at the SGB. Anthony confirmed he had not been aware of any conflict. It was agreed that the interview panel comprised of two components – one of parents and the other by educators. Anthony knew Burger as the transport coordinator but had not previously had any interactions with him. It was put to Anthony that Burger was very experienced and Anthony had thought he might be a circuit manager. Anthony had not raised any concern at the time regarding the composition of the panel. Anthony agreed that he is experienced in the interview process. Anthony confirmed that he had been welcomed to the interview by Burger and was immediately aware of the absence of Maliwa. No snide comments were made that would put Anthony off and Anthony answered all questions asked freely. There had been no time pressure in terms of the answers he gave. No-one stopped Anthony from answering and at that time he had felt that the process was fair. It was put to Anthony that the process had been the same for all the candidates even in the absence of Maliwa. It was further put to Anthony that Maliwa was not present but Burger was trusted to follow a fair procedure due to his vast experience and a union official was present. Gilroy Williams was acting principal at that time and was also a candidate. Gilroy Williams went on early retirement on 1 June 2020. In November/December 2019 no-one had been aware that Gilroy Williams would be going on early retirement. It was put to Anthony that the parent component of the SGB had placed Gilroy Williams first and the educator component of the SGB had placed Anthony first. When the SGB realized that Gilroy Williams was taking early retirement they therefore had supported the choice of Anthony. Anthony disagreed. Referring to ER bundle pages 31 and 32 where there is a summary of the interview scores compiled by the interview panel where it is confirmed that the total score for Jappie was 67.24 and for Anthony it was 66.86. It was pointed out to Anthony that therefore Jappie had scored higher than him. It was put to Anthony that Burger was previously a circuit manager with vast experience who knew how to score candidates at the interview process. Referring to ER bundle pages 32 and 33 it was confirmed that that Burger scored Jappie 79 out of a total of 100, and had scored Anthony 70 out of the same total. B Williams and Taurijo (both from the parent component) scored Jappie 65 and 44 respectively. The same panelists had scored Anthony 73 and 57 respectively. With Gilroy Williams they had scored him 64 and 77 respectively. The education component had scored Anthony the lowest and therefore Anthony had not been the best candidate. Anthony agreed that in terms of the scores he had not been the highest scoring candidate. Anthony agreed that he had been on an interviewing panel before and was aware that the panel had to reach consensus. Referring to ER bundle pages 23/24 it was pointed out to Anthony that in the minutes from the interview panel after consensus they had placed Jappie as the preferred candidate with Gilroy Williams in second place and Anthony in the third position. It was put to Anthony that with the in-fighting occurring in the SGB an independent panel had been appointed and who selected Jappie after all the interviews had taken place. It was further put to Anthony that it would have been unfair not to have appointed Jappie who was scored as the best candidate for the principal post by an experienced panel. It was explained to Anthony that at that time the SGB had been dysfunctional and the school needed stability at the top. Anthony countered that when he had taken over as acting principal everything had been fine. Anthony had previously served on panels and was aware that the SGB do not make appointments but make a recommendation to the DOE. It was put to Anthony that it is the prerogative of the HOD/DOE to make the final appointment for a post. Anthony agreed if that was in the best interests of the school. Anthony was reminded that he had not been the preferred candidate from the education component of the panel and thereafter the panel had reached consensus. Anthony pointed out that the SGB knows him and Gilroy Williams. It was pointed out that this highlighted the objectivity of the scores given by the panel where Jappie scored the highest and hence he was appointed. It was further put to Anthony that there can be no unfair labour practice as objectively Jappie should have been appointed.

(7) In re-examination Anthony confirmed that the interview panel had been constitutionally appointed. Anthony had been part of the SGB for a few years as the secretary and had then held a general post on the SGB. Referring to ER bundle page 14 Anthony confirmed that he had not been aware of the request by the SGB on 28 May 2019 for the appointment of an independent panel for the recruitment process.
(8) At this point SADTU explained that the two witnesses could not join the arbitration at this time due to their school commitments. In the circumstances arbitration was adjourned to continue on 26 February 2021 virtually at 09h00. This date was agreed by both parties.

(9) Ivan Taurijo (chair of SGB) testified that he had been on the SGB since 2016 and formed part of the interview panel for the principal post. The post had been re-advertised in 2019 after the previous principal had left. In 2018 when the post had not been filled Taurijo had also been part of that panel. The panel was established by the DOE and members on the panel were Johan Burger (chair), Ilse Slabber, Burton Williams (SGB), Tracy Van Wyk and Taurijo. There had not been any appointment made in 2019 as the right person was not found amongst the applicants at that time. This resulted in there being no full time principal in 2018. Gilroy Williams had been appointed as the acting principal. The independent panel had been appointed by the DOE and the SGB appointed Taurijo and Burton Williams. Taurijo had been okay with the panel as he had worked with them before. Anthea Williams had been the secretary during the shortlisting stage and there had never been a resource person right from the start. Maliwa had brought an envelope to the panel and had joined the meeting late. Anthony was shortlisted by Burton Williams and Slabber. On ER bundle page 17 are the minutes of the panel meeting which took place on 8 October 2019 although the minutes were only signed on 17 December 2019. Referring to ER bundle page 20 which is when the interviews started and Maliwa had not been present. Taurijo could not say whether Maliwa had been at all the interviews but confirmed he had not been present at the interview of Anthony. In the minutes the candidates are shortlisted. Taurijo was not involved in the formulation of the questions to be asked and these had been brought by Burger – which had been accepted by the panel. Referring to ER bundle page 20 Taurijo confirmed that both Gilroy Williams and Jappie had expressed their satisfaction with the procedure which had been seen as fair. Anthony had encountered technical difficulties with his Power Point presentation and this had not been held against him. Anthony was unhappy as the panel could not see how good he was for the principal post. The panel gave the assurance that this would not be held against Anthony. It is seen on ER Bundle pages 31 and 32 that Anthony was given points despite not screening his presentation. Referring to ER bundle page 23 the minutes of the interviews were signed by Burger and A Williams on 17 December 2019. Taurijo had never seen the minutes and felt that they did not reflect what had happened during the interviews. The results from the psychometric testing had been given telephonically and the issue was that all the candidates had not been strong enough to hold the position. The references were carried out by Burton Williams and Taurijo. Referring to ER bundle page 25 in point 7 the panel then had to reach consensus on the scoring. According to the preferred list from the panel Anthony was number 3. Taurijo was present at the meeting held on 23 January 2020 which was chaired by Werner Fredericks (chair of the SGB). Burger had not been at that meeting. The SGB stated that their preferred candidate was Anthony. On 3 September 2020 the news was received that Jappie had been appointed to the post of principal. Anthony had also phoned Taurijo to advise that Jappie had been appointed by the DOE. Anthony had said that it had been unfair to receive this information which had been communicated telephonically by Maliwa and that Taurijo should have been the first person to be told. Taurijo called a meeting with the SGB to discuss the decision of the DOE to appoint Jappie. The SGB took issue with the fact that their preferred candidate had not been appointed. Maliwa was informed of their unhappiness with the appointment and Juan Benjamin (district director) had therefore been sent a letter of complaint from the SGB in which they had set out their unhappiness with the decision taken. The SGB never received a response to that letter. On 30 May 2020 Gilroy Williams had retired and was therefore no longer a candidate for the position. Taurijo was made aware of this development when advised telephonically by Maliwa. Gilroy Williams had taken early retirement for health related issues. Anthony had then been appointed as acting principal with effect from 1 June 2020. In the acting position Anthony had done well bringing leadership, ensuring that the children were safe and Anthony had got it right with the advent of Covid when everyone had initially been scared. The processes were handled and all protocols put in place. Anthony had brought stability and calm to the school through his leadership. Jappie had not taken up the position on 1 October 2020 as he was prevented from commencing on that date by the DOE. No reasons had been given for this decision. The HOD received a letter on 2 November 2020 which is the date which Jappie started as principal of the school. Jappie had not been able to enter the school premises due to the protest action taking place at the school gates by the SGB and community members. On 3 November 2020 Jappie was escorted onto the premises by SAPS (South African Police Services). Jappie is now still at the school yet had never been accepted as the principal. Under the leadership of Jappie the school was not functioning properly. The parents were saying they were unhappy and when approached the educators had also expressed their unhappiness to the extent that they wanted to transfer out of the school. Taurijo is trying to ensure that there is no further protest action in his role as chair of the SGB. Maliwa was not supporting the school during these unsettled times.

(10) In cross-examination Taurijo was reminded of a telephonic discussion he had had with Horne. During that discussion Taurijo had said he had been happy with the role of Burger who also oversees the performance of principals. Taurijo never had an issue with the panel and accepted that the members were experienced in their functions. Maliwa had not been present during the process having only brought the Curriculum Vitae’s of the shortlisted candidates. The interviews had all gone smoothly and all candidates had been treated fairly. The technical glitch with the Power Point presentation from Anthony was not held against him. Referring to ER bundle page 22 Taurijo agreed that Anthony at the time had said the procedure was fair and lawful. Taurijo confirmed that Anthony had not been prejudiced in any way by the technical glitch. Referring to ER bundle pages 31 and 32 which is the summary of scores given it was pointed out to Taurijo that for the prepared part of the interview he had scored Anthony 8 and given Jappie a score of 4 for the same thing. Taurijo disagreed that he had been biased towards Anthony because he knew him and Taurijo said that Anthony had known the school and their needs. It was put to Taurijo that the inherent bias had been towards the school and he knew the two candidates from the school. It was put to Taurijo that he had scored Anthony and Gilroy Williams higher than Jappie as he knew both men from the school. Jappie was not known to Taurijo and hence he had been scored lower. It was put to Taurijo that their telephonic discussion was different to the evidence he was leading today at arbitration. The preferred candidate had been Gilroy Williams and Taurijo explained there had been a split between Gilroy Williams and Anthony. Late in December 2019 and early 2020 they found out that Gilroy Williams was going on early retirement. Taurijo insisted that Anthony had been their preferred candidate. The majority vote of the SGB had been for Anthony. Taurijo agreed that the SGB do not make appointments and such decisions are taken by the DOE as the employer. Referring to ER bundle page 26 it was put to Taurijo that the SGB minutes dated 28 November 2019 had listed Anthony as their preferred candidate and on 23 January 2020 had written a further letter motivating why Anthony was the preferred candidate of the SGB. It was put to Taurijo that the independent panel gave their results, it had taken a long time for the SGB to respond and that had been because they never had a quorum. It was put to Taurijo that it was possible that some of the SGB had stayed away as some had wanted Anthony and others wanted Gilroy Williams. Taurijo explained he could not say why the SGB never formed a quorum. It was further put to Taurijo that the SGB were divided into two camps and each camp had their own preferred candidate. Taurijo agreed that some on the SGB had strong opinions. It was put to Taurijo that the SGB were divided on who to appoint and the DOE went with the decision of the independent specialist panel. Further that as the DOE is the employer they make the decision on who to appoint. Taurijo agreed that the vacancy of principal had been vacant since 2018 or when Mr. Moses had left. Taurijo agreed that it was a long time to have a vacancy for an important position. An independent panel had carried out the interviews the results of which had been sent to the SGB in November 2019 and the SGB had only responded in January 2020 – a two month delay. Taurijo agreed that it was not wrong for the DOE to make the appointment based on the results made by the panel. It was put to Taurijo that the best candidate had been scored by him and had always been Anthony. On bundle page 32 Taurijo had scored Anthony 8 for prepared work and 16 for unplanned work. On bundle page 33 Taurijo had scored Gilroy Williams 9 on prepared work and 16 on unprepared work. It was put to Taurijo therefore Anthony was not the preferred candidate from the start and neither the highest scoring candidate. Taurijo in total had scored Anthony at 58.10% and Gilroy Williams 78.10%. Taurijo explained it was the process and he scored on what had been in front of him. The totals of the panel had been calculated after which consensus was reached. It appeared that the only ones unhappy about the process were Taurijo and Burton Williams both of who were on the panel as SGB representatives. Taurijo explained that they had wanted someone who knew the school. It was put to Taurijo that he therefore agrees that he had been biased which would have been unfair to Jappie. Taurijo explained that they had wanted the best candidate for the school. It was put to Taurijo that there was an inherent bias towards candidates that were at the school. It was explained to Taurijo that Burger and the two school principals did not know the two school candidates. It was agreed that no-one on the panel had close relationships with the candidates. It was put to Taurijo that he knew Gilroy Williams and Anthony and all the candidates had been objectively scored by the panel with Jappie scoring the highest. It was agreed that during the process all candidates had been treated the same. Even in the absence of the resource person no issues arose that would be a problem to the process. Taurijo felt that the process had been unfair due to the absence of Maliwa. Taurijo explained that Maliwa had not been present in the interviews and Taurijo was reminded that he had just testified that all the candidates had the same treatment in the process. Taurijo agreed that the resource person gives guidance and it was put to Taurijo that there had not been any issues and therefore the process had been fair.

(11) In re-examination many questions asked related to new issues and were disallowed. Taurijo agreed that he had scored Anthony during the interviews and that Anthony had not been disadvantaged by the technical glitch he experienced. Taurijo could not recall the details that made up the scores allocated. Taurijo then agreed he had given Anthony a higher score as he knew him. Referring to ER bundle page 15 it was noted that the DOE in response to the request by the SGB for an independent panel had named the panel and stated that Maliwa would be the resource person. Referring to ER bundle page 29 and the minutes of the SGB dated 23 January 2020 Taurijo agreed that Burger had not been present in that meeting; was unsure if these minutes had been sent to the DOE; agreed that the SGB played an important role and that the SGB had been given the opportunity to make submissions. In terms of the SGB taking two months to respond to the DOE on the findings of the panel Taurijo explained that the minutes were signed off on 28 November 2019 and then the school closed on 15 December 2019. The SGB do not meet during the school holidays. Taurijo agreed that Gilroy Williams and Anthony both had a better knowledge of the school whereas Jappie had no knowledge in this regard. Taurijo explained that he was unable to explain the scores given to candidates by others on the panel.

(12) Burton Williams (SGB secretary since 2019) testified that he was asked to be on the panel by the SGB. Williams was present in the meeting for the short listing of candidates and they had thereafter used the questions prepared by Burger on the day of the interviews. Burger had been the chair of the panel, there had been himself and Taurijo from the SGB and three from the DOE. Maliwa had arrived late as the short listing was being carried out but had not been present in any of the interviews. Referring to ER bundle page 14 Williams confirmed that the SGB had written on 28 May 2019 to the DOE regarding their assistance in appointing an independent panel. On ER bundle page 15 is the response received from the DOE dated 29 August 2019 with the names of the appointed panel. Williams was unaware of what had caused this delay. The post had been advertised in 2019. The SGB took their role seriously and Maliwa was the resource person. Referring to ER bundle page 25 Williams confirmed that in point 7 the reaching of consensus was spelt out by the panel which minutes were signed off on 17 December 2019 but Williams had never before been shown these minutes. Williams explained that Anthony had been the first choice and not Jappie as recorded in the minutes. The minutes continued onto pages 26 and 27 of the ER bundle and Williams believed that the minutes were not correct. In these minutes it was recorded that Maliwa was the resource person but he was absent and there are no apologies listed. Burger had said that the SGB was expected to perform its role in ratifying what transpired. Williams was present at the SGB meeting on 23 January 2020 (ER bundle page 29) during which meeting the SGB had formulated their own preference list from amongst the candidates which had been different to the one compiled by the panel. Williams understood the ratifying role of the SGB to mean that they had the final say on who got appointed. Williams disagreed totally with the final list as submitted by the panel. The results from the psychometric tests had been given telephonically to Burger and Williams did not recall if these results had been explained. Williams and others had been asked if they believed that Jappie was ready to fill the post yet this is not recorded in the minutes. The answers to questions raised by the panel had been vague and Williams did not think that Jappie was ready for the role of the principal of the school. Williams confirmed there had been protest action at the gates by the community and the SGB. In a letter dated 14 September 2020 the SGB had written a letter dated 15 October 2020 addressed to the parents of learners at the school regarding their unhappiness at the appointment of Jappie into the principal position as they had wanted Anthony to be appointed. The DOE responded to the unhappiness of the SGB and stated that the appointment of Jappie still stood and that he would start work on 2 November 2020. Williams had not been present when Jappie commenced work. Williams is aware of what happened at the gates with the protest action and this had also been reported in the press. Jappie had been prevented from entering the premises by the protesters.

(13) In re-examination Williams was referred to ER bundle page 34 and confirmed that this letter conveyed the unhappiness of the SGB at the appointment of Jappie. The SGB in the third paragraph of their letter wrote that Anthony had the support of the parents, community and that it would be unsafe for Jappie to enter the premises. It had been the community uprising that made it unsafe for Jappie to pass through the gate. Referring to ER bundle page 35 the letter dated 15 October 2020 brought the SGB to the dilemma in which they found themselves. The SGB had asked the parents for their support as the DOE had deviated from the first person nominated as principal. The SGB had lodged an appeal against the appointment of Jappie, had told the DOE about their unhappiness in this regard and that they would not accept anyone other than their nominated candidate – Anthony. Williams believed that Anthony had been the best candidate and his appointment was in the best interests of the school. The SGB wrote further in their letter that they would not allow the DOE to change the atmosphere for other educators and the school children. The SGB had written that there would be protests at the gates to demonstrate their unhappiness and to ensure that Jappie was not forced onto the school. It was put to Williams that the narrative of the SGB had added to the instability of the school and Williams agreed. It was put to Williams that the unhappiness had nothing to do with Jappie but was the unhappiness of the SGB. Williams agreed that the SGB had been divided between Anthony and Gilroy Williams and they had disagreed on who they wanted to take the school forward. It was put to Williams that the independent panel had scored Jappie the highest. Williams pointed out that Anthony was in the community, knew the school and they had wanted stability at the top of the school. It was put to Williams that he had scored Anthony high but the others had not. Williams agreed that he had no problems with the composition of the panel, agreed that Burger as a former circuit manager was experienced plus had a wealth of knowledge and the other two on the panel held posts as principals. Williams agreed that the scoring had a degree of subjectivity and he had scored based on what he had seen. It was pointed out to Williams that he had been the only panelist who scored Anthony the highest. Overall Jappie had scored the highest and it was put to Williams it would have been unfair then not to have considered Jappie for the post. It was explained to Williams that Taurijo had testified that he and Williams had wanted a person who knew the school to the extent that this would have been unfair. Williams is a HOD (Head of Department) for a school in Macassar and it was confirmed that all the candidates for this post had been treated the same. Williams recalled that Anthony had a problem with his Power Point presentation. Maliwa was the resource person appointed yet the only observer had been the Union. Williams confirmed that the process had been fair yet he would have been more comfortable had Maliwa been present. Two of the candidates had different circuit managers which was fine as the process had been fair and all the candidates were treated the same. There had been a phase when the panel had to reach consensus on the scores. The nominations had been listed and given to the SGB and thereafter it was correct that the final decision was made by the DOE. It was agreed that the DOE should follow the recommendations of the SGB albeit that the SGB had a different list for their preferred candidate. It was put to Williams that there had been nothing unfair with the scoring by the panel.

(14) In re-examination Williams confirmed that it was good to inform parents about what was happening. The parents were told and the protest action followed. The SGB had lodged an appeal against the decision to appoint Jappie. It is good to have different views and opinions and the SGB had some disagreements but were not dysfunctional. All the candidates were correctly scored. The score results were made from three people on the panel from the DOE and the balance from the parents/SGB. Burger can have his own preferred list and there had not been any support from Maliwa.

(15) At this time we had run out of time and it was agreed that the arbitration would continue on 18 March 2020 at 09h00. The link for the Zoom meeting was sent to the representatives of both parties.

The employer’s version and testimony was as follows:

(16) Willy Maliwa (circuit manager – Cape Winelands) testified that he had attended the short-listing process but was absent when the interviews took place. An independent panel with extensive experience had been appointed and Maliwa was present when the ranking had been done. Maliwa was not present at the ratification meeting with the SGB due to his hectic schedule. Maliwa had been double booked and had been in Worcester dealing with the subject adviser post. Maliwa never made it on time as there had been a recruitment process taking place on the same day for a principal at a different school. Burger had been present at the Weber Gedenk Primary School and Maliwa had every confidence that he would be able to handle anything that arose. Burger was informed that Maliwa, as the resource person during the recruitment process would not be present during the interviews. Not only did Maliwa have full trust in Burger it was pointed out that Burger was also a circuit manager. Additionally the other panel members were also very experienced with two principals themselves on the independent panel. Maliwa was present at a meeting when the candidates were discussed and the scores checked. A feedback report was given and there had been deliberation around these matters. The panel agreed that Jappie was the number one choice of candidates and he had been from outside of the school. Gilroy Williams was the panels’ second choice and the third choice had been Anthony. There had been no objections from anyone on the panel to the placement of the candidates and Jappie had scored the highest. Pursuant to this Jappie had been appointed in the principals’ post. When Jappie was appointed there had been some unrest at the school. Before the unrest broke out Burger had been having difficulties getting the SGB to meet for the ratification phase. On two occasions the scheduled meetings had not taken place and the reasons for this were never made known although it was thought it was because Jappie came from outside of the school. Prior to the appointment of Jappie there had been a lot of infighting between the SGB involving Anthony and Gilroy Williams. Employees at the school were divided in a toxic environment and as a result lots of workshops were held to sort that situation out. Jappie had been appointed and Maliwa went to the school with him to make the introductions but found Taurijo and the SGB plus a few parents protesting at the gate. Taurijo had been on the panel and had not raised any objections to the appointment of Jappie. The school was terrible prior to the appointment of Jappie, who had then stabilized the school. Maliwa confirmed that the process had been fair to all the candidates. Maliwa was sure that Jappie was the correct appointment for the school. The infighting stopped and it had been Jappie who had scored the highest.
(17) In cross-examination Maliwa confirmed that Mr. Moses as principal had left the school in 2018. Gilroy Williams had been appointed as the acting principal but then had retired due to ill health. Anthony acted as the deputy principal and the post had not been filled in 2019. The post had been re-advertised in 2019. In response to the initial advertisement there had only been a single candidate from Ceres who had not been stable and hence the post was re-advertised. Maliwa was present at the listing when the recruitment process began. Referring to ER bundle page 15 Maliwa confirmed that in response to a request from the SGB an independent panel had been appointed comprising of Johan Burger (Transform to Perform (T2P), Helmien Slabber (principal at Rhenish Girls High School) and Anthea Williams (principal at Dorothea Secondary School.) Maliwa had entered the meeting late and had brought the curriculum vitae’s for the candidates in an envelope. The minutes from the shortlisting is on ER bundle page 16 and confirms that Maliwa was present. Referring to ER bundle page 20 although it is indicated that Maliwa was present, it was confirmed that at the time he had a prior engagement in Worcester. Maliwa confirmed that Burger had problems to get the SGB together for the ratification as the five parents involved never showed up for these meetings. It was confirmed that for a quorum three parents were required to be present. Referring to ER bundle page 24 Maliwa confirmed he was present at the meeting on 19 November 2019 at which meeting consensus was reached and these minutes had been signed on 17 December 2019. Maliwa confirmed although this was during the school holidays the district officials worked longer than the schools were open. Burger had tried to meet the SGB after 19 November 2019 and this was not during the year end break when schools were already closed. Slabber had at the end of the meeting on 28 November 2019 wished everyone strength and said to have trust in each other - do what is best for your school. Referring to ER bundle page 20 which is the minutes of the SGB meeting held on 23 January 2020 and Maliwa could not confirm if that had been the ratification meeting. Maliwa was referred to EE bundle page 33 where the status of each member was spelt out. Maliwa agreed that the minutes from each meeting were important. Also on EE bundle page 33 where the level of involvement of each member of the panel is spelt out. In terms of the level of involvement of the resource person it states in the third bullet point that the proceedings must be adjourned where the shortlisting, interviewing and selection proceedings relate to the filling of a school principal post and resource person is unable to attend. It was put to Maliwa that he had been absent and yet the proceedings had not been adjourned. It was further held that in this instance both acting principals were candidates and the resource person had been Maliwa. Maliwa held that Burger was also a circuit manager and hence the process had not been adjourned or invalidated. Referring to ER bundle page 15 is the DOE response for an independent panel to be appointed and in that letter dated 29 August 2019 Maliwa was appointed as the resource person The SGB had wanted an independent panel as they were unable to do the process without assistance. Although Maliwa had been double booked he had trust in Burger as he too was a resource person. It was put to Maliwa that if Burger had been the resource person then he should not have done any scoring. It was held that Burger could not be chair, score and also the resource person. Maliwa explained that there had been unhealthy relationships between Gilroy Williams and Anthony. At the time Anthony had also lodged a dispute about the Head of Department post. Gilroy Williams became sickly and had retired before the third term in July 2019. Gilroy Williams had left and Anthony was acting principal. Maliwa confirmed that after Gilroy Williams left the school had run smoothly. It was held that when Anthony took on the role the school functionality was normal again. It was agreed that after Jappie had been appointed there had been protests. For the period June to October 2019 the school had been fine. There were no questions in re-examination.

(18) Harry Wyngaard (deputy director recruitment and selection) testified that in the recruitment and selection process once the interviews are concluded his department is informed. The shortlisting and all other documents are sent to them to be checked at the HR clerk level. At this point everything is put together and placed in the correct formats after which the documents are again checked. HR gives the formatted documents to a senior HR practitioner after which in a summary form the documents go to the assistant director where everything again gets checked. It gets passed along to the director where it is again checked before finally being sent to the Superintendent General (SG) at the head of Education. The SG makes a final decision as to the appointment. In this instance there had been an independent panel and despite this the SGB sent through their own nominations. Section 6 (3) of the Employment of Educators Act allows for deviations when there are reasons given. There is only one submission made to the SG. Jappie was appointed as the principal and he had been the first choice of the independent panel. The SGB had a different list. The independent panel had an objective view which had been supported by the circuit manager plus the district director. Wyngaard explained that there had been no reason to deviate from the person who had scored the highest.

(19) In cross-examination Wyngaard explained that he had never said he would communicate directly with the SGB. Referring to ER bundle page 29 which is the minutes of the SGB meeting held on 23 January 2020 in which it was pointed out to Wyngaard that the ratification had changed and then the preferred candidate had been Anthony. Wyngaard pointed out that the SGB had never motivated why their preference order had changed or given any reasons to prove that the independent panel were wrong in their preferred candidate. Wyngaard explained that the SGB had given a personal view but when making the final decision the process is what counted. Only evidence presented is taken into account and it was not permitted to go outside of the interview process. Wyngaard pointed out that two members of the SGB had been on the panel and had never objected to the minutes produced by that panel. The report from the circuit manager was important as he would be the manager of whoever was appointed. Referring to ER bundle page 20 which are the minutes from the SGB meeting on 24 October 2019 it was pointed out that the minutes record that Maliwa was present when in fact he had been absent. Wyngaard was unable to comment on this and clarified that Maliwa had not been obliged to be at the ratification meeting. The minutes had not been written by Maliwa and if he had been absent there could have been another circuit manager or principal present. Maliwa had supported the appointment of Jappie. The panel chair could also be the resource person. Whilst generally the resource person cannot score he could make a recommendation. There is nothing that prevents the chair from scoring as he gives guidance and therefore can score. It was held that Burger was responsible for the error in the minutes. With Reference to EE bundle page 33 it was pointed out to Wyngaard that the resource person had no voting rights and cannot score. Wyngaard corrected this by emphasizing that Burger was the chair and not the department representative. Furthermore that Burger was a member of the panel and due to his experience could have provided guidance. The status of Burger had not been the resource person. It was put to Wyngaard that Maliwa as the department representative had been absent and hence the proceedings had to have been adjourned. Wyngaard explained that the document to which SADTU kept referring was a practical guide. Burger, although chair of the panel, had the requisite knowledge to provide guidance if that were needed and therefore there had been no reason to slow down the proceedings or invalidate them. Wyngaard did not agree that if there was no resource person then the interviews should have to be re-done. Referring to ER bundle page 25 it was pointed out that after consensus had been reached the preference of candidates had been Jappie, followed by Gilroy Williams and finally Anthony. Wyngaard explained that the panel will send the minutes to the SGB who would in turn make recommendations to head office. Wyngaard pointed out that there had been no motivation submitted by the SGB after they had changed the order of their preferred candidates. Wyngaard explained that appointments were not about power but rather about the best candidate for the school. It was understood now that Maliwa had not been present during the interviews then the panel would go next to the district manager if assistance had been needed. Wyngaard emphasized that if no official resource person had been present it would not nullify the process. SADTU pointed out that in terms of EE bundle page 33 it states that if the resource person is absent then the process would be re-done.

(20) In re-examination Wyngaard confirmed that he had not been made aware that Maliwa had not been present. Wyngaard explained that the chair could also give guidance but still be a full member of the panel. Wyngaard added that nothing in the prescripts prevented this. The guide was simply what it purported to be – a guide to steer people in the correct process. The guide never formed part of any law.

(21) Dr. Johan Burger (acting circuit manager & district coordinator for the Transform to Perform (T2P) strategy and the deputy chief education specialist) testified that he had over forty four years’ experience in education; had been the principal of both primary and high schools; had been a district official for thirteen years and runs management courses. Burger had been involved in the selection and appointment of principals / educators for over thirty years. Burger was used extensively to sit on panels, chair the processes when the SGB asked for the assistance of an independent panel. The resource persons’ role was to ensure that procedures were correctly done. The SGB’s did not always know the correct procedures due their technical nature. That person would also give advice should the need arise for any clarity. Burger pointed out that no issues arose during the interview process so there had been no need to give guidance that required the input from the resource person. Burger had the role of the chair of the panel and is very experienced although no issues arose that would need a resource person to intervene. Two others on the panel from the Departments’ side had also been very experienced and were both principals. All had said they were satisfied with the process which had been confirmed as being fair. Referring to ER bundle page 20 where it is reflected that Maliwa was present although he was absent was put down to human error. Burger pointed out that everyone had scrutinized the minutes of all the meetings. Burger further explained that the minutes did not change what happened in the interviews in any way. All the candidates were given free and fair chances to fill the post in the best interests of the school. Burger confirmed that the best candidate had been appointed. It had been the panel who presented the best candidate for the post as principal. Burger had some challenges at the ratification process as there was a sense of urgency to fill the position and the panel had presented their number one candidate – Jappie. The SGB had been expected to ratify the chosen candidate but had started playing games. Initially they had wanted the entire SGB to be present and it then became a cat and mouse game. This was done as they all had different viewpoints of the candidates. The panel had looked at the evidence presented and drawn up their preferences with the best interests of the school in mind. The SGB however could not see eye to eye and allegiances were formed. Taurijo in the process had scored Gilroy Williams higher but then wanted Anthony and said Anthony had been his first choice all along. The panel spoke, looked at the scores and then the preferences had to be justified. Taurijo had said that Anthony was the worst candidate and his appointment was not in the best interests of the school. At the end of the interview process all on the panel had been delighted and were united with the preference list which arose. Taurijo then joined an allegiance at the school saying that Anthony was the best candidate. Taurijo had been an avid supporter of Jappie and had thereafter changed his allegiance. Burger explained that the role of the chair was that guidance could also be given and to ensure that the process was correctly done in terms of the Schools’ Act.

(22) In cross-examination Burger confirmed he was a circuit manager, coordinator of the T2P strategy and in 2018 had been on the panel. Burger confirmed that this was the second time the post had been advertised so the process had been repeated. Burger and Taurijo had various conversations since 2018. Burger observed his scoring and it was foreign to see someone marked down and then motivate for that same persons’ appointment. Burger did not believe that Taurijo was trustworthy. Referring to ER bundle page 15 and the response to the SGB for the appointment of an independent panel Burger confirmed that the panel had been drawn up by the DOE. Burger had no involvement in the appointment of that panel of which he had been appointed chair. The district director gives training to SGB’s and the secretary of the panel had been elected democratically after the panel was constituted. Burger confirmed that Maliwa had played his part other than the one meeting he was unable to attend. The panel had gone into the ratification meeting united and then Taurijo had started championing for Anthony. Burger confirmed that the Guide on recruitment and selection must be used. Maliwa had been at all the meetings except when the interviews took place. Maliwa had been at the first meeting when the criteria were set and the short listing had been completed. Maliwa had been at the meeting of the shortlisting on 28 October 2019 and had brought the envelope containing the curriculum vitaes. Burger explained that shortlisting can only start once they have the list of all the candidates. Maliwa had been present and had just arrived a little late. Anthony had some technical difficulties with the unprepared task during the interview. Referring to ER bundle page 22 in the minutes from the panel dated 24 October 2019 it was pointed out to Burger that it had been in the minutes that although Anthony found the process to have been fair and lawful, he had not been satisfied with the technical support he had received. Referring to ER bundle page 32 Burger pointed out that Anthony had been scored despite the technical glitch. Burger explained that Anthony had been scored on his verbal responses rather than on the power point presentation. Some of the power point presentation from Anthony had been seen where the focus had been on the strategic direction of the vision of the DOE. All the candidates had been scored on the answers they had given. Burger agreed that in the minutes dated 24 October 2019 it had been an error to state that Maliwa had been present when he had been absent. The minutes from each meeting had been prepared after the meeting. Burger confirmed that the presence of the resource person would have had no effect on the scoring. In the past part of the processes had been done with or without the presence of the resource person. In the past if the panel was knowledgeable about the process it continued in the absence of the resource person. In this instance the panel had proceeded due to the extensive experience that resided in the panel members. Everyone had known exactly what to do and here had been an error in the minutes. No candidate had been disadvantaged and the panel went ahead in the best interests of the school. Burger had been key with his amount of experience and there had been no problems with the proceedings. The matter would have been referred back had any problems with the process arisen. The process was done correctly and Wyngaard would only have referred the matter back if there had been problems with the process. In this instance the process had been one hundred percent correctly completed. The scores had been done and were checked.

(23) At this time we lost both SADTU and the interpreter due to load shedding. It was agreed to conclude the arbitration on 26 March 2021.

(24) Cross-examination of Burger continued on 26 March 2021. At this time we were joined by Jardine Jappie – the interested party joined to this dispute.

(25) In cross-examination Burger again explained that that it had been human error that Maliwa is indicated as being present and that no apologies were recorded in the minutes for the panel meeting held on 24 October 2019 (ER bundle page 20). It was confirmed that these minutes had been signed off on 17 December 2019 at a time when only Burger and the secretary had been present. In the minutes of the panel from a meeting held on 8 October 2019 it is recorded that the SGB met on 15 August 2018 when it had been agreed to ask the DOE to appoint an independent panel to run with the process. It was pointed out to Burger that there had been a long delay from 15 August 2018 to 8 October 2019. Burger confirmed that the process had been run twice as when the initial process did not produce any candidates it had to again be run. Burger confirmed that the post had been advertised twice. In regard to the absence of Maliwa from the interviews, Burger explained that in the absence of Maliwa no-one had been disadvantaged and the panel together had extensive experience and knowledge of the process so they had continued. Burger further explained that this should been seen in the context of the urgency to fill the vacancy. Burger confirmed he had been a resource person for thirteen years. Burger added that all three candidates had agreed that the process had been fair. Referring to ER bundle page 14 it was put to Burger that the DOE had taken two months to responded to the request to appoint an independent panel yet Burger now says that there had been a sense of urgency. Burger explained that there had been two distinct processes. With reference to ER bundle page 32 it was pointed out to Burger that the department representative had no voting rights. Burger confirmed that he was the chair of the panel from start to finish and was not the department representative. Burger explained whilst the guide stated that in the absence of the department representative the process should be adjourned he had proceeded as no problems arose with the process and therefore there had not been any need to adjourn the process in the absence of Maliwa. Burger pointed out that the guide being used was simply that – a “guide” this guide did not form any part of legislation so he made the decision as chair that the proceedings would not be invalidated in the absence of the school principal or his replacement. During a rather lengthy speech SADTU conceded that the panel had been very experienced. Referring to the minutes from the ratification meeting dated 28 October 2019 Burger explained that the panel had given detailed motivations for the order of their preferred candidates and they had asked the SGB to accept that preference list. Burger explained that if the SGB could change the order of the preference list but they needed detailed motivation to have made any changes. Referring to ER bundle page 29 it was pointed out to Burger that the SGB had got together on 23 January 2020 to change the order of their preferred candidates. Burger explained that he had been told that the entire SGB wanted to be present at the ratification meeting. It had therefore taken them from 28 November 2019 to 23 January 2020 to get together which is when they changed the order of their preference list of candidates. It was pointed out that in the minutes dated 28 November 2019 there had been seven members of the SGB present. Burger disputed the minutes as he had been told at the time that some members were missing. Burger confirmed that the minutes had been drawn up by the school and signed by the SGB. Burger was unable to say whether the entire SGB had been present. Burger had not been at the meeting held on 23 January 2020. Those minutes had been presented to the panel.

(26) In re-examination Burger confirmed that no candidate had been treated unfairly and no-one had been disadvantaged.

(27) It was agreed that closing arguments would be submitted to me by no later than 17h00 on 1 April 2021. Closing arguments were received from both parties, the contents of which have been noted.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

(28) Anthony is alleging that he is the victim of an unfair labour practice and as such he bears the onus of proving his claim on a balance of probabilities. Anthony must prove not only the existence of the labour practice, but also that it is unfair. Anthony needs to prove that the decision not to appoint him as the principal at the Weber Gedenk primary School was unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct

(29) The issues in dispute were narrowed to the following in a pre-arbitration minute agreed by the parties:- (1) On the procedural side Anthony felt that as the circuit manager (Willy Maliwa) had not attended the interviews as the resource person then the interviews should be invalidated; whether or not the independent panel had to consist of a majority of the School Governing Body (SGB) members and whether the independent panel was chosen in a manner that would negatively affect Anthony. (2) On the substantive side it must be decided whether Anthony was the best candidate for the job; whether or not additional criteria were used over and above the interview scores when nominating a candidate and whether the Department of Education (DOE) erred in not informing the SGB of the final appointment prior to making this decision. Anthony seeks to be appointed as principal as advertised on post number 872 list 1 of 2019 and to be placed on P3 - principal salary level from the effective date of this post. Alternatively the DOE must re-do the interview process where proper procedures/processes would be followed.

(30) On 19 July 2018 the Deputy Director - Corporate Services sent out a communication which states: ‘In line with the vision of the Department in providing quality education, the Western Cape Education Department (WCED) consulted with the Directorate: Legal Services at the Department of the Premier to draft a Practical Guide to the Recruitment and Selection. This practical guide was intended to assist all stakeholders involved in the recruitment, selection and appointment of institution-based educators. This guide is what to a large extent gave rise to the unhappiness of Anthony in that he had not been appointed to the post of principal. Harry Wyngaard (deputy director recruitment and selection) testified that the guide was simply what it purported to be – a guide to steer people in the correct process. The guide never formed part of any law. SADTU enclosed ELRC: Western Cape Chamber Resolution 1 of 2002 which is headed: “A common understanding on the implementations of ELRC Resolution 5 of 1996 and Guidelines for interviews. (My emphasis added). Resolution 5 of 1998 is headed the “Transfer of Serving Educators in terms of operational requirements” which has no application to the case at hand. In any event those documents were not placed before me at arbitration and will not be taken into account as the employer was not given the opportunity to cross-examine on these documents enclosed with the closing arguments of SADTU. The Guide used at arbitration is most probably also used as a training tool as indicated by the frequent “notes pages” where the trainees can write down their own notes during the training sessions. It was agreed that in this instance the SGB had asked to DOE to appoint a panel of experts to carry out the recruitment and selection process to fill the vacancy for the post of principal for the school. The DOE appointed the three people from the education side of the panel all of whom had extensive experience and knowledge on this subject and the role they were required to play. The other two people were selected by the SGB and then formed part of the panel. Burger was the chair of the panel and had a need arisen, which never did, he could have given any guidance regarding the process which role generally fell within the functions of the resource person. Maliwa had only been absent in the process when the interviews were carried out. During that phase no process related matters arose and there had been no need to call on the services of the resource person. The function of the resource person during the process is to provide resource support to the selection committee. It should be noted that Burger was not the resource person during the interviews and therefore was free to score and vote. The fact that Maliwa was absent from the interviewing stage was not significant due to the fact that the panel had highly experienced and expert members. No process issues arose and therefore the absence of Maliwa (as the resource person) had absolutely no impact on the process. It was agreed that each candidate had been fairly and equally treated and therefore there was no reason to invalidate or adjourn the process as prompted by the guide. There being no reason to adjourn or invalidate the process makes the process followed both fair and lawful. All candidates had gone through the same process and had confirmed that this had been fair. This covers the first point raised by Anthony as being in dispute.

(31) After the leading evidence of Anthony I reminded SADTU that not all issues as raised as being in dispute had been covered. SADTU had confirmed that such evidence would be led later. No evidence was put before me as to whether or not the independent panel had to consist of a majority of the School Governing Body (SGB) members and whether the independent panel was chosen in a manner that would negatively affect Anthony. There is nothing in the Guide that states what the composition of a requested specialist panel should be. It seems fair and reasonable that two of the SGB members be appointed and two specialists are appointed by the DOE. The fifth member of the panel is also appointed by the DOE in that the person appointed carries the additional functions of chair over and above the responsibilities of the other four members of the panel. This arrangement brought no protests from anyone during the process and it seems a little late in the process when it had been completed to raise this point as being in dispute. I cannot imagine why Anthony had thought that the independent specialists appointed to the panel by the DOE might have been chosen in a manner that would negatively affect Anthony. Without any evidence to these claims I find on a balance of probabilities that they are unsubstantiated and therefore have no merit. Anthony by his own admission had not been prejudiced in any way.

(32) On the substantive side it must be decided whether Anthony was the best candidate for the job; whether or not additional criteria were used over and above the interview scores when nominating a candidate. The scoring arising from the interviews, in which all candidates were treated equally and the process followed was lawful and fair, resulted in Jappie scoring the highest having been awarded a total of 67.2%. Jappie accordingly was the best person for the job and hence had been appointed by the SG of the DOE as his employer. I will not refer to Gilroy Williams in my analysis given that he retired before the process had been concluded. The independent panel gave a brief motivation why the candidates had been placed with Jappie first followed by Anthony. The motivation given by the specialist panel had been that Jappie was young and ambitious, was well prepared for the interview and had a good understanding of the technical aspects regarding education. He had relatively little experience at senior management level. The motivation for Anthony had been that he is a peoples’ person and had good insight on how to keep people together. He had a good knowledge of education systems and policies but had little experience at senior management level. Anthony was scored by the panel at 66.86% No further criteria had been taken into account in the decision as to who to appoint. The specialist panel had reached consensus as to the order of their preferred candidates and hence the submission was made to the DOE to appoint Jappie. The SG saw no reason not to follow the specialist panel order of preferred candidates and appointed Jappie as he too had been scored the highest. It is trite that it is the SG who makes the final decision on who to appoint and not the SGB. The testimony of Burger regarding the ratification with the SGB was not disputed as he had great difficulties in getting them together to ratify their selection order. The two SGB members on the panel had been part of the “reaching of consensus” stage of the process and at that point had not raised any objections to either the process or the order of the preferred candidates. Just under two months went by when led by Taurijo, who had been on the specialist panel, decided that the SGB wished to submit a different order of their preferred candidates which they did in a letter dated 23 January 2020. In that letter no mention was made as to why their preference order then changed when two of the SGB members had been on the specialist panel who agreed that the first preference was Jappie. Without such clarity it was fair and lawful for the SG to have appointed the highest scoring candidate to the principal post as had been agreed by the specialist panel which included two members of the SGB. I have noted that it was the SGB themselves who caused the disruptions at the gates and arrogantly stated that they would take no responsibility for the safety of Jappie. This is somewhat shocking in that two members of the SGB had been of the panel that had ultimately scored Jappie higher than Anthony.

(33) Still on the substantive side I was asked to determine whether the DOE erred in not informing the SGB of the final appointment prior to making this decision. Again no evidence was specifically led in this regard. On a straight reading of what was in dispute I find it difficult to understand why the SGB needed to be informed of anything prior to the SG making its decision. The DOE is the employer, pays the salary and the SG makes the final decision as to who to appoint and they went ahead and appointed Jappie as the highest scoring candidate as agreed by the independent panel. The only thing that the DOE was expected to have done was to make the appointment official and issue all the requisite paperwork. The representatives of the SGB were involved in the recruitment and selection process on the panel so would already have been aware of what the results would be. There had been no surprises as the highest scoring candidate who had been agreed as the preferred candidate by the panel and was then appointed.

(34) Wayne Anthony has failed to show on a balance of probabilities that an unfair labour practice was committed by the DOE or that it had been unfair.

AWARD

(35) I find on a balance of probabilities that Wayne Anthony has failed to prove on a balance of probabilities that the employer committed an unfair labour practice or that it was unfair when Anthony was not appointed to the principal post at the Weber Gedenk Primary School. Consequently this case is dismissed.

Gail McEwan
COMMISSIONER