ELRC293-20/21KZN
Text
ELRC293-20/21KZN
Award Date:
23 May 2022
IN THE ELRC ARBITRATION
BETWEEN:
SALIPSWU obo MABASO N the Applicant
and
DEPARTMENT OF BASIC EDUCATION – KWAZULU-NATAL the First Respondent
MGAGA J the Second Respondent
ARBITRATION AWARD
Case Number: ELRC293-20/21KZN
Last date of arbitration: 08/02/2022
Date of award: 23/05/2022
Arbitrator: Scelo V Mkhize
Education Labour Relations Council
ELRC Building, 261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.z
DETAILS OF THE HEARING
1. The matter was enrolled before me for arbitration proceedings in terms of section 191(5) (a) (iv) of the Labour Relations Act 66 of 1995 as amended (The Act). The arbitration was held on various dates being the 26th March 2021, 20th May 2021, 22nd October 2021 and 08th February 2022. The arbitration was held at the ELRC provincial offices, 146 Problem Mkhize Road, Morning Side, Durban - KwaZulu- Natal.
2. The Applicant, Ms N Mabaso, appeared in person and was represented by Ms Samukelisiwe Luthuli a trade union official from SALIPSWU. The First Respondent, on the other hand, was represented by Ms Monica Mthethwa an official from the Department of Education, KwaZulu-Natal. The Second Respondent also appeared in person and she was represented by Mr D J Hadebe from SADTU.
3. The arbitration was held in English and it was mechanically recorded.
ISSUE TO BE DECIDED
4. In these proceedings, I am required to decide whether by not promoting the Applicant to the position of a deputy principal, the First Respondent committed an unfair labour practice against the Applicant within the ambit of section 186 (2) (a) of the Act. If so, I am required to determine an appropriate relief thereof.
BACKGROUND
5. The Applicant is Nokuthula Mabaso who was employed by the Respondent as a level one educator at Masakhaneni High School. The First Respondent is the Department of Education- KwaZulu Natal, a governmental department dully fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger street, Pietermaritzburg, KwaZulu Natal.
6. The Applicant referred a dispute for unfair labour practice related to promotion in terms section 186 (2) (a) of the Labour Relations Act 66 of 1995 to this honorable council claiming that the First Respondent committed an unfair labour practice against her related to promotion, in that the First Respondent failed to appoint her to the post of a deputy principal despite being the most suitable candidate for a job. The matter remained unresolved at conciliation and it was then referred to arbitration, hence this arbitration award.
7. The First Respondent, on the other hand, denied that it committed an unfair labour practice against the Applicant. It contended that the Applicant was not the most suitable candidate, but the second Respondent.
COMMON CAUSE FACTS
8. The following facts were common cause between the parties:
• that the Applicant is employed by the First Respondent as a level one educator at Masikhaneni High School;
• that on 20 September 2019, the First Respondent advertised a position of a deputy principal under HRM 36 of 2019;
• that the Applicant applied for the post before the closing date;
• that the Applicant was short listed and called for an interview on 20 February 2020;
• that the Applicant received 35 marks and she was ranked number four on the interview list;
• that the Second Respondent received 37 marks and she was ranked number one on the interview list;
• that the Second Respondent was found to be the best candidate for Appointment;
• that the Applicant lodge a grievance about the legitimacy of the School Governing Body;
• that the grievance hearing was held on 13 August 2020;
• that the actual School Governing Body at Masakhaneni was disbanded in 2018 and the interim SGB was appointed;
• that the interim SGB was the one who conducted the interviews.
ISSUES IN DISPUTE
9. The following issues were in dispute between the parties: Whether by not appointing the Applicant to the position of a deputy principal, the First Respondent committed an unfair labour practice, in particular:
• Whether the grievance lodged by the Applicant was postponed because the chairperson did not allow the Applicant to be represented by SALIPSWU;
• Whether the Second Respondent was placed or appointed while the Applicant’s grievance had not been resolved;
• Whether the First Respondent acted unfairly by placing or appointing the Second Respondent without first resolving the Applicant’s grievance;
• Whether the interim School Governing Body was a legitimate structure to conduct interviews;
• Whether the First Respondent acted unfairly by allowing the interim SGB to conduct interviews;
• Whether the Council has jurisdiction to determine the legitimacy of the School Governing Body;
• Whether the unions who are party to the collective agreement are the only ones allowed to lodge grievances on behalf of members;
• Whether the Applicant was the suitable candidate for the job.
Applicant’s case
First witness
10. The Applicant, Nokuthula Prudence Mabaso, was the first witness to testify in support of her case and she testified as follows:
11. She believes she was the most suitable candidate for the job because she had been teaching since 1995. She had also been involved in various leading positions. In 2010, she was a cluster co-ordinator who was helping with setting of papers and moderation. She was also appointed as a senior marker as well as the head of department (HOD). She was also involved in managing the curriculum and helping with the time table.
12. She stated that the interim SGB that conducted the interviews was not legitimate because their term of office had already expired. They were supposed to serve for a period of three months. If they wanted to continue, they should have received a letter from the head of department.
13. After the interviews she waited for correspondence from the First Respondent about the appointment. Seeing that she was not receiving any correspondence about the appointment, she lodged a grievance. A grievance meeting was held and a certain Mr Pillay was the chairperson. Pillay was shouting at them and also asking them who was their representative as he did not want them to be represented a certain Ms Posy from SALIPWU. Consequently, Pillay postponed the grievance meeting and he undertook notify them of the new date for the grievance hearing.
14. In September 2020, the Second Respondent was given a letter of appointment in a meeting. At that time the Applicant was still waiting for a grievance hearing to take place. She had never been advised that her grievance had been dismissed. Even today, she has never been advised as to what happened to her grievance. She felt that her right had been violated.
15. During cross examination, she conceded that the appointee, Mgaga, met all the minimum requirements of the post and that she did not participate in the scoring of candidates. She admitted further that she was one of the recommended candidates as she was ranked number five on the interview list. She conceded also that she did not object to the interview committee during interviews, but she did so because she was interviewed alone. So, she decided to comply with the interview process and complain later. She denied that the First Respondent chairperson was willing to listen to their grievance but they refuse to co-operate.
16. She was referred to page 5 of bundle “B” and she was asked whether his grievance was about the SGB or the interview committee. In her response she stated that that she was aggrieved about both.
Second witness
17. The Applicant second witness was Subbulutshnee Pillay who testified as follows:
18. She was representing the Applicant and a certain Ms Ndlovu during the grievance hearing. On the date of the hearing, the chairperson, Pillay, objected to her representing the employees because she was from a union called SALIPSWU. The chairperson was very rude to them and he did not even give her a chance to speak. The chairperson ended up walking out of the grievance hearing without any recommendations. Consequently, she lodged a letter of objection arising from the conduct of the chairperson. In this regard she referred the Council to page 1 of Bundle “A”. However, she was surprised to learn that shortly after this incident, the appointment had been made. She therefore regards the appointment to be procedurally unfair.
19. During cross examination she could not dispute that SALIPSWU is not one of the parties to the grievance procedure collective agreement in page 10 of “B”. She stated that she advised Pillay that she was wearing two hurts at the grievance hearing, one was that of a union representative and the other one was that of being a fellow employee. She also could not dispute that HRM 36 in page 13 of bundle “B”.
Third witness
20. The Applicant’s third witness was Thokozani Cynthia Shabangu who testified as follows:
21. She was one of the Applicants and also one of those employees who lodge the grievance against the Respondents. At the grievance hearing, they were introduced to Pillay who was a grievance chairperson. Their representative advised Pillay that she was representing the employees and that she was from a trade union called SALIPSWU. However, Pillay refused allow their representative to represent them. They then asked for a short caucus in order to discuss a way forward. After caucus, they advised Pillay that their representative was not only acting as their representative, but as their fellow employee. But Pillay still refused to allow their representative to represent them. He did not want to listen to them and he was bullying them. As a result, she felt that their rights had been violated.
22. She stated, with reference to HRM 36 on page 27 of bundle “B”, that in the event a post is affected by a grievance it must not be submitted to Head Office for placement until the grievance had been resolved. Their grievance was not concluded as the chairperson did not want hear the grievance. Therefore, the appointment of the Second Respondent was unfair.
23. Under cross examination, she disputed that the minutes appearing on page 37 of bundle “B” is the true reflection of what transpired in the grievance hearing. She stated that after Pillay had raised the issue of representation, they went outside to caucus. Thereafter, they advised Pillay that Popi was representing them as their fellow employee. She disputed that their version about being represented by a fellow employee was a fabrication because it was never mentioned in their letter on page 1 of bundle “A”. She insisted that what she said about being represented by a fellow employee was something that really transpired at the grievance hearing because she was there.
First Respondent’s case
24. The First Respondent called Mr Dongwa Timothy Shabalala as its only witness and he testified as follows:
25. He is employed by the First Respondent as a Senior Education Specialist under Umlazi district. He was the chairperson of the interim SGB and he was appointed on this position on 05 February 2019. He was involved in the appointment of the candidate in the post in question.
26. He stated that there was no objection about his roll during the appointment process nor the Applicant or any other party questioned the composition of the interview committee. The Applicant was treated in the same manner as the other candidates. He disputed that the interview committee was illegitimate.
27. During cross examination, he could not comment when it was put to him that the letter of appointment in page 33 of bundle “A” was related to Okumhlophe, not Masakhaneni High School. He admitted that they were required to elect the new SGB with three months from their appointment. They tried numerous times to establish the new SGB but they were unsuccessful due to challenges they had experienced. Given the Covid 19, their term office was extended. He was asked whether he had any proof to prove that their term was extended, but he could not produce such proof. He stated that they were told that their term had been extended.
Second Respondent’s case
28. The Second Respondent did not testify nor called any witness during the proceedings.
CLOSING ARGUMENTS
29. Both, the Applicant’s and the Respondent’s representatives submitted written closing submissions. I would not repeat their submissions herein, but I have considered their submissions in my analysis below.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
30. In these proceedings I am required to decide whether the First Respondent committed an unfair labour practice related to promotion as envisaged by section 186 (2) (a) of the Act, in particular, whether by not promoting the Applicant to the position of deputy principal, the First Respondent committed an unfair labour practice.
31. The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), it was held that the overall onus always rests on the employee to show the existence of an unfair labour practice. Therefore, the Applicant bears onus to prove that the Respondent committed an unfair labour practice against him.
Whether by not promoting the Applicant to the position of a deputy principal First Respondent committed an unfair labour practice
32. In terms of section 186 (2) (a) of the Act, an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving- unfair conduct by an employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits.
33. In the present case, in order to decide whether the First Respondent’s conduct constituted an unfair labour practice related to promotion within the ambit of section 186 (2) (a), I am required to first decide whether the School Governing Body that constituted the interview committee was legitimate. If so, I must decide whether at the time of the appointment of the Second Respondent, the grievance that the Applicant had lodge had been resolved or not. If I found that it had not been resolved, I would then be required to decided whether the First Respondent’s conduct to appoint the Second Respondent was unfair.
34. I now turn to deal with each of the questions in paragraph 33 above. With regard to the first question, the Applicant’s version was that the interim SGB that elected the interview committee that made the appointment of the Second Respondent was not legitimate. This is so because the SGB of Masakhaneni High School was disbanded and an interim SGB was appointed by the head in terms of section 25 of the South African Schools Act. The interim SGB was required to serve for the period of three months, unless their term had been extended for a further period of not more than a year. At the time of the appointment process, the period of the interim SGB had expired and it had not been extended. The First Respondent’s version on the other hand was that the interview committee that oversaw the appointment process was legitimate because it was constituted by the interim SGB. The first Respondent further submitted that even though the interim SGB had served its three months period, but their appointment was nonetheless extended. Furthermore, the First Respondent submitted that despite the above, the issue of the legitimacy of the SGB is an issue that falls outside the jurisdiction of this Honourable Council.
35. In terms of section 25 of the South African Schools Act 84 of 1996, if a governing body has ceased to perform its functions, the Head of the Department must appoint sufficient persons to perform those functions for a period not exceeding three months. The Head of the Department may extend the period referred to above by further periods not exceeding three months each, but the total period may not exceed one year. The Head of Department must ensure that the governing body is elected in terms of the act within a year after the appointment of persons mentioned above.
36. In the present case it was common cause that the school governing body of Masakheneni was disbanded and an interim governing body was appointed. It was also common cause that at the time of the appointment process for the post concerned, the interim governing body had already served its three months as provided in the act. The only issue in dispute in this regard, is whether the period was extended as envisaged by the act. The applicant’s version and testimony were that the period of operation of the interim governing body was never extended. The First Respondent’s version on the other hand, through its witness Shabalala, was that the period was indeed extended. This then raised the dispute of facts between the Applicant and the First Respondent’s version. Our courts have developed guidelines on how to deal with the dispute of facts in a particular case.
37. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngeleni & Others, it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.
38. In the present case, the Applicant was very clear and consistent in her evidence to the effect that the interim SGB had already served their three months term and their term had not been extended. Even her version to this effect was never challenged during cross examination. Therefore, there was no reason to disbelieve her testimony. On the other hand, Shabalala for the Respondent testified that their term of office was extended after the period of three months. However, he failed to produce any proof to that effect despite having been asked whether he had any proof. Instead, he stated that they were told that their term SGB had been extended. There was also not other witness to corroborate his version in this regard. In his testimony, he also testified that their appointment was made in writing. In my view, if their appointment was in writing, it is highly improbable that their extension would have been made verbally. Furthermore, if the term of office was indeed extended, the most relevant witness would have been the Head of Department. However, the Head of Department was never called to give evidence and there was no reason provided why he could not be called. The only reasonable inference that can be drawn from this conduct is that it is highly probable that the term of the interim SGB was never extended. Despite the above, Shabalala was not a reliable witness. He stated that one reason they could not arrange the election of the SGB was because of Covid 19. However, in his evidence he stated that they were appointed in in February 2019. Their first three months in the office would have lapsed on or about May 2019. At that time Covid 19 had not even started. In light of the above, I therefore prefer the Applicant’s version over the First Respondent’s version. I therefore find that it is highly probable that the term of the interim SGB was never extend after the initial three months.
39. In the case of The School Governing Body Grey College, Bloemfontein v Scheepers and Another (Case No 506/19) (2020) ZASCA 82 (03 July 2020) at 44, it was held that the school governing body may perform only such functions and obligations and exercise only such rights as prescribed by the Act. In light of this judgment, I am of the view that the interim SGB overstepped their authority by conducting interview after their term had already expired.
40. In City of Cape Town v Samwu obo Sylvester and Others (2013) 34 ILJ 1156 (LC) it was held, with reference to Aries v CCMA and Others, that the overall test in an unfair labour practice is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following : whether the failure to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer; or whether the decision was arbitrary, or capricious, or unfair; or whether the employer failed to apply its mind to the promotion of the employee; or whether the employer’s decision not to promote was motivated by bad faith; whether the employer’s decision not to promote was discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employers decision not to promote was based upon a wrong principle and whether the employer’s decision not to promote was taken in a biased manner.
41. In terms of the Schools Act, one of the functions of the SGB is to recommend to the Head of the Department the appointment of educators. In my view, where there is no valid SGB or where the interim SGB made a recommendation for appointment after their term of office had expired, there would be no valid recommendation and any appointment made pursuant to such recommendation is unfair. I therefore find that the conduct of the First Respondent to make appointment of the Second Respondent based on a recommendation made by an invalid interim SGB or contrary to the law is procedurally unfair. In light of these findings, I find it unnecessary to decide the other issues in paragraph 33 above.
REMEDY
42. In South African Police Service v SSSBC and Others (2016) JOL 35883 LC, it was held that the only justification to scrutinize the process in promotional disputes is to determine whether the appointment was arbitrary or motivated by unacceptable reason. The appropriate remedy as a general rule, is to set aside the decision and refer back with or without instructions to ensure that a fair opportunity is given. In the present case I have already found that the process leading to the appointment of the Second Respondent was procedurally unfair. Even though the Applicant did not prove that she was the best candidate for the job, but I am of the view that the appropriate remedy in the circumstances is to set aside the appointment and direct that the whole process should be repeated.
AWARD
43. The First Respondent committed an unfair labour practice within the ambit of section 186 (2) (a) by not promoting the Applicant to the position of a deputy principal;
44. The appointment of the Second Respondent is hereby set aside;
45. The First Respondent is hereby ordered to repeat the appointment process of a deputy principal at Masakhaneni High School as advertised in circular HRM 36 of 2019;
46. There is no order as to costs.
Scelo V Mkhize - Panelist
BETWEEN:
SALIPSWU obo MABASO N the Applicant
and
DEPARTMENT OF BASIC EDUCATION – KWAZULU-NATAL the First Respondent
MGAGA J the Second Respondent
ARBITRATION AWARD
Case Number: ELRC293-20/21KZN
Last date of arbitration: 08/02/2022
Date of award: 23/05/2022
Arbitrator: Scelo V Mkhize
Education Labour Relations Council
ELRC Building, 261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.z
DETAILS OF THE HEARING
1. The matter was enrolled before me for arbitration proceedings in terms of section 191(5) (a) (iv) of the Labour Relations Act 66 of 1995 as amended (The Act). The arbitration was held on various dates being the 26th March 2021, 20th May 2021, 22nd October 2021 and 08th February 2022. The arbitration was held at the ELRC provincial offices, 146 Problem Mkhize Road, Morning Side, Durban - KwaZulu- Natal.
2. The Applicant, Ms N Mabaso, appeared in person and was represented by Ms Samukelisiwe Luthuli a trade union official from SALIPSWU. The First Respondent, on the other hand, was represented by Ms Monica Mthethwa an official from the Department of Education, KwaZulu-Natal. The Second Respondent also appeared in person and she was represented by Mr D J Hadebe from SADTU.
3. The arbitration was held in English and it was mechanically recorded.
ISSUE TO BE DECIDED
4. In these proceedings, I am required to decide whether by not promoting the Applicant to the position of a deputy principal, the First Respondent committed an unfair labour practice against the Applicant within the ambit of section 186 (2) (a) of the Act. If so, I am required to determine an appropriate relief thereof.
BACKGROUND
5. The Applicant is Nokuthula Mabaso who was employed by the Respondent as a level one educator at Masakhaneni High School. The First Respondent is the Department of Education- KwaZulu Natal, a governmental department dully fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger street, Pietermaritzburg, KwaZulu Natal.
6. The Applicant referred a dispute for unfair labour practice related to promotion in terms section 186 (2) (a) of the Labour Relations Act 66 of 1995 to this honorable council claiming that the First Respondent committed an unfair labour practice against her related to promotion, in that the First Respondent failed to appoint her to the post of a deputy principal despite being the most suitable candidate for a job. The matter remained unresolved at conciliation and it was then referred to arbitration, hence this arbitration award.
7. The First Respondent, on the other hand, denied that it committed an unfair labour practice against the Applicant. It contended that the Applicant was not the most suitable candidate, but the second Respondent.
COMMON CAUSE FACTS
8. The following facts were common cause between the parties:
• that the Applicant is employed by the First Respondent as a level one educator at Masikhaneni High School;
• that on 20 September 2019, the First Respondent advertised a position of a deputy principal under HRM 36 of 2019;
• that the Applicant applied for the post before the closing date;
• that the Applicant was short listed and called for an interview on 20 February 2020;
• that the Applicant received 35 marks and she was ranked number four on the interview list;
• that the Second Respondent received 37 marks and she was ranked number one on the interview list;
• that the Second Respondent was found to be the best candidate for Appointment;
• that the Applicant lodge a grievance about the legitimacy of the School Governing Body;
• that the grievance hearing was held on 13 August 2020;
• that the actual School Governing Body at Masakhaneni was disbanded in 2018 and the interim SGB was appointed;
• that the interim SGB was the one who conducted the interviews.
ISSUES IN DISPUTE
9. The following issues were in dispute between the parties: Whether by not appointing the Applicant to the position of a deputy principal, the First Respondent committed an unfair labour practice, in particular:
• Whether the grievance lodged by the Applicant was postponed because the chairperson did not allow the Applicant to be represented by SALIPSWU;
• Whether the Second Respondent was placed or appointed while the Applicant’s grievance had not been resolved;
• Whether the First Respondent acted unfairly by placing or appointing the Second Respondent without first resolving the Applicant’s grievance;
• Whether the interim School Governing Body was a legitimate structure to conduct interviews;
• Whether the First Respondent acted unfairly by allowing the interim SGB to conduct interviews;
• Whether the Council has jurisdiction to determine the legitimacy of the School Governing Body;
• Whether the unions who are party to the collective agreement are the only ones allowed to lodge grievances on behalf of members;
• Whether the Applicant was the suitable candidate for the job.
Applicant’s case
First witness
10. The Applicant, Nokuthula Prudence Mabaso, was the first witness to testify in support of her case and she testified as follows:
11. She believes she was the most suitable candidate for the job because she had been teaching since 1995. She had also been involved in various leading positions. In 2010, she was a cluster co-ordinator who was helping with setting of papers and moderation. She was also appointed as a senior marker as well as the head of department (HOD). She was also involved in managing the curriculum and helping with the time table.
12. She stated that the interim SGB that conducted the interviews was not legitimate because their term of office had already expired. They were supposed to serve for a period of three months. If they wanted to continue, they should have received a letter from the head of department.
13. After the interviews she waited for correspondence from the First Respondent about the appointment. Seeing that she was not receiving any correspondence about the appointment, she lodged a grievance. A grievance meeting was held and a certain Mr Pillay was the chairperson. Pillay was shouting at them and also asking them who was their representative as he did not want them to be represented a certain Ms Posy from SALIPWU. Consequently, Pillay postponed the grievance meeting and he undertook notify them of the new date for the grievance hearing.
14. In September 2020, the Second Respondent was given a letter of appointment in a meeting. At that time the Applicant was still waiting for a grievance hearing to take place. She had never been advised that her grievance had been dismissed. Even today, she has never been advised as to what happened to her grievance. She felt that her right had been violated.
15. During cross examination, she conceded that the appointee, Mgaga, met all the minimum requirements of the post and that she did not participate in the scoring of candidates. She admitted further that she was one of the recommended candidates as she was ranked number five on the interview list. She conceded also that she did not object to the interview committee during interviews, but she did so because she was interviewed alone. So, she decided to comply with the interview process and complain later. She denied that the First Respondent chairperson was willing to listen to their grievance but they refuse to co-operate.
16. She was referred to page 5 of bundle “B” and she was asked whether his grievance was about the SGB or the interview committee. In her response she stated that that she was aggrieved about both.
Second witness
17. The Applicant second witness was Subbulutshnee Pillay who testified as follows:
18. She was representing the Applicant and a certain Ms Ndlovu during the grievance hearing. On the date of the hearing, the chairperson, Pillay, objected to her representing the employees because she was from a union called SALIPSWU. The chairperson was very rude to them and he did not even give her a chance to speak. The chairperson ended up walking out of the grievance hearing without any recommendations. Consequently, she lodged a letter of objection arising from the conduct of the chairperson. In this regard she referred the Council to page 1 of Bundle “A”. However, she was surprised to learn that shortly after this incident, the appointment had been made. She therefore regards the appointment to be procedurally unfair.
19. During cross examination she could not dispute that SALIPSWU is not one of the parties to the grievance procedure collective agreement in page 10 of “B”. She stated that she advised Pillay that she was wearing two hurts at the grievance hearing, one was that of a union representative and the other one was that of being a fellow employee. She also could not dispute that HRM 36 in page 13 of bundle “B”.
Third witness
20. The Applicant’s third witness was Thokozani Cynthia Shabangu who testified as follows:
21. She was one of the Applicants and also one of those employees who lodge the grievance against the Respondents. At the grievance hearing, they were introduced to Pillay who was a grievance chairperson. Their representative advised Pillay that she was representing the employees and that she was from a trade union called SALIPSWU. However, Pillay refused allow their representative to represent them. They then asked for a short caucus in order to discuss a way forward. After caucus, they advised Pillay that their representative was not only acting as their representative, but as their fellow employee. But Pillay still refused to allow their representative to represent them. He did not want to listen to them and he was bullying them. As a result, she felt that their rights had been violated.
22. She stated, with reference to HRM 36 on page 27 of bundle “B”, that in the event a post is affected by a grievance it must not be submitted to Head Office for placement until the grievance had been resolved. Their grievance was not concluded as the chairperson did not want hear the grievance. Therefore, the appointment of the Second Respondent was unfair.
23. Under cross examination, she disputed that the minutes appearing on page 37 of bundle “B” is the true reflection of what transpired in the grievance hearing. She stated that after Pillay had raised the issue of representation, they went outside to caucus. Thereafter, they advised Pillay that Popi was representing them as their fellow employee. She disputed that their version about being represented by a fellow employee was a fabrication because it was never mentioned in their letter on page 1 of bundle “A”. She insisted that what she said about being represented by a fellow employee was something that really transpired at the grievance hearing because she was there.
First Respondent’s case
24. The First Respondent called Mr Dongwa Timothy Shabalala as its only witness and he testified as follows:
25. He is employed by the First Respondent as a Senior Education Specialist under Umlazi district. He was the chairperson of the interim SGB and he was appointed on this position on 05 February 2019. He was involved in the appointment of the candidate in the post in question.
26. He stated that there was no objection about his roll during the appointment process nor the Applicant or any other party questioned the composition of the interview committee. The Applicant was treated in the same manner as the other candidates. He disputed that the interview committee was illegitimate.
27. During cross examination, he could not comment when it was put to him that the letter of appointment in page 33 of bundle “A” was related to Okumhlophe, not Masakhaneni High School. He admitted that they were required to elect the new SGB with three months from their appointment. They tried numerous times to establish the new SGB but they were unsuccessful due to challenges they had experienced. Given the Covid 19, their term office was extended. He was asked whether he had any proof to prove that their term was extended, but he could not produce such proof. He stated that they were told that their term had been extended.
Second Respondent’s case
28. The Second Respondent did not testify nor called any witness during the proceedings.
CLOSING ARGUMENTS
29. Both, the Applicant’s and the Respondent’s representatives submitted written closing submissions. I would not repeat their submissions herein, but I have considered their submissions in my analysis below.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
30. In these proceedings I am required to decide whether the First Respondent committed an unfair labour practice related to promotion as envisaged by section 186 (2) (a) of the Act, in particular, whether by not promoting the Applicant to the position of deputy principal, the First Respondent committed an unfair labour practice.
31. The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), it was held that the overall onus always rests on the employee to show the existence of an unfair labour practice. Therefore, the Applicant bears onus to prove that the Respondent committed an unfair labour practice against him.
Whether by not promoting the Applicant to the position of a deputy principal First Respondent committed an unfair labour practice
32. In terms of section 186 (2) (a) of the Act, an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving- unfair conduct by an employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits.
33. In the present case, in order to decide whether the First Respondent’s conduct constituted an unfair labour practice related to promotion within the ambit of section 186 (2) (a), I am required to first decide whether the School Governing Body that constituted the interview committee was legitimate. If so, I must decide whether at the time of the appointment of the Second Respondent, the grievance that the Applicant had lodge had been resolved or not. If I found that it had not been resolved, I would then be required to decided whether the First Respondent’s conduct to appoint the Second Respondent was unfair.
34. I now turn to deal with each of the questions in paragraph 33 above. With regard to the first question, the Applicant’s version was that the interim SGB that elected the interview committee that made the appointment of the Second Respondent was not legitimate. This is so because the SGB of Masakhaneni High School was disbanded and an interim SGB was appointed by the head in terms of section 25 of the South African Schools Act. The interim SGB was required to serve for the period of three months, unless their term had been extended for a further period of not more than a year. At the time of the appointment process, the period of the interim SGB had expired and it had not been extended. The First Respondent’s version on the other hand was that the interview committee that oversaw the appointment process was legitimate because it was constituted by the interim SGB. The first Respondent further submitted that even though the interim SGB had served its three months period, but their appointment was nonetheless extended. Furthermore, the First Respondent submitted that despite the above, the issue of the legitimacy of the SGB is an issue that falls outside the jurisdiction of this Honourable Council.
35. In terms of section 25 of the South African Schools Act 84 of 1996, if a governing body has ceased to perform its functions, the Head of the Department must appoint sufficient persons to perform those functions for a period not exceeding three months. The Head of the Department may extend the period referred to above by further periods not exceeding three months each, but the total period may not exceed one year. The Head of Department must ensure that the governing body is elected in terms of the act within a year after the appointment of persons mentioned above.
36. In the present case it was common cause that the school governing body of Masakheneni was disbanded and an interim governing body was appointed. It was also common cause that at the time of the appointment process for the post concerned, the interim governing body had already served its three months as provided in the act. The only issue in dispute in this regard, is whether the period was extended as envisaged by the act. The applicant’s version and testimony were that the period of operation of the interim governing body was never extended. The First Respondent’s version on the other hand, through its witness Shabalala, was that the period was indeed extended. This then raised the dispute of facts between the Applicant and the First Respondent’s version. Our courts have developed guidelines on how to deal with the dispute of facts in a particular case.
37. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngeleni & Others, it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.
38. In the present case, the Applicant was very clear and consistent in her evidence to the effect that the interim SGB had already served their three months term and their term had not been extended. Even her version to this effect was never challenged during cross examination. Therefore, there was no reason to disbelieve her testimony. On the other hand, Shabalala for the Respondent testified that their term of office was extended after the period of three months. However, he failed to produce any proof to that effect despite having been asked whether he had any proof. Instead, he stated that they were told that their term SGB had been extended. There was also not other witness to corroborate his version in this regard. In his testimony, he also testified that their appointment was made in writing. In my view, if their appointment was in writing, it is highly improbable that their extension would have been made verbally. Furthermore, if the term of office was indeed extended, the most relevant witness would have been the Head of Department. However, the Head of Department was never called to give evidence and there was no reason provided why he could not be called. The only reasonable inference that can be drawn from this conduct is that it is highly probable that the term of the interim SGB was never extended. Despite the above, Shabalala was not a reliable witness. He stated that one reason they could not arrange the election of the SGB was because of Covid 19. However, in his evidence he stated that they were appointed in in February 2019. Their first three months in the office would have lapsed on or about May 2019. At that time Covid 19 had not even started. In light of the above, I therefore prefer the Applicant’s version over the First Respondent’s version. I therefore find that it is highly probable that the term of the interim SGB was never extend after the initial three months.
39. In the case of The School Governing Body Grey College, Bloemfontein v Scheepers and Another (Case No 506/19) (2020) ZASCA 82 (03 July 2020) at 44, it was held that the school governing body may perform only such functions and obligations and exercise only such rights as prescribed by the Act. In light of this judgment, I am of the view that the interim SGB overstepped their authority by conducting interview after their term had already expired.
40. In City of Cape Town v Samwu obo Sylvester and Others (2013) 34 ILJ 1156 (LC) it was held, with reference to Aries v CCMA and Others, that the overall test in an unfair labour practice is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following : whether the failure to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer; or whether the decision was arbitrary, or capricious, or unfair; or whether the employer failed to apply its mind to the promotion of the employee; or whether the employer’s decision not to promote was motivated by bad faith; whether the employer’s decision not to promote was discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employers decision not to promote was based upon a wrong principle and whether the employer’s decision not to promote was taken in a biased manner.
41. In terms of the Schools Act, one of the functions of the SGB is to recommend to the Head of the Department the appointment of educators. In my view, where there is no valid SGB or where the interim SGB made a recommendation for appointment after their term of office had expired, there would be no valid recommendation and any appointment made pursuant to such recommendation is unfair. I therefore find that the conduct of the First Respondent to make appointment of the Second Respondent based on a recommendation made by an invalid interim SGB or contrary to the law is procedurally unfair. In light of these findings, I find it unnecessary to decide the other issues in paragraph 33 above.
REMEDY
42. In South African Police Service v SSSBC and Others (2016) JOL 35883 LC, it was held that the only justification to scrutinize the process in promotional disputes is to determine whether the appointment was arbitrary or motivated by unacceptable reason. The appropriate remedy as a general rule, is to set aside the decision and refer back with or without instructions to ensure that a fair opportunity is given. In the present case I have already found that the process leading to the appointment of the Second Respondent was procedurally unfair. Even though the Applicant did not prove that she was the best candidate for the job, but I am of the view that the appropriate remedy in the circumstances is to set aside the appointment and direct that the whole process should be repeated.
AWARD
43. The First Respondent committed an unfair labour practice within the ambit of section 186 (2) (a) by not promoting the Applicant to the position of a deputy principal;
44. The appointment of the Second Respondent is hereby set aside;
45. The First Respondent is hereby ordered to repeat the appointment process of a deputy principal at Masakhaneni High School as advertised in circular HRM 36 of 2019;
46. There is no order as to costs.
Scelo V Mkhize - Panelist