ELRC837- 21/22KZN

Commissioner: VEESLA SONI
Case No.: ELRC 837- 21/22KZN Date of Award: 24 APRIL 2023

In the ARBITRATION between:

SADTU obo NJIVE M D Applicant

and

THE DEPARTMENT OF EDUCATION: KWAZULU NATAL First Respondent
BIKELA XABA Second Respondent
NKONGOLWANA PUBLIC PRIMARY SCHOOL GOVERNING BODY Third Respondent


Union/Applicant’s representative: SADTU – Mr Sakhile Gabela
Durban

First Respondent’s representative: DOE – Mr Churchill Sibanyoni
228 Pietermaritzburg Street
Pietermaritzburg

Second Respondent: NATU – Mr Mtolo
Appointee Mr Xaba

Third Respondent Nkongolwana Public Primary School Governing Body
Mr A N Mbatha

DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 182 (2) (a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on the 10 August 2022. A ruling was issued and the matter was adjourned to 14 October 2022. The matter proceeded and was part heard and adjourned to 19 and 20 April 2023, wherein it was finalized.

2. The Applicant, Mrs M D Njive was present and was represented Mr Sakhile Gabela from SADTU. The First Respondent was represented by Mr Churhill Sibanyoni, the Department of Education in Kwa Zulu Natal. The Second Respondent, Mr Xaba, was represented by NATU, Mr Mtolo. The third Respondent was joined to the proceedings but were not in attendance on 10 August 2022. As per ruling dated, 10 August 2022, the Council was advised to notify the 3rd Respondent who attended the arbitration on 14 October 2022 and subsequent dates. The third Respondent was Nkongolwana Public Primary School Governing Body represented by Mr A N Mbatha.

3. The proceedings were heard virtually on 10 August and 14 October 2022. It was finalized on 19 and 20 April 2023 with all parties in attendance.

ISSUE TO BE DECIDED
4. The issue was whether the non-implementation of the recommendation by the District Grievance Committee (hereinafter referred to as the DGC) by the School Governing Body ( hereinafter referred to as the SGB), amounted to an unfair labour practice, in terms of promotion, as per section 186(2) of the LRA.

BACKGROUND
5. The background of the matter was that the Respondent advertised a position of a Principal’s post for which the Applicant applied. The SGB made recommendations after the interview process. There was a grievance lodged and the Department took a decision to start the process afresh with them to oversee the process. The post was then re-advertised and the Second Respondent, Mr Xaba applied and was successful. The Applicant is challenging the decision by the Department to re-advertise the position while there were two processes pending, i.e. shortlisting and selection meeting.

6. The SGB was joined as a Respondent since the issue in dispute affects a right vested with them. This was in terms of a ruling dated 29 June 2022 by Arbitrator, Pumeza Ndabambi.

7. The dispute emanated from the conduct of the Respondent in the re-advertisement of the post. The Department made recommendations that the process be taken over by an independent body and the recommendation was not followed or carried out.

8. The Ruling of the DGC made no reference to the re- advertisement of post. According to the Applicant the unfair labour practice emanated from the decision to advertise the post, despite recommendations being in place, which resulted in the Applicant being prejudiced by the decision. The Applicant submitted that the same interviewing committee interviewed for the post of the Departmental Head and those results were implemented. As a result, there was inconsistency or selective justice which adversely impacted on her. The Applicant applied when the post was re-advertised but was not shortlisted.


APPLICANTS CASE

9. Opening statement: Mr Gabela submitted that in terms of the recommendation of the District Grievance Committee (DGC), dated 11 April 2019, the Department of Education (DOE) must take over the process and finalize the appointment within 21 days. The process must be redone from the shortlisting stage. The Director of the Employee Relations submitted a letter stating that “the recommendation of the DGC must still stand”. There was no recommendation for the re-advertisement of the post. The Head of Department (HOD) approved the recommendation of the DGC, that the Department take over the process. This was signed by the HOD on 19 November 2019. NATU ‘s grievance was upheld and the ruling implied that the SGB was invalid hence the process was taken over by the DOE. In the same school there were two posts being: principalship and departmental head. The interview for the principalship was on 26 January 2019. The interview for the departmental head was on 6 February 2019, and conducted by the same SGB and interview committee (IC). The same SGB was declared invalid for the first process but valid for the second. This was inconsistent. In re-advertising the position instead of implementing the decision amounted to unfairness and inconsistency. The department made a ruling and they failed to abide by their own decision, which amounted to a deviation thus creating the unfairness.

10. Mrs M D Njive, the Applicant, testified that she was the departmental head at the Nkongolwana Public Primary School, foundation phase and was employed from 1996. She stated that the process was unfair as there were two posts, one was for the departmental head and the other was for principalship. The post for principalship was advertised in September 2016. Both interviews were conducted by the same SGB in 2019. The appointment for the departmental head was finalized in April 2019. There was also a deputy principal post for the same school and the appointee, Xaba, was on the panel for the post. As such, she was surprised that Xaba was recommended as the principal of the school. There was inconsistency in releasing the letter of the departmental head position but not the post of the principal. She disputed the decision of the Respondent as the ruling by the DGC was not implemented. She prayed for fairness and reiterated her unhappiness. She asked that the process be set aside and the Respondent comply with the recommendations of the DGC.

RESPONDENTS CASE

11. Opening statement: Mr Sibanyoni argued that the issue in dispute was the principalship post and not the departmental head. The recommendation by Adv M B Masuku, Deputy Director General, Corporate Management, DOE was that: “The request to redo the process based on allegations of undue influence is supported. The district should have capacitated the SGB by now. The SGB can still be given its powers to conduct its process if the district has capacitated it. I therefore recommend that the process be referred back to the SGB to redo the process.” The HOD approved the recommendation. The SGB was empowered to conduct the selection process and any decision to remove such powers, was illegal.

12. The SGB that conducted the process was a new SGB, and not the old problematic one. It was capacitated to conduct the process and it reclaimed its powers in terms of the South African Schools Act (SASA), section 20 (1) (i). This was done based on the applicable legislation. This approval did not state from what stage the process had to be re-done. It merely gave the SGB its powers. The appointment was made in 2019.

13. In terms of the Employment of Educators Act the SGB had 90 days to finalize the recommendation for the post. In this instance the post was advertised in 2016 and was still vacant in January 2019. The decision by the DOE to re-advertise the post was reasonable and sensible due to the immense delay in finalization. All incumbents were given an opportunity to apply or re-apply which included the Applicant. All incumbents were subjected to a fair process of selection. SADTU lodged a grievance on behalf of Ms Njive in October 2021, which was dismissed. There was no challenge on the procedure and was considered to have been done without any flaws.

14. The advertisement of posts in the Provincial Educations Department were vacant and funded which was verified by circuit and district offices. The department compiled a draft, HRM circular, advertising the post. This was then presented to ELRC wherein the approved unions were a party to. The advert for the post was approved by ELRC, in which the union was a party, and there was no complaint about the advertisement of the post. It was therefore disingenuous of SADTU, who validated the post, to now claim it was irregular.

15. Nkosinathi Charles Ngcobo: Director employee relations and chaired the provincial grievance committee. He said procedurally the department would advertise the school post in the bulletin and candidates would apply for such posts. The bulletin contained a guide to the process that the SGB had to follow. The HRM circular for such posts contained a management plan for the date of the advert, the closing date, the internal process, dates for finalization of shortlisting by SGB and finalization of interviews by SGB, and when the successful candidate would assume duties. The SGB had two months to conduct the process. They can request for more time. Some posts would not be filled as it attracted grievances. These would be referred to the DGC. These matters would be scheduled and heard and recommendations would be made to the HOD.

16. Some SGB’s do not adhere to the management plans hence the department issued HRM Circular 55 of 2015, which deals with the procedure for taking over the selection process for school based educator posts. This emanated from the fact that the department was concerned with the non-compliance by SGB’s in completing the selection process timeously. The delay compromised the teaching and learning process. The SGB must ensure that firstly the interview committees must be set up immediately after the post becomes available. Secondly once the post is advertised, they must conduct the process. Circuit managers had to ensure that the SGB adhered to the management plan. If the post was not completed in line with the management plan, full reasons had to be furnished.

17. In cases where the post was not completed in terms of the management plan, the SGB is given 5 days to comply and finalize the process. If two months have lapsed and there was still no compliance the district director would write to the SGB and request reasons as to why the process should not be taken over by the DOE. Depending on the SGB’s reason an approval would be sought from the HOD to take over the process. If approved by the HOD, that the selection process can be undertaken by the DOE and an independent panel is formed. The process must be finalized in 21 days. If the new panel failed to adhere to the process the HOD had the right to re-advertise the post.

18. Section 20 of the SASA lists the function of the SGB. One of the functions was to make recommendations to the HOD and the new SGB can be given the opportunity to conduct the process. In other words, if the old SGB did not finalize the process, the new SGB can conduct the same process, as per section 20 of SASA.

19. He investigated the anomalies for Nkongolwana and there were several issues, including the principal posts. One of the findings was that there was undue influence on the SGB in the filling of management posts. In the filling of the principalship post it was endorsed that the independent committee take over that process.

20. There were errors in the recommendation by the DGC. It was alleged that: the erstwhile SGB was illegitimate; the SGB did not properly constitute the IC, the scoring during shortlisting was invalid, the post took too long to be filled ie over two years. The DGC has jurisdiction to deal with the post being: sifting, shortlisting and appointing. The only issue raised by the Applicant was that the scoring was invalid. There were no issues with regard to interviews and ratification. The DGC had to look at procedural and substantive irregularities and if it only related to scoring, the procedural unfairness fell away. The Applicant was indeed afforded his rights. If claimed that the scores were invalid, it had to be proven by the Applicant.

ANALYSIS OF EVIDENCE AND ARGUMENT

21. This dispute is referred as an unfair labour practice. An employee who alleges that he/she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.

22. The Applicant is required to 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. This goes beyond mere unhappiness or a perception of unfairness. The issue of fairness depends on the circumstances of a particular case and essentially involves a value judgement.

23. The First Respondent advertised the position of Principal in terms of two Circulars, HRM 28/2016, post number 2058 and HRM35/2021, post number 2496. The Applicant applied in the first advertisement as per the 2016 circular and the Second Respondent applied in respect of the second advertisement as per the 2021 circular. Emanating from the first advertisement a grievance was lodged in respect of the process and the outcome was that the process be started afresh with an independent body, being a newly appointed SGB. Such a decision was implemented through re - advertisement of the position and the starting the process afresh, leading to the appointment of the Second Respondent. One must bear in mind that this process started in 2016 and by the time an outcome was made, it was 2019, a few years later.

24. First Respondent re - advertised a position when there was a recommendation by the DGC and it was submitted that the First Respondent failed to implement the correct procedure and to apply consistency.

25. The Applicant sought the setting aside the appointment of the Second Respondent and implementation of the recommendations in respect of post number 2058 advertised in Circular HRM28/2016. The Applicant challenged the procedure that was followed in that the recommendations by the DGC, should have been implemented.

26. The onus rested on the Applicant to establish that the conduct of the First Respondent denied her a fair opportunity to compete for a post, alternatively that the conduct was arbitrary or motivated by an unacceptable reason.

27. The arbitration of a promotion dispute does not entail a hearing de novo, but an assessment of the employer’s decision. I turn to the test as laid out in Sidumo v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC), which is a landmark case in South African labour law. The Constitutional Court held that the test in promotion disputes, was 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.

28. It is common cause that the recommendation of the DGC, dated 11 April 2019, stated that the DOE must take over the process and finalize the appointment within 21 days. The process had to be redone from the shortlisting stage. The Director of the Employee Relations submitted a letter stating that “the recommendation of the DGC must still stand”. The Applicant claimed that the first Respondent should have implemented the decision of the DGC and by not doing so, such a decision amounted to unfairness and inconsistency. Inconsistency lies in the claim that the same school had two posts whereby the interviews for both were conducted by the same SGB. The interview for the principalship was on 26 January 2019. The interview for the departmental head was on 6 February 2019. The SGB was declared invalid for the first process but valid for the second. This, according to the Applicant and argued by Mr Gabela, was inconsistent.

29. I want to pay some attention to the recommendation by Adv M B Masuku, Deputy Director General, Corporate Management, DOE: “The request to redo the process based on allegations of undue influence is supported. The district should have capacitated the SGB by now. The SGB can still be given its powers to conduct its process, if the district has capacitated it. I therefore recommend that the process be referred back to the SGB to redo the process.” The HOD approved the recommendation. The SGB was empowered to conduct the selection process and any decision to remove such powers, was illegal. There was a new SGB, which was capacitated to conduct the process and it reclaimed its powers in terms of SASA, section 20 ( 1) which states:
“ Functions of all governing bodies: 1. (i) recommend to the Head of Department the appointment of educators at the school, subject to the Employment of Educators Act, 1998 ...”

30. In terms of the Employment of Educators Act the SGB had 90 days to finalize the recommendation for the post. In this instance the post was advertised in 2016 and was still vacant in January 2019. The decision by the DOE to re-advertise the post was reasonable and sensible due to the immense delay in finalization and many applicants would have moved on. It was prudent to re-advertise based on the time delay. It was not justifiable for the employer to continue with the same applications, that applied in 2016 and then five years later. It is also judicious to consider that such a decision was also based on the best interest of the child, which was a fundamental constitutional protection. For a commissioner, like myself, to make a finding that the appointment be set aside, and that the recommendations of the DGC, be followed, is undoubtedly contrary to the best interest of the child. Ngcobo stated categorically that Xaba had rehabilitated the school and all anomalies were eradicated. I can see no unfairness on the part of the Respondent.

31. I want to touch on the concession of the Applicant that she did not think she would be the recommended candidate, but still asked for the appointment to be set aside. If the department implemented the recommendation of the DGC, the process would have reverted to shortlisting. At this juncture she was unable to establish that she would have been appointed. The fact that the process was redone did not render it unfair. The Applicant applied and she had the same opportunity as Xaba, to be shortlisted and appointed. The decision to re-advertise did not eradicate her opportunity to apply and be appointed. It did not unduly favour Xaba. Based on the background and the time delay it appeared to have been the most sensible and practical approach, which was also in line with SASA.

32. The SGB in the initial interview had internal conflict which resulted in the decision of the Grievance Committee stating that the DOE should take over the process and it be finalized within 21 days, from the shortlisting stage. The new SGB was formed for the current dispute which amounted to a new independent panel. All incumbents were subjected to a fair process of selection and there was no evidence adduced to suggest that the process undertaken afresh was unjust, unfair or biased. There were no issues raised regarding the procedure of the re-advertisement. As such I am satisfied that the process was undertaken in fair and consistent manner.

33. In this instance the advert for the post was approved by ELRC, in which the union was a party, and there was no complaint about the advertisement of the post. All parties agreed to the advertisement of post and it was a joint agreement between the employer and labour. It was therefore disingenuous of SADTU, who validated the post, to now claim it was irregular. If the union found that the re-advertisement was irregular or unfair then they should have raised an objection to the draft bulletin on the re-advertising of such posts.

34. The process was articulately explained by Ngcobo. He did not attend the hearing to validate any appointment but rather to expound on the process and procedure. He did not even have any recollection of the candidate appointed to the post, hence there was no allegiance to the appointment of Xaba. He was experienced as a Director of employee relations and well versed in the policies and procedure. I want to unpack his evidence in terms of the policies and procedure. He explained that the HRM circular for such posts contained a management plan and the SGB had two months to conduct the process. If two months lapsed and there was still no compliance the district director would request the SGB to furnish reasons as to why the process should not be taken over by the DOE. The HOD can decide that the selection process be undertaken by the DOE, and an independent panel can be formed. They have 21 days to finalize the process and the HOD had the right to re-advertise the post. Section 20 of SASA lists the functions of the SGB. and recommendations can be made to the HOD for a new SGB to conduct the process.

35. Ngcobo investigated the incongruities for Nkongolwana and there were several issues, including the principal posts. He found that there was undue influence on the SGB in the filling of management posts and as such it was decided that for the principalship post an independent committee take over that process. It was a decision made after investigations were carried out and it was established that there was undue influence on the SGB.

36. The investigation revealed that the SGB met at one of the garages to discuss the principalship post which was not allowed. As such the DGC made a finding that a new panel be formed to conduct the process which would cure such concerns. Ngcobo was cross examined intensely by Mr Gabela and confirmed there was a confession by one of the members of the SGB about the illicit meeting at the garage for the principalship post. I am satisfied that there was justifiable reasons for the grievance against this post which led to the formation of a new SGB, and the process started de novo. The fact that it was the same SGB for both posts, did not render it inconsistent., as only one was challenged.

37. I want to touch again on section 20 (1) (i) of SASA which states that the HOD can approve that a new SGB be formed and conduct the process. In this case a new SGB undertook same. Now I revert to section 25 of the same Act, sub section 1: if the HOD determines that the SGB has ceased to perform functions allocated to it in terms of section 20 of the same Act, failed to perform one or more of those functions, the HOD can appoint sufficient persons to perform all such functions, not exceeding 3 months. This was indeed undertaken and it was their decision to start the process afresh. So whether the old SGB was disbanded or lapsed is inconsequential as in terms of section 25, “sufficient persons” were appointed to carry out the functions.

38. In addition, HRM 55 of 2015, states that where an independent panel fails to comply with the directive within 21 days, the HOD reserves the right to approve a new panel who can re-advertise the post in a new bulletin. One must bear in mind that the DGC can only make recommendations and this was not final. The recommendations were considered by the HOD and then a decision is made, which decision would be final.

39. I refer to the case of Western Cape Education Department and others v Governing Body, Point High School and others 2008 (5) SA 18 (SCA) wherein it was held that the HOD is expected to act reasonably in making an appointment and their decision cannot however be interfered with by a court or arbitrator purely because there may be another, perhaps better decision which could have resulted.

FINDING

40. An arbitrator is not the employer and it is not my task to decide whether the employer has arrived at the correct decision. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. As I have previously stated the decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, such a decision should not easily be set aside.

41. The courts have held that even if there was unfair conduct by an employer during a promotion process, this does not mean that there is substantive unfairness. Substantive unfairness cannot exist in abstraction. The Applicant needs to establish a causal connection between the irregularity or unfairness and the failure to promote, which means that, but for the irregularity or unfairness, she would have been appointed to the post, as laid out in Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) para 24 per Zondo AJP. In the matter before me the first Respondent did not follow the recommendations of the DGC and the post was re-advertised. The re-advertising of the post, in itself, did not render their conduct unfair, capricious or detrimental to the Applicant. I have no evidence that she was the best candidate for the position, and that she would have been appointed if the post was not re- advertised.

42. The conduct of the first Respondent was not unfair, unjust or prejudicial to the Applicant. It was in line with SASA and the relevant HRM.

AWARD

43. The application is dismissed.

ELRC Commissioner : VEESLA SONI Date : 24 APRIL 2023