ELRC863-21/22GP

Case Number: ELRC863-21/22GP
Commissioner: Leanne Alexander
Date of Award: 01 March 2023

In the ARBITRATION between:
Merriam Innocentia Nombulelo Ngulube
(Applicant)
And
Gauteng Department of Education
(First Respondent)
And
Mmule Gloria Makeketa
(Second Respondent)
Applicant’s representative:
Applicant’s address:
Telephone:
Telefax:
Email:
Respondent’s representative:
Respondent’s address:
Telephone:
Telefax:
Email:

Details of hearing and representation
1. The arbitration took place at Tshwane North District Office (11 Lavender Road Wonderboom Junction) over several days 10 June 2022, 8 July 2022, 29 July 2022, 30 August 2022, 30 September 2022, 26 October 2022, 27 October 2022, 18 November 2022 and 27 January 2023.
2. Mr Bareng Mokoena, an Attorney (Bareng Mokoena Attorneys), represented the Applicant. The Applicant, Ms Merriam Innocentia Nombulelo Ngulube was also present in the proceedings.
3. Mr George Mbonde, represented the Respondent. The second Respondent, Ms Mmule Gloria Makeketa, was also present in the proceedings.
4. Ms Mpotseng Moloi, an Interpreter, interpreted for the Applicant in Setswana.
5. The proceedings were conducted in English.
6. The Applicant referred an unfair labour practice dispute in terms of Section 186 (2)(a) of the Labour Relations Act, Act 66 of 1995 (“LRA”) on 10 February 2022.
7. The matter was set down for conciliation proceedings on 9 March 2022, the matter subsequently remained unresolved and a certificate of non-resolution was issued.
8. The matter was thereafter, set down for arbitration proceedings on the above said dates.
9. The matter was postponed on 10 June 2022.
10. In terms of Section 138(7) of the “LRA” “within 14 days of the conclusion of the arbitration proceedings (a) the commissioner must issue an arbitration award with brief reasons”.
11. The matter followed an inquisitorial approach.
12. The hearing was digitally recorded, and manual notes were also taken.
13. I must place on record that both parties agreed to submit closing arguments in writing by close of business on 10 February 2023. The Respondent’s arguments were received on 10 February 2023, and I received the Applicant’s arguments on 13 February 2023. The submissions were duly considered.

The issue’s to be decided
14. Whether the 1st Respondent had committed an act/omission of unfair labour practice in relation to the non-promotion of the Applicant. Should I find that the non-promotion was unfair, I am required to grant the appropriate relief in accordance with the provisions of the LRA.

The background to the dispute
15. It was common cause that the Applicant was employed as a Post Level 2 Educator (Department Head) since 1 July 2013.
16. The Applicant worked a 5-day week, at an average of 7 hours per day.
17. The Applicant is still in the employ of the Respondent.
18. The Applicant earns a monthly salary of R33, 646-32.
19. The Applicant sought to be placed in a role of a Deputy Principal and sought equitable compensation.

Summary of evidence and argument
The testimony led by the witnesses’ is fully captured on the recording of the proceedings. What follows is a summary of the material and relevant issues I must determine.

Applicant’s case
Ms Merriam Innocentia Nombulelo Ngulube
20. The Applicant testified under oath that she was a Post Level 2 Educator (Department Head).
21. The essence of the Applicant’s testimony inter alia was that she had been employed by the First Respondent for several years and had been employed at Modiri Secondary School for 9 (nine) years.
22. She said that she held several roles including School Assessment Team Member (“SAT”) since October 2016, School Based Support Team Member (“SBST”), Co-ordinator (admission process) for the period from 2019 to date and had been appointed by the Principal as part of the Secondary School Improvement Program (“SIP”) during the period from 1 June 2022 until the end of 2021. Furthermore, she formed part of the School Governing Body (“SGB”) for the period from 1 April 2018 to 2020.
23. She submitted documentary evidence of a “Vacancy circular 04 of 2021: Promotion (PL 2-4) and Chief/Education Therapists post (April 2021)” where it was submitted that a “Deputy Principal post level 3” was vacant.
24. She submitted documentary evidence of “Gauteng Department of Education – Vacancy circular 04 of 2021” where the minimum experience requirement for a Deputy Principal post was “5 years”. Where she said that she had 9 (nine) years and 4 (four) months of experience.
25. She submitted documentary evidence of the “Personnel Administrative Measures” (“PAM”) where it was submitted that the “terms and conditions of employment of educators determined in terms of section 4 of the Employment Educators Act, 1998”) furthermore “in order to qualify for appointment as an educator a person must have at least a recognized three-year qualification (REQV13) which must include appropriate training as an educator".
26. She said that she was more than qualified for the role that she applied for and taught mathematics (grade 11 and 12’s), physical science (grade 10) and life orientation (grade 11) during 2021. During 2022 she taught Maths literacy (grade 10) and Physical science (grade 10).
27. She submitted documentary evidence of her “application form” for the role she applied for (Deputy Principal).
28. She said that her role as a PL2 formed part of Management and in terms of her qualification she held a Matric, Bachelor of Science degree, Bachelor of Science (Honours in Physics) and a Post Graduate Certificate in Education (“PGCE”) and was registered with the South African Council for Educators (“SACE”).
29. She said that after she was interviewed several, rumours followed her thereafter, however the Second Respondent, Ms Mmule Gloria Makeketa, was appointed from February 2022 and she was not recommended for the role in which she had applied for.
30. She submitted documentary evidence of the “shortlisting minutes” where it was submitted that “the SGB Chairperson called the following persons in front of all present, including Trade Unions representatives….” “Makeketa MG score obtained 38, Tloubatla MM score obtained 37, Musi AN score obtained 35, Mathebula MM score obtained 35, Ngulube MIN score obtained 34, Mnisi SJ score obtained 32 and Phiri HJ score obtained 32”.
31. She submitted documentary evidence of the “Interview minutes” where the persons present did not indicate that Mr Msweli was there, yet he was in attendance.
32. She said that across 8 (eight) questions which were asked the highest-ranked score was herself at a score of “203” (two hundred and three).
33. She submitted documentary evidence of the “interview minutes” and the “final ranking scores” which were signed by the SGB Chairperson, Mr Matshele, and the Secretariat, Mr Dipole, on 27 August 2021.
34. She submitted documentary evidence of the “short listing recommendation/submission” where it was submitted that “4 (four) names were submitted to the SGB. Ratification meeting was held on 29 August 2021. Ratification discussion meeting in terms of paragraph 3.10.1 of the Collective Agreement 2 of 2005 was held on 3 September 2021”.
35. She said the document indicated that 4 (four) names were submitted, yet 7 (seven) names were submitted.
36. She said that she scored the highest, yet her name did not appear on the recommended candidates list, therefore the process was unfair, baseless and arbitrary.
37. She submitted documentary evidence of the presentation of the “SGB Ratification discussion meeting held on 3 September 2021” and the “Collective Agreement 2 of 2005” where it was submitted that “3.10.1 should the SGB/FET Councils not agree with the recommendation of the interviewing committee it must reconvene the interviewing committee and the observers for discussion”.
38. She submitted documentary evidence of the “GDE Recruitment and Selection Policy” where it was submitted that the “SGB must convene a meeting with all SGB members to provide feedback. This meeting cannot be used to change the outcome of the process except where there are procedural flaws e.g. score calculations”.
39. She said that there were no procedural flaws and there were no provisions wherein the SGB were entitled to change or alter the outcomes from the selection panel.
40. She said that in terms of the claims that “high scoring was biased to a certain candidate” the interviewing panel had not raised any concerns and all of candidates were interviewed by the same panel, therefore if that were the case then the process should have re-started.
41. She submitted documentary evidence of the “SGB Ratification discussion meeting held on 3 September 2021” where it was submitted that the SGB Resolution – the school needs a female person as Deputy Principal; and with different stream of specialization (not maths and science) and with General Education and Training (“GET”) practical management experience and a reasonable lot of years with managerial experience”. She said that these requirements were not included as criteria in advertisement for the Deputy Principal’s role.
42. She said that the SGB looked at criteria including “HOD’s departmental success” and “knowledge of school policies” which were not part of the criteria as per the advertisement, and she had never been subjected to disciplinary action nor subjected to performance management, throughout her employment period with the First Respondent.
43. She submitted documentary evidence of her “performance measurements” where it was submitted that during 2020 the score that she obtained was 127/168 and during 2021 the score that she obtained was 137/168, which was required to qualify for salary progression, therefore it was an above average score.
44. She said that the allegations of the SGB that she was a poor performer were simply not true and she had been appointed by the Principal on the “SIP” Program and formed part of the SGB. Therefore, the same criteria should have been used consistently across all of the candidates and the First Respondent should have records to substantiate their statements.
45. She submitted documentary evidence of the “performance records” for the periods 2019, 2020 and 2021.
46. She said that the advertisement did not specify that historical performance records would be considered.
47. She submitted documentary evidence of a “SGB ratification special meeting – attendance register – 3/09/2021”.
48. She said that Mr Nkgodi’s signature on the attendance registers differed from the “shortlisting for the advertised post – Deputy Principal” list.
49. She said that some of the persons who attended the “SGB ratification meeting” as per the attendance register namely, “PM Masiane, GL Lengana and M Nkgodi” were not part of the SGB.
50. She submitted documentary evidence of the “GDE recruitment and selection policy” where it was submitted that “the SGB must convene a meeting with all the SGB members to provide feedback. This meeting cannot be used to change the outcome of the process except where there are procedural flaws e.g., score calculations”.
Under cross-examination (only concessions or significant versions put are recorded)
51. The Applicant explained that the selection committee was constituted by the SGB, and the selection committee was accountable to the SGB.
52. The Applicant explained that the SGB must explain why they declined the selection panel’s recommendations as they claimed “bias” and that was the reason why they had excluded her.
53. It was put to the Applicant that the SGB complied with clause 3.10.1 and furthermore the interview committee, the unions and observers did not object.
54. The Applicant disputed this statement.
55. It was put to the Applicant that the SGB in terms of Section 6(3)(c) of the Employment Educators Act must submit “at least 3 (three) names of recommended candidates”.
56. The Applicant conceded to this statement.
57. It was put to the Applicant that based on the candidate’s application forms the successful candidate had 14 (fourteen) years of managerial experience versus her 4 (four) years and 6 (six) months of managerial experience which indicates that the Second Respondent had superior managerial experience as compared to herself.
58. The Applicant conceded to this statement and submitted that was not indicated on the criteria for the role.
59. It was put to the Applicant that a 3 (three) year teaching qualification versus a PGCE of 1 (one) year was vastly different and the 3 (three) year teaching qualification was superior.
60. The Applicant disputed this statement and submitted that if the years were less, it did not necessarily mean that the person knew less, and the qualifications were the same.
61. It was put to the Applicant the fact that a person achieved the highest scores did not necessarily mean that they would be appointed in the role.
62. The Applicant disputed this statement and submitted that her name was removed from the recommended candidates.
63. It was put to the Applicant that based on the Second Respondent’s experience and qualifications the Respondent’s decision to employ her was not unreasonable.
64. The Applicant disputed this statement and submitted that she had 5 (five) years of experience and she was shortlisted which meant that she met the requirements of the role.
65. It was put to the Applicant that she was not the preferred candidate from the SGB.
66. The Applicant disputed this statement and submitted that the “SGB resolution” of a female candidate, with different fields of specialization and with “GET” practical management experience was not stated in the advertisement of the role and therefore put her at a disadvantage to disqualify her.
67. The Applicant explained that she resigned from the SGB at the end of June 2021, due to conflict that arose.
68. It was put to the Applicant that the 2019 mathematics results were a horror story wherein 32 (thirty-two) learners obtained a level 1 score (less than 30%) which meant that 32 (thirty-two) learners failed out of 53.
69. The Applicant conceded to this statement and submitted that several interventions occurred to track/profile learners whilst she worked late and on Saturdays to try and improve the performance.
70. The Applicant explained that during 2019 she did not teach Physical Science and Mathematics as the learners did not want to be taught by herself and the subjects were given to her colleague, Mr Tlou.
71. It was put to the Applicant that during 2020 Mathematics pass rate was 47.6% which was an under-performance and out of 63 (sixty-three) learners for physical science only 59 (fifty-nine) obtained a score of less than 50%, which were dismal results.
72. The Applicant conceded to this statement and submitted that no human being could be satisfied with such results, however interventions were put into place in order to improve them.
73. It was put to the Applicant that on the “SGB ratification attendance register” PM Mashiane and M Nkgodi, were Union representatives and GL Lengana was a member of the panel.
74. The Applicant conceded to this statement.
75. It was put to the Applicant that the SGB acted in compliance to clause 3.10.1 of the Collective Agreement.
76. The Applicant disputed this statement and submitted that only 1 (one) member of the SGB were present and the other 3 (three) members were not in attendance.
77. It was put to the Applicant that Mr Dipole was a witness in these proceedings, and he had issued invitations to all members for them to attend the meeting.
78. The Applicant disputed this statement and submitted that the previous witnesses disputed receiving such invitations.
79. It was put to the Applicant that the ranking by the SGB members were not based on the interview scores but based on the order of preference.
80. The Applicant conceded to this statement and submitted that 4 (four) names were recommended to the SGB.
81. The Applicant explained that after the interview process the SGB indicated that they were looking for a “specialist” and there were no sound reasons provided for doing so.

Point in limine
82. The Respondent requested to submit an additional bundle of evidence in terms of the academic results obtained.
83. The Applicant opposed this as pre-arbitration minutes were concluded and there had already been an exchange of bundles, furthermore the performance records were not relevant in these proceedings.

Ruling
84. In the interests of justice and fairness afforded to both parties, the additional evidence would be permitted. Parties are to exchange the additional bundles by no later than close of business on 2 August 2022, both parties would then be entitled to re-open their case in the interests of justice and fairness.

85. It was put to the Applicant that the SGB had a sole discretion to disagree with the outcome of the interview panel.
86. The Applicant disputed this statement and submitted that as per the policy it was only for “procedural flaws”. Furthermore, the panel indicated that there was “bias against a certain candidate”, yet the same panel continued to use the same scores therefore it did not make any sense.
87. The Applicant explained that the SGB’s “top 4 candidates” on their presentation did not match the

Re-examination
88. During re-examination, the Applicant explained that she was not aware of the minutes pertaining to the reconvening meeting of the interview committee nor was there an attendance register.
89. During re-examination, the Applicant explained that the SGB could not change the outcome of the interviews but could only change calculations if they were flawed.
90. During re-examination, the Applicant explained that she was not aware of any policy which govern that the SGB could re-run the interview process.
91. During re-examination, the Applicant explained that the learners’ environments, location and the literacy of their parents played a role in terms of the learners’ progress and the teacher could not take all of the blame as some learners would not indicate if they did not understand.

Mr Nicolus Matshele
92. The witness testified under oath that he was a Principal (Ntshweng Secondary School).
93. The essence of the Applicant testimony inter alia was that he had 33 (thirty-three) years of experience, 11 (eleven) of which he had fulfilled the role of a Principal.
94. He submitted documentary evidence of the agreed “short-listing criteria”, “short-listing minutes” and “attendance” register who were present for the short-listing process.
95. He said that during the short-listing process he was recommended and appointed as the Chairperson.
96. He said that he signed the “short-listing” minutes on 20 August 2021.
97. He submitted documentary evidence of the “interview minutes” and said that the SGB members were present to observe the process and he was present as the Chairperson in order to provide direction and noted the “confidentiality” and “conflict of interest” sections therein, furthermore he said that no person raised any issues regarding conflict of interest.
98. He said that the “setting of the interview criteria” and “questions to be asked to the candidates” was intended to provide guidance and to ensure that the questions were not leaked.
99. He said that during the interview process the highest combined overall score was the Applicant with a score of 203 (two hundred and three).
100. He said that the final ranking of candidates was the Applicant at a score of 203 (two hundred and three).
101. He said that after the interview process had concluded they then handed over to the SGB.
102. He said that he did not participate in the ratification process.
103. He said that the SGB’s contention that there was an alleged level of bias was not true and if the SGB said it was biased then they should have looked for alternative panelists.
104. He submitted documentary evidence of “Collective Agreement 2 of 2005” where it was submitted that “3.10.1 should the SGB/FET Councils not agree with the recommendation of the interviewing committee it must reconvene the interviewing committee and the observers for discussion”. He said that the committee was not re-convened for discussion
Under cross-examination (only concessions or significant versions put are recorded)
105. Matshele explained that the Collective Agreement regulated the appointment and selection process whilst acting the in the best interests of the learners.
106. Matshele explained that when the interviews were conducted the issue of qualification and experience came into the picture, whilst the interview was based on a verbal articulation.
107. Matshele explained that if a person had for example 30 (thirty) years of experience versus 5 (five) years of experience, it would be dependent on the context and the difference in experience would not necessarily mean it was good.
108. It was put to the witness that he was invited to the “SGB ratification” meeting, however he extended an apology.
109. Matshele disputed this statement and submitted that he could not recall that.
110. Matshele explained that the interview panel conducted the interviews provided the outcomes and the SGB would make the recommendations.
Re-examination
111. During re-examination, Matshele explained that if the SGB did not agree with the outcomes they must reconvene a meeting with the interview committee and the observers for a discussion, and in this case the meeting was not reconvened.
112. During re-examination, Matshele explained that he was not provided with any documentation where he had apologized, nor that he had been invited to the said meeting.

Mr Joshua Mpete
113. The witness testified under oath that he was a Principal (Kgateatle Secondary School).
114. The essence of the witness testimony inter alia was that he had been employed by the Respondent for a period of 33 (thirty-three) years, 13 (thirteen) years of which he had been in a Principal’s role.
115. He submitted documentary evidence of the “short-listing criteria” where it was the yardstick agreed upon by the panel.
116. He said that his role in the short-listing process was that of a panel member.
117. He submitted documentary evidence of the “short-listing minutes” and said that the role of Mr Matshele was in the capacity of a Chairperson and Mr Lengana role was that of a scoring panelist.
118. He submitted documentary evidence of the names of the persons who qualified for the interview in line with the short-listing criteria.
119. He submitted documentary evidence of the “interview minutes” and he said that no conflict of interest was raised by any member during the process.
120. He submitted documentary evidence of the “interview criteria” and the set of “interview questions” that were asked to the candidates.
121. He said that the Applicant scored the highest score being 203 (two hundred and three).
122. He said that at no point during the interview process did any member or labour raise any concerns and everyone agreed.
123. He said that the SGB’s contention that there was an “element of bias” towards a certain candidate, they should have nullified the process if that were the case. Furthermore, he had difficulty in accepting that there was a level of bias as the interview panel members sat a distant apart and labour agreed at the end of the interview process.
124. He said that he did not participate in the SGB ratification process and according to his knowledge the meeting did not re-convene.
Under cross-examination (only concessions or significant versions put are recorded)
125. It was put to the witness that he was invited to the SGB ratification meeting, however he tendered an apology.
126. Mpete contested this statement.
127. Mpete explained that the SGB made the final recommendation whilst having the best interests of the learners at heart.
128. Mpete explained that Ms Makeketa had more experience than the Applicant and obtained the second highest score.
129. Mpete explained that a PGCE was not a professional teacher’s qualification.

Re-examination
130. During re-examination, Mpete explained that at the time considering the selection criteria the Applicant qualified for the role.
131. During re-examination, Mpete explained that the decision to short-list the Applicant was because she held a UNISA post graduate qualification (PGCE).

Mr Godfrey Lengana
132. The witness testified under oath that he was a Deputy Chief Education Specialist.
133. The essence of the Applicant’s testimony inter alia was that he had 29 (twenty-nine) years of experience and oversaw curriculum activities for grade 10, 11 and 12.
134. He said that he was one of the panel members during the short-listing process for the Deputy Principal vacancy.
135. He submitted documentary evidence of the “short-listing minutes” and the “interview minutes”.
136. He said during the interview process there were no members that raised any conflict of interest.
137. He said that the candidates were assessed on the interview questions which had been set and no other aspects were considered.
138. He submitted documentary evidence of the “panel scoring” for each candidate.
139. He said that the highest scoring candidate was the Applicants with a score of 203 (two hundred and three).
140. He submitted documentary evidence of the “SGB ratification discussion meeting held on 3 September 2021” and said that he attended that meeting.
141. He said that according to him there was no “element of bias towards a certain candidate”.
142. He said that in line with clause 3.10.1 of the Collective Agreement the interview committee did not reconvene.
143. He said that as per the attendance register of the “SGB ratification special meeting on 3/09/2021” that it was a ratification meeting and not a reconvening of the meeting.

Under cross-examination (only concessions or significant versions put are recorded)
144. It was put to the witness that the SGB could alter the recommendations and provide the order of preference.
145. Lengana disputed this statement and explained that as the interview panel conducted the interviews and presented the findings, the SGB interrogated the findings and completed the ratification and recommendations and to alter such were not acceptable. They only submitted the top 3 (three) recommendations.
146. It was put to the witness that the SGB must consider the best interest of the learners when making an appointment.
147. The witness conceded to this statement.
148. It was put to the witness that based on the experience the successful candidate had more managerial experience than the Applicant.
149. The witness conceded to this statement.
150. It was put to the witness that the “SGB special ratification meeting held on 3 September 2021” was held in compliance with clause 3.10.1 of the Collective Main Agreement.
151. The witness disputed this statement.
152. Lengana explained that there were 2 (two) Union observers in the meeting held on 3 September 2021.
153. Lengana explained that he did not object to changing the recommendation in the meeting that was held on 3 September 2021, as per his understanding it was a ratification meeting, and he should not have formed part of such as he had no jurisdiction. He attended the meeting in the capacity of a panel member.
154. Lengana explained that he did not recall any representative from the Union in the meeting held on 3 September 2021 and any response in terms of the SGB changing the recommendations.

Re-examination
155. During re-examination, Lengana explained that the SGB did not re-convene a meeting in compliance with clause 3.10.1 of the Collective Agreement.
156. During re-examination, Lengana explained that the “order of preference” emanated from the ranking which was key, furthermore that the interview panel conducted the interviews on behalf of the SGB.

Respondent’s case
Mr Ronald Maake
157. The witness testified under oath that he was a School Principal.
158. The essence of the witness’ testimony inter alia was that his role in the recruitment process was that of a resource person and he represented the Gauteng Department of Education (“GDE”) and advised if there were any irregularities and unfairness during the process whilst ensuring the learners best interests.
159. He said that the interview panel ranked candidates from highest to lowest and submitted it to the SGB for ratification.
160. He said that the purpose of ratification was for the SGB to look at the interviewed candidates in terms of their profile, backgrounds, references and their CV’s and the SGB would either agree/disagree with the recommendations. If they disagreed, they would conduct a review meeting and present a presentation and ask clarity-seeking questions thereafter they submit 3 (three) candidate’s names in order of preference to the District Director for appointment.
161. He submitted documentary evidence of the Collective Agreement Number 3 of 2016 where it was submitted that “when making an appointment, both the qualifications and experience as recorded in the curriculum vitae submitted by candidates together with performance during interviews must be taken into account. It is irrational to make an appointment purely based on performance during interviews or to reason that the experience and qualifications as contained in curriculum vitae become irrelevant after shortlisting”.
162. The ultimate decision lies with the District Director and can appoint anyone of the 3 (three) candidates whether in the order of preference or not.
163. He submitted documentary evidence of the “SGB special ratification meeting” which was held on 3 September 2021, and he confirmed that he was in attendance.
164. He said that there were 4 (four) members in the panel namely Mr Mphete, Mr Matsela, Mr Lengana and Mr Mayemela. All of these panel members were invited and the only person that apologised was Mr Mayemala.
165. He said during the meeting of 3 September 2021, the Union and Mr Lengana did not raise any objections or concerns.
166. He said that as a Principal he was automatically a member of the SGB, and his role was to ensure governance and provide academic reports and activities to the SGB.
167. He said that during 2019, he received several letters of complaint regarding the Applicant and her curriculum delivery.
168. He said that he had a very good relationship with the Applicant and to empower and develop her he appointed her an SMT and SIP member.
169. He said that the mathematics and physical science department that the Applicant was heading was underperforming and a person who led a department would need professional maturity in order to lead, monitor and control the respective department. Furthermore, the Applicant here and there lacked managerial skills. When a department underperformed it caused an overall percentage decline, and the Applicant must improve in that regard.
170. He said that the selection process was fair and at no point was the Applicant targeted.
171. He said that a PGCE qualification would qualify an Educator to teach.

Under cross-examination (only concessions or significant versions put are recorded)
172. It was put to the witness that the Applicant possessed the necessary qualification and experience required for the role.
173. The witness conceded to this statement and submitted that she was not the only candidate that qualified for the role.
174. The witness explained that the process was fair and transparent guided by legislation and there was no “biased towards a certain candidate”.
175. It was put to the witness that the criteria which formed part of the ratification document was not what the interviewing criteria looked at.
176. The witness disputed this statement and submitted that the 2 (two) processes are set by one another.
177. It was put to the witness that the extra factors that the SGB considered were not part of the interviewing criteria.
178. The witness disputed this statement and submitted that ratification required extra facts and those things were conclusive and it was not the same facts that were considered at the interview stage.
179. It was put to the witness that he should demonstrate where they were interrelated where past and current performance must have been a factor which needed to be considered.
180. The witness disputed this statement and submitted that there was a misunderstanding as past achievements was related, and performance would be captured on a person’s CV.
181. It was put to the witness that on the SGB ratification meeting document 4 (four) candidates were mentioned and the SGB had no power to change the outcome of the interview panelists.
182. The witness disputed this statement. Maake explained that the reconvening of the panelists occurred on 3 September 2021, which included labour.
183. It was put to the witness that the document talked to ratification and therefore he was misrepresenting the commission.
184. The witness disputed this statement and submitted that the register indicated the reconvening of the meeting on 3 September 2021, and the ratification occurred prior to that.
185. It was put to the witness that he was being an untruthful witness as it made no sense how the meeting unfolded if the only panelist present did not participate during the meeting.
186. The witness disputed this statement and submitted that Mr Lengana, elected not to participate during that meeting, and he was being truthful.
187. Maake explained that the Applicant performed on an average level, and he tried to assist her by having accounting session with her and having assigned her to the SIP program.
188. Maake explained that according to the grade progression for the adjustment of salary levels the Applicant performed well, but it was not the only document that informed the ultimate decision.
189. Maake explained that a PGCE qualification did not preclude the Applicant and therefore she qualified for the role.
190. Maake explained that there were 2 (two) processes and stage 1 made use of criteria and the second stage made use of verbal expressions.
191. Maake explained that during the short-listing process a sealed package from the GDE was collected and the panelists set criteria in the presence of all of the members. Thereafter, 2 (two) forms would have been generated - a qualified and a disqualified list for each candidate. This would be followed by the short-listing process. During the interview process each candidate signed for an ‘interview invite’, after the interviews the panelist handed over the scores to the SGB. The SGB then took over the process and conducted their own ratification, they then submitted their recommendation for appointment to the District Director.
192. It was put to the witness that the SGB only had the powers to reconvene for discussions.
193. The witness disputed this statement and submitted that they would call labour to reconvene for a presentation for the ratification process.
194. It was put to the witness that there was no piece of legislation which allowed the SGB to review the process.
195. The witness disputed this statement and submitted that the SGB was entitled to ratify whatever had been handed to them. The ratification process was completed as the SGB disagreed and held a review meeting on 3 September 2021.
196. It was put to the witness that ratification meant to agree or to disagree with and the policy stated that they must meet for a discussion, it did not say to agree or to disagree.
197. The witness disputed this statement and submitted that ratification did not change the outcomes.
198. Maake explained that poor results in the Department cannot hold the parent(s) accountable whilst other factors were taken into account and someone should still be accountable, irrespective of the contributory factors.
199. Maake explained that the poor performance for the 2019, 2020 and 2021 academic year was put on the Applicant as she was the HOD and they holistically at her achievements, whilst having considered the Applicant’s under performance.
200. It was put to the witness that there was nothing to compare the Applicant’s performance outcomes with.
201. The witness conceded to this statement.
202. Maake explained that the whole process was fair and he did not agree with the SGB’s “questionable scoring”.
203. It was put to the witness that the SGB viewed the Applicant as a poor performer and it had been his evidence that the process was fair, yet he said that the Applicant failed to lead her team but she was appointed on the SIP program, therefore it did not make any sense.
204. The witness disputed this statement and submitted that a person should be provided with opportunities to empower her.
205. It was put to the witness that the Respondent introduced a special leg in the process to justify the Applicant’s removal.
206. The witness disputed this statement and submitted that they were guided by the Collective Agreement and the process was fair
207. Maake explained that by the order of preference the SGB could remove names as the interview panel provided their recommendations.
208. It was put to the witness that there was no provision to remove the highest scoring candidate from the list.
209. The witness disputed this statement.

Re-examination
210. During re-examination, Maake explained that the SGB recommendations was based on the order of preference.
211. During re-examination, Maake explained that it would not be irregular for the SGB to decline the recommendations from the interview panel.

Ms Yvonne Mooke
212. The witness testified under oath that she was a District Director (Tshwane region).
213. The essence of the witness testimony inter alia was that her role in the recruitment process was to appoint the successful candidate, however the interview panel conducted the interviews, the SGB received the report conducted the ratification process and submitted 3 (three) candidates to the District office.
214. She said that she looked at the 3 (three) candidates experience, qualifications and the ratification process which informed her decision.
215. She said the ratification process would entail a meeting whereby labour and the interview panelists were called and they would select their preferred candidates.
216. She said that in terms of the appointment for the Deputy Principal role she did not receive any grievance and labour were present to ensure transparency and fairness.
217. She said that she did not know the Applicant nor the Second Respondent.
218. She said that she only looked at the 3 (three) candidates that were bought to her table in order of preference and she looked if those candidates had met the requirements which they had, therefore there was no need to look beyond that.
219. She submitted documentary evidence of the Collective Agreement No 3 of 2016 where it was submitted that “…it is irrational to make an appointment purely based on performance during interviews or to reason that the experience and qualifications based in the curriculum vitae become irrelevant after shortlisting”. Furthermore, the “employer is not bound by the recommendation of the school governing body and may deviate from their recommendation where there are sound reasons for doing so”.
220. She said that the Applicant had 4 (four) years of managerial experience and the Second Respondent had 14 (fourteen) years of managerial experience.
221. She submitted documentary evidence of the Collective Agreement No 3 of 2016 where it was submitted that “the Head of Department as employer is expected to act reasonably in making an appointment. His decision cannot however be interfered with by a court or arbitrator purely because there may be another, perhaps better decision which could have resulted by attributing more weight to some factor or factors and less to others. If the decision arrived at by the Head of Department is reasonable, then it must stand”.
222. She said that the decision when making an appointment all factors were considered and not at the expense of others, furthermore the SGB based their list on their preferred order of interviewed candidates.
Under cross-examination (only concessions or significant versions put are recorded
223. Mooke explained that the SGB was not bound by the list submitted by the interview panelists, they ranked in order of their preference.
224. It was put to the witness that there was no other provision other then 3.10.1 clause which referred to as “order of preference”.
225. It was put to the witness that the ratification came from the word “ratify” which meant to confirm/express consent therefore the ratification allows the SGB to agree/disagree with the order of preference and if they do not agree then they reconvene the meeting for discussion.
226. The witness conceded to this statement and submitted that the SGB did that in that they convened that meeting with labour and she received the ratification meeting minutes.
227. Mooke explained that there would be 2 (two) occasions where she would have investigated when she received the file from the SGB, on the first occasion if a grievance was submitted and secondly if the 3 (three) candidates did not meet the requirements for the role.
228. It was put to the witness that she failed to comply with the legislative requirements when making the appointment.
229. The witness disputed this statement.
230. Mooke explained that in the file she would review a spreadsheet submitted by Human Resources, which included the 3 (three) candidates, and she did not view the short-listing records.
231. It was put to the witness that she accepted the file on face value from Human Resources without having checked it.
232. The witness disputed this statement and submitted that it was a process which guided her, and she checked whether a grievance had been submitted and the experience and qualifications of the candidates.
233. It was put to the witness that during her deliberations she did not comply with the Collective Agreement provisions due to her negligence and incompetence.
234. The witness disputed this statement and submitted that she complied with the regulations that she was confident that what her office had completed was correct.
235. Mooke explained that a PGCE qualification was recognized and sufficient to qualify a person to teach.
236. It was put to the witness that if a person whose performance was not being managed and therefore was not a bad performer, it would be unfair for the SGB to make use of performance records and use it against them.
237. The witness disputed this statement and submitted that the best performer was selected, and you did not use one against another, but it was dealt with in terms of fairness.
238. Mooke explained if there was an allegation of bias and questionable scoring a grievance would have been submitted and it would have been investigated.
239. It was put to the witness that there were more than 2 (two) instances as per Form C, whereby she would investigate and not only if a grievance had been submitted.
240. The witness disputed this statement and submitted that it would be indicated on the grievance form.
241. It was put to the witness that these things which have come to the fore if she had been diligent in performing her job.
242. The witness disputed this statement and submitted that there was a reason why labour sat in the interviews to ensure transparency and fairness. She complied with the regulations and did everything that she was meant to do, and nothing had been bought to her table which indicated that the SGB had been unduly influenced and furthermore they were not bound by the interview list.
243. It was put to the witness that there was no authority where the SGB had the powers to change the interview outcomes to re-arrange or re-assess the candidates.
244. The witness disputed this statement and submitted that they could in compliance with clause 3.10.1 of the Collective Agreement they reconvened with labour and the interview panel and submitted 3 (three) preferred candidates.
245. It was put to the witness that the only person who attended the ratification meeting was Mr Lengana and he testified that it was a ratification meeting and not a reconvening of the meeting.
246. The witness disputed this statement and submitted that according to her understanding it was a ratification meeting and there would be reasons for those who did not attend.
247. It was put to the witness that it was not the reconvening of the meeting, but it was a ratification meeting which was not in line with the policy.
248. The witness disputed this statement and submitted that if the SGB was not in agreement it would reconvene with the interview panel and therefore the SGB would reconvene the meeting for ratification.
249. It was put to the witness that the Applicant outperformed everyone in the interview and they did not want her to be considered and therefore she was removed from the list unfairly.
250. The witness disputed this statement and submitted that the SGB would decide who they recommended for appointment.
251. It was put to the witness that the basis for removing the Applicant was unfair and based on “bias” which was a fabrication.
252. The witness disputed this statement and submitted that she wished it could have been investigated, however the SGB made the decision on 3 (three) preferred candidates.

Re-examination
253. During re-examination, Mooke explained that the SGB were not bound by the decisions of the interview panel.
254. During re-examination, Mooke explained that the Respondent must appoint the most suitably qualified candidate for the post.
255. During re-examination, Mooke explained that Human Resources conducted quality assurance and if any irregularities were found it would be returned to the SGB.

Mr Gaopalelwe Maxwell Dipole
256. The witness testified under oath that he was the Chairperson of the SGB (member of the SGB).
257. The essence of the witness testimony inter alia was that during the appointment of the Deputy Principal’s role he was in the capacity of the Secretary, and he had served for 5 (five) years on the SGB committee.
258. He said that his role was to establish the committee, ensure short-listing was completed, interviews were conducted followed by a ratification meeting then an order of preference by the SGB was handed over to the Head of Department/District.
259. He said that the SGB could agree or disagree with the interview panel in line with clause 3.10.1 of the Collective Agreement and then should call the committee and observers for discussion.
260. He said that any candidate who was interviewed can be included in the list (in order of preference) in line with clause 4.2.2 of the Collective Agreement.
261. He said that the SGB would consider the best interests of the children and the school, the profiles of the candidates including their qualifications and experience.
262. He said that he had a normal relationship as the “Governor” with both the Applicant and the Second Respondent.
263. He said that the meeting of 3 September 2021 was a “SGB Special Ratification meeting” where the observers were called and Unions and there was a disagreement by the SGB.
264. He submitted documentary evidence of the “SGB Ratification Special meeting” held on 3 September 2021 where the following members were in attendance “EL Hlongwane – Chairperson, MM Mofomme – member of SGB, TL Msweli – member of SGB, PM Masiane - Trade Union, Mr RM Maake – Principal, GL Lengana – Scoring Panelist, M Nkgodi - Trade Union, MS Moeketsane – SGB member and GM Dipale – Secretary & SGB member.
265. He said during the meeting that was held on 3 September 2021, the Unions did not raise any concerns nor did Mr Lengana, who was a panel member.
266. He said that the issue of “bias” was never raised by the SGB and it was probably raised by the Trade Union at that time.
267. He said that during the SGB meetings it was a standard item to cover the performance of the school and the Applicant’s department was struggling in terms of mathematics and physical science, furthermore the SGB applied the same items for all the candidates, using the PAM document.
268. He said that the version that the other panel members were excluded was the incorrect version and he had issued the invitations to the members.
269. He said that the version that the Respondent used performance to disadvantage the Applicant was incorrect as it was applied to all persons, whilst considering the best interest of the learners.
Under cross-examination (only concessions or significant versions put are recorded
270. It was put to the witness that he did not want the Applicant to be part of the SGB as she would question any wrongdoings.
271. The witness disputed this statement and submitted that they had approved other items like Saturday schools.
272. Dipole explained that the invitation said that the persons were called in terms of clause 3.10.1 of the Collective Agreement and no person raised a concern in the meeting that it was the incorrect meeting.
273. It was put to the witness that it was not a discussion as the persons who made the decision were not present in the meeting.
274. The witness disputed this statement and submitted that Mr Maake, Mr Lengana and the Unions were present and who formed part of the committee and furthermore there was no guidance from any member who was present that the meeting should be disbanded.

Point in limine
275. The Respondent requested that there was a serious allegation which implicated other persons, as such they requested that the invitation documentation be submitted as evidence and such evidence was available at the District Office.
276. The Applicant conceded to the admission of the documentation and submitted an application for an inspection in loco in order to view the file at the District Office.
277. The Respondent agreed to the inspection in loco.

Ruling
278. In the interests of justice and fairness afforded to both parties, the additional evidence would be permitted, furthermore the inspection in loco would be granted at the District Office at 2216 Klipgat Road Mabopane (Tshwane West District offices) to view and obtain the recruitment file.
279. Both parties would be entitled to re-open their case in light of the admission of new evidence

Inspection in loco
280. The inspection in loco was duly conducted at the 2216 Klipgat Road Mabopane (Tshwane West District offices) on 18 November 2021, the recruitment file was obtained and viewed for the said appointment of the Deputy Principal’s role and the invitation invites for Mr Matshele and Mr Mpete, were uncovered in the file which was signed in acknowledgement for by both Mr Mpete and Mr Matshele.

281. It was put to the witness that the interview invites that were sent was an invitation for a ratification meeting.
282. The witness disputed this statement and submitted that it related to 3.10.1 of the Collective Agreement.
283. Dipole explained that the interview committee submitted an order of preference and then submitted it to the SGB as per clause 3.10.1 of the Collective Agreement.
284. Dipole explained that a meeting occurred on 29 August 2021, they we were not in agreement and the outcome of that meeting was held on 3 September 2021 which presented the meeting of 29 August 2021, where everyone was present.
285. Dipole explained that the meeting of 3 September 2021, the list had not changed, and it was just their preference.
286. Dipole explained that clause 3.10.1 of the Collective Agreement 2 of 2005, the Employment Educators Act in addition to Agreement 2 of 2005 regulation 38(6) permitted the SGB to create their preference list.
287. Dipole explained that the meeting that was held on 29 August 2021 was a ratification process.
288. It was put to the witness that what they did it was in contravention to the policy guidelines.
289. The witness disputed this statement and submitted that in that meeting they did not change the outcome of the interview meeting.
290. Dipole explained that they did not pursue the issue of “bias”, it was alleged but it was not dealt with because if it was alleged it must have had something to support it.
291. It was put to the witness that the allegation of “bias” was placed there purposefully to justify a new list to the GDE.
292. The witness disputed this statement and submitted that it referred to the law which needed to be considered and the list contained the opinion of persons.
293. It was put to the witness what happened in the process in the appointment of the Second Respondent was not in compliance to the Employment of Educators Act Section 6.
294. The witness disputed this statement.

Re-examination
295. During re-examination, Dipole explained that he issued the letter for the notice of the ratification meeting to the members being, Mr Matshele, Mr Mpete and Mr Lengana and had included Annexure A to the said document and they were aware of the meeting as they were school Principals and they trusted them.

Analysis of evidence and argument
296. Section 186(2)(a) of the LRA provides that:
“’Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;”.
297. When an employee alleges that an unfair labour practice has been committed by an employer, the onus of proof is on that employee to show that the employer had committed an act or omission amounting to unfair labour practice. The onus in this case was therefore on the Applicant to show that the conduct of the Respondent amounted to an unfair labour practice pertaining to promotion.
298. The alleged unfair labour practice in this case related to the failure/omission by the Respondent to appoint the Applicant in the position that she had applied for. The Applicant in this matter therefore had to show on a balance of probabilities that the fact that she was not appointed in the role of Deputy Principal – Modiri Secondary School, constituted an act of unfair labour practice on the part of the 1st Respondent.
299. The test when determining whether the employee was treated unfairly in promotion disputes was set out in Ndlovu v Commission for Conciliation, Mediation & Arbitration & Others (2000) 21 ILJ 1653 (LC) at 1655-6, case. “Consequently, it is not sufficient just to show that there was a breach of protocol or procedures in the recruitment process but:
a) That the Applicant is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post.
b) That the decision to appoint someone else to the post in preference to the complainant was unfair and
c) It is important to note that in these type of cases, it is also incumbent on an applicant to show a causal connection between the unfairness complained of and the prejudice suffered”.
Therefore, in the matter before me my enquiry was to ensure that the Applicant was qualified for the position; compliance with the recruitment and selection policy; whether the appointment of the 2nd Respondent was unfair and whether the Applicant suffered any prejudice.
300. It was common cause that the Applicant was short-listed for the position of Deputy Principal on 20 August 2021, and the short-listing panel consisted of the following persons:
- Mr NL Matshele, Principal (Committee Chairperson and scoring panelist);
- Mr JA Mpete, Principal (scoring panelist);
- Mr GL Lengana, District Official (scoring panelist);
- Mr Moeketsane, SGB member (scoring panelist).
301. It was common cause that the Applicant was then interviewed for the role of Deputy Principal and the following persons formed part of the interview panel:
- Mr Matshele (scoring panelist, panel Chairperson);
- Mr Mpete (scoring panelist);
- Mr Lengana (scoring panelist);
- Mr Malmela (scoring panelist & SGB parent member);
- Mr Mokgodi (National Professional Teachers Organisation of South Africa “NAPTOSA” representative);
- Mr Maslane (South African Democratic Teachers Union “SADTU” representative);
- Mr Mofomme (SGB, non-educating staff representative);
- Mr Moeketsane (SGB, parent representative);
- Mr Hlongwane (SGB chairperson, parent representative);
- Ms Nkomo (SGB member, treasurer, parent representative);
- Mr Maake (Principal, resource person);
- Mr Dipole (secretariat, SGB, parent representative);
- Mr Nikani (SGB member, parent representative);
- Ms Kunene (SGB member, parent representative) and
- Mrs Sekati (SGB member, parent representative).
302. It was common cause that the interview “final ranking scores” were as follows:
Score: Candidate:
203 Ngulube
183 Makeketa
162 Phiri
162 Mnisi
158 Tloubatla
129 Mathebula
88 Mmusi

303. The recommendation from the SGB stated:
“the interviews were held on 27 August 2021. Four (4) names were submitted to the SGB. Ratification meeting was held on 29 August 2021. Ratification discussion meeting in terms of paragraph 3.10.1 of Collective Agreement 2 of 2005 was held on 3 September 2021”.
The following recommendations is hereby submitted to the Head of Department by the SGB in order of preference, in terms of section 6(3)(c) of the Employment of Educators Act 76 of 1998 (as amended) as follows:
No: Names in order of preference: Total score:
1 Makeketa, MG 183
2 Phiri, Hunani Johanna 162
3 Mnisi, Sadaam Jejane 162

304. The Applicant’s contention was that there was no authority for the SGB to change the recommendations that was submitted by the interview panel.
305. Collective Agreement 2 of 2005 clause 3.10.1 provides that:
“Should the SGB/FET Councils not agree with the recommendation of the interviewing committee it must reconvene the interview committee and observers for discussions”.
306. SGB Regulation 38(6) provides that:
“A governing body may alter or invalidate any decision of a committee”.
307. Under cross-examination the Respondent’s witness, Mr Dipole conceded that “a meeting occurred on 29 August 2021, where they were not in agreement and the outcome of that meeting was held on 3 September 2021, which they were presenting the meeting of 29 August 2021, where everyone was present”. Mr Dipole furthermore submitted in his evidence in chief that the ““SGB Ratification Special meeting” held on 3 September 2021” the “aversion that the other panel members were excluded was the incorrect version and he had issued the invitations to the members”.
308. Under cross-examination the Applicant’s witnesses, Mr Matshele and Mr Mpete, unequivocally denied being invited to the “SGB ratification meeting held on 3 September 2021”.
309. However, after an inspection in loco was conducted and agreed to by both parties, evidence was led where the members were invited to the “SGB Special Ratification meeting” held on 3 September 2021, including Mr Matshele and Mr Mpete, where they furthermore signed in acknowledgement for. Therefore, Mr Matshele and Mr Mpete, were both found to be unreliable witnesses. Evidence was led where the following members were personally invited by Mr Dipole – Mrs Maimela, Mr Maake, Mr Masiane, Mr Lengana and Mr Nkgodi. Further to that, Mr Dipole and Mr Maake were found to be reliable and credible witnesses.
310. Furthermore, the attendance register for the “SGB Special Ratification Meeting held on 3 September 2021” the following persons were in attendance:
- EL Hlongwane;
- MM Mofomme;
- TL Msweli;
- PM Masiance;
- RM Maake;
- GL Lengana;
- M Nkgodi;
- MS Moeketsane and
- GM Dipole.
- Nkgodi.
311. The Applicant’s witness, Mr Lengane, testified in his evidence in chief that “as per the attendance register of the “SGB ratification special meeting on 3/09/2021” it was a ratification meeting and not a reconvening of the meeting”. The Respondent’s witness, Mr Dipole, testified in his evidence in chief that the “meeting of 3 September 2021 was a “SGB Special Ratification meeting” where the observers were called and the unions as there was a disagreement by the SGB”. This version was furthermore corroborated by Mr Maake.
312. It was the Applicant’s contention that “the issue of bias” in the “Special Ratification meeting” was never addressed and therefore the process was unfair.
313. The Respondent’s witnesses, Mr Matshele testified in his evidence in chief that the “alleged level of bias was not true and if the SGB said it was biased then they should have looked for alternative panelists”. Mr Mpete testified in his evidence in chief that if the “SGB’s contention that there was an “element of bias” towards a certain candidate, they should have nullified the process if that were the case”. Whilst the Respondent’s witness, Mr Dipole, conceded during cross-examination that the “issue of “bias”, was alleged but it was not dealt with because if it was alleged it must have had something to support it”. This version was furthermore corroborated by Mr Lengane, who submitted in his evidence in chief that “according to him there was no “element of bias towards a certain candidate””.
314. The Applicant’s witness, Mr Lengane, testified in his evidence in chief that “as per the attendance register of the “SGB ratification special meeting on 3/09/2021” it was a ratification meeting and not a reconvening of the meeting held on 3 September 2021”. Mr Dipole, testified in his evidence in chief that “the Unions did not raise any concerns and nor did Mr Lengana who was a panel member”. This version was furthermore corroborated by Mr Maake.
315. The “SGB Special Ratification meeting” held on 3 September 2021 resolution was that:
“the school needs a female person as Deputy Principal; and with a different stream of specialization (not maths and science); with GET practical management experience and reasonable years of managerial experience”.
The job advertisement for the role of Deputy Principal (TW41ED1022) was as follows:
- “Modiri Secondary School
- Post type: Deputy Principal
- Post level: 3
- Post category: B
- EMIS No: 911263
- Requirements: leadership, administration and management skills related to the specific school type”.
316. It was common cause that the Applicant held the following experience and qualifications a Matric, Bachelor of Science degree, Bachelor of Science (Honours in Physics) and a Post Graduate Certificate in Education (“PGCE”) and was registered with the South African Council for Educators (“SACE”) with five years of managerial experience. The Second Respondent, held a Matric, Diploma (Education), Advanced Certificate (Education) and Honours (FET – Economic & Management Sciences) with fourteen years of managerial experience.
317. The Applicant conceded during cross-examination that the second Respondent had more managerial experience than herself and the Applicant conceded that having the highest score in the interview did not necessarily mean that she would be appointed.
318. Employment Educators Act 76 of 1998 provides that:
“Any appointment, promotion or transfer to any post on the educator establishment of a public school or a further education and training institution, may only be made on the recommendation of the governing body of the public school or the council of the further education and training institution as the case may be…”
319. Section 6(3)(c) of Employment Educators Act 76 of 1998 provides that:
“In terms of section 6(3)(c) of the Employment of Educators Act, the governing body must submit, in order of preference to the Head of Department, a list of –
(i) At least three names of recommended candidates; or
(ii) Fewer than three candidates in consultation with the Head of Department”.
320. Section 6(3)(f) of Employment Educators Act 76 of 1998 provides that:
“despite the order of preference in paragraph (c), the Head of Department may appoint any suitable candidate on the list”.
321. Collective Agreement 2 of 2005 clause 3.10.1 provides that:
“the order of preference as recommended by the SGB must include the names of 3 (three) interviewed candidates who can be ranked and/or appointed, i.e., if the top ranked candidate declines the post, the next candidate will be appointed from the list”.
322. Collective Agreement 3 of 2016 clause 43 & 44 provides that:
“when making an appointment, both the qualifications and experience as recorded in the curriculum vitae submitted by candidates together with the performance during the interviews must be taken into account. It is irrational to make an appointment purely based on performance during interviews or to reason that the experience and qualifications based in the curriculum vitae become irrelevant after shortlisting”. Furthermore, the “employer is not bound by the recommendation of the school governing body and may deviate from their recommendation where there are sound reasons for doing so”.
323. GDE Recruitment and Selection policy clause 6.2.17 provides that:
“The SGB must convene a meeting with all the SGB members to provide feedback. This meeting cannot be used to change the outcome of the process except where there are procedural flaws eg. Score calculations”.
324. The Respondent’s witness, Ms Yvonne Mooke, testified in her evidence in chief that “she looked at the 3 (three) candidates experience, qualifications and the ratification process which informed her decision”. She furthermore conceded during cross-examination that “there would be 2 (two) occasions where she would have investigated when she received the file from the SGB, on the first occasion if a grievance was submitted and secondly if the 3 (three) candidates did not meet the requirements for the role”, furthermore she never checked the other candidates in the file as she accepted on “face value” what Human Resources had submitted to her office.
325. With the evidence led, the interview panel was appointed by the SGB and thus formed part of the SGB, once concluded with the interview process they handed over to the SGB. The SGB disagreed with the interview panel’s recommendations and held a ratification process and reconvened a meeting, thereafter the SGB handed over their recommendations in order of preference to the Head of Department/District Director for the final decision in terms of the appointment for the role. I am inclined to accept the Respondent’s version, whilst I understand that the District Director, Ms Yvonne Mooke, did not unpack the entire file and made her decision for the appointment considering the SGB’s recommendations, no grievance had been submitted and the “recommended” candidate met the minimum requirements for the role.
326. It was not disputed that the Applicant met the minimum requirements for the position advertised (Deputy Principal) was shortlisted and interviewed for the position, therefore she was not prejudiced in this regard.
327. The Applicant’s contention was that she was excluded from the list even though she was the highest scoring candidate during the interview process.
328. With the evidence led all “top 4 candidates” were compared against PAM and ability in the "SGB Special Ratification" meeting including:
- Ngulube;
- Makekete;
- Phiri and
- Mnisi.
It was therefore the SGB’s election to submit their own recommendation to the District Director having considered the candidates’ prior performance amongst other factors in order of preference which was as follows:
No: Names in order of preference: Total score:
1 Makeketa, MG 183
2 Phiri, Hunani Johanna 162
3 Mnisi, Sadaam Jejane 162
329. The SGB submitted their recommendations in line with the above-mentioned policies and procedures in particular with reference to the Collective Agreement 2 of 2005 clause 3.10.1 which provides that “should the SGB/FET Councils not agree with the recommendation of the interviewing committee it must reconvene the interview committee and observers for discussions”. It was furthermore interesting to note that when Mr Dipole invited the panel members for the “special ratification meeting” on 3 September 2021, the invitation cited clause 3.10.1 of the Collective Agreement 2 of 2005 again highlighting the purpose of the meeting in question. Furthermore, SGB Regulation 38(6) provides that “a governing body may alter or invalidate any decision of a committee”. The SGB are not bound by the recommendations from the interview panel and considered holistically the most suitably qualified candidate for the role. The District Director then made the final decision to appoint the 2nd Respondent.
330. In the case of City of Cape Town v SA Municipal Workers Union obo Sylvester and Others (C1148/2010) [2012] ZALCCT 40; [2013] 3 BLLR 267 (LC); (2013) 34 ILJ 1156 (LC) (7 September 2012) the Court expressly rejected the notion that the employer has the prerogative to decide who to appoint and that it should not be questioned when it exercises that discretion. The Court stated that the proper yardstick was “fairness to both parties”.
331. In the case of Sun International Management Pty Ltd v CCMA and Others (LC) (unreported case no JR 939/14, 18-11-2016) Lagrange J noted that: “in promotion disputes it is not enough to merely show that there was a breach of protocol or procedures in the recruitment process. It is also necessary for a complainant to show that the breach of the procedure had unfairly prejudiced him”.
332. In the case of Ndlovu v CCMA and others (2000) 21 ILJ 1653 (LC) the Court held that “will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer is rational it seems to me that no question of unfairness arises”.
333. In the case of Department of Rural Development, the Agrarian Reform v GPSSBC and others (PA 3/2018) ZALCPE 2; [2020] 4 BLLR 353 the Court held that “Commissioners should be reluctant to interfere with an Employer’s decision to refuse promotion but they will do so only when the decision or reasoning is assailable because there is evidence that the Employer acted on the basis of some unreasonable, irrelevant or invidious consideration or the decision was arbitrary, capricious or unfair…”
334. In the case of Abduraman v PHSDSBC and others (C 25/14) (2015) ZALCCT the Court held that the “Commissioner failed to determine whether the Employer acted unfairly as opposed to assessing whether the Employer complied with their own policies and procedures”.
335. When dealing with disputes in respect of an unfair labour practices the Labour Court, has set out that: “an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.”
336. Further to that, arbitration proceedings of a promotion dispute in casu entails a review of the employer’s actions. The Constitutional Court’s examination of the concept of fairness where 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, is relevant - see Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) JOL 20811 (CC). As a general rule employers may appoint or promote employees whom the employer deems the most appropriate. The decision to promote is the employer’s decision. The arbitrator’s decision is whether the employer came to that decision in a fair manner. The focus in unfair promotion disputes falls much more on the procedure followed by the employer – see Arries v CCMA & others (2006) 27 ILJ 2324 (LC); City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC).
337. In the case of George v Liberty Life Association of South Africa Ltd [1996] 17 ILJ 871 (LC) the Court held that “the Courts should not intervene in cases relating to promotions unless an element of bad faith or procedural unfairness exists. The enquiry is not whether the employer appointed the right candidate as perceived by the employee or the Courts. The enquiry is rather whether the employer acted procedurally and substantively fairly when reaching his decision. Substantive fairness may include inter alia instances of bad faith or discrimination”.
338. Therefore, from the above-mentioned authorities, it only becomes an unfair (act/omission) labour practice when one can show that the discretion exercised by the employer was without reason or based on a wrong principle or in a biased manner.
339. Section 28(2) of the Constitution of the Republic of South African, 1996 (“The Constitution”) provides that “the best interests of the child are paramount importance in every matter concerning the child”. In the matter before me, I have no doubt in my mind that the decision by the 1st Respondent was reasonable, objective; fair and substantial. Furthermore, the 1st Respondent’s promotional appointment of the 2nd Respondent was made considering holistically the best interests of the school and the learners.
340. In this matter, the Applicant has failed to set out a proper case to succeed in her claim that the 1st Respondent had committed an act of unfair labour practice by appointing the 2nd Respondent to the position Deputy Principal (Modiri Secondary School) (TW41ED1022).
341. I accordingly make the following Award:

Award
342. The Applicant is not entitled to any relief.
343. The matter is dismissed.

Thus, signed and dated on the 01 March 2023.

Leanne Alexander
ELRC Panelist