ELRC738-22/23 EC

Case Number: ELRC738-22/23 EC
Panelists: Malusi Mbuli
Date of Award: 22-05-2023

In the ARBITRATION between

NAPTOSA obo SISIWE MANDI
(Applicant)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(1st Respondent)

BABALWA MPONGWANA
(2nd Respondent)

SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) – whether the appointment of the 3rd respondent and non – appointment of the applicant was unfair and constitutes an unfair labour practice as contemplated in section 186(2)(a) of the LRA.

The appointment of the 2nd respondent and the non – appointment of the applicant was procedurally and substantively fair and did not constitute an unfair labour practice as contemplated by section 186 (2) (a) of the LRA.

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (promotion dispute). It was set down for arbitration hearing at the O. R. Tambo Inland District –in Umtata on a number of days until the 10th of May 2023 before Commissioner Malusi Mbuli.

2. The applicant Mrs. Sisiwe Mandi attended the hearing and was represented by Mr. Aaron Mhlontlo an official of the applicant’s trade union NAPTOSA.

3. The 1st respondent, the Department of Education - Eastern Cape was also present at the hearing and was represented by Mr. Lipapang Tsiu, an official of the respondent.

4. The 2nd respondent Mrs. Babalwa Mpongwana was also present at the hearing and was represented by Mr. Ayanda Tyantsi an official of the 2nd respondent’s trade union SADTU.

5. The matter was finalized on the 10th of May 2023 and the parties agreed to file their closing arguments not later than the 17th of May 2023.

ISSUE TO BE DECIDED

6. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so the appropriate remedy.

BACKGROUND TO THE ISSUE

7. The applicant, Mrs. Sisiwe Mandi applied for the position of a Deputy Principal post level 3, advertised by the 1st respondent in an open bulletin vol 2 of 2022 at Pazima Junior Secondary School - Department of Education – Eastern Cape. The applicant was shortlisted and interviewed for the said position but was not appointed to the said position.

8. The interview panel recommended both the applicant and the 2nd respondent for appointment and the applicant was recommended as no 2 candidate and the 2nd respondent was the 1st recommended candidate.

9. The recommendation was then referred to the Department of Education – Eastern Cape, the appointing authority. The 2nd respondent then appointed and the applicant was appointed. It is not disputed that the 2nd respondent met the minimum requirements of the post advertised and that further her qualification and experience were appropriate for the position in question.

10. The Department of Education – Eastern Cape appointed the 2nd respondent Mrs. Babalwa Mpongwana who is now occupying the position. The applicant felt that the process that led to the appointment of the 2nd respondent and her non – appointment was unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the LRA.

11. The applicant’s dispute is premised on procedural fairness as well as substantive fairness and the applicant’s argument is that the Department of Education – Eastern Cape acted unfairly in appointing the 2nd respondent and pray that the process be reversed.

12. The applicant then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 10th of May 2023 but the parties agreed to file their arguments not later than the 17th of May 2023 and both parties filled their closing arguments.

SURVEY OF EVIDENCE

Applicant’s submissions.

13. The applicant Ms. Sisiwe Mandi took the witness stand and testified to the following effect. She applicant applied for the Deputy Principal post at Pazima Junior Secondary School in the O.R. Tambo Inland District in Umtata in the Eastern Cape. At the time of the application she was a P2 educator, Departmental Head at the same school which is a grading P3 school. The applicant was shortlisted, interviewed and was placed or rated 2nd in terms of the panelist scores.

14. She stated at the ratification meeting of the SGB it was not clear according to the minutes who the chairperson was except for the indication that other SGB members were called and the report was given by the principal.

15. She confirmed that SGB meetings are chaired by the SGB Chairperson but that was not the case at the ratification meeting in relation to this as well as in the SGB meeting where the panel was elected on 14th of October 2022. She stated that the SGB Chairperson Mrs. Nolusapho Sandile was not there on both the meetings of the 14th of October 2022 and the 18 of October 2022 and there was no apology tendered.

16. She averred that the chairperson was never even trained in employment processes by the 1st respondent and that the categories of people who are eligible to be selected and trained include parents, learners from grade 8 or higher, educators at the school and non-educators at the school.

17. She stated that Section 23 (9) of South African Schools Act 84 of 1996 stipulates that parent members must be in the majority than the combined total of other members with voting rights. Section 23 (10) of the same Act states that if parents at any stage are not more than the combined total of other members with voting rights, the SGB must temporarily co-opt parents with voting rights.

18. She testified that no recommendation was made that the successful, Miss Babalwa Mpongwana must be appointed according to the minutes and the panel is not clear as to who they recommended to the SGB for consideration. She averred that the 2nd respondent, Miss. Babalwa Mpongwana, misled the employer and the SGB by claiming in her application form that she has Honours Degree in Education Management whereas it is not attached despite their promise that it would be brought in the next seating of the 09 of May 2023.

19. She stated that the 2nd respondent, Miss. Babalwa Mpongwana claimed in her CV that she obtained a Diploma in Management from North-West University a qualification which is not offered at all. She did not complete the application form with honesty and misled the panelist together with the claim that she has 26 years of teaching experience whereas her service record reflects that her services were terminated and reappointed more than once.

20. She testified that the SGB parent members are not highly educated and relied on what is presented to them which gave herself an unfair advantage. She disputed having influenced the SGB to appoint her but and stated that the educators of Pazima JSS as was claimed by the 1st Respondent’s witness that a letter was shown to them by the principal on the day of either the shortlisting or interviews.

21. She believes that this was just meant to discredit her because the said letter could not be produced which is clear proof that it was meant to mislead the hearing. She averred that this is the reason why the SGB and or scorers treated her unfairly. She avers that this is evident from their scores for the 2nd respondent as compared to hers.

22. The applicant’s representative then closed their case and the respondent’s representative then called their 1st witness Mrs. Nolusapho Ntulele who testified as follows: She is a member of the SGB at Pazima JSS and was also a panelist in the interviews that led to the appointment of the 2nd respondent and non – appointment of the applicant.

23. She stated that at the interviews they sat at two different desks, but they managed to have the same scores for both an applicant and an incumbent. She disputed that they copied the scores as panelists and also disputed that they were influenced by any person to score the 2nd respondent higher than the applicant.

24. He averred that she is a parent to a child at the school because her son’s surname is Mnyamezeli Asanda, and her marriage surname is Ntulele, but the children use two different surnames, Stokhwe and Mnyamezeli. She reiterated that she is grandparent to the grandchild and she looks after son’s child. She disputed that the son’s mother is around in the village.

25. She testified that the SGB held a meeting in 2022 to elect the new executive and further disputed that the SGB was not in good standing because Mr. Wiwi Matyholo and Mr. Matinana Mhlungwini had both no children at Pazima JSS. She stated that she did not know that the panel that conducted the shortlisting and interviews was not approved by the District Director. She confirmed that the selection process was procedurally correct as the 2nd respondent was the best candidate and the process was fair.

26. She disputed that the applicant performed better than the 2nd respondent at the interviews and further disputed that the panelist were biased in favour of the 2nd respondent. She reiterated that the 2nd respondent was the highest scored candidate and this was because she performed well in the interviews.


ANALYSIS OF EVIDENCE AND ARGUMENT

27. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.

28. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that:

- every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to shortlist the applicant.

29. The two candidates in question in this dispute, the applicant and the 2nd respondent were both eligible for appointment to this position. The applicant applied for the Deputy Principal post at Pazima Junior Secondary School in the O.R. Tambo Inland District in Umtata in the Eastern Cape.

30. At the time of the application the applicant was a P2 educator Departmental Head at the same school which is a grading P3 school. The applicant was shortlisted, interviewed and was placed 2nd in terms of the scores. It is not in dispute that in terms of the Regulations, all decisions taken by the school governing body must procedurally fair.

31. Also not disputed that the SGB meetings must be properly convened and be presided over by the SGB chairperson. I do not understand the applicants claim that it was not clear according to the minutes who the chairperson was except for the indication that other SGB members were called, and the report was given by the principal.

32. There was a proper ratification meeting in this appointment which made recommendations to the department by the SGB of the school and this is confirmed on the minutes of the ratification meeting and the evidence of Mrs. Nolusapho Sandile. There were no irregularities in the process as stipulated in the South African Schools Act and the Employment of Educators Act that materially compromised the selection process that led to the appointment of the 2nd respondent and non – appointment of the applicant.

33. The applicants argument that there was no recommendation made that the successful, Miss. Babalwa Mpongwana be appointed according to the minutes and the panel is not clear as to who they recommended is rejected as false.

34. The 2nd respondent, Mrs. Babalwa Mpongwana did not mislead the employer and the SGB by claiming in her application form that she has Honors’ Degree in Education Management and if there was any part in the application of the 2nd respondent not properly filled it was not materiel and there was no intention on her part to mislead the panel, SGB or the Department of Education Eastern Cape.

35. I accept the applicants argument that the SGB parent members in the Pazima JSS are not highly educated and relied on what is presented to them. But the evidence of Mrs. Nolusapho Sandile was very clear to the effect that the panelist / scorers were not influenced but scored based on the responses given by the candidates.

36. This is the only witness who was there at the interview room and who observed everything and her evidence cannot be disputed in so far as it relates to the conduct at the interviews. The applicant only came to present herself and left. I agree with the applicant’s representative that the applicant never influenced the SGB but the educators of Pazima JSS as it was claimed by the 1st Respondent’s witness.

37. This point however does not assist the process much as the applicant is not the appointed candidate and her appointment is therefore not disputed. Whether this letter was produced or not is immaterial in determining whether her non appointment was fair. There is no real evidence that the SGB or scorers treated an applicant unfairly or scored the applicant unfairly and the applicant’s representative argument that it is evident in their scores for the incumbent vs an applicant that the applicant was treated unfairly is rejected.

38. When the SGB member parent Mrs. Nolusapho Sandile testified it became very clear that the applicants claim that one or more of the panelists or SGB members did not have a child in the school is unfounded and that the applicant is just building a case of procedural unfainess.

39. It is not accurate and true that the SGB held a meeting in 2022 to elect the new executive as the law dictates. She was just drilled to say that hence no minutes for that meeting could be produced. It would have been better if the secretary, Miss Dlelaphantsi would have been called as it was claimed that she took the minutes. The SGB was in good standing in that school because of Mr. Wiwi Matyholo and Mr. Matinana Mhlungwini were parents / grandparents or guardians of the children in that school.

40. The applicants claim that she is better qualified and more experienced than the incumbent does not give her automatic right to be appointed. There are other considerations and that the applicants claim that he performed better than the 2nd respondent is unfounded because she was not in the interview room when the 2nd respondent was interviewed. The applicants claim that the scorers were biased is also not based on evidence and is accordingly rejected.

41. Generally the employees do not have the right to employment or promotion but the protection under section 186 (2) (a) relates to unfairness that happens when the employer seek to promote or employ an employee, the words promotion and employment are used synonymous for the purposes of this section.

42. For the reasons mentioned above I have no reason to disbelieve and reject the evidence of the respondents witness and as such the respondents version remains the most credible and acceptable version. It is also worth noting that in this type of a dispute the applicant bare onus to prove that the respondent has acted unfairly and his conduct constituted and unfair labour practice.

43. In SAMWU obo Damon v Cape Metropolitan Council (1999) 20 IU 714 (CCMA) AT 718 A the court said that in an unfair labour practice dispute the employee bears the onus to prove the unfair labour practice complained of and in order to do that he must examine the reasons as to why he was not promoted and demonstrate the defect in the employer’s reasoning.

44. This means that the employee must demonstrate that he was overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. He must show that on the criteria used to select another person above him, he stood head and shoulders above that person. This is not the case in this dispute and in fact the opposite is true.

45. The fairness required in the determination of an unfair labour practice must be fairness towards both party’s employer and employee. In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwana & others (2002) 23 ILJ 761 (LC) paragraph (29)-(32) the Labour Court held that: There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in dispute regarding promotion and should regard this area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination is present.

46. In this dispute I have no reason to disbelieve the evidence of the employer witness and prefer that of the applicant. The 2nd respondent met all the requirements of the post as envisaged in the advert and this is not disputed. From the argument above it then follows that the decision by the respondent to appoint the 2nd respondent and not to appoint the applicant was procedurally and substantively fair based on the evidence and argument advanced above.

47. The 2nd respondent was recommended by the panel and SGB as a no 1 candidate and the respondent has to appoint the 2nd respondent unless there is a valid and reasonable explanation for disregarding that recommendation. The applicant has failed to demonstrate that there was an invalid, unreasonable and unfair reason why the respondent appointed the 2nd respondent.

48. The respondent has the authority and discretion to appoint but has a responsibility to exercise such discretion reasonable and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion which had been exercised by a party competent to exercise that discretion.

49. The reason for this is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a part, including the exercise of the discretion, or managerial prerogative of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.

50. The court held further 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 bias manner.

51. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.

- Whether the employer’s decision was arbitrary, or capricious, or unfair.
- Whether the employer failed to apply its mind to the promotion of the employee.
- Whether the employer’s decision not to promote was motivated by bad faith.
- Whether there were insubstantial reasons for the employer’s decision not to promote.
- Whether the employer’s decision not to promote was based upon a wrong principle.

52. If one looks at how the discretion was applied by the respondent in this case it is clear that the appointing authority was fair and reasonable when he made the appointment.

53. The applicant’s representative argument in his closing arguments, that the decision not to recommend and appoint the applicant was incorrect is rejected as it does not have basis and not supported by evidence. The applicant has not managed to demonstrate that one or some of the factors for consideration in the decision above exist for him to challenge the application of the employer’s discretion.

54. There is a clear basis for the respondent to act in the manner described above and the manner in which this discretion was exercised justifies the appointment because discretion was not exercised in an arbitrary manner, for insubstantial reasons or without applying the mind and obviously not unfairly. There is no justifiable reason for me to interfere with the exercise of the respondent’s discretion in appointing the successful candidate and the appointment of the 2nd respondent in this matter stands.

55. In the circumstances I make the following award.

AWARD

56. The appointment of the successful candidate referred to as the (2nd respondent) Mrs. Babalwa Mpongwana and non – appointment of the applicant Miss. Sisiwe Mandi was fair and did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.

57. The applicant’s dispute referred to and dealt with here under case number ELRC738-22/23 EC is dismissed and the applicant is not entitled to any relief.

58. I make no order as to costs at this stage.

Signature:

Commissioner: Malusi Mbuli