ELRC914-21/22 KZN

IN THE ELRC ARBITRATION BETWEEN:

NAPTOSA on behalf of
Pienaar, J THE APPLICANT
And
THE HEAD OF THE KWAZULU-NATAL
DEPARTMENT OF EDUCATION THE FIRST RESONDENT
DR S SALOJEE THE SECOND RESPONDENT

Award


Case Number: ELRC914-21/22 KZN

Dates of arbitration: 17 October 2022 & 22 November 2022

Date of submission of written closing statements: 29 November 2022

Date of award: 2 December 2022

J KIRBY
ELRC Arbitrator

Education Labour Relations Council

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was held at the Durban Teachers’ Centre on 17 October 2022 and 22 November 2022.
2. NAPTOSA brought this application on behalf of its member, Jacqeline-Joy Pienaar (the Applicant,) who was represented by Mr R Juguth, a trade union official. The Applicant and two other witnesses gave oral evidence on her behalf and bundles of documentary evidence marked exhibits A and B respectively were handed in.
3. The First Respondent was represented by its employee, Mr Pillay, who called two witnesses to give oral evidence and documentary evidence marked exhibit C was handed in.
4. The Second Respondent was present and represented at the pre-arbitration meeting. She, however, was not present nor represented at the arbitration. Once it became known at the pre-arbitration meeting that the relief sought by the Applicant was the payment of compensation, she had indicated that she would not attend the arbitration.
5. The proceedings were digitally recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

6. I am required to determine whether the Respondent committed an unfair labour practice as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 (LRA) relating to the failure to promote the Applicant.

BACKGROUND
7. The Applicant has approximately 33 years’ experience as an educator.
8. She had been at Gordon Road Girls School (the School) since 2015, initially as a head of department and subsequently as deputy principal.
9. With regards to the appointment process for the principalship of the School, it is common cause that:
9.1. At the time of applying for the post of principal at the School she was the deputy principal and acting principal. She is currently still the deputy principal of the School.
9.2. Both the Applicant and Second Respondent were shortlisted and interviewed for the post of principal of the School.
9.3. Two rounds of interviews were held. The first round of interviews were held on 10 October 2021 and the second round was held on 26 October 2021. The minutes of the first interview committee meeting are at exhibit B and the minutes of the second meeting are at pages 15 of exhibit A;
9.4. At the shortlisting meeting of the interview committee, the minutes of which are at pages 17-18 of exhibit A, the committee ranked the Applicant as the best candidate and the Second Respondent as the second best;
9.5. At its first meeting the interview committee ranked the Applicant as the best candidate and the Second Respondent as the third best;
9.6. At the second meeting the interview committee ranked the Second Respondent as the best candidate and the Applicant was ranked second best;
9.7. The SGB, at its ratification meeting of 27 October 2021, (the minutes of which are at pages 12-14 of exhibit A) approved the recommendation of the interview committee and the Second Respondent was subsequently appointed principal of the School.
10. The Applicant does not challenge the appointment of the Second Respondent but avers that an unfair procedure was implemented and as such that she is entitled to compensation.

SUMMARY OF EVIDENCE
THE APPLICANT
11. The Applicant was of the view that the questions asked during the first interview were fair and covered the spectrum of what would be expected of a principal. She was subsequently invited to a second interview. She had not been informed of the reason for the second interviews.
12. As with the first interview, she found the questions posed to be fair and appropriate.
13. She was of the view that it was unfair to hold the second round of interviews without her having been informed of the reason.
14. On 17 December 2021 she was informed by the circuit manager for the School, Ms Shamase, that her application had been unsuccessful.
15. Under cross-examination the Applicant submitted that the interview committee had treated her fairly.
16. She was unaware that the second interviews had been held as there had been discrepancies in the way in which members of the interview committee had scored the candidates and that they had been unable to reach consensus on how to resolve this issue. In this regard, the Applicant did not dispute the following content of the minutes of the second interview committee meeting (at page 13 of exhibit A:)
“In the re-interview (2nd interview) the IC sat and discussed the questions and set an answer guide/criteria as an SGB. The scoring was then based on the answers. The Committee had met an hour before the interviews to draft the questions.”
17. Under re-examination the Applicant stated that her complaint was not directed at the appointment of the Second Respondent but at the process followed.
18. Loraine Wheal (Wheal) is the personal assistant to the principal of the School and as such she is currently the assistant to the Second Respondent and was the Applicant’s assistant when she was acting principal. She has worked with the Applicant for a number of years.
19. She is a member of the SGB and was the secretary to both interview committees but not a participating member. Shamase, the circuit manager, had been present at the shortlisting and both interview committee meetings.
20. Prior to the commencement of the interviews the committee had met to agree on the questions to be asked and they had also at this stage discussed what they would expect as suitable answers.
21. After each interview the members did not engage in any detailed discussion on the merits of the candidates but the individual scores were called out and an average score for each candidate was arrived at. No objections to any scores were raised at this stage but after completion of the interviews, the committee could not reach consensus on who had been the best candidate. The debate centred on the Applicant and the Second Respondent and not on the candidate, Veerasamy, who had scored the second highest score behind the Applicant. The members were deadlocked with two in favour of the Applicant and two in favour of Salojee.
22. Wheal had spoken up in favour of the Applicant but she was told by the committee that she could not give a character reference for the Applicant. The committee had then, however, proceeded to source a character reference in respect of the Second Respondent from her then principal. After having spoken to the principal, however, the committee remained deadlocked. The debate was around the merits of the Applicant and the Second Respondent and not the Applicant and the candidate who had received the second best score after the Applicant. Shamase had ultimately after 3 hours of deliberations contacted the Respondent’s representative, Mr Pillay, who had advised that the committee reconvene with clear criteria in place to guide the scoring.
23. Under cross-examination Wheal agreed that it was Unger, the co-opted member of the interview committee, who had suggested that he would not be a scoring member at the second round of interviews so as to avoid the possibility of another deadlock in the votes. At the first interviews he had voted in favour of the Applicant.
24. At the ratification meeting she had raised the issues that concerned her regarding the second interviews being done by the same interview committee and the character reference sought in respect of the Second Respondent.
25. The decision to hold a second round of interviews was supported by the committee members, Shamase and the union representative who was present.
26. Jeevakandar Naicker (Naicker) was an observer at the interviews on behalf of the CTU-AFU union. She had received training in this regard from NAPTOSA. She is an experienced observer. She is a deputy principal.
27. Pror to the first interviews Naicker had been present when the committee decided upon the questions it would ask and the possible responses were considered. Shamase was part of this process.
28. When the individual scores of certain committee members were revealed it was clear that other members did not agree with the scores. The scores were not altered though.
29. The view was expressed by members that the scoring by certain of the members had been too low for the Second Respondent and too high for the Applicant. It was felt that this skewered scoring was caused by the Applicant being known to the committee which was influencing certain of their scoring. It was felt that by contacting a reference for the Second Respondent might balance this perceived favouring of the Applicant but the committee remained divided after the referee had been contacted.
30. The questions at the second interviews ha been similar to those asked at the first interviews. As far as she was concerned the scoring had been fair.
31. Under cross-examination she submitted that she agreed with the advice given by Msomi, SADTU’s observer, to the committee at the second interview that it could not alter its scores but that further discussions on the merits of the candidates could take place at the ratification committee meeting.
32. She agreed with the decision to redo the interviews, which she thought was a fair process.
THE FIRST RESPONDENT
33. Indran Pillay is the Deputy Director for HR Management in the Umlazi District. He has extensive experience in the education and HR fields.
34. He had been contacted by Shamase and informed that the interview committee could not reach agreement on the ranking of the candidates. This was his first experience of this having occurred. His advice to her was for the interviews to be redone with very clear criteria for scoring.
35. As far as appointments by the First Respondent are concerned there is a discretion to appoint anyone of the three candidates forwarded by the SGB. Both the Applicant and Second Respondent had been on the list of three forwarded by the SGB to the Department and the First Respondent had appointed the Second Respndent, who was ranked first.
36. Mzomuhle Msomi (Msomi) was the SADTU observer at the second interviews. All candidates were treated fairly and there were no attempts to unfairly influence the scoring.
37. Nomusa Shamase (Shamase) is the circuit manager for Umlazi and she was the resource person at the first and second interviews. As such her role was to guide and advise the committee on procedural matters.
38. The SGB at the School had been trained in the interview and appointment processes.
39. When the scores of candidates were discussed it emerged that certain members had felt that the Second Respondent had fared best in the interview but they had still given the Applicant a higher score as they had wanted continuity at the School. Wheal had then listed all the achievements of the Applicant as acting principal. Shamase had then said that this was unfair as only the Applicant was benefiting from a character reference and it was then that the Second Respondent’s then principal was contacted. The committee, however, remained deadlocked and after her telephone call to Pillay all parties agreed to hold a second round of interviews.
40. Under cross-examination Shamase did not agree that the holding of the second interviews had prejudiced the Applicant. Instead, she submitted that the scoring in the first round had unfairly favoured the Applicant as certain of the members had allowed influences (the desire for continuity) to influence their scoring rather than having focused simply on the answers to the questions. At the second round the issue of continuity was not raised and the scoring was focused solely on the performances during the interviews.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
41. The Applicant bears the onus of establishing that the First Respondent committed an unfair labour practice related to promotion as provided for in section 186(1)(a) of the LRA when it did not promote her to the post of principal of the School.
42. Much of the evidence is common cause. The Applicant and First Respondent both led the evidence of three witnesses. The evidence was primarily focused on the events at the two interview committee meetings. I find that all witnesses were reliable and credible and simply tried to inform the hearing to the best of their ability of their impressions of what had occurred at the committee meetings.
43. The Applicant testified that she believed that an unfair labour practice relating to promotion had occurred as a second interview had been held and she had not been informed of the reason for this. She accepted that the questions at both interviews were relevant and fair. She did not even allege let alone lead any evidence to prove that any member of the interview was biased or acted with an improper motive. Shamase testified that the debate around the scoring of the candidates had occurred as those who had favoured the Applicant had conceded that in arriving at their scores that had taken into account that she was the best candidate to ensure continuity at the School whereas the others had held the view that the scores should only reflect the performance of the candidates at their interviews. This evidence was not challenged by the Applicant. It was also the evidence of the Applicant herself that the questions at both interviews were fair and the evidence on behalf of the First Respondent that the scoring at the second interviews were arrived at by having regard solely to the performance of the candidates at their interviews was not challenged.
44. In order for the Applicant to succeed with her claim of an unfair labour practice relating to the procedures followed she needs to have established that she was denied a fair opportunity to compete for the post; or that the members of the interview committee were biased against her or motivated by some other improper motive or that the Second Respondent somehow misled the committee. None of these issues were part of her case. The fact that she did not know the reason for the second interview or even if she disagrees with the decision are not sufficient to establish that she was treated unfairly.
45. In light of all of the above I find that the Applicant has not established that the First Respondent committed an unfair labour practice relating to promotion.

AWARD
46. The First Respondent, the Head of the KwaZulu-Natal Department of Education did not commit an unfair labour practice relating to the promotion of the Applicant, Jacqueline-Joy Pienaar, in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995.

J Kirby
Arbitrator