ELRC644-20/21 EC
Text
ELRC329-21/22GP
Award Date:
29 November 2021
Case Number ELRC329-21/22GP
In the matter between:
KWENA FLORA NGWEPE
Applicant
and
DEPARTMENT OF EDUCATION - GAUTENG
First Respondent
And
VIRGINIA KGALADI
Second Respondent
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration was conducted via the Zoom online platform on 26 October 2021 and 17 November 2021. The applicant, Mrs. Kwena Flora Ngwepe, was represented by Mr. Godfrey Komape, a practising attorney. The respondent, the Department of Education Gauteng Province, was represented by Mr. Peter Nkosi its Deputy chief education specialist. There is in this matter a second respondent, Mrs Virginia Kgaladi, who was also represented by Mr. Nkosi.
THE ISSUE TO BE DECIDED:
2. I must decide whether the respondent’s conduct which resulted in the non appointment of the applicant into post number EN30ED1032 at Gahlanso Primary School in Gauteng Province (the school) constitutes unfair conduct as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA).
THE BACKGROUND TO THE DISPUTE
3. The applicant is a foundation phase grade 3 educator at the school. She earns a gross monthly income of R30 648,58 (thirty thousand six hundred and forty eight rand and fifty eight cents).
4. This dispute comes before the ELRC as a consequence of the applicant’s allegation that she had been intimidated by two interview panel members during a process pertaining to applications for the filling of the position of head of department (the position) at the school.
5. It was common cause that the applicant had applied for the position and was interviewed in this regard on 7 December 2020.
6. It was also common cause that the applicant had been intimidated by two of the interview panel members in this process of filling the position. The process had consequently been done for a second time and interviews were set for March 2021.
7. Subsequently the applicant, having participated in the second process, was not recommended as the preferred candidate.
8. At the second interview the panel was comprised of the same members as at the first interview notwithstanding the applicant’s demand for an independent panel made up of members other than those at the first interview.
9. It was in dispute that the applicant could ask for the panel to be comprised of different panel members to the first interview panel. It was also in dispute that she was intimidated by two panel members at the second running of the process.
10. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.
SUMMARY OF EVIDENCE AND ARGUMENT
11. The applicant testified under oath on her own behalf and also called Mrs. Claribell Matangana as a witness who also testified under oath. The respondent called Mrs. Ntombi Sekopana, who testified under oath for the respondent.
The evidence for the applicant:
12. Prior to the second interview taking place, the applicant complained in writing to the respondent that those School Governing Board (SGB) members who had intimidated her in respect of the first interview were again on the panel to interview her. She had accordingly requested that a new panel be constituted.
13. Although Mr. Nkosi had indicated that this was not possible, the applicant was aware of interviews for other posts e.g., head of department, that were conducted at the department without members of the SGB.
14. The applicant was also aware of the school principal having mentioned the name of a candidate who was earmarked for the position namely, Mrs Virginia Kgaladi. This candidate’s name had come up at both the first and second interviews.
15. The respondent however objected to this information which was on file at the school being submitted at a meeting dealing with the applicant’s complaint at the district office by the principal. The principal then did not present the file at the meeting.
16. The applicant did not know that the procedures involved in having a head of department post done at the district office would be at the request of the SGB.
17. Mrs. Matangana confirmed that she had testified to what had occurred during the first process. To her this was relevant as when the process was repeated the interview panel comprised the same panel that did the interviews at the first process.
18. Her testimony was that she thought that the principal had mentioned the name of the second respondent to the interview panel as he wanted the panel to know that SADTU had someone being interviewed whom they were targeting. Her concern is that the panel was influenced by that by the time they interviewed the other interviewees.
19. She also felt that the process was destroyed because of the presence of the observer from SADTU at the ratification process as the other candidates did not enjoy protection from a union.
20. Her testimony was in respect of the first process and she was not present at the second.
The evidence for the respondent:
21. Mrs. Sekopana was the chair of the panel having been so elected in December 2020. She confirmed that the process was done twice.
22. Mrs. Sekopana denied having intimidated the applicant on 5 December 2020. She confirmed that Mrs. Matangana was not part of the second process as she was very angry during the first process.
23. She confirmed Mrs. Matangana’s testimony that there was a SADTU representative present at the first ratification meeting. This however, was not the case at the second ratification meeting.
24. Mrs. Sekopana did not intimidate the applicant. The process was friendly and the marks scored were correct and agreed by the union observors present.
25. She confirmed that the principal had said that one of his friends at SADTU had indicated that another branch of SADTU had an interest in the post and that the name of the second respondent had been mentioned.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
26. It is clear from the evidence before me that there were essentially two issues for the applicant viz. that the name of the incumbent in the post had come up at both the first and second interviews and that the panel members who had intimidated her in the first process were included on the interview panel for the second process.
27. Regarding this issue I find that there is nothing that prevents the incumbent in the post from having participated in the competition for the post. That much is the right of the incumbent, and she cannot be excluded from such competition for the post.
28. Regarding the allegation of the panel having been influenced by the prior mention of the name of the second respondent there is no evidence adduced at this arbitration to show that the panel had conducted itself in a manner prejudicial to the applicant or that they had actually been unduly influenced in anyway.
29. The mere mention of the name of the second respondent cannot be said to be an instruction to the panel to ensure her selection as the preferred candidate. The contention of the applicant that there had been a candidate at the interviews earmarked for the position was also denied by Sephokana under cross examination.
30. I will now deal with the issue pertaining to the members on the SGB who had intimidated the applicant prior to the first interviews still being on the panel for the second.
31. The applicant would have had to show that the respondent had acted with mala fides or capriciously or invidiously or in some way deliberately or negligently to the disadvantage of the applicant.
32. Regarding the allegation of intimidation and notwithstanding that the process had been done for a second time for this reason there is again no evidence to show that this had had an adverse effect on the applicant in the interviews or that the panel had in the execution of its function prejudiced the applicant in any way. There was again no evidence to this effect led by the applicant at this arbitration.
33. The evidentiary burden in this regard remains with the applicant to show for instance that she and the second respondent ought to have been scored differently to what they had been.
34. It was in fact the unchallenged testimony of Sekopana that the process was friendly, the marks scored correctly, and agreed with by the union. It was also her unchallenged testimony that the panel had not given consideration to the statement of the principal regarding the interest of SADTU in the second respondent as a candidate at the interviews. I accordingly have no reason to doubt the veracity of the testimony of Sekopana which I find preferable to the speculation of Matangana regarding the influence on the panel by the words of the principal.
35. I have considered all the evidence presented at this arbitration and find no evidence that the respondent had committed an unfair labour practice when it had appointed the second respondent into the position having accepted the recommendation of the SGB in the circumstances of the composition of the interview panel being the same at the second interview.
36. In fact the respondent had demonstrated a willingness to accommodate the grievance of the applicant by instructing that that process be done a second time.
AWARD
37. The conduct of the respondent in the process of the filling of post number EN30ED1032 at Gahlanso Primary School in Gauteng Province does not constitute an unfair labour practice as defined in S186 (2)(a) of the LRA .This application for relief in terms of the provisions of the Labour Relations Act 66 of 1995 as amended is accordingly dismissed.
29 NOVEMBER 2021
In the matter between:
KWENA FLORA NGWEPE
Applicant
and
DEPARTMENT OF EDUCATION - GAUTENG
First Respondent
And
VIRGINIA KGALADI
Second Respondent
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration was conducted via the Zoom online platform on 26 October 2021 and 17 November 2021. The applicant, Mrs. Kwena Flora Ngwepe, was represented by Mr. Godfrey Komape, a practising attorney. The respondent, the Department of Education Gauteng Province, was represented by Mr. Peter Nkosi its Deputy chief education specialist. There is in this matter a second respondent, Mrs Virginia Kgaladi, who was also represented by Mr. Nkosi.
THE ISSUE TO BE DECIDED:
2. I must decide whether the respondent’s conduct which resulted in the non appointment of the applicant into post number EN30ED1032 at Gahlanso Primary School in Gauteng Province (the school) constitutes unfair conduct as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA).
THE BACKGROUND TO THE DISPUTE
3. The applicant is a foundation phase grade 3 educator at the school. She earns a gross monthly income of R30 648,58 (thirty thousand six hundred and forty eight rand and fifty eight cents).
4. This dispute comes before the ELRC as a consequence of the applicant’s allegation that she had been intimidated by two interview panel members during a process pertaining to applications for the filling of the position of head of department (the position) at the school.
5. It was common cause that the applicant had applied for the position and was interviewed in this regard on 7 December 2020.
6. It was also common cause that the applicant had been intimidated by two of the interview panel members in this process of filling the position. The process had consequently been done for a second time and interviews were set for March 2021.
7. Subsequently the applicant, having participated in the second process, was not recommended as the preferred candidate.
8. At the second interview the panel was comprised of the same members as at the first interview notwithstanding the applicant’s demand for an independent panel made up of members other than those at the first interview.
9. It was in dispute that the applicant could ask for the panel to be comprised of different panel members to the first interview panel. It was also in dispute that she was intimidated by two panel members at the second running of the process.
10. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.
SUMMARY OF EVIDENCE AND ARGUMENT
11. The applicant testified under oath on her own behalf and also called Mrs. Claribell Matangana as a witness who also testified under oath. The respondent called Mrs. Ntombi Sekopana, who testified under oath for the respondent.
The evidence for the applicant:
12. Prior to the second interview taking place, the applicant complained in writing to the respondent that those School Governing Board (SGB) members who had intimidated her in respect of the first interview were again on the panel to interview her. She had accordingly requested that a new panel be constituted.
13. Although Mr. Nkosi had indicated that this was not possible, the applicant was aware of interviews for other posts e.g., head of department, that were conducted at the department without members of the SGB.
14. The applicant was also aware of the school principal having mentioned the name of a candidate who was earmarked for the position namely, Mrs Virginia Kgaladi. This candidate’s name had come up at both the first and second interviews.
15. The respondent however objected to this information which was on file at the school being submitted at a meeting dealing with the applicant’s complaint at the district office by the principal. The principal then did not present the file at the meeting.
16. The applicant did not know that the procedures involved in having a head of department post done at the district office would be at the request of the SGB.
17. Mrs. Matangana confirmed that she had testified to what had occurred during the first process. To her this was relevant as when the process was repeated the interview panel comprised the same panel that did the interviews at the first process.
18. Her testimony was that she thought that the principal had mentioned the name of the second respondent to the interview panel as he wanted the panel to know that SADTU had someone being interviewed whom they were targeting. Her concern is that the panel was influenced by that by the time they interviewed the other interviewees.
19. She also felt that the process was destroyed because of the presence of the observer from SADTU at the ratification process as the other candidates did not enjoy protection from a union.
20. Her testimony was in respect of the first process and she was not present at the second.
The evidence for the respondent:
21. Mrs. Sekopana was the chair of the panel having been so elected in December 2020. She confirmed that the process was done twice.
22. Mrs. Sekopana denied having intimidated the applicant on 5 December 2020. She confirmed that Mrs. Matangana was not part of the second process as she was very angry during the first process.
23. She confirmed Mrs. Matangana’s testimony that there was a SADTU representative present at the first ratification meeting. This however, was not the case at the second ratification meeting.
24. Mrs. Sekopana did not intimidate the applicant. The process was friendly and the marks scored were correct and agreed by the union observors present.
25. She confirmed that the principal had said that one of his friends at SADTU had indicated that another branch of SADTU had an interest in the post and that the name of the second respondent had been mentioned.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
26. It is clear from the evidence before me that there were essentially two issues for the applicant viz. that the name of the incumbent in the post had come up at both the first and second interviews and that the panel members who had intimidated her in the first process were included on the interview panel for the second process.
27. Regarding this issue I find that there is nothing that prevents the incumbent in the post from having participated in the competition for the post. That much is the right of the incumbent, and she cannot be excluded from such competition for the post.
28. Regarding the allegation of the panel having been influenced by the prior mention of the name of the second respondent there is no evidence adduced at this arbitration to show that the panel had conducted itself in a manner prejudicial to the applicant or that they had actually been unduly influenced in anyway.
29. The mere mention of the name of the second respondent cannot be said to be an instruction to the panel to ensure her selection as the preferred candidate. The contention of the applicant that there had been a candidate at the interviews earmarked for the position was also denied by Sephokana under cross examination.
30. I will now deal with the issue pertaining to the members on the SGB who had intimidated the applicant prior to the first interviews still being on the panel for the second.
31. The applicant would have had to show that the respondent had acted with mala fides or capriciously or invidiously or in some way deliberately or negligently to the disadvantage of the applicant.
32. Regarding the allegation of intimidation and notwithstanding that the process had been done for a second time for this reason there is again no evidence to show that this had had an adverse effect on the applicant in the interviews or that the panel had in the execution of its function prejudiced the applicant in any way. There was again no evidence to this effect led by the applicant at this arbitration.
33. The evidentiary burden in this regard remains with the applicant to show for instance that she and the second respondent ought to have been scored differently to what they had been.
34. It was in fact the unchallenged testimony of Sekopana that the process was friendly, the marks scored correctly, and agreed with by the union. It was also her unchallenged testimony that the panel had not given consideration to the statement of the principal regarding the interest of SADTU in the second respondent as a candidate at the interviews. I accordingly have no reason to doubt the veracity of the testimony of Sekopana which I find preferable to the speculation of Matangana regarding the influence on the panel by the words of the principal.
35. I have considered all the evidence presented at this arbitration and find no evidence that the respondent had committed an unfair labour practice when it had appointed the second respondent into the position having accepted the recommendation of the SGB in the circumstances of the composition of the interview panel being the same at the second interview.
36. In fact the respondent had demonstrated a willingness to accommodate the grievance of the applicant by instructing that that process be done a second time.
AWARD
37. The conduct of the respondent in the process of the filling of post number EN30ED1032 at Gahlanso Primary School in Gauteng Province does not constitute an unfair labour practice as defined in S186 (2)(a) of the LRA .This application for relief in terms of the provisions of the Labour Relations Act 66 of 1995 as amended is accordingly dismissed.
29 NOVEMBER 2021