ELRC719-22/23EC

Case number: ELRC719-22/23EC

In the matter between

NAPTOSA obo Nobonile, Thotho Applicant

And

Education Department of Eastern Cape First Respondent

SADTU obo Thandikhaya, Pere Second Respondent

Appearances: For the Applicant: Mr. Aaron Mhlontlo (NAPTOSA)
For the First Respondent: Mr. Lusapho Ndzongo (Labour Relations ` Practitioner)
For the Second Respondent: Mr. Scout (SADTU)
Arbitrator: Thobela Ncetezo
Heard: 22 February, 4 & 5 April, 23 & 24 May 2023
Delivered: 21 June 2023
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2(a) – unfair labour practice relating to promotion

ARBITRATION AWARD

Details of hearing and representation
1. The Applicant, Mrs. Nobonile Thotho, was represented by NAPTOSA offical Mr. Aaron Mhlontlo. Mr. Lusapho Ndzongo who is employed as Labour Relations Practitioner represented the First Respondent, Education Department of Eastern Cape. The Second Respondent, Mr. Thandikhaya Pere, was represented by SADTU official, Mr Scout.

2. The Applicant submitted a bundle of documents, which was accepted by both Respondents. The Applicant testified in person and did not introduce any witnesses. The First Respondent introduced three witnesses and a bundle of documents, which was accepted by the Applicant. All witnesses testified under oath and the proceedings which were digitally recorded were conducted in English.

3. The parties requested to submit closing arguments in writing for consideration, the last which were received on 6 June 2023.

Issue to be decided

4. I am required to decide whether the conduct of the Respondent constitutes an unfair labour practice in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (the Act).

Background to the dispute

5. The Applicant submitted that she applied for a vacancy of a school principal (Post Level 4) at Toisekraal Public Primary School (Toisekraal). The post was advertised in an Open Post Bulletin for Principals Volum3 1 of 2022, which was dated 18 July 2022. The post number was Vol.1 of 2022 129. At the time that the Applicant applied for the post in dispute she was a P2 Educator and Departmental Head at the same school, Toisekraal.

6. She was shortlisted and she was amongst the five candidates who were interviewed for the post. Her interview was not successful, and the Second Respondent who was scored highest, 98, was appointed into the position. The second candidate was scored 86 and the Applicant was scored 82. She submitted that, firstly the process that was followed by the School Governing Body (SGB) was flawed. Secondly that some of the SGB members elected in 2021 did not have children at the school and therefore their SGB membership was questionable. Thirdly she was told that by SGB teacher component that a male educator was going to be appointed and SGB members were unduly influenced. She was present at the time that the post was being profiled and was Acting Principal. Fourthly some SGB members participated in both shortlisting and interview process. Lastly the First respondent failed to follow the memo on Employment Equity.

7. She further submitted that at the time that the Second Respondent was appointed he was not an educator at Toisekraal Public Primary Schools and was appointed on 1 December 2022. The Applicant requested that the appointment of the Second Respondent be set aside, and another independent panel be appointed to conduct the interviews.

8. The First Respondent submitted that the incumbent is qualified and competent for the post. It was further submitted that the Employment Equity is a guideline, the process of interviews must still take place and candidates must be competent for the post.

9. The Second Respondent did not submit opening statements, present evidence, or heads of arguments. He was, however, given an opportunity to cross-examine the Applicant and witnesses of the First Respondent.

Applicant’s case

10. The Applicant, Mrs. Nobonile Thotho, testified that she started working for the First Respondent in 2008 and has been at Toisekraal from 20 September 2020 to date. She has been a Head of Department (HoD) since 2009 while she was at Bakaneni Primary School. On 14 December 2021 she was appointed to act as school principal at Toisekraal. When she arrived at Toisekraal she found out that some parent component members of the SGB did not qualify to be members of the SGB because they did not have children at Toisekraal, namely, Mr. Zukile Mtwa, Mesdames Thandokazi and Nwabisa Bangani.

11. The Applicant was present at a meeting that was profiling the post of Toisekraal school principal as she was Acting School Principal at the time. This meeting was held with the Education Development Officer (EDO), Mr. Morale.

12. Her highest qualification is Advanced Certificate in Education: Management, which is equivalent to honours. She further testified that when the post of the school principal for Toisekraal was advertised, Mr. Mgolodela who is the SGB teacher component came to her office and told her that they preferred a male teacher who has Mathematics for the post. In March 2022 she had a conversation with the chairman of the SGB about the post in question (Page 74 of First Respondent’s Bundle and Page 86 of Applicant’s Bundle).

13. Under cross-examination the Applicant testified that she does not know when the SGB was elected and did not find any records of its election or voter’s roll; and has never seen proof that the SGB members have children at the school. She was also told by Mr Swelankomo, the EDO, not to interfere.

14. She admitted that from the time that she was Acting principal she held meetings with the SGB, which at the time was not recognised, as some of the members were not even guardians of any learners.

15. She further testified that she found it improper that the EDO came to the school for the profiling of the school principal post without having called her first as she would have explained it to the teachers. Instead to her surprise and embarrassment, the EDO created and profiled the post in a meeting.

16. She applied for the post but was not appointed. She was disappointed as she had stabalised the Toisekraal, which was unstable when she arrived. The person who was a scriber during the interviews told her that she expressed herself very well. She also believes that she expressed herself very well during the interview and better than the Second Respondent. She stated she was the best candidate and that a woman who qualifies and performs well in an interview should be appointed.

17. She further testified that she was a third best candidate because the outcomes of the interview were pre-determined but did not know if the Second Respondent qualified or not.

First Respondent’s case

18. The first witness, Mr. Lihle Bonke Swelankomo, testified that he is employed by the First Respondent as a circuit manager for Lukhanji Circuit and Toisekraal.

19. He further testified the post in question became vacant after the resignation of the school principal. He then requested the school to profile the post, which they did. Initially the post was profiled for English and Creative Arts. He informed the Applicant that the school had lost two Mathematics teachers, and a vacant post for a Maths teacher had not been profiled. In the meeting all the teachers agreed with him that they needed a Maths teacher. The post was then profiled with the inclusion of Maths. He further testified that in 2021 the school did not perform well in English and Maths. He went to Toisekraal out of concern and to guide them, comply with the PAM document but he was not prescriptive. He further testified that the interview panel must be dominated by parents, and this was the case in the Toisekraal. It comprised of three parents and two educators.

20. When a new SGB was elected in 2020 there were allegations that its members did not have children who were learners at the school, but it turned out that the SGB was eligible. The current SGB was elected in 2021.

21. He further testified that five candidates were shortlisted, and the Second Respondent qualified for the post. On the day of the interview SADTU and NAPTOSA were present and declared the process fair and objective. All the candidates were treated fairly and equally and based on the set criteria the Applicant qualified for the post.

22. The witness further testified that the Internal Memo on appointment of women into management positions is based on meeting the requirements of the post. It was emphasised to the SGB that they needed to consider women in terms of the Employment Equity Act and affirmative action, which are accompanied by competence and the manner how a person presents herself or himself. He stated that for the post in question the candidates were scored according to their performance. The witness stated that he was not aware of the allegation that the Applicant was told that a male candidate should be appointed for the post. He further testified that trade union representatives confirmed that the interview and recruitment process was free and fair.

23. Under cross-examination the witness stated that it was a human error that he did not pick up that the credential list of the interview committee (Page 38 of Applicant’s Bundle) was not signed by the principal, and he denied that it invalidated the minutes of the meeting, which were taken by the Administration Clerk. The trade union representatives also did not sign the HR Route Form because of challenges with electricity, as a result the document was sent without their signatures. Another error was that the minutes were not in the letterheads of the school. The SGB held a ratification meeting on 15 September 2022, but the Ratification Form was signed on 14 September. He further testified that amongst his functions he trains SGB members for appointments and guides school on the profiling of posts.

24. The second witness, Mr. Ndlela Simpson Mgolodela, testified that he is an educator at Toisekraal. He is the SGB teacher component and secretary. The EDO brought it to their attention that they did not have a Mathematics teacher and should discuss such as a school; the Applicant was present in that meeting but could not remember if she had an input. The witness denied that he told the Applicant that they were looking for a male candidate but that the Applicant asked him to influence the SGB to appoint her as the principal. He told her that he would not be able to do that, but she must just prepare for the interview. The witness who also scored the candidates testified that during the interview the Second Respondent excelled. The Applicant performed well but not at the same level as the Second Respondent.

25. He further testified that initially there was a complaint that the SGB members did not have children at Toisekraal but that was resolved after it emerged that those persons were either parents or guardians of the learners at the school. One of them was Zukile Mtwa who was a guardian to a learner in his class, but he could not remember the name of the learner.

26. Under cross-examination the witness testified that he was elected to the SGB at a teachers’ meeting but could not remember completing the Parent’s Voters Roll (Page 22 of Applicant’s Bundle). The SGB elected him as a secretary. In 2021 the learner who was under the guardianship of Mr. Mtwa was in Grade 5.

27. At the time that the applicant requested him to influence the SGB, it was in the presence of the Administration Clerk. The witness did not view this as misconduct but an act of desperation. The EDO told them that for the post in question preference should be given to female candidates and persons with disabilities. He could not remember who was chairing the ratification meeting and admitted that Mr. Mtwa did not attend that meeting. He admitted that it was not recorded in the minutes who had been recommended for appointment. The Second Respondent was the best candidate, and the Applicant came third.

28. The third witness, Mr. Zukile Mtwa, testified that he was the chairperson of the Toisekraal SGB from 2021 and resigned this year, 2023. He was elected in a meeting which was attended by the parents of the community. At the time he was elected he did not have a child at Toisekraal but was a guardian to his nephew whose mother was not around. However presently his child is a learner at that school. Some of the SGB members and the Acting Principal (Mr. Mtule) at the time, were not happy with the new SGB and there was no proper handover.

29. He further testified that when the Applicant arrived to act as the principal, the SGB had a good relationship with her. She recognised and treated them better than how Mr. Mtule used to trat them; as a result, the SGB performed its duties freely.

30. The witness read on record messages between him and the Applicant where the latter was requesting him for the post and that her success depended on the SGB. In response the witness promised to talk to the SGB whom he said would consider what he would ask of them. However, he ignored the Applicant’s request and did not inform the SGB about it because he did not want them to be influenced and confused by the Applicant’s message. When they were elected as SGB members they promised to do better. They were also warned that some people would ask them to give post to them.

31. Under cross-examination the witness denied that he deleted some messages between himself and the Applicant. He further testified that the SGB never had a meeting with the Applicant about the post in question but that the profiling of the post was explained to them by a Mrs. Matshikiza in a meeting of the SGB. The witness was certain that their election as SGB was lawful because it was conducted by the officials of the First Respondent and all their meetings were attended to by Mr. Mtule or the Applicant.

32. He states that his child would not appear on the data for the first semester because he was transferred to Toisekraal in the second term. The witness further testified that they were informed about gender equity but that does not require them to appoint a person just because they are female.

Closing arguments by the Applicant

33. The Applicant argued that the parent component of the SGB was not eligible in that they did not have children who were learners at Toisekraal in 2021 and that the documentary evidence in the form of the voters’ roll that could have proven their parenthood was not made available despite the served subpoena. She further argued that the information on SASAMS (South African School Administration and Management Systems) is on MS Word and can easily be edited as the system is not locked. She stated that it can be changed anytime to suit a particular need and purpose. It was further argued that the application of the Second Respondent was defective and should not have been considered.

34. The Applicant requested the appointment of the Second Respondent to be set aside, the post of principal of Toisekraal Public Primary School to be re-advertised and processes to be conducted by an independent panel.

Respondent’s closing

35. The First Respondent argued that the Applicant failed dismally to prove that she possesses the requirements/skills, nor did she dispute the skills possessed by the incumbent. It was further argued that the two points raised under substantive fairness by the Applicant probably would hold water if she was rated number two, but she was rated number three. It was also argued that all candidates were asked the same questions, all candidates were treated fairly and equally, the Applicant also confirmed this in her evidence.

Analysis of evidence and arguments

36. Section 138(1) of the Act provides that the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) further provides that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.

37. The dispute before me was referred in terms of Section 186(2)(a) of the Act which 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;

38. According to the testimony that was before me, the dispute of unfair labour practice in terms of the above-mentioned section arose between the parties when the Applicant applied for the post of school principal at Toisekraal Public Primary School. She was shortlisted and consequently invited to an interview but was not successful. The Applicant therefore alleged that the conduct of the Respondent constitutes an unfair labour practice as she claims that she was the best candidate for the post over and above the Second Respondent and therefore should have been appointed into that position. She also testified that she had acted in the position in question. In Noonan v Safety and Security Sectoral Bargaining Council and Others [2012] 33 ILJ 2597 (LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes unfair labour practice. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by unacceptable reason.

39. Out of the five candidates that were interviewed the Applicant was the third candidate in terms of scores, but she believes that she was the best candidate than the Second Respondent. The latter possesses B. Ed Honours, (Management & Leadership) which in terms of the advert for the post in question is an added advantage, Advanced Certificate in Education (Curriculum Studies) from the University of Free State, a Primary Teacher’s Diploma from Bensonvale College of Education and is registered with South African Council of Educators (Page 42-52 of the Applicant’s Bundle). Her testimony that she is the best candidate for the post does not, in my view, have any basis in that she could not prove on a balance of probabilities that she was more qualified than the Second Respondent. She also did not submit her academic qualifications to prove her submission that she was more qualified and therefore the best candidate. She did however testify that her highest qualification is Advanced Certificate in Education: Management (ACE), which she stated is equivalent to honours. The Second Respondent on the other hand possesses B.Ed. Honours and ACE. Her testimony, in my view, lacks the important element of proving the grounds on which she bases her case that she is the best candidate for the job. She also could not prove the grounds on which she relied on to say that the Second Respondent was not the best candidate. As stated above, the academic qualifications of the Second Respondent were included in her bundle, yet she omitted to include her own academic qualification. In De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC) the Court with approval referred to the matter of FAWU and others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC) when it held that an evidential foundation had to be laid and that a party could not merely rely on arguments only, as arguments without any evidential basis would be no more than speculation.

40. In challenging the appointment of the Second Respondent, the applicant was silent about the second candidate. She did not make any suggestions that she performed better than the second candidate at all.

41. She also challenged the process that led to the appointment of the Second Respondent and alleged that the parent component of the SGB did not qualify because they did not have learners at the school and that the trade union representatives who observed the process did not sign the HR Route Form.

42. The Applicant admitted that when she acted as principal at Toisekraal, she worked with the same SGB that she now alleges the parent component did not have children who were learners at the school. There was no evidence that the Applicant challenged the eligibility of the SGB at the school and at the time that interviews were conducted. Instead, evidence was led that she contacted the chairman of the SGB, one of the parent components SGB member, whom she alleged did not have a child at Toisekraal. She sent the SGB chairman a message in which she was asking him to give her the post and that she was relying on his influence. In the same message she also stated that when things go well, she will do right by him and begs him that it was better the devil that they know. This message was written in isiXhosa (Page 74 of Respondent’s Bundle). It is clear in this message that the Applicant wanted the chairman of the SGB, whose eligibility she now questions, to influence others so that she can be appointed as a principal. I find it very hypocritical that prior to the appointment of Second Respondent as principal and while she was acting as a principal at Toisekraal, she worked with the same SGB, begged the chairman of the same SGB to use his influence so that she can be appointed into the position but when she is not appointed, she challenges the eligibility of the parent component of the SGB. In consideration of the above it is evident in my view that the Applicant would not have challenged the process of interviews and eligibility of the SGB had she been the best candidate, recommended and ultimately appointed asToisekraal principal.

43. In another message sent to her by the same SGB Chairperson, she alleged that she did not have a child at the school at the time the SGB was elected. He was telling her that the dissatisfaction they showed in a meeting was because they were not involved on the profiling of the post and that they were satisfied with her. In her response to the message the Applicant stated that it all depended on them and that she will make sure that no person is employed. She also wrote that she would not encourage the meddling by circuit managers into the school matters and appointments as that is the function of the SGB and school. The message is written in isiXhosa (Page 86A of Applicant’s Bundle). It is therefore evident that the Applicant had communication with the same SGB and chairman, the eligibility of which she now questions after not being appointed in the same position that they were conspiring about. In Thandile v ELRC and Others (JR1089/16) [2021] ZALCJHB 226, the Court held that surely if the Employee knew that certain people were not supposed to be part of the interview sitting, he should have objected and actually sought for their removal. He cannot, after having participated in a process and when the results do not favour him, turn around and state that the panel was not properly constituted. There was no evidence that the Applicant objected to the presence of the persons she alleges were not at the time eligible to be SGB members. On Page 1 of the Respondent’s Bundle C, it is indicated that Thandokazi and Nwabisa Bangani had children at Toisekraal in 2021. The Applicant alleged this document could have been tampered with, but there was no proof of this. Furthermore, the Applicant did not oppose the testimony of the First Respondent that the trade unions were represented during the interview process on 14 September 2022 and that no objection was raised Page 56 of Applicant’s Bundle).

44. The argument by the Applicant that the Second Respondent’s application should also be set aside on allegations that it is defective, is in my view a technicality which if followed will defeat the provisions of Section 138(1) of the Act. The advert to which the Second Respondent responded to is for the post of a principal which, he has stated under post description in the application form. This Application form could not even be compared to that of the Applicant as hers was not included in her bundle but that of the Second Respondent.

45. The Internal Memo regarding Employment Equity on Appointments in Offices and in Schools (Page 87 of the Applicant’s Bundle) is the First Respondent’s employment equity plan which schools are required to consider in shortlisting for principal and deputy principal post. It is evident that the Applicant was shortlisted for principal post, but she was not recommended as her scores were less than those of the Second Respondent. The employment equity plan is not a free pass to appointment, but a candidate is still expected to demonstrate that he or she is the best candidate for the job. In this case, I am not convinced that the Applicant was able to discharge her onus on a balance of probabilities that she was the best candidate for the job. I am therefore of the view that there is no justification on my side to interfere with the discretion of the First Respondent to appoint a candidate that it has considered to be the best out of the five candidates who were interviewed. In Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC); [2007] BLLR 1097 (CC) it was held that in terms of the LRA a commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to deter to the decision of the employer. What is required is that he or she must consider all relevant factors and circumstances.

46. Based on the above reasons I am of the view that the Applicant, Nobonile Thotho, has failed to prove on a balance of probabilities that the conduct of the First Respondent, the Education Department of the Eastern Cape, amounts to an unfair labour practice.

47. I accordingly make the following award;

Award

48. The application is hereby dismissed.

49. There is no relief awarded to the Applicant, Nobonile Thotho.