PSES115-18/19WC
Text
ELRC185-21/22EC
Award Date:
29 March 2022
Case Number: ELRC185-21/22EC
Commissioner: MBULELO SAFA
Date of Award 29 March 2022
In the ARBITRATION between: -
NAPTOSA obo NOMBULELO MOMO
Applicant
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
First Respondent
SIPHOKAZI NGCEBA
Second Respondent
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter set down for arbitration on the 17 September 2021, 24 November 2021 at the offices of the First Respondent, Department of Education : Eastern Cape in Mdantsane, East London and on the 9 March 2022 on the virtual platform, Zoom.
2. The Applicant, Nombulelo Momo was represented by Mr Gladie Siganagana for the union, NAPTOSA and on the 9 March 2022 she was represented by Mr Aron Mhlontlo also from NAPTOSA, the First Respondent was represented by Mr Toto Tsheko who is from their Labour Relations unit and the Second Respondent, Siphokazi Ngceba was represented by Ms Cordelia Royi from the union, SADTU.
3. The proceedings were recorded on the audio recorder and on Zoom.
ISSUES TO BE DECIDED
4. Whether or not the First Respondent conducted an unfair labour practice in terms of section 186(2) of the Labour Relations Act by not promoting the Applicant to the post of Deputy Principal at Fundisa Special School and to make an appropriate award in terms of section 193(4) of the Labour Relations Act.
BACKGROUND TO THE ISSUE
5. The First Respondent advertised a post of Deputy Principal at Fundisa Special School in their bulletin, Volume 2 of 2020.
6. The Applicant and the Second Respondent applied for the post, were shortlisted and interviewed for the post. The Second Respondent was recommended and appointed by the First Respondent and the Applicant was rated three after the interviews and not recommended.
7. The Applicant then referred an unfair labour practice dispute in terms of section 186(2) of the Labour Relations Act(LRA).
8. The relief sought by the Applicant is to have the appointment of the Second Respondent set aside and the process be started afresh from the shortlisting stage.
9. The First Respondent and Second Respondent are opposing the application.
SURVEY OF EVIDENCE AND ARGUMENT
10. The Applicant led evidence through three witnesses and the First Respondent led it through one witness. The Second Respondent did not lead oral evidence.
11. The First Respondent presented one bundle of documents. All other parties indicated that they were going to rely on the bundle of the First Respondent.
12. At the conclusion of the arbitration the parties proposed, and it was granted, that they do their closing arguments in writing and send them by 22 March 2022. All the parties submitted their arguments by the agreed date.
APPLICANT’S EVIDENCE
13. The Applicant, Nombulelo Momo, testified that she applied for the post of Deputy Principal when it was advertised. That time she was in the sixth year occupying the post of the Departmental Head(HOD) having joined the school in 2004 after a service of nine years in the previous school.
14. She said she started working as the educator in 1995 and became an HOD in 2015. She testified that she performed her duties well as the HOD.
15. When she joined the school in 2004 she was the youngest educator and helped put the school in a higher level. Then there were seven (07) educators and a school enrolment of 86, but now through her excellent performance the school has grown so much that more educators have since joined.
16. When she joined the school she introduced sporting activities like basketball and swimming and thus she became popular to the school, parents and community as a whole.
17. She testified that she met the requirements of the post both in management and in special needs. Even though she did not have a stand-alone qualification in management but she had a management module in her teaching qualification. She said the module was called School Organisation which was the same as School Management. She said any professional educator has management module in their diploma. In addition, she has been an HOD for years.
18. She said she had a qualification in special education having received a bursary from the First Respondent. In cross examination she admitted that in the qualification she majored in remedial education.
19. She believed that she should have been considered for the post because she qualifies, have been in management for six years, have worked very hard for the school and have also specialized in specialized child.
20. She denied that she was shortlisted without the management, saying she has management in her teaching diploma and was in management post for six years
21. Referred to the criteria adopted by the interview committee she said the criteria were supposed to be based on the bulletin. She admitted that the criteria were relevant to her.
22. The second witness of the Applicant, Ms Lina Bester, testified that she was in her second term as a member of the School Governing Body.
23. She was involved in the employment of the Second Respondent and it was the second time she was involved as she was also involved in the employment of the Principal of the school. She said she was part of all the meetings to appoint the Second Respondent; meeting of the SGB to elect the interview committee, shortlisting meeting, interview meeting and the ratification meeting.
24. She said she did not know the requirements of the post as they were not read to them by the resource person.
25. The criteria were done by the chairperson of the panel. There was no agreement in the panel that he must do them alone. As the interview committee they however agreed to the criteria.
26. She said they only became aware of the requirements of the post when they were called to the office of the Circuit Manager, Mrs Komani who told them that the process was not correct and advised them to start it all over again. They went to Ms Komani’s office on several occasions and she insisted that they do the process again as their candidate was standing on one leg. Mrs Komani did not explain what she meant by this. Witness understood this to mean the candidate was short of something. She (Ms Komani) even said she was not going to sign the forms. The SGB refused to start it again.
27. The SGB refused because the person they recommended was very committed to the school and was always available to help when needed. She was also flexible to work with at the school.
28. She testified that they were trained on how to do the appointments in areas like how to shortlist and how to interview candidates. She said during the shortlisting they had to look if the candidate has all the requirements.
29. During the shortlisting they indeed found that the candidates met all the requirements and had all the relevant documents.
30. After the interviews there was a meeting of the SGB wherein the SGB ratified the appointment of the Second Respondent. After the appointment of the Second Respondent has been confirmed by the First Respondent Mrs Komani came to introduce the Second Respondent to the members of the SGB, who in turn welcomed her. However, the educators who were members of the SGB asked that they be excused when the Second Respondent got into the meeting to be introduced. They indicated that they will never work with the Second Respondent.
31. The other witness of the Applicant, Mr Luyanda Eric Vazi, testified that when the post of the Deputy Principal at the school was advertised he was a member of the SGB and was also part of the interview committee.
32. He said the requirements for the post in terms of the bulletin were that the candidate must have management and special needs education. He said he did not know if the Second Respondent met both requirements.
33. He said the chairperson of the interview committee and the principal crafted the criteria (on page 57A of the bundle). They did that without being mandated by the committee. When they asked questions about the criteria they were told that they were delaying the process. He said he was forced by the chairperson of the interview committee to accept the criteria.
34. He also testified that he was not forced to sign the minutes of the meeting when the Second Respondent was recommended but signed them out of wanting to ensure the finality of the matter. He said he was bound by the decision of the interview committee and signed to say the process was fair.
35. After the interviews they were called by the Circuit Manager who told them that they did not do well and that they recommended a candidate who did not qualify. Mrs Komani communicated to them on several occasions and even suggested that they take the second rated candidate. Their response to the Circuit Manager was that they wanted the candidate even if she did not qualify as she(candidate) was helpful at the school.
36. He said Mrs Komani told them that the minimum requirements were special needs and management and that the criteria came to be applied after the candidate has met the minimum requirements.
37. He said that he was sure that the Applicant had Special Needs but was not sure if she had management. The certificate of the Applicant did not indicate that she had a management qualification.
38. After her (Second Respondent) appointment was confirmed by the First Respondent Mrs Komani brought her to introduce her to the SGB. When asked why she brought someone whom she said did not qualify she said she was sent by the District Office and did not want to respond to further questions.
39. When the Second Respondent was introduced to the SGB the SGB did not accept her and that was the same with the educators. He said the relations between the Second Respondent and other educators were not pleasant
FIRST RESPONDENT’S EVIDENCE
40. The witness of the Respondent, Yolisa Rawana, testified that she was the educator at the school and was the member of the SGB in 2018, 2019, 2021 and her term ended in March 2021.
41. She said she was part of the panel (interview committee) that recommended the appointment of the Second Respondent. The panel consisted of two educators, three parents, resource person (who was the principal of the school), secretary of the panel (who was the teacher aid employed by the First Respondent) and one observer from the union, SADTU.
42. She said that during the training they were told that parent members of the SGB had to be more in the panel, hence they had three parents and two educators. She said the secretary of the panel was not taking any scores but was just taking minutes. They were told during training that they can have someone to record during the proceedings. She did not agree that the panel was not constituted in terms of the PAM document.
43. During the shortlisting they put the criteria which were informed by the bulletin. The bulletin said there must be a qualification in management and special needs. The understanding of the interview committee was that special needs were synonymous with inclusive education and that a special needs educator was a teacher who can teach learners with barriers. They said the candidate must have a qualification in management or a five-year experience in management. They also said the candidate must have a qualification in special needs or experience in special needs.
44. After applying the criteria, they shortlisted five candidates including the Applicant and the Second Respondent. On the day of the interviews only four candidates showed up and the fifth one indicated that he had a problem and could not come on the day. Another date was arranged for this fifth candidate but he again did not show up.
45. She said they asked each candidate seven questions and of the questions the sixth question related to special needs and the seventh was related to management.
46. When referred to the minutes she said the minutes captured the questions asked to the candidates but the answers were not captured. She further said there no provision in the forms to record each answer to a question. She denied that the answers were not capture deliberately in order not to record the good performance of the Applicant and the Second Respondent. She said they were trained and agreed on how the minutes were to be captured.
47. The interview committee then decided to conclude the process and the Second Respondent was the candidate with the highest score followed by another candidate and the third rated candidate was the Applicant. The priority list of candidates was contained on page 14 of the bundle. According to the priority list if the first candidate is not appointed the second candidate will be automatically appointed, and so on.
48. The interview committee concluded that the Second Respondent was carrying about the learners and the welfare of the school. They based their recommendation of the Second Respondent on the way she presented herself during the interviews. She said the SGB supported the recommendation of the interview committee.
49. When they concluded the process they understood that the Second Respondent did not have a qualification in special needs but had an experience. At the time of the shortlisting the Second Respondent had an experience of eleven (11) years whereas the minimum they wanted was five (05) years. She said she could not recall what the experience of the Applicant and second rated candidate was and whether they had experience or qualification in management and special needs.
ANALYSIS OF EVIDENCE AND ARGUMENT
50. This is an unfair labour practice dispute referred in terms of section 186(2) of the Labour Relations Act(LRA) and thus the Applicant bears the onus of proof.
51. Through the evidence and in arguments it transpired that the Applicant is aggrieved about the process of the promotion of the Second Respondent due to the fact that; the SGB meeting to appoint the interview committee was not properly convened, the interview committee did not properly do the shortlisting and consequently, the Second Respondent was not supposed to be shortlisted, the interview committee was not constituted in terms of the guidelines provided for in the Personnel Administrative Measures(PAM) as it had eight members instead of the required five members and it included a Mr Tomsana, who was recording the minutes, but who was not the member of the committee.
52. In the interest of brevity, I will focus my arguments mainly on these points.
53. In arguments the Applicant correctly referred to clause B.5.4.3 of the PAM where it is stated that the interview committee must appoint amongst its members a chairperson and the secretary.
54. The PAM document as well as ELRC Collective Agreement 5 of 1998 however are not specific on the number of SGB members to be part of the interview committee.
55. The argument of the Applicant that the members of the interview committee were supposed to be five is not supported by any of the policy documents relied on by the First Respondent when promoting. The Applicant also did not indicate the authority he relied on. That argument therefore stands to be dismissed as it has no legal basis.
56. The next point to consider is the presence of Mr Tomsana and his role in taking minutes during the shortlisting and interviews whereas he was not the member of the interview committee.
57. I agree with the evidence and arguments of the Applicant that it was irregular to involve Mr Tomsana in the work of the interview committee whereas he was not an elected member of the interview committee and he was also not qualified to be a member of the committee in terms of clause B.5.4 of PAM.
58. The Second Respondent argued, correctly so, that the Applicant needed to show that there was a causal connection between the alleged unfairness or irregularity and the failure not to promote her. Though the Second Respondent did not cite her source but I can confirm that her arguments concur with clause 48 of the ELRC Collective Agreement 3 of 2016.
59. Put simply, clause 48 of ELRC Collective Agreement 3 of 2016 states that an applicant must prove that the alleged irregularity caused him or her not to be promoted. Put differently, it means had there been no irregularity the applicant would have been promoted.
60. In this dispute a question needs to be asked as to whether or not the involvement of Mr Tomsana in taking the minutes of the interview committee resulted in the Applicant not being promoted.
61. It was testified by the witness of the First Respondent that Mr Tomsana was not involved in taking scores during the interviews. It was further testified by the witnesses of the Applicant that they recommended the Second Respondent based on her performance in the interviews which was captured in the score sheets. Mr Tomsana was therefore not involved in the actual determination of who scored what in the interviews.
62. My findings are that the involvement of Mr Tomsana in taking minutes of the shortlisting and interviews did not cause the Applicant not to be promoted, and thus there was no causal connection between the irregularity and failure to promote.
63. The same argument applies with regards to the alleged involvement of the principal (resource person) in drafting the criteria for shortlisting. It is correct that the active involvement of the principal in crafting the criteria was irregular. The Applicant was further not prejudiced at all by the irregularity. In fact, it can be said that she benefited from it because she was shortlisted. However, since the principal was not involved in taking scores there was not causal connection between the irregularity and the non-promotion of the Applicant.
64. The next point of consideration is whether the interview committee properly did the shortlisting and whether the Second Respondent qualified to be shortlisted.
65. The important reference document to be used by the panel in doing the shortlisting is the advert for the post. The extract of the advert was attached as page 21 of the bundle. In the column with the heading, “subjects offered by the school” it is written, “Management and Inclusive Education”. This portion of the advert is confusing since both these are not subjects. For a majority of schools what is written under the column are the subjects.
66. Through the evidence led it transpired that the interview committee interpreted these to mean requirements for the post. They further interpreted it to mean a qualification in education management and in inclusive education. Inclusive education is an approach to schooling in which learners with different kinds of disabilities and learning needs are educated in classes with non-disabled and typically developing learners. Inclusive education is a wide field with a wide range of qualifications.
67. According to the evidence led the panel accepted the qualification of the Applicant, BA(Hon) in Augmentative and Alternative Communication as a relevant qualification in the field of inclusive education. After reading the academic record for the course (in the bundle) I agree with them. The Applicant then met the requirements when it comes to inclusive education.
68. On perusal of the bundle (page 31) it was found that the Second Respondent attached a SACE accredited training on Hands on Autism: Practical Tools for Professional Development. I regard this as a relevant professional development in the wide field of inclusive education. This is not an academic qualification but the advert did not state that the candidate must have an academic qualification. Thus the Second Respondent met the requirements of inclusive education.
69. When it comes to education management it was common cause that the Second Respondent has a B.Tech in Education Management. The Applicant testified that she has a module in Management in her teaching diploma. She however failed to convince and prove at arbitration that indeed she has the module. Even the academic record she submitted did not show any module on education management.
70. However, with an experience of more than seven (07) years as a Departmental Head(HOD) the Applicant can never be classified as not having management. For that matter the advert did not say the candidate must have a management qualification, but simply said ‘management’. I regard the experience of seven years in a management position as sufficient to be classified as management.
71. My finding is that both the Applicant and the Second Respondent met the requirements of the post in terms of management and inclusive education. No evidence was led about the profiles of other candidates.
72. Both candidates also met the minimum requirements for shortlisting as contained in clause B.3.2.1.1(b) of PAM in that each have more than five (05) years teaching experience, have more than REQV 3 and are registered with SACE.
73. In conclusion, both candidates met the requirements of being shortlisted for the post of Deputy Principal at Fundisa Special School.
74. The Applicant argued that the criteria used in the shortlisting were drafted by the chairperson of the panel and the principal. The witnesses, further testified that the panel accepted the criteria. There was one witness of the Applicant who contradicted the other witness and testified that they did not agree on the criteria as the panel. Since there was a contradiction in the evidence of the Applicant herself I will prefer the version that was corroborated by the witnesses of the Applicant and that of the First Respondent that the interview committee accepted the draft criteria. By accepting the criteria, the panel actually adopted them as their decision.
75. During the interviews the Second Respondent was, according to the interview committee had the opportunity to listen to her and other candidates and determine the best candidate to be recommended.
76. This was confirmed in oral evidence by the witness of the First Respondent who stated that they chose the Second Respondent because of the way she presented during the interviews. The entire SGB ratified the appointment of the Second Respondent. Even when the Circuit Manager irregularly influenced them to change, all the members of the SGB, including the witnesses of the Applicant stuck to their decision and confirmed the Second Respondent as the best candidate.
77. In the recommendation form the interview committee commented, amongst others, that the Second Respondent was chosen as a “suitable candidate for the post”. They further commented that she was “an excellent candidate and experienced, working hard and knowledgeable on school affairs.” It is misleading for the Applicant to, in her arguments, give an impression that the SGB recommended the Second Respondent only due to her successes in coaching swimming.
78. The First Respondent accepted the recommendation of the SGB and confirmed that the Second Respondent met the profile of the post. That the Circuit Manager felt the Second Respondent did not meet the requirements of the post is immaterial as she was not the delegated official to approve the appointment.
79. The Labour Court in Arries v CCMA and Others (2006) 27 ILJ 2324(LC) held that there are limited grounds on which a Commissioner or a Court may interfere with a discretion which has been exercised by a party competent to exercise that discretion. The court held further that the employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
80. In this arbitration there is no evidence led to show that the First Respondent exercised their discretion capriciously or for insubstantial reasons. There may have been instances where the Applicant feels she was not happy with the way things turned out, but this does not necessarily mean that the process was unfair.
81. The Labour Appeal Court in Noonan v SSSBC and Others [2021] 33 ILJ 2597 (LAC) further held that as long as the decision can be justified, mistakes in the process of evaluation do not constitute unfairness with the decision to appoint.
82. Having evaluated the evidence that was presented in this arbitration, my findings are that the Applicant failed to prove that the First Respondent acted unfairly. I could hence not be convinced that there were circumstances that warrant me interfering with the decision of the First Respondent.
In the circumstances I make the following award;
AWARD
83. The First Respondent did not act unfairly in not promoting the Applicant to the post Deputy Principal of Fundisa Special School.
84. The Applicant is not entitled to the relief she sought.
85. The application therefore does not succeed.
Mbulelo Safa: ELRC Panelist
Commissioner: MBULELO SAFA
Date of Award 29 March 2022
In the ARBITRATION between: -
NAPTOSA obo NOMBULELO MOMO
Applicant
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
First Respondent
SIPHOKAZI NGCEBA
Second Respondent
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter set down for arbitration on the 17 September 2021, 24 November 2021 at the offices of the First Respondent, Department of Education : Eastern Cape in Mdantsane, East London and on the 9 March 2022 on the virtual platform, Zoom.
2. The Applicant, Nombulelo Momo was represented by Mr Gladie Siganagana for the union, NAPTOSA and on the 9 March 2022 she was represented by Mr Aron Mhlontlo also from NAPTOSA, the First Respondent was represented by Mr Toto Tsheko who is from their Labour Relations unit and the Second Respondent, Siphokazi Ngceba was represented by Ms Cordelia Royi from the union, SADTU.
3. The proceedings were recorded on the audio recorder and on Zoom.
ISSUES TO BE DECIDED
4. Whether or not the First Respondent conducted an unfair labour practice in terms of section 186(2) of the Labour Relations Act by not promoting the Applicant to the post of Deputy Principal at Fundisa Special School and to make an appropriate award in terms of section 193(4) of the Labour Relations Act.
BACKGROUND TO THE ISSUE
5. The First Respondent advertised a post of Deputy Principal at Fundisa Special School in their bulletin, Volume 2 of 2020.
6. The Applicant and the Second Respondent applied for the post, were shortlisted and interviewed for the post. The Second Respondent was recommended and appointed by the First Respondent and the Applicant was rated three after the interviews and not recommended.
7. The Applicant then referred an unfair labour practice dispute in terms of section 186(2) of the Labour Relations Act(LRA).
8. The relief sought by the Applicant is to have the appointment of the Second Respondent set aside and the process be started afresh from the shortlisting stage.
9. The First Respondent and Second Respondent are opposing the application.
SURVEY OF EVIDENCE AND ARGUMENT
10. The Applicant led evidence through three witnesses and the First Respondent led it through one witness. The Second Respondent did not lead oral evidence.
11. The First Respondent presented one bundle of documents. All other parties indicated that they were going to rely on the bundle of the First Respondent.
12. At the conclusion of the arbitration the parties proposed, and it was granted, that they do their closing arguments in writing and send them by 22 March 2022. All the parties submitted their arguments by the agreed date.
APPLICANT’S EVIDENCE
13. The Applicant, Nombulelo Momo, testified that she applied for the post of Deputy Principal when it was advertised. That time she was in the sixth year occupying the post of the Departmental Head(HOD) having joined the school in 2004 after a service of nine years in the previous school.
14. She said she started working as the educator in 1995 and became an HOD in 2015. She testified that she performed her duties well as the HOD.
15. When she joined the school in 2004 she was the youngest educator and helped put the school in a higher level. Then there were seven (07) educators and a school enrolment of 86, but now through her excellent performance the school has grown so much that more educators have since joined.
16. When she joined the school she introduced sporting activities like basketball and swimming and thus she became popular to the school, parents and community as a whole.
17. She testified that she met the requirements of the post both in management and in special needs. Even though she did not have a stand-alone qualification in management but she had a management module in her teaching qualification. She said the module was called School Organisation which was the same as School Management. She said any professional educator has management module in their diploma. In addition, she has been an HOD for years.
18. She said she had a qualification in special education having received a bursary from the First Respondent. In cross examination she admitted that in the qualification she majored in remedial education.
19. She believed that she should have been considered for the post because she qualifies, have been in management for six years, have worked very hard for the school and have also specialized in specialized child.
20. She denied that she was shortlisted without the management, saying she has management in her teaching diploma and was in management post for six years
21. Referred to the criteria adopted by the interview committee she said the criteria were supposed to be based on the bulletin. She admitted that the criteria were relevant to her.
22. The second witness of the Applicant, Ms Lina Bester, testified that she was in her second term as a member of the School Governing Body.
23. She was involved in the employment of the Second Respondent and it was the second time she was involved as she was also involved in the employment of the Principal of the school. She said she was part of all the meetings to appoint the Second Respondent; meeting of the SGB to elect the interview committee, shortlisting meeting, interview meeting and the ratification meeting.
24. She said she did not know the requirements of the post as they were not read to them by the resource person.
25. The criteria were done by the chairperson of the panel. There was no agreement in the panel that he must do them alone. As the interview committee they however agreed to the criteria.
26. She said they only became aware of the requirements of the post when they were called to the office of the Circuit Manager, Mrs Komani who told them that the process was not correct and advised them to start it all over again. They went to Ms Komani’s office on several occasions and she insisted that they do the process again as their candidate was standing on one leg. Mrs Komani did not explain what she meant by this. Witness understood this to mean the candidate was short of something. She (Ms Komani) even said she was not going to sign the forms. The SGB refused to start it again.
27. The SGB refused because the person they recommended was very committed to the school and was always available to help when needed. She was also flexible to work with at the school.
28. She testified that they were trained on how to do the appointments in areas like how to shortlist and how to interview candidates. She said during the shortlisting they had to look if the candidate has all the requirements.
29. During the shortlisting they indeed found that the candidates met all the requirements and had all the relevant documents.
30. After the interviews there was a meeting of the SGB wherein the SGB ratified the appointment of the Second Respondent. After the appointment of the Second Respondent has been confirmed by the First Respondent Mrs Komani came to introduce the Second Respondent to the members of the SGB, who in turn welcomed her. However, the educators who were members of the SGB asked that they be excused when the Second Respondent got into the meeting to be introduced. They indicated that they will never work with the Second Respondent.
31. The other witness of the Applicant, Mr Luyanda Eric Vazi, testified that when the post of the Deputy Principal at the school was advertised he was a member of the SGB and was also part of the interview committee.
32. He said the requirements for the post in terms of the bulletin were that the candidate must have management and special needs education. He said he did not know if the Second Respondent met both requirements.
33. He said the chairperson of the interview committee and the principal crafted the criteria (on page 57A of the bundle). They did that without being mandated by the committee. When they asked questions about the criteria they were told that they were delaying the process. He said he was forced by the chairperson of the interview committee to accept the criteria.
34. He also testified that he was not forced to sign the minutes of the meeting when the Second Respondent was recommended but signed them out of wanting to ensure the finality of the matter. He said he was bound by the decision of the interview committee and signed to say the process was fair.
35. After the interviews they were called by the Circuit Manager who told them that they did not do well and that they recommended a candidate who did not qualify. Mrs Komani communicated to them on several occasions and even suggested that they take the second rated candidate. Their response to the Circuit Manager was that they wanted the candidate even if she did not qualify as she(candidate) was helpful at the school.
36. He said Mrs Komani told them that the minimum requirements were special needs and management and that the criteria came to be applied after the candidate has met the minimum requirements.
37. He said that he was sure that the Applicant had Special Needs but was not sure if she had management. The certificate of the Applicant did not indicate that she had a management qualification.
38. After her (Second Respondent) appointment was confirmed by the First Respondent Mrs Komani brought her to introduce her to the SGB. When asked why she brought someone whom she said did not qualify she said she was sent by the District Office and did not want to respond to further questions.
39. When the Second Respondent was introduced to the SGB the SGB did not accept her and that was the same with the educators. He said the relations between the Second Respondent and other educators were not pleasant
FIRST RESPONDENT’S EVIDENCE
40. The witness of the Respondent, Yolisa Rawana, testified that she was the educator at the school and was the member of the SGB in 2018, 2019, 2021 and her term ended in March 2021.
41. She said she was part of the panel (interview committee) that recommended the appointment of the Second Respondent. The panel consisted of two educators, three parents, resource person (who was the principal of the school), secretary of the panel (who was the teacher aid employed by the First Respondent) and one observer from the union, SADTU.
42. She said that during the training they were told that parent members of the SGB had to be more in the panel, hence they had three parents and two educators. She said the secretary of the panel was not taking any scores but was just taking minutes. They were told during training that they can have someone to record during the proceedings. She did not agree that the panel was not constituted in terms of the PAM document.
43. During the shortlisting they put the criteria which were informed by the bulletin. The bulletin said there must be a qualification in management and special needs. The understanding of the interview committee was that special needs were synonymous with inclusive education and that a special needs educator was a teacher who can teach learners with barriers. They said the candidate must have a qualification in management or a five-year experience in management. They also said the candidate must have a qualification in special needs or experience in special needs.
44. After applying the criteria, they shortlisted five candidates including the Applicant and the Second Respondent. On the day of the interviews only four candidates showed up and the fifth one indicated that he had a problem and could not come on the day. Another date was arranged for this fifth candidate but he again did not show up.
45. She said they asked each candidate seven questions and of the questions the sixth question related to special needs and the seventh was related to management.
46. When referred to the minutes she said the minutes captured the questions asked to the candidates but the answers were not captured. She further said there no provision in the forms to record each answer to a question. She denied that the answers were not capture deliberately in order not to record the good performance of the Applicant and the Second Respondent. She said they were trained and agreed on how the minutes were to be captured.
47. The interview committee then decided to conclude the process and the Second Respondent was the candidate with the highest score followed by another candidate and the third rated candidate was the Applicant. The priority list of candidates was contained on page 14 of the bundle. According to the priority list if the first candidate is not appointed the second candidate will be automatically appointed, and so on.
48. The interview committee concluded that the Second Respondent was carrying about the learners and the welfare of the school. They based their recommendation of the Second Respondent on the way she presented herself during the interviews. She said the SGB supported the recommendation of the interview committee.
49. When they concluded the process they understood that the Second Respondent did not have a qualification in special needs but had an experience. At the time of the shortlisting the Second Respondent had an experience of eleven (11) years whereas the minimum they wanted was five (05) years. She said she could not recall what the experience of the Applicant and second rated candidate was and whether they had experience or qualification in management and special needs.
ANALYSIS OF EVIDENCE AND ARGUMENT
50. This is an unfair labour practice dispute referred in terms of section 186(2) of the Labour Relations Act(LRA) and thus the Applicant bears the onus of proof.
51. Through the evidence and in arguments it transpired that the Applicant is aggrieved about the process of the promotion of the Second Respondent due to the fact that; the SGB meeting to appoint the interview committee was not properly convened, the interview committee did not properly do the shortlisting and consequently, the Second Respondent was not supposed to be shortlisted, the interview committee was not constituted in terms of the guidelines provided for in the Personnel Administrative Measures(PAM) as it had eight members instead of the required five members and it included a Mr Tomsana, who was recording the minutes, but who was not the member of the committee.
52. In the interest of brevity, I will focus my arguments mainly on these points.
53. In arguments the Applicant correctly referred to clause B.5.4.3 of the PAM where it is stated that the interview committee must appoint amongst its members a chairperson and the secretary.
54. The PAM document as well as ELRC Collective Agreement 5 of 1998 however are not specific on the number of SGB members to be part of the interview committee.
55. The argument of the Applicant that the members of the interview committee were supposed to be five is not supported by any of the policy documents relied on by the First Respondent when promoting. The Applicant also did not indicate the authority he relied on. That argument therefore stands to be dismissed as it has no legal basis.
56. The next point to consider is the presence of Mr Tomsana and his role in taking minutes during the shortlisting and interviews whereas he was not the member of the interview committee.
57. I agree with the evidence and arguments of the Applicant that it was irregular to involve Mr Tomsana in the work of the interview committee whereas he was not an elected member of the interview committee and he was also not qualified to be a member of the committee in terms of clause B.5.4 of PAM.
58. The Second Respondent argued, correctly so, that the Applicant needed to show that there was a causal connection between the alleged unfairness or irregularity and the failure not to promote her. Though the Second Respondent did not cite her source but I can confirm that her arguments concur with clause 48 of the ELRC Collective Agreement 3 of 2016.
59. Put simply, clause 48 of ELRC Collective Agreement 3 of 2016 states that an applicant must prove that the alleged irregularity caused him or her not to be promoted. Put differently, it means had there been no irregularity the applicant would have been promoted.
60. In this dispute a question needs to be asked as to whether or not the involvement of Mr Tomsana in taking the minutes of the interview committee resulted in the Applicant not being promoted.
61. It was testified by the witness of the First Respondent that Mr Tomsana was not involved in taking scores during the interviews. It was further testified by the witnesses of the Applicant that they recommended the Second Respondent based on her performance in the interviews which was captured in the score sheets. Mr Tomsana was therefore not involved in the actual determination of who scored what in the interviews.
62. My findings are that the involvement of Mr Tomsana in taking minutes of the shortlisting and interviews did not cause the Applicant not to be promoted, and thus there was no causal connection between the irregularity and failure to promote.
63. The same argument applies with regards to the alleged involvement of the principal (resource person) in drafting the criteria for shortlisting. It is correct that the active involvement of the principal in crafting the criteria was irregular. The Applicant was further not prejudiced at all by the irregularity. In fact, it can be said that she benefited from it because she was shortlisted. However, since the principal was not involved in taking scores there was not causal connection between the irregularity and the non-promotion of the Applicant.
64. The next point of consideration is whether the interview committee properly did the shortlisting and whether the Second Respondent qualified to be shortlisted.
65. The important reference document to be used by the panel in doing the shortlisting is the advert for the post. The extract of the advert was attached as page 21 of the bundle. In the column with the heading, “subjects offered by the school” it is written, “Management and Inclusive Education”. This portion of the advert is confusing since both these are not subjects. For a majority of schools what is written under the column are the subjects.
66. Through the evidence led it transpired that the interview committee interpreted these to mean requirements for the post. They further interpreted it to mean a qualification in education management and in inclusive education. Inclusive education is an approach to schooling in which learners with different kinds of disabilities and learning needs are educated in classes with non-disabled and typically developing learners. Inclusive education is a wide field with a wide range of qualifications.
67. According to the evidence led the panel accepted the qualification of the Applicant, BA(Hon) in Augmentative and Alternative Communication as a relevant qualification in the field of inclusive education. After reading the academic record for the course (in the bundle) I agree with them. The Applicant then met the requirements when it comes to inclusive education.
68. On perusal of the bundle (page 31) it was found that the Second Respondent attached a SACE accredited training on Hands on Autism: Practical Tools for Professional Development. I regard this as a relevant professional development in the wide field of inclusive education. This is not an academic qualification but the advert did not state that the candidate must have an academic qualification. Thus the Second Respondent met the requirements of inclusive education.
69. When it comes to education management it was common cause that the Second Respondent has a B.Tech in Education Management. The Applicant testified that she has a module in Management in her teaching diploma. She however failed to convince and prove at arbitration that indeed she has the module. Even the academic record she submitted did not show any module on education management.
70. However, with an experience of more than seven (07) years as a Departmental Head(HOD) the Applicant can never be classified as not having management. For that matter the advert did not say the candidate must have a management qualification, but simply said ‘management’. I regard the experience of seven years in a management position as sufficient to be classified as management.
71. My finding is that both the Applicant and the Second Respondent met the requirements of the post in terms of management and inclusive education. No evidence was led about the profiles of other candidates.
72. Both candidates also met the minimum requirements for shortlisting as contained in clause B.3.2.1.1(b) of PAM in that each have more than five (05) years teaching experience, have more than REQV 3 and are registered with SACE.
73. In conclusion, both candidates met the requirements of being shortlisted for the post of Deputy Principal at Fundisa Special School.
74. The Applicant argued that the criteria used in the shortlisting were drafted by the chairperson of the panel and the principal. The witnesses, further testified that the panel accepted the criteria. There was one witness of the Applicant who contradicted the other witness and testified that they did not agree on the criteria as the panel. Since there was a contradiction in the evidence of the Applicant herself I will prefer the version that was corroborated by the witnesses of the Applicant and that of the First Respondent that the interview committee accepted the draft criteria. By accepting the criteria, the panel actually adopted them as their decision.
75. During the interviews the Second Respondent was, according to the interview committee had the opportunity to listen to her and other candidates and determine the best candidate to be recommended.
76. This was confirmed in oral evidence by the witness of the First Respondent who stated that they chose the Second Respondent because of the way she presented during the interviews. The entire SGB ratified the appointment of the Second Respondent. Even when the Circuit Manager irregularly influenced them to change, all the members of the SGB, including the witnesses of the Applicant stuck to their decision and confirmed the Second Respondent as the best candidate.
77. In the recommendation form the interview committee commented, amongst others, that the Second Respondent was chosen as a “suitable candidate for the post”. They further commented that she was “an excellent candidate and experienced, working hard and knowledgeable on school affairs.” It is misleading for the Applicant to, in her arguments, give an impression that the SGB recommended the Second Respondent only due to her successes in coaching swimming.
78. The First Respondent accepted the recommendation of the SGB and confirmed that the Second Respondent met the profile of the post. That the Circuit Manager felt the Second Respondent did not meet the requirements of the post is immaterial as she was not the delegated official to approve the appointment.
79. The Labour Court in Arries v CCMA and Others (2006) 27 ILJ 2324(LC) held that there are limited grounds on which a Commissioner or a Court may interfere with a discretion which has been exercised by a party competent to exercise that discretion. The court held further that the employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
80. In this arbitration there is no evidence led to show that the First Respondent exercised their discretion capriciously or for insubstantial reasons. There may have been instances where the Applicant feels she was not happy with the way things turned out, but this does not necessarily mean that the process was unfair.
81. The Labour Appeal Court in Noonan v SSSBC and Others [2021] 33 ILJ 2597 (LAC) further held that as long as the decision can be justified, mistakes in the process of evaluation do not constitute unfairness with the decision to appoint.
82. Having evaluated the evidence that was presented in this arbitration, my findings are that the Applicant failed to prove that the First Respondent acted unfairly. I could hence not be convinced that there were circumstances that warrant me interfering with the decision of the First Respondent.
In the circumstances I make the following award;
AWARD
83. The First Respondent did not act unfairly in not promoting the Applicant to the post Deputy Principal of Fundisa Special School.
84. The Applicant is not entitled to the relief she sought.
85. The application therefore does not succeed.
Mbulelo Safa: ELRC Panelist