ELRC769-21/22WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA DIGITAL ZOOM CONFERENCE

Case No: ELRC769-21/22WC

In the matter between

SADTU obo Louise Valentine Applicant

and

Western Cape Education Department First Respondent

Renaldo Leonard Second Respondent

PANELLIST: Dr. GC. van der Berg
Award: Finalized on 07 December 2022

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing took place via digital video conference (ZOOM) on 17 June 2022, 21 July 2022, 12 August 2022,12 September 2022, 21 October 2022, and 21 November 2022 at 09:00. The proceedings were both digitally and manually recorded. The applicant, Louise Valentine, was represented by J Adams, an official of SADTU. The first respondent, Western Cape Education Department (“the WCED”), was represented by Liezle Diedericks, Labour Relations Officer. The second respondent, Renaldo Leonard, represented himself. The dispute was scheduled for arbitration in terms of section 186(2)(a) of the Labour relations Act 66 of 1995 as amended (“the LRA”) as an unfair labour practice regarding appointment and promotion.

Issue to be decided

2. The arbitration proceeding concerned the alleged unfair labour practice by the respondent as it relates to the unlawful appointment of the second respondent to the advertised position of Deputy Principal at the Protea Primary School at a post level 3 (915). The successful candidate, Renaldo Leonard, was joined as second respondent to the dispute. The applicant was nominated by the SGB of 2020 but was not appointed due to another nomination by the newly elected SGB in 2021 which is disagreed with by the first respondent. The nomination was allegedly not supported by the resource person and the applicant was the best candidate. No motivation was provided by the resource person for appointment of the successful candidate. Nomination of the SGB was changed by the chairperson of the SGB.

3. I am required to determine whether the first respondent committed an unfair labour practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA as:
a. Whether the appointment of the successful candidate by the WCED was unfair as the applicant was supposed to be appointed in the position of Deputy Principal.
b. Whether the process was procedurally defected as the SGB who did the nomination was not the same SGB who did the motivation for appointment.

4. In terms of appropriate relief if I find that the first respondent committed an ULP:
c. Whether the appointment of the second respondent must be set aside.
d. Alternatively, the process to be redone by the WCED and SGB.

Background to the Dispute

5. The applicant was employed as an educator for 27 years and is currently employed as a Head of Department at the Protea Primary School for 14 years. Both the applicant and the second respondent applied for the position of Deputy Principal at Protea Primary School post number 915, as advertised in vacancy list 2/2020. The applicant acted as Deputy Principal in the post for 4 years and she was shortlisted and ranked number two. The SGB nominated Mr R Leonard who scored 72%, as first nominee and Me L Valentine who scored 65% as second nominee for the Deputy Principal post at Protea Primary School.

6. The dispute arose on 03 January 2022 and was referred to the ELRC and set down for arbitration on 17 June 2022. Then it was postponed in a ruling dated 19 June 2022. The arbitration proceedings continued on 21 July 2022, and after the applicant and her witness testified, it was postponed as a part heard arbitration case up to 12 August 2022. It was further postponed to 12 September 2022 and again postponed and then scheduled for 21 October 2022, and 21 November 2022, when it was completed.

7. The parties did present opening statements and the first respondent, and the representative of the applicant presented written closing statements, as agreed on or before 29 November 2022. All parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered.

Survey of evidence and argument
Documentary evidence.
8. Both parties submitted bundles of documents. This bundle of the applicant was marked as “A” pages 1-114 and the bundle of the respondent was marked as bundle “R” pages 1 -34. All parties did not dispute the authenticity of the content of the bundles. Other documentation was allowed like the score sheets pages 1 to 96, Summary of interviews pages 1-3, and letters from the Head of Education to the Circuit Manager dated 29 September 2021 and the response from the SGB the Directorate: Recruitment and Selection dated 19 October 2021 pages 1-3.
* As noted previously the proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties as far as it is relevant for the purpose of this arbitration; it is by no means a minute of what transpired during the proceedings. Section 138 of the Labour Relations Act provides in subsection (7) that within 14 days of the conclusion of the arbitration proceedings-(a) the commissioner must issue an arbitration award with brief reasons, signed by that commissioner. These follow below.
Applicant’s evidence and arguments
1st witness of the applicant, Deslin Temmers, Principal, and member of the SGB, after having been sworn in, testified as follows:
9. He is employed as Principal of the Protea Primary School after he acted for three (3) years in the position, and he is now five (5) years in the position. He is also part of the School Governing Body (SGB). He was already involved in seven (7) appointments, and he was a panel member in this appointment of the Deputy Principal post. In the past he did not experience any disputes in the interview panels.
10. He was not asked to be a witness of the respondent and he was contacted telephonically about a month ago by the representative of the Department. She asked him several questions and he answered all her questions. He indicated to the representative of the applicant that he will be a witness for the applicant. He is testifying as he was not happy with the scores of some of the SGB members as it was allocated unfairly and some of them did not understand the questions and could not prove the facts on which they based their points. He refused to bring down his score as he believed that he scored correctly, and the facts met the points scored.
11. The representative referred to the bundle of the respondent at point 3 in the index and the interview questions and memorandum on page 14. The witness stated that this is the guide for the scores on the power point presentation out of a total of 15 points. All the panel members were in possession of such a guide and the best candidate was the applicant as her presentation was better that those of the successful candidate. On page 15 -19 appears the six (6) questions and how it must be scored. Each question must be scored out of ten and with the presentation the total score was out of 75. Each candidate was asked from question 1 to 6 and the panel members must write down what they said about each question. Each fact about a question that they heard and written down was then evaluated against the memorandum which the panel members received after the interviews with the two candidates. Each fact that they wrote down that corresponded with the memorandum was then counted and that represented the score out of 10 per question. The panel members were himself and Mr S Hendriks-Chairperson, Mr F Xinela – SGB, Mr S Mintoor – SGB, Mr J van Niekerk – SGB, Me J Mathys – Admin (Secretary) and Me C van Geems – WCED – Resource Person. Me October withdrawn before the process started in 2020.
12. He stated that the panel members differ on each question asked to the candidates. At the end they differ on the points as each panel member was expected to present the score on a question and then motivate the scores given. The panel members were not happy, and they asked him to lower his score, but he refused. The resource person was supposed to be Mr C Pietersen, but he was not available, and he asked Me S van Geems to be the stand in resource person. She contacted the principal and told him that Mr C Pietersen asked her to stand in for him. She was then appointed as the resource person. She was objective in the process and sorted out all unclearness and gave guidance to the panel members.
13. He stated that the resource person also gave scores, but it was not considered. She also scored the applicant as the number one candidate as she was acting in the position as Deputy Principal on a post level 2. He was referred to the minutes of the interview meeting on 20 February 2021 on pages 8 to 12 of the respondents bundle and he stated that although it was signed on page 12 it was not read afterwards as a true reflection of the process. Page 11 shows the scores that each panel member gave to the two candidates. Point 13 is however not reflected in the minutes and the combined scores indicated the successful candidate has the highest combined score, as it was decided beforehand that the candidate with the most points is the successful candidate. The scores were discussed by the panel members and read to the secretary after a motivation for their points.
14. It was put to the witness that scoresheets were prepared for both candidates in the bundle “A” of the applicant. The summary is reflected on page 93 -95 and the names of all panel members as well as the questions 1-6 plus the SBL members’ notes and scores. The notes appear from page 5-7 of the bundle for the applicant. On pages 15 to 19 appear the notes for Renaldo Leonard. The witness read the scores of Mr Steve Mintoor-SGB panel member on Question 1 to 6 as follow: Question 1 = 8 points only 6 fact = score should have been 6; Question 2 allocated 6 points, facts was 4 and score must be 4; Question 3 allocated 6 points, facts was 3 and score must be 3; Question 4 allocated 6 points, facts was 3 and score must be 3; Question 5 allocated 6 points, facts was 3 and score must be 3; Question 6 allocated 9 points, facts was 5 and score must be 5.
15. The scores of Mr F Xinela-SGB panel member for Renaldo Leonard appears on pages 22 and 23 of the applicant’s bundle as follow: Question 1 allocated 9 points, facts was 2 and score must be 2; Question 2 allocated 7 points, facts was 1 and score must be 1; Question 3 allocated 9 points, facts was 0 and score must be 0; Question 4 allocated 8 points, facts was 3 and score must be 3; Question 5 allocated 7 points, facts was 2 and score must be 2. The scores of Mr J van Niekerk on pages 29 to 30 was as follow: question 1 to 6 he allocated zero points, but when he was asked to give scores and motivate, he gave scores on all six questions to the secretary to capture on the computer.
16. The scores of Mr Samuel Hendriks appears on pages 36 and 37 for the successful candidate as follow: Question 1 allocated 8 points, facts was 4 and score must be 4; Question 2 allocated 6 points, facts was 3 and score must be 3; Question 3 allocated 6 points, facts was 3 and score must be 3; Question 4 allocated 5 points, facts was 2 and score must be 2; Question 5 allocated 8 points, facts was 4 and score must be 4; Question 6 allocated 7 points, facts was 2 and score must be 2. The scores of Me J Mathys appears on pages 43 to 44 for the successful candidate and was as follow: Question 1 allocated 8 points, facts was 8 and score must be 8; Question 2 allocated 7 points, facts was 7 and score must be 7; Question 3 allocated 6 points, facts was 4 and score must be 4; Question 4 allocated 8 points, facts was 6 and score must be 6; Question 5 allocated 7 points, facts was 6 and score must be 6; Question 6 allocated 7 points, facts was 6 and score must be 6.
17. The scores on the six questions for the applicant by the principal appears on pages 93 to 95 of the applicant’s bundle. He scores as follow; Question 1 allocated 8 points, facts was 8 and score must be 8; Question 2 allocated 6 points, facts was 6 and score must be 6; Question 3 allocated 7 points, facts was 7 and score must be 7; Question 4 allocated 7 points, facts was 7 and score must be 7; Question 5 allocated 9 points, facts was 9 and score must be 9; Question 6 allocated 9 points, facts was 9 and score must be 9.
18. The scores of Mr F Xinela for the applicant for the first three questions are as follow: Question 1 allocated 6 points, facts was 0 and score must be 0; Question 2 allocated 6 points, facts was 0 and score must be 0; Question 3 allocated 6 points, facts was 2 and score must be 2. This panel member did not understand how to allocate the points on the questions. The points allocated was not a true reflection of what happened in the interview of the applicant. Mr S Mintoor another one of the SGB panel members allocated the following points to the applicant on the six questions as follow: Question 1 allocated 5 points, facts was 4 and score must be 4; Question 2 allocated 5 points, facts was 4 and score must be 4; Question 3 allocated 5 points, facts was 3 and score must be 3; Question 4 allocated 5 points, facts was 4 and score must be 4; Question 5 allocated 4 points, facts was 4 and score must be 4; Question 6 allocated 4 points, facts was 4 and score must be 4. Some of the panel members did not understand the questions and how to allocate points according to the memorandum and they did not write down all that was said by the candidates.
19. Me J Mathys scored the following on the questions for the applicant as can be seen on page 93: Question 1 allocated 5 points, facts were 5 and score must be 5. The witness gave 8 points on the same question. Who did not listen to the answers of the applicant as there was a difference of three points? Question 2 allocated 7 points, facts was 3 and score must be 3. The witness scored 6 on the same question and that was the reason he was not satisfied with the allocation of scores. Question 4 allocated 7 points, facts was 7 and score must be 7 and comparing with the score of the witness he scored correct. Mr J van Niekerk did not allocate any scores for the applicant on any of the questions, but he gave scores on the questions and motivated the scores, and it was captured on the computer.
20. The witness was referred to page 11 point 13 and 14 in the minutes as it appears in the respondent’s bundle. He disagreed with the scores of the candidates but on the day of the interviews he agreed as most of the panel members placed the successful candidate as number 1 candidate. The points were not changed but the majority rules. The applicant was placed as candidate 2. He stated that the applicant was the best candidate as she scored the highest looking at his scores. On page 5 of the applicant’s bundle his points were 58 for the applicant and 46 for the successful candidate.
21. The witness was referred to the WhatsApp messages on page 92 between the principal and Me October. She withdrawn as panel member as she heard that the SGB will vote for Renaldo Leonard. She indicated that she did not want to be involved in this and due to the sickness of her child she withdrawn as panel member. On page 27 of the respondent’s bundle the witness read number 13, bullet point number three and indicated that it was marked as yes. He stated that all scoresheets were not submitted to the Head of Education. He read bullet point number 4 and said that it was marked as yes but it was not done as there were three candidates on the final list for interviews, but the third candidate withdrawn before the process.
22. He was asked to read bullet point 8 and stated that it was expected from the SGB to motivate the nomination of candidate 1 and 2 but he sees no motivation on pages 8 to 12. He also read the last bullet point on the interviews, and it is marked as yes. He did not ask why the applicant could not be appointed but the Recruitment and Selection department sent a letter to the SGB in which they asked why the applicant could not be appointed. Mr S Pietersen gave it to the SGB for discussion. After meeting they gave reasons in 2021 and stated that the applicant struggled with the memory stick and the laptop. Mr S Hendriks was the chairperson of the SGB, and the response was submitted to the Recruitment and Section Department by Me S van Geems, who was the resource person, and she also attended this meeting.
23. He testified that the applicant got the most points with the CBA test out of 15. On page 28 number 8 the witness read the first bullet point and it was marked as yes as he agreed that the nominations were done according to section 6(3), and all documentation was submitted. It can be seen on page 25 that the SGB nominated the successful candidate, on 20 February 2021, to be appointed as Deputy Principal at Protea Primary School. The witness did not agree with this nomination, but the SGB decided on scores and the applicant with the highest score must be nominated to be appointed. He did not agree but fit in.
24. Under cross-examination he confirmed that he was part of the interview panel and agreed that the representative of the respondent had discussions with him on 21 June 2021 as she was the newly appointed person for the case. He stated that he gave the same information to the Union. She sent an email, but she never asked him to be a witness as she accepted that the witness is going to testify for the Department. He was asked why he did not inform her when she invited him to the discussions that he was going to testify for the applicant. He stated that he was asked to join via Zoom, and he left after seven (7) minutes. He agreed that the facts written down by the panel members must be compared with the points allocated. He confirmed that he knows how appointment of candidates are working. He indicated that Mr S Mintoor was an electrician at the municipality and Mr J Van Niekerk was unemployed at the stage of the interviews of the two candidates. Mr S Mintoor was involved with the SGB since 2018 and Mr J Van Niekerk was involved for one year. They were supposed to look for key words from what they have written down on each sentence as it appears in the memorandum they received after the interviews about the six questions. He agreed that all the panel members are not writing at the same speed. They were supposed to listen to the candidates and wrote down what they said, and they could have stopped a candidate at any stage if they were behind or did not understand what the candidate said.
25. He stated that the time allocated for the power point presentation was 15 minutes and time was allocated for each of the six questions. Something that was not written down, but it was mentioned could have count as a point. The panel members had to listen with attention to what the candidate said and write it down. The expectation was not to write down everything the candidate said but could have stop the candidate and asked to repeat. None of the panel members stopped the candidate while they were answering the questions. The representative of the first respondent referred to page 14 of the applicant’s bundle and said that Mr S Mintoor made mistakes and changed 35 to 41 for Mr Renaldo Leonard. He did it over and sign next to it. He was asked whether the mistake was reported by the SGB to the Recruitment and Selection of the Department. The witness did not respond. He confirmed that point discussion took place and that was when he raised his unhappiness, but he had to fit in with the majority. He however refused to bring his score down. He was asked why he seconded the final scores of the candidates if he did not agree with it and he did not propose a counter proposal and he would not have it seconded. He agreed that he supported the nominations of the candidates and sign it. The witness stated further under cross examination that the memorandum was discussed with the panel after the interviews. He said that the facts and scores on a question did not correlate in the scores of certain panel members. They had to provide reasons, and this must proof how they get to a 7,8 or 9. Some of them could not motivate why they were given a certain point. He said that the WhatsApp’s between him and Me October happened on 4 February 2021. She said to him that the SGB was going to vote for Mr Renaldo Leonard. The representative of the respondent indicated that Me J Mathys will come and testify that the reason Me October withdrawn from the process was because of her sick child. She withdrawn in 2020 before the candidates were shortlisted and she was not part of the process. He said that the applicant was only struggling with the memory stick that was not connecting with the laptop. After she was assisted, according to him, her presentation was good.
26. Under re-examination he confirmed that some of the panel members were laypeople and what they wrote down was acceptable, but the points given was not in the notes they had taken. They did not explain when they gave high scores and if it was discussed it must be part of the minutes. Mr J Van Niekerk did not give any explanation for his zero scores on the questions for both candidates. He stated that Mr S Mintoor was previously involved in appointment processes and in the past, she did not make mistakes. He added that panel members could have used their mobile phones to record the answers of the candidates and afterwards wrote the facts and evaluate it with the memorandum given to them after the interviews. The purpose of the questions to the candidates was to get the best candidate. Under information questions by the Panellist the witness confirmed that Me October is a teacher and part of the SGB, and the resource person explained the process to the panel members. They also asked questions about the allocation of points. He confirmed that some of the panel members made mistake to the scoring of the questions to both candidates. On a question if the faults made were addressed by the resource person, the witness answered that the resource person explained how to get to the points and how to motivate the point given. Both candidates benefit from the mistakes made. However, the mistakes made prejudice the applicant.
The applicant, Louise Valentine, Departmental Head, after having been sworn in, testified as follows:
27. She testified that she is 27 years in education and was 13 years in job level 1 and 14 years a head of department at Protea Primary School. She acted as Deputy Principal at the same school from 2015 to 2019. She stated that she knows the successful candidate as she worked four years with him as she was his Deputy Principal in an acting position and before that the resource person was the Deputy Principal. She became unhappy when the position was advertised, and she heard from Me October that the panel members are going to vote for the successful candidate as the SGB wants to appoint a male. The successful candidate was also a SGB member for three years. She was aware of the issues with the points and that was the reason she did not accept the appointment of the successful candidate. She heard that some of the scores were too high, and some were too low.

28. She contacted the resource person and the resource person said that she was also not satisfied with the point allocation. She was for 12 years a colleague of the witness, and she phoned the resource person after the letter was received from the Department who enquired about reasons why they did not appoint the applicant. She never saw the letter and heard it from a colleague. The SGB gave reasons why they did not agree with the Department. She was acting in the position and the SGB sat in a meeting about the letter, and they had another meeting. Then there was silence for some time and then the announcement of the appointment of the successful candidate. Me October was her colleague, and she is an honest person and wanted to protect the applicant. The applicant stated that she did feel she must get the job, but she must have got a fair opportunity.

29. She stated that she recognises the memorandum in the respondent’s bundle on pages 14 to 19. It represents the allocation for the power point presentation. She experienced problems with the memory stick as it did not want to connect to the computer. She said that she knows how to do it. In response to the letter of the Department the SGB stated that she struggled with the power point presentation. She was shocked to here that she was not appointed due to a power point presentation. She agreed with the point allocation of the principal and one other panel member for her presentation and the answering of the six questions. The scoring of the other panel members given to her was not a true reflection what she said. She stated that the Head of Education took a decision on the scoring of the panel members. The response of Mr S Mintoor impacted on what she had said, and they were supposed to get training on what they must do as panel members. She stated that Mr F Xinela was unknown to her, but he was on the SGB and on the panel and maybe he did not understand what she said when answering the questions. She said that the successful candidate was preferred before her as he was part of the SGB and benefited because of this.

30. The principal’s scoring for her was an indication that he knows what he was talking about, and two members did not know what she said about handling of conflict. She received 291 points, and it is not a true reflection what she should have got. The nomination of the successful candidate in the letter dated 21 February 2021 (page 25) was not a true reflection as the scoring points was the final decision on who must be nominated. The successful candidate got 325 points and the scores are on page 11, reflected as 72 against 65%. Mr J van Niekerk did not score any points, but he presented and motivated points that was considered in the final decision. She said that she was the best candidate as she has many years’ experience, and she feels part of the school. She was prejudiced with the allocation of points.

31. Under cross-examination she confirmed that she is for fourteen (14) years in the position of Departmental Head. She confirmed that Mr F Xinela did not understand the questions and answers of the candidates as she can have a conversation with him in Afrikaans and the few times, they met she had to change to English. She however accepted that the panel members were properly informed about the questions. She was aware that Me October withdrawn from the panel, and she told the applicant that she knows what the decision will be, and she made this inference from discussions that she attended. She confirmed that Me October was not present in one of the interviews. She was told by the representative of the WCED that her testimony is hearsay and speculation. She stated that it took long to eventually made the appointment of the successful candidate and she was aware of the letter why she cannot be appointed as requested by the WCED to the SGB. She wanted clarity and therefore she visited her Union.

32. She confirmed that Mr J van Niekerk was a member of the SGB. At this stage she doubts all members of the SGB although Mr J van Niekerk has years’ experience at the SGB. Regarding her power point presentation, she stated that the memory stick did not want to open, and the secretary went with her to the computer room and helped her. Under re-examination she confirmed that she had one to two discussions with Mr F Xinela and his best language is English besides his home language. She stated that her interview was in Afrikaans, and she does not think he understood the questions and he struggled to correctly score the answers given. She confirmed that the secretary jumped up to assist her with the memory stick and not with her presentation.

Respondent’s evidence and argument
The first respondent called five witnesses to testify
The first witness, Sibella van Geems, Resource Person and Principal at De Heide Primary
School in Bredasdorp, after having been sworn in, testified as follows:
33. She was appointed as Principal at De Heide Primary School in Bredasdorp since 1 April 2020. She was involved in the nomination process as Resource Person in the place of Mr Pietersen, Circuit Manager of Circuit 1 in Overberg. It was the first time she served as Resource Person but previously was for seven years at Protea Primary School and on the SGB and involved in appointments. She stated that the nomination process was not unlawful, and she knows Mr F Xinela very well and she communicated with him in Afrikaans, and he always understood the content of their discussions. He can also properly read and write in Afrikaans. She was referred to the bundle of the respondent to page 15 and asked to read question 1 and the words under it in Afrikaans. She said the purpose of the six words under the question was a guidance to the panel members about possible answers and the total score can be 10. The candidate could have given more answers, but six words are mentioned. If none of the words is used by the candidate in their answers on the question, the panel members must score it according to what the candidates said out of their own context. Panel members were requested to make notes as they would have to motivate their scoring later if requested. The members wrote down what they have listened to and then score it afterwards by looking at their notes. If members differ, they could have discussed it and came to a consensus point. There was a detailed discussion before the interviews about the questions and memorandum after the panel formulated the questions and words to be present under each question. The panel got the questions and answers at least 1 to 2 hours before the candidates came in.

34. The witness confirmed that she knows Me October and she was not part of the nomination process. The criteria for the successful candidate were based on the advertisement and it was done by the Panel. Shortlisted criteria included qualifications, equity, school management and finances management. She stated that on page 10 of the respondent’s bundle, number 9, Determination of a cut-off for interview means for example if 60% was not reached then the candidate will not be shortlisted. Under number 10 it states: “Bepaling en bespreking om konsensus te bereik” means that if members do not agree on the scoring discussions and motivation will take place to reach consensus. There were discussions about the final scores after the points were read in on the computer and compared and in two occasions Mr F Xinela and the Principal had high scores, and both decided to stay at their original scores.

35. On page 11 of the bundle of the respondent under number 13 point 1 in the table it states: “Punte is deur personeellede bespreek”. There was a proposal, and it was seconded that the points were approved. This was seconded by the principal after the proposal from Mr S Hendriks that the scores must be accepted. There was no counter proposal made and the acceptance was minuted. Her role as Resource Person was as follow: (1) Supportive role if questions were asked; (2) Look at procedures and to see that procedures were fair; (3) Treat candidates with respect and see that process was ethical; (4) Verification of documentation to see whether it was valid, and nominations took place; and (5) Report on the process after it was completed. She executed her role, and she did not see anything unethical or any injustice. The panel members asked questions about the interviews and as the principal was present, he also gave guidance regarding the memorandum and the questions. These discussions were not minute word for word, and it was written in the minutes that discussions took place and consensus was reached. Regarding the power point presentation of the applicant, she said that when she arrived in the personnel room the presentation was not saved on the memory stick. The secretary walked with her to the computer room and helped her to save the presentation on the memory stick and they came back. When the memory stick was put in the computer again the presentation opened, and the applicant continued with her presentation.

36. Under cross examination she confirmed that she has 30 years’ experience in education and over two years’ experience as Principal. She followed the guidelines on e-recruitment and selection and prepared a file in advance. She had no discussions with the person that appointed her as resource person, but she knew what to do as she was involved in other processes of appointment of personnel. She agreed that she was reading from notes around her as she prepared her own notes. She was asked to only use the bundles handed in and not other documentation. She stated that Mr F Xinela understood all questions and answers as he was previously part of similar processes and none of the candidates were prejudiced with the allocation of scores. The scores allocated were correct as the panel thought about the scores and when there were big differences it was discussed, and consensus was reached. In was only in two instances where Mr F Xinela and the principal disagreed about the allocation of points. There was no matrix to mark off and scores was allocated subjectively depending on what was heard and written down.

37. She was referred to bundle “A” page 2 under point 4 and asked why two scores are so high. She stated that she cannot recall it. She stated that there was a discussion after the interviews between the panel members about the scores and other issues and they were finished by 15:30 and not at 18:00 as claimed by the representative of the applicant. She again confirmed that her scores were not included in the scores of the final two candidates. Motivation was given for the points scored by panel members and the final points were used to determine the successful candidate. On page 27 the principal prepared a motivation letter, and it was signed by him and the chairperson of the SGB. On page 25 the first candidate scored a total of 72% and the applicant 65%.

38. She was aware of the letter from the WCED regarding the applicant non-appointment as Mr Pieterson informed her and asked her to go to the SGB and facilitate the process. The people who was part of this process were the principal, Mr S Mintoor, chairperson of SGB and the new SGB members. The principal was in favour of the appointment of the applicant and the chairperson in favour of the appointment of the first candidate. Mr S Mintoor was neutral and the SGB said that the WCED to make the final appointment irrespective of the nominations. The minutes of this meeting was given to the WCED. The minutes was drawn up by the secretary of the SGB and she asked the witness information what was discussed with the SGB before the time.

39. She was further referred to page 5 of the scores of R Leonard and page 94 of the scores of the applicant. It was shown to her that Mr J Van Niekerk did not score on any of the six questions. She responded that there were scores from him and cannot understand why it was not reflected on this scanned bundle. She said it is a lie that his scores were added later on the system. She was referred to page 14 where 35 points was deleted and changed to 41. She stated that if there was a wrong calculation it can be re-calculated and changed. On page 43 to 49 appears no points on the summary form allocated by Me J Mathys on the system and the representative of the applicant claimed that it was done afterwards. The response of the witness was that the points were put down as she was sitting next to Me J Mathys to see that all points were correctly captured. On pages 65 to 70 is the scoring of Mr J van Niekerk and he did not do any scoring on the questions but his final score on page 70 is 40 plus 13 with a total of 53.

40. On page 9 of the respondents bundle in point 4 it states that if a person is to be promoted from a post level 1 to a 3 a strong motivation must be formulated by the principal and the chairperson of the SGB. The witness could not show the motivation letter in the bundle, but it appears on page 25 of the respondents bundle as decided on page 11 point 15. She confirmed that pages 26 to 27 of the respondent’s bundle represent the complete checklist and she clicked on point 5 regarding the interviews and the nomination of the first and second candidates. She however agreed that she did not receive motivations for each candidate in writing as it was done verbally during the ratification meeting. She stated that all documentation was forwarded to the WCED as they would made the appointment. The applicant received on page 57 of bundle “A” 12 out of 15 for the presentation as the chairperson indicated that she has a shortage of computer skills due to the incident with the memory stick. She did not agree with the representative of the applicant that the applicant was prejudiced by the chairperson of the SGB. She stated that in the last meeting after the letter from the District the chairperson of the SGB and the principal had opposite opinions about the appointment of the applicant.

41. Under re-examination she was referred to the scoresheets on pages 50 to 56 of Me J Mathys for the applicant. The witness confirmed that on each page scores were given for the applicant and the total score is reflected on page 52. The scoresheet for the successful candidate appears on pages 43 to 49 of the same bundle and on each page, scores were allocated.

The second witness, Jomary Mathys, Administrative Clerk, after having been sworn in, testified
as follows:

42. She was part of the Interview Panel of the Deputy Principal position, and her role was the secretary of the Panel. She was previously involved in job level 1 appointments but not in Deputy Principal position. She was on the SGB and part of the process of the Deputy Principal position. She mentioned all the names of the six members on the panel including the name of the resource person. Me October withdraw and she was not part of this process. She described the process of shortlisting and interviewing of the candidates. Time was allocated for each candidate and the first part was the power point presentation and thereafter the panel asked the questions to the candidates on an individual basis. Thereafter the shortlisted candidate could ask question to the panel. The applicant did the presentation well but experienced problems with the memory stick as the presentation was not on the stick when she opened it and the witness assisted the applicant to load her presentation on the stick. On page 43 of bundle “A” the successful candidate was given a point of 14 for presentation and the applicant 11 out of 15.

43. After the interview process the points was put together. Each member read out their scores on each question and the total scores was punched in on the excel program by the witness. She checked that each score was correctly captured for the shortlisted candidates. She was aware of the ratification meeting and the discussion was about the two final candidates. It was decided that the candidate with the highest percentage is candidate number 1 and there were no objections, and the process went well. It was decided prior to the interviews that panel members can take notes to remind them what they have heard that is not in the criteria set out for each question. Nobody was forced to make notes and each panel member decided on their own what to make notes of and then allocated points.

44. Under cross-examination the witness stated that she punched in all the scores on the excel program and everybody could see it. All the panel members asked questions and gave points to both candidates, but it seems that some of the pages do not have scores on. She confirmed that the points on the laptop screen must be on the scoresheets. Some have totals plus individual scores that corresponded with the total scores per panel member. She cannot say what scores Mr J van Niekerk allocated to each question. He gave a total score, and the applicant was not prejudiced by him only given a total score as he allocated scores to both candidates. All members gave points per question and a total score. She stated that the excel spreadsheet with the scores was part of the e-recruitment which they had to sent to WCED. She verified the totals with the scoresheets of each panel member and Me C van Geems, resource person who was sitting next to her with the scoresheets.

45. She stated that Mr J van Niekerk mentioned the scores on each question and the total was correct despite no score on the score sheets in the bundle of documents. She agreed that she only gave 11 out of 15 for the presentation of the applicant as the memory stick was part of the problem and that was her own objective score for the presentation. She agreed that she typed the minutes of the ratification meeting, and it was noted that a strong motivation must be submitted by the principal and the chairperson of the SGB for the successful candidate as he was on a Level 1 post and the position, he applied for was Level 3. She stated the WCED had to appoint the successful candidate based on points. She was aware of the letter sent by Mr D Fortuin of the District regarding the motivation of the appointment of the applicant. She was not part of the meeting as it was delivered to the SGB and at that stage she was no longer on the SGB as it was a newly appointed SGB.

46. She agreed that the applicant has no shortage of skills on the computer, but the chairperson noticed that she had to be helped to get her presentation on the memory stick. She was told that the principal testified that they had to make notes on the questions in the blank spaces. She disagreed and states that they could have make notes it was not compulsory. When it was mentioned to her that on page 51 the applicant received a score of 5 and the successful candidate 8. The principal scores the applicant on page 93 a 6 and the successful candidate an 8. She responded that there in no need that all members must have the same score on the same question. She also stated that her answers on all six questions were relevant for the points allocation as can be seen on pages 15 to 19 of the WCED bundle. If she allocated point the candidate could have said something that she had considered. She denied that she did not understand the questions and that her scoring benefits the successful candidate and discriminated against the applicant.

47. She agreed that the principal and the resource person gave guidance, and his points were in line with the questions asked but he could have missed some of the points mentioned by the candidates as all panel members listened to the candidates and scored accordingly. She said that the applicant was not prejudiced by her as she scored the applicant 11 and the successful candidate 14 on the presentation. She stated that there was a discussion about the scores and the principal and Mr F Xinela have differences about the scores, and they decided to stick to their scores. Me Sibella van Geems also scored on the questions, but she was not part of the panel, and her scores were not used. She agreed that she signed as can be seen on page 29 on the applicants bundle that all documentation was checked and sent to the WCED.
The third witness, Jacques van Niekerk, SGB member, after having been sworn in testified:
48. The witness stated that he was part of the interview panel and he served previously on the SGB, but it was the first time he was on such an interview panel. The process was explained to him, and he understood the process as well as the questions that were formulated. He was referred to page 30 of the respondent’s bundle and explained that he was supposed to fill in the columns and indicated how the candidates presented and answered the questions and gave them a score on each question. He gave a score to the successful candidate by first fill in his core by pencil and then complete it by pen. He stated that he now does not see any scores on the pages 30 to 35, but he filled in the scores as explained. He testified that the total scores on page 35 reads 42 plus 13 and a total of 55 and he stated that he wrote it, and it is his signature. He stated that he does not know how he got to the totals if no points were given on the questions. After the scoring they sat two-two together, he and Me J Mathys, to see if both completed the scores and then she put all the panel members scores on the laptop. They individually read their scores on the presentation and six questions and Me J Mathys typed it in on the system. The candidates were introduced to the panel members and then the applicant went to a separate room to prepare her presentation and thereafter she came in the interview room to do her presentation. The applicant’s presentation was good but the successful candidate’s presentation was better.

49. Under cross-examination he confirmed that he has given the applicant and the successful candidate the same score for the presentation of 13. He confirmed that he has given scores for the questions, and he does not know how the scores could have disappeared. It was also put to him that Me J Mathys never said that she verified his scores on the questions and the presentations. He responded that she knows that he completed the scores. He confirmed that he understands the questions and knows how to score it. He had pages where each of the abbreviations was explained, and he also understands it. He made notes on the other pages that is not included in the two bundles before him. He agreed that on pages 29 and 30 in the bundle before him there is no notes, but he put in the scores in pencil and later changed it with pen. He confirmed that he is not sugging the total score out of his thump as he knows that he gave the score on each question and the presentation to Me J Mathys to feed into the computer system. He confirmed that the principal and Mr F Xinela have differences about the scores, and they decided to stick to their scores. He is aware of the letter sent by Mr D Fortuin of the WCED asking for a motivation why the applicant must not be appointed. He commended during a meeting of the old SGB that the successful candidate made a difference since he arrived at the school and at the end the old SGB made the decision not to recommend the applicant for appointment.
The fourth witness, Jakobus Hendriks, former chairperson of the SGB, after having been
sworn in, testified as follows:
50. The witness testified that he was already three times serving as a SGB member. He explained the process how the six questions were formulated. The panel met and they discussed the questions to be asked to the shortlisted two final candidates. After that they finally decided on the questions and the point allocation per question as well as the point allocation for the power point presentation. They decided the six questions will be out of 10 and the presentation 15, meaning a total score of 75. They also developed possible answers per question and the resource person led them and said that each candidate can answer different, but notes can be made about answers that was given and it is not compulsory to make notes and how. He explained that regarding the presentation the panel met with the candidates, and they were individually taken to another room to prepare. Then they came to the interview room and present their presentations via power point. When the applicant arrived in the interview room there was nothing on her memory stick and she was assisted by Me J Mathys and then did her presentation.

51. After the scores were allocated, Me J Mathys prepared a spreadsheet and asked that each panel member read their points per question and the presentation point as well as the total point for her to punched it in on the computer. There were one or two differences between the principal and Mr F Xinela and no consensus could be reached as each of them decided to stick to their allocated points. All the individual panel members read out their own scores on the questions, presentation and total. He was referred to pages 29 to 35 of the bundle and he stated that he sees that Mr J van Niekerk did not have any score allocated except for a total on page 35. He stated that he has no explanation for it except that the copies are vague and if copies were made of other copies the number could be vague and not readable.

52. Under cross-examination he confirmed that he is aware of a letter from Mr D Fortuin from WCED requesting for a motivation why the applicant cannot be appointed in the position. This letter was sent to the school and a copy to all members of the old SGB plus members of the new SGB. At that stage he was no longer the chairperson of the SGB but only a member. The principal said that the old SGB must deal with the letter and Hendriks, Xinela, Mintoor and Mathys was part of the decision during several meetings. Mr J van Niekerk was present during the first meeting, but he was not present during the second meeting of the old SGB. The secretary and chairperson of all four meetings were Me J Mathys and Mr M Pietersen. The main reasons for not appointing the applicant were given as her knowledge and literacy of her computer skills and she was not the number one candidate. He nominated the successful candidate as the number one and it was seconded by Mr S Mintoor before documentation was sent to the WCED for appointment. The applicant was never recommended for the position. The panel decided if the lower position educator came out number one, the panel must motivate who is the best and recommended it to WCED for appointment. He scored the applicant on her presentation 12 and the successful candidate 10. It was said to him that on page 23 of the respondent’s bundle it states in 4.2.2 that: “Die prinsipaal kry die opdrag om die nodige adminstratiewe stukke te voltooi vir voorlegging aan Weskaap Onderwysdepartement”. The witness as chairperson of the SGB signed this motivation for the appointment of the successful candidate on 20 February 2021.
The fifth witness, Marie Louise Mocke, Directorate: Recruitment and Selection, after having
been sworn in, testified as follows:
53. The witness stated that during the appointment process she was part of a team ensuring that the administrative process was substantively and substantively fair. She was also included in making a recommendation who must be appointed. The first letter was addressed to the Circuit Manager dated 29 September 2021 and it states that: “The nominations made by the School Governing Body (SGB) to fill the post of Deputy Principal of Protea Primary School, refers. It is the intention of the Delegated Authority to appoint your second nominee, Ms L Valentine. The Delegated Authority requested that the SGB provide specific and compelling reasons why Ms L Valentine cannot be appointed as the first nominee. Kindly inform the SGB accordingly. You and the SGB’s urgent response would be appreciated”.

54. The SGB sent a response back to herself on 19 October 2021 and signed by the chairperson of the newly elected SGB. They stated as SGB of Protea Primary School that they do not agree with their intent and request clarification upon a letter that the principal of their school received from the Circuit Manager. It states that: “The previous SGB (2018-2021) followed a diligent process and made a nomination in February 2021. The candidate nominated for the post is Mr R Leonard. Since the nomination, made in February, the delegated authority has not provided us with any specific and compelling reasons as to why our first nominee, Mr R Leonard cannot be appointed for the post, but you, however, require us to do it urgently. The nomination committee followed all the guidelines set for Competence Based recruitment and selection. All candidates interviewed met the requirements to be selected for interviews. The nomination we made in February had the highest score out of two candidates that completed our practical competency task and participated in targeted interviewing questioning”.

55. Under cross-examination she confirmed that the reason why the SGB was sent this letter was because of a request from the Delegated Authority and her office responded to this request. The purpose was to decide whether to proceed with the appointment of the applicant. She confirmed that the Delegated Authority does the final appointment and any of the two nominations can be appointed. There were no compelling reasons given why the applicant cannot be appointed but only why the first nominated candidate must be appointed. She stated that as far as she recalls there was a motivation given for the nomination of the successful candidate that was appointed. It was put to her that the procedure of filling this vacancy was not procedurally and substantively fair. She responded that she was not involved in the final decision.

56. Under re-examination she was referred to page 31 of bundle “R” which states: “The SGB members were all afforded the opportunity to state why they were not in favour of Ms Valentine’s appointment. However, one of the SGB members gave a reason namely that during this changing time and technology it being essential in the education sector. He is of the opinion that Ms Valentine is not so au fait with technology based on her inability to save her practical (PPP report) on the memory stick as well as not being able to do her presentation from the memory stick. Five other SGB members were not in favour of her appointment but cited no reason why she could not be appointed”.
Closing arguments
57. The first respondent and the representative of the applicant sent written closing arguments by 29 November 2022, as agreed on 21 November 2022. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award.

Analysis of evidence and argument

58. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter. In this arbitration I am firstly going to refer to the Collective Agreement Number 3 of 2016 ELRC Guidelines: Promotion Arbitrations. Secondly, I am also going to refer to the PAM document and Resolution 5 of 2005. In Public Schools educators is appointed by the provincial HOD of the WCED as they have jurisdiction. The PAM consists of ministerial regulations that is based on the ELRC Collective Agreement. The procedure for appointment is based on Resolution 5 of 2005.

59. According to the SGB during a ratification meeting recommend to the HOD who must be appointed out of the shortlisted candidates of two. The process is as follow: (1) Vacancy that leads to an advertisement and the Interview Panel is normally appointed by the SGB and they shortlisted the candidates. (2) Then the interviews are conducted by the Interview Panel and then recommendations are made by the Interview Panel of the SGB to the HOD who to appoint. The HOD review recommendations, and the SGB may appeal.

60. The PAM, Chapter B/Resolution 5 of 2005 states that strict compliance is not necessary, and recommendation must not be obtained through undue influence. The employer becomes responsible for any unfair conduct of the SGB committee during the process leading up to the promotion. Promotion is the process where an employee is evaluated to a position that carries greater authority and greater status than the current position than the employee is employed. Employers are expected to appoint the best, strongest candidate and unless the applicant proves that she was the best of all the candidates who applied for the position, no substantive unfairness has been proved. Acting in the position of Deputy Principal for some years gave the applicant no right to be appointed.

61. The applicant, Me Louise Valentine, is currently working as a Head of Department for 14 years at Protea Primary School. She acted as Deputy Principal at the same school from 2015 to 2019. She applied for the Deputy Principal post: post 915: Vacancy list 1 of 2021 at the said school. She was shortlisted and interviewed for the post however, she was unsuccessful, but she was a second nominee. Consequently, she lodged a dispute against the said appointment process. The second respondent is Mr Renaldo Leonard, and he scored higher that the applicant in the appointment process hence the Department appointed the second respondent as he faired the best in the interviews and the SGB accepted his nomination as the first nominee at the ratification meeting, which was submitted to the HOD for appointment. Mr Renaldo Leonard was therefore appointed as from 01 January 2022 in the said post.

62. I am required to determine whether the first respondent committed an unfair labour practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA as:
e. Whether the appointment of the successful candidate by the WCED was unfair as the applicant was supposed to be appointed in the position of Deputy Principal.
f. Whether the process was procedurally defected as the SGB who did the nomination was not the same SGB who did the motivation for appointment.

In terms of appropriate relief if I find that the first respondent committed an ULP:
g. Whether the appointment of the second respondent must be set aside.
h. Alternatively, the process to be redone by the WCED and SGB.

63. In Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT (handed down on 9 May 2018) the Court emphasized that whilst in unfair labour practice disputes relating to promotion the onus is on the employee to demonstrate that the failure to promote was unfair, the employer, is in the same token, obliged to defend challenges on the substantial and procedural fairness, if it wishes to avoid a negative outcome. According to the Court, there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence, it would be irrational and unreasonable to conclude that the employer acted fairly, regardless of where the onus lies.

64. I must firstly decide whether the points allocated by the panel members were fair and correct and secondly whether the nomination of the two candidates was properly motivated. Thirdly I must decided whether the decision to give reasons why the applicant must not be appointed was done by the majority of the old SGB.

65. In the testimony of the Resource Person after she was referred to the bundle of the respondent to page 15 and asked to read question 1 and the words under it in Afrikaans, she said the purpose of the six words under the question was a guidance to the panel members about possible answers and the total score can be 10. The candidate could have given more answers, but six words are mentioned. If none of the words is used by the candidate in their answers on the question, the panel members must score it according to what the candidates said out of their own context. Panel members were requested to make notes as they would have to motivate their scoring later if requested. The members wrote down what they have listened to and then score it afterwards by looking at their notes. If members differ, they could have discussed it and came to a consensus point. There was a detailed discussion before the interviews about the questions and memorandum after the panel formulated the questions and words to be present under each question. The panel got the questions and answers at least 1 to 2 hours before the candidates came in. There were discussions about the final scores after the points were read in on the computer and compared and in two occasions Mr F Xinela and the Principal had high scores, and both decided to stay at their original scores. The Resource Person confirmed that a motivation was given for the points scored by panel members and the final points were used to determine the successful candidate. On page 27 it states that the principal must prepare documentation for a motivation letter, and it must be signed by him and the chairperson of the SGB. The motivation letter appears on page 25 of the bundle of the first respondent.

66. It is the submission of the representative of the first respondent that there was a discussion of scores and as a result thereof a change in scores occurred by the SGB. Me C van Geems testified that “Punte bespreking” on page 11 no 13 in the evidence bundle of the Department means that to reach consensus about points, a discussion about it is allowed. She further confirmed that a discussion about scores given by Mr F Xinele and the principal did take place and both parties decided not to change their scores given to the candidates and it was indicated in the minutes as such. There was no further change of scores that took place in this meeting when the scores were discussed. The representative of the first respondent questioned the principal about point no 14 on page 11 in the respondent’s bundle as to why he did not let the panel know that he was not satisfied with the points given to the candidates. He responded that most of the panel were satisfied with the points, so he seconded their nomination of R Leonard since “majority rules”. From the aforementioned it is clear that the principal seconded and support the nomination of the appointment of the successful candidate although he gave the highest points to the applicant.

67. She further submitted that the representative of the applicant never questioned Me C van Geems during his cross-examination about his allegations that she requested the SGB members to explain why they gave Mr R Leonard higher marks than they gave Me L Valentine. She testified that the purpose of the memo printed on the score sheets below the questions, were to give the panel guidelines as to the possible answers that would be accepted when it would be given by the candidates during the interview. She further testified that candidates answer questions in the context of their experience so it would be unrealistic to expect answers or key words that corresponds 100% as appeared in the memo. Under cross-examination she responded that she did notice that some of the SGB members did not make any notes on their score sheets, but it would have been unethical to hand those scores sheets back to the panel members as it did not invalidate the score sheets and no legislation exist that compel SGB members to make notes on their score sheets. She stated that it was explained to the panel how the score sheets should be completed so if the panel member did not make notes, they cannot be forced to make notes on the score sheets. It is clear from the aforementioned and it was confirmed by the testimony of other panel members that they were not obliged to make detailed notes of everything that was said by the two individual candidates.

68. Me J Matthys corroborated Me C van Geems’ testimony that questions need not be the same as the suggested key words or memo given to the panel. She emphasised that possible answers to the questions were accepted by the panel as it was not compulsory for the panel to write down notes when scoring. The applicant’s witness, Mr D Temmers also testified that “possible answers” given by the candidates would be accepted in the interview. Me J Matthys confirmed that Mr J van Niekerk read his scores to her, and she also could not explain why there were no scores on Mr J van Niekerk’s score sheet because she saw that he wrote down his scores. The representative of the first respondent submitted that Me J Matthys’ score sheets for Me L Valentine and Mr R Leonard are both in ink but were also very light. The scores written by her on page 45, 49, 52 of bundle “A” is so light that it cannot be seen at all and appears as if she did not score the candidates on those pages.

69. Mr S Hendriks, SGB chairperson testified that panel members were not compelled to make notes on the score sheets and that each member were allowed to use their discretion with regards to writing notes on the score sheets. The representative of the first respondent submitted when she referred Mr S Hendriks to Mr J van Niekerk’s scoresheet, he was surprised to see that no scores appeared on Mr J van Niekerk’s score sheet. He explained that the scores may have gotten lighter when copies were made of it, hence the reason why his scores are not visible, but he said that he witnessed Mr J van Niekerk reading his scores to Me J Matthys after the interview process was completed. Mr J van Niekerk testified that he understood how the score sheets had to be completed and that he remembered giving scores to each of the candidates. He further testified that after the panel has completed their score sheets, every panel member read their scores out to Me J Matthys who typed the scores on a spreadsheet. Under cross-examination he replied he cannot give an explanation why his scores do not appear on his score sheet, but that Ms J Matthys who sat next to him would have said something to him about it if she noticed that he did not give scores.

70. It is the further submission of the representative of the respondent that the applicant’s witness, Mr D Temmers testified when asked about whether Mr J van Niekerk’s scores were also read, that Mr J van Niekerk did read his scores to Ms J Matthys. It should be noted on page 64 and page 29 of Mr J van Niekerk’s score sheet that he gave the same scores to Me L Valentine as to Mr R Leonard. On page 70 and 35 of his score sheets for Me L Valentine and Mr R Leonard it can be seen that Mr J van Niekerk scored Me L Valentine a 13 out of 15 for the power point presentation. According to the representative of the first respondent this is clear evidence of fair and non-bias scoring by Mr J van Niekerk. Regarding the power point presentation of Me L Valentine, she was assisted by Me J Matthys to save her presentation on her flash drive when she discovered that she had not done it which is a clear indication of fairness and reasonableness on the part of the panel, bearing in mind that the interview processes are very unnerving and stressful. According to the representative submissions Mr J van Niekerk scored Mr R Leonard 13 out of 15 and he also scored the applicant the same. Mr J Hendriks scored Me L Valentine 12 and for Mr R Leonard 10 out of 15.

71. She further submitted when asked by the representative of the applicant why Me Mocke asked for compelling reasons why Me L Valentine was not nominated for the post, she responded by saying that it was not her request, but the Delegated Authority’s request for compelling reasons. She further testified that a submission was drafted by her team which included the reason why the SGB was not in favour of Me L Valentine being appointed. Me Mocke explained that she forwarded the submission to the Delegated Authority who made the final decision of appointing Mr R Leonard as Deputy Principal. She finally submitted that the process of filling of any post by the SGB, a group of laypersons, would never run with mathematical precision and that panellists are entitled to consider subjective considerations such as performance at an interview. There is credible evidence from the interview questions score sheets before the respondent that the applicant was not the best performer during the interviews, but that Mr R Leonard performed better than Me L Valentine during the interviews. The fact that the applicant contends that she was the better candidate and that she has the qualifications to occupy the post as Deputy Principal does not constitute an unfair practice that warrants relief that the appointment of Mr R Leonard be set aside.

72. Me C van Geems the Resource Person testified that she was aware of the letter from the WCED regarding the applicant non-appointment as Mr Pieterson informed her and asked her to go to the SGB and facilitate the process. The people who was part of this process were the principal, Mr S Mintoor, Mr F Xinela, Mr S Hendriks the chairperson of SGB and the new SGB members. The principal was in favour of the appointment of the applicant and the chairperson in favour of the appointment of the first candidate. Mr S Mintoor was neutral and the SGB said that the WCED to make the final appointment irrespective of the nominations. The minutes of this meeting was given to the WCED. The minutes was drawn up by the secretary of the SGB and she asked the witness information what was discussed with the SGB before the time. It is therefore clear that the at least four of the old SGB were present at this meeting and the SGB said that the WCED to make the final decision.

73. The representative of the applicant referred to the bundle of the first respondent at point 3 in the index and the interview questions and memorandum on page 14. The principal stated that this is the guide for the scores on the power point presentation out of a total of 15 points. All the panel members were in possession of such a guide and the best candidate was the applicant as her presentation was better that those of the successful candidate. On page 15 -19 appears the six (6) questions and how it must be scored. Each question must be scored out of ten and with the presentation the total score was out of 75. Each candidate was asked from question 1 to 6 and the panel members must write down what they said about each question. Each fact about a question that they heard and written down was then evaluated against the memorandum which the panel members received after the interviews with the two candidates. Each fact that they wrote down that corresponded with the memorandum was then counted and that represented the score out of 10 per question. The panel members were himself and Mr S Hendriks-Chairperson, Mr F Xinela – SGB, Mr S Mintoor – SGB, Mr J van Niekerk – SGB, Me J Mathys – Admin (Secretary) and Me C van Geems – WCED – Resource Person. As principal he admitted that the resource person was objective in the process and sorted out all unclearness and gave guidance to the panel members.
74. The principal testified under information questions that panel members also asked questions about the allocation of points. He confirmed that some of the panel members made mistake to the scoring of the questions to both candidates. On a question if the faults made were addressed by the resource person, the witness answered that the resource person explained how to get to the points and how to motivate the point given. Both candidates benefit from the mistakes made. However, the mistakes might prejudice the applicant.

75. It is the submission of the representative of the applicant that the key question is, why did the WCED/Head of Education request the SGB to provide reasons for the non-appointment of the applicant? It is simply because there was no brief motivation given by the SGB for their recommendation as required and that they acknowledged that the successful candidate was on a post level one with no experience as a Deputy Principal. The Director Recruitment and Selection made it clear during cross examination that in such an absence of a brief motivation her team will send the documentation back to the SGB. The applicant was prejudiced by the SGB because the reasons for her non-appointment was based on her lack of computer skills. It is obvious that there were no shortcomings in her computer skills. The SGB chairperson unilaterally decided to mislead the department by provide this untrue motivation which resulted in her not being appointed in the post. The SGB agreed that a brief motivation will be done by the principal, but it was not done. The SGB decided that a brief motivation must accompanied the nomination for Mr Renaldo Leonard because he was post level 1.

76. He further submitted that the Department made an appointment in the absence of very critical information and therefore did not make the correct appointment. Me L Valentine was clearly under scored by the interview panel. The principal’s scores 58 for the applicant and 46 for Mr R Leonard reflects the true performances of the two candidates. The principal who are ex-officio on the SGB, very experienced, acting as advisor for the SGB questioned the high marks of panel members. He expressed his severe unhappiness about the scoring especially the high scores for Mr R Leonard. The principal was overruled by the majority which led to the appointment of Mr R Leonard. The specific disagreements on marks between panel members were not minute which raises further concerns. It was however testified by most of the witnesses that the principal and Mr F Xinela differ on scores and the final decision was that they stick to their respective scores. It is my decision as arbitrator that the principal was not overruled by the other panel members of the SGB as he seconded the nominations as presented. I further find that the scores allocated was a true reflection of how individual panel members subjectively evaluated the two candidates.

77. It is his further submission that the absent marks of Mr J van Niekerk also substantiate the unfairness. It is a fact that Mr J Van Niekerk has no allocation of marks for the questions but ended up with a summative score. He persistently said that he did read out his marks for each question with no evidence thereof. He also could not explain why there was no marks for each question on his score sheets. As arbitrator I find that that indeed the scores of Mr J van Niekerk is not reflected on his score sheets for each question, but he provided a total score for each candidate. Even if his scoring is totally ignored, it will not change the ranking of the successful candidate and the applicant as number 1 and 2 candidates.

78. It is the representative of the applicant’s further submission that the many contradictions in the testimonies of Me C van Geems, Me J Mathys as well as Mr J Van Niekerk about the absence of disappearance of Mr J van Niekerk’s scores, confirms the irregularities in the process. It is obvious that Mr J van Niekerk did not score the candidate for answers as given as there is no prove of such on scoring sheets. Any reasonable employer would have requested an explanation for such discrepancy before making an appointment. The principal testified that all panel members were supposed to make notes on what the candidates answered. The panel agreed that answers of candidates will be written down and scoring will be done based on how many facts they provide as answers. If this was not compulsory, why was all panel members issued with score sheets as such. Looking at the drafting of the score sheets it is very clear that notes were expected to be issued as there was enough spaces provide on each score sheet. Most panel members made notes on the sheets. When one looks at all the notes and compare it with its other it is evident that some panel members did not understand the questions and answers given by the candidates. Mr Samuel Hendriks scored Me L Valentine only 4’s and 5’s whiles all other panel members scored her 6,7,8 without any explanation for the same answers given. When one looks at what his scores for Mr R Leonard it is obvious that he favoured him and was biased in his scoring. It is very evident that the scoring was not fair and just in this process. As arbitrator I further find that all panel members understood the questions and memorandums and answers that was given by the candidates. Scores on different questions can differ between panel members as not all panel members will score a candidate the same. It is a subjective scoring on what they heard and wrote down in their notes. I find not unfairness in the scoring if the individual panel members.

79. A critical indicator of such conclusion is when we compare the scores of the principal against those of all panel members. The principal took a bold stance to come and testify in these proceedings for only one reason and that is to exposes the unfairness and prejudice towards Me L Valentine as the second nominated candidate. He made it clear that Me L Valentine was the best candidate. The Resource Person admitted that she also scored candidates. She did that to assess if scoring of the other panel members is consistent and fair. He acknowledged that her score had nothing to do with the nomination. There was a dispute/disagreement regarding the scores amongst the SGB members. All panel members were issued with a memorandum for answers with the purpose to guide them in terms of scoring. This memorandum was not consistently and fairly used by all panel members as some members did not allocate scores for answers which were given by candidates. Looking at the scoring made by the principal, it is very clear that he used the memorandum fairly and consistently as a guide in his scoring.

80. He further submitted that a letter was sent to the SGB to provide reasons why the second candidate must not be appointed. It is a fact that only the SGB chairperson of the process responded unilaterally to the employer with an untrue motivation which prejudiced our member, Me L Valentine. It is obvious that the Head of the Department or delegated authority appointed Mr Renaldo Leonard based on the response of the SGB chairperson. The representative of the applicant argues that the HOD would have consider the views of the principal given his position on the SGB and his role as a principal. There was CBA tests done by Recruitment and Selection (WCED) on the two highest scored candidates. The applicant who was ranked number two whom is Me L Valentine passed the CBA test whiles Mr Renaldo Leonard who was ranked number one candidate failed the test. In fact, he only passed one division of the test. This issues further proof that Me L Valentine was indeed the best candidate for the post. Applicant was the best candidate for the post considered the answers she gave to all questions and especially her experience which was demonstrated in her the interview process. The only untrue reason for her non-appointment was her lack of computer skills. It is very evident that the SGB chairperson manipulated the process as he took a unilateral decision to provide untrue reasons for why Me L Valentine is not the best candidate which was in contravention of the PAM and resolution 5 of 2005 for reasons unknown. The principal’s motivation why Me L Valentine was the best candidate was overruled by most panel members and not submitted as part of the records to the HOD for appointment. “Governance structure must keep precise record and minutes of all the proceedings for future references, especially with the view to possible disputes” It is evident that there were no minutes for the meeting where the reasons were given why Me L Valentine must not be appointed which confirms the unfairness in this appointment by the WCED. The minutes also does not reflect the specific reasons why Mr R Leonard as a post level one educator must be appointed. No brief motivation for such decision is captured in any minutes except for his scores which made him ranked number one. I as arbitrator find that indeed the minutes reflected why the successful candidate must be appointed as he scored a total score of 325 points out of 450 which represents 72% and the applicant scored 291 which represents 65%. The panel decided that the candidate with the highest score on the power point presentation and the six questions will be nominated to the provincial HOD for appointment.

81. In Kimberley Junior School v The Head of the Northern Cape Education Department [2009] 4 All SA 135 (SCA) the judge ruled that the Employment of Educators Act requires the governing body to make a recommendation to the provincial HOD. No appointment, promotion, or transfer to any post on the educator establishment of a public school, may be made without the recommendation of the governing body of the public school. A recommendation by a school governing body is an essential prerequisite for the appointment of an educator in a departmental position; without such a recommendation the HOD acts ultra vires and unlawful. The representative of the applicant argues that the recommendation of the SGB was unlawful as it did not included reasons for the ranking of the candidates but only that of the SGB chairperson. This recommendation was done by the Chairperson of the SGB after the nomination process was concluded. There was no brief motivation given in the ratification meeting by the SGB to the HOD. They only provided their scores which assist them in the ranking of the candidates. No motivation why Mr R Leonard was ranked number one and Me L Valentine ranked number two. “At the conclusion of the interviews the interviewing committee shall rank the candidates in order of preference, together with a brief motivation, and submit this to the school governing body for their recommendation to the relevant employing department. The governing body must submit their recommendation to the provincial education department in their order of preference” This was not done and therefore makes the appointment unlawful. It is therefore necessary for the full governing body to ratify the recommendation of the interview committee, and it is the governing body, and not the interview committee who must send a recommendation to the HOD. This was confirmed by the Western Cape Provincial Chamber of the ELRC in 2002 when they collectively agreed and declared: “The governing body, not the interview committee, must submit its recommendation in order of preference to the WCED”.

82. I find as arbitrator that the principal must get the documentation both him and the chairperson was allocated to formulate the motivation letter with reasons to the Provincial HOD. The principal did not involve himself in the drafting of this motivation letter and the letter was then signed by the secretary and SGB chairperson on 21 February 2022 as can be seen on page 25 of the first respondent’s bundle on behalf of the SGB. Therefore, the interviewing committee ranked the candidates in order of preference, together with a brief motivation, and submit this to the school governing body for their recommendation to the relevant employing department.

83. After made an analysis of the aforementioned regarding the interview and appointment process, I find that the SGB is entrusted with the duty of nominating a suitable person for a post, but the final decision is still that of the Department (HOD) to appoint. In this case the Department appointed the first nominee as accepted by the interview panel and SGB during ratification as the suitable candidate for appointment. After the letter to them by the HOD why the applicant must not be appointed the old SGB responded, and the successful candidate was appointed by the WCED. I further find that there was no objection raised by the principal of the school against the nomination at the ratification meeting and he seconded the nomination of the successful candidate as no 1 and the applicant as no 2. The majority decision of the SGB at the ratification meeting to approve the nomination of the candidates to the HOD and the appointment of the second respondent was a fair decision based on points given and was not biased and unfair.

84. An employee who alleged that she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. She must do more than just demonstrate that she has the minimum advertised qualifications and experience. She must allege and prove that the decision not to appoint her was unfair. It depends upon the circumstances of a particular case and essentially involves a value judgement.

85. The arbitration of a promotion dispute entails a review of the employer’s decision. In applying the Sidomo test to promotion disputes, it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair. A recommendation by a School Governing Body during and after a ratification meeting is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such a recommendation the promotion is ultra vires and unlawful. In this case the ratification meeting took place and most of the panel member and confirmed by the SGB were in favour of the nominations of the candidates to the HOD.

86. Substantive unfairness relates to the reason for not promoting the applicant whereas procedural unfairness relates to an unfair process applied by the employer during the recruitment and selection process. There is no general right to promotion. What employees do have, is a right to be fairly considered for promotion when a vacancy arises. It is however expected that the employer should appoint the best candidate when selecting suitable candidates for promotion. The role of the arbitrator is to oversee that the employer did not act unfairly against the applicant who was not promoted. The decision to promote falls within the managerial prerogative of the employer. I find that in the absence of gross unreasonableness or bad faith and where the decision relating to promotion was not seriously flawed, the arbitrator should not readily interfere with the exercise of the discretion.

87. The Department is of the view that the applicant was not prejudiced and that the process for the filling of the post of Deputy Principal at Protea Primary School was fair and that no unfair labour practice exists.

88. When deciding whether a procedure conducted in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should not make a finding of procedural unfairness. Where an applicant in a promotion dispute, is unable to prove that she was the best of all the candidates who applied for the job, then for the employee to prove an unfair labour practice relating to promotion, she should generally, at least demonstrate that there was conduct that denied him a fair opportunity to compete a post.

89. In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.

90. I find that the procedure followed by the interview panel constituted by the SGB was appropriate and the applicant was not prejudiced in any way as she was shortlisted and interviewed and was nominated as one of the top two candidates. There was no conduct that denied her a fair opportunity to compete in the post as Deputy Principal.

91. I further find that the interviewing, scoring, and ratification process was not flawed. The applicant requests for the process to be repeated and this cannot be done as the correct procedures were followed to appoint the successful candidate. There was no discrimination against the applicant and the decision not to appoint her was not grossly unreasonable. In procedural fairness strict compliance with the guidelines for appointment provided for in the PAM is not necessary. The applicant could not prove that she was the best candidate for the position except for herself (mostly hearsay evidence) and the principal who preferred her from the beginning of the process.

92. As indicated, the applicant bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. From a procedural aspect I am satisfied that the applicant did not suffer prejudice during the recruitment and selection process for the promotion post. I find that the procedure followed by the SGB was fair and that no unfair labour practice was committed by the first respondent to appoint the second respondent and not the applicant. Therefore, there is no need that the process must be redone and that the appointment of the second respondent must be set aside.

93. Considering the above I make the following award.

AWARD

94. The first respondent did not commit an unfair labour practice in the non-appointment of the applicant and the appointment of the second respondent for the advertised position of Deputy Principal at Protea Primary School at a post level 3 (915).

95. There is no order as to costs.

Signature:

Panelist: Gert van der Berg
Sector: Western Cape Department of Education