ELRC723-22/23EC

Case Number: ELRC723-22/23EC
Panelists: Malusi Mbuli
Date of Award: 15-08-2023

In the ARBITRATION between

SADTU obo YOLANDA MCHIZA
(Applicant)

And

DEPARTMENT OF EDUCATION (EASTERN CAPE)
(1st Respondent)

NONKQUBELA BALEKA
(2nd Respondent)

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. It was set down for arbitration hearing at the Cofimvaba District offices on 02nd and 03rd of May 2023, 05th and 06th of June 2023 and on the 31st of July 2023 before Commissioner M. Mbuli.

2. The applicant Ms. Yolanda Mchiza attended the hearing and was represented by Mr. Siyabonga Jonas a site steward of the applicant’s trade union SADTU. The 1st respondent, the Department of Education (Eastern Cape) was also present at the hearing and was represented by Mr. Mlahleni Thobelani an official of the respondent.

3. The 2nd respondent Mrs. Nonkqubela Baleka was also present at the hearing and was represented by Mr. Aaron Mhlontlo an official of the applicant’s trade union NAPTOSA. The matter was finalized on the 31st of July 2023 and the parties agreed to file their closing arguments not later than the 08th of August 2023 and the award is now determined.

ISSUE TO BE DECIDED

4. 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

5. The applicant, Ms. Yolanda Mchiza, applied for the position of Departmental Head on an open bulletin for Khanyisa Junior School Cofimvaba District - Eastern Cape Department of Education with reference vol 2 of 2022. Post requirements in the bulletin were Mathematics and Natural Sciences, Grade 4, 5, 6.

6. The applicant and the 2nd respondent both reacted to the advertisement because they were either teaching Mathematics, Natural Sciences & Technology. During the time of advertisement the applicant was a post level 1 educator in the same school and she was also a curriculum co-ordinator and a School Management Team Member. Because this is a senior post at level 2 it is a promotion post and has higher status and salary level than post level 1 post she was occupying.

7. Applicant believed that she was suitable for the post because one of the key responsibilities of the Departmental Head position in a school is to co-ordinate and manage all curriculum related matters in a school. Kanyisa Primary School is a primary school with one Departmental Head allocated for the entire school curriculum. The school curriculum consists of IsiXhosa, English, Mathematics, Natural Sciences, Economics & Management Sciences, Social Sciences, Life Orientation, Life Skills, Technology, Creative Arts, Natural Sciences and Technology.

8. The applicant was shortlisted and interviewed for the said position and the applicant expected that she was going to be recommended by the SGB and appointed by the Department of Education but instead the respondent appointed the 2nd respondent. The applicant through her Union – SADTU challenged the appointment of the 2nd respondent at the ELRC.

9. Candidates were recommended for appointment by the interviewing panel in terms of section 6 of the Employment of Educators Act including the applicant and the 2nd respondent. The Department of Education – Eastern Cape appointed the 2nd respondent Mrs. Nonqubela Baleka who is now occupying the position in question.

10. 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. The applicant’s dispute is primarily premised on procedural fairness and the applicant’s argument is that the Department of Education acted unfairly in appointing the 2nd respondent and not appointing the applicant. The applicant seek reversal of the process of appointment as remedy to her unfair labour practice dispute.

11. The parties agree that the decision or power to recommend a candidate to the department rests with the School Governing Body and that the decision to appoint rest with the Department of Education - EC. The applicant then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 31st of July 2023 and they requested to deliver their closing arguments in writing on or before the 08th of August 2023 and both parties delivered their closing arguments.

SURVEY OF EVIDENCE

Applicant’s submissions.

12. The applicant Ms. Yolanda Mchiza testified that she works for the Department of Education as a level 1 educator and applied for the position of the H.O.D at Khanyisa Primary School at the Cofimvaba District in Cofimvaba in the Eastern Cape Province.

13. She testified that she was shortlisted and interviewed for the said post but was not appointed to the said post and the respondent appointed the 2nd respondent Mrs. Nonkqubela Baleka who does not meet the minimum requirements of the job. She told the hearing that she holds a Bachelor’s degree in Education and has seven years teaching experience.

14. She averred that she was teaching Maths, Xhosa, Technology and Life Skills at Khanyisa Primary School and has Mathematics and Natural Science as her qualifications. She averred that the bulletin was not clear on whether the requirement of Mathematics related to teaching experience or as a qualification. She confirmed that both she and the 2nd respondent qualified for the post of the H.O.D.

15. She stated that she is the Secretary of the SGB and serves in the subcommittee of the SGB. She averred that the H.O.D particularly in their school leads curriculum, a class teacher and the profiling of the post to include Mathematics and Natural Science was not wrong but the SGB did not profile the post and she knows that because she is an SGB member.

16. He gave evidence to the effect that the SGB is supposed to profile the post and in this instance this post was profiled by the Principal alone during the weekend. She testified that she was called by the principal on a Saturday or the profiling of the post and when she asked why not wait for a Monday and the principal replied that Monday will be too late because that was urgent and they did not have time. She further stated that to confirm that the post was not profiled by the SGB the SGB did not sign for the profiling of the post.

17. She testified that that she was called on a Friday for interviews to be held the following Monday and the Principal did not even observe the five working day period for issuing an interview notice. She testified that the Principal had two meetings with them after the bulletin was issued and in those meetings he indicated that no one qualified for the said position in their school.

18. She confirmed that there was no bad blood between her and the Principal and the principal had given her a positive recommendation but however stated that the Principal influenced the appointment of the 2nd respondent. She stated that the appointed candidate, the 2nd respondent, has a Junior Primary Teachers’ Diploma and is qualified to teach in the foundation phase.

19. She stated that she was recommended as the no 1 candidate by the SGB and in terms of the PAM document if the candidate recommended by the SGB is not appointed the department must appoint a teacher on a temporary basis and this did not happen in his post and the department appointed the 2nd respondent on a permanent basis. She reiterated that the interview panel and the SGB recommended her and when the 2nd respondent was due to report at school on the 01st of December 2022 she failed to report for duty and that she heard that she was chased away on the 2nd of December 2022.

20. She confirmed that she did not do Mathematics at grade 12 and at the tertiary level but was teaching Mathematics. She reiterated that the appointment of the 2nd respondent was not done at the recommendation of the SGB as required by legislation and her recommendation was declined without any valid reason and the PAM document was not correctly applied.

21. The 2nd witness of the applicant was Mrs. Sibakazi Jonas who stated that she is an educator at Khanyisa Primary School and is also a member of the School Governing Body. She averred that she was the secretary of the panel of interviews and was taking minutes and a compiler on the day of the interviews but those minutes were signed by the Principal.

22. She stated that the Principal was not supposed to sign the minutes as if he was a secretary or their compiler. She stated that the applicant Yolanda Mchiza was recommended by the panel and SGB based on her presentation and performance at the interviews and was better than Mrs. Nonkqubela Baleka and that Nonkqubela was supposed to teach at the foundation phase and not at the intersen phase.

23. She stated that the Principal influenced the appointment of the 2nd respondent and confirmed that the profiling of the post was done by the Principal and not the SGB and she heard that the candidates were not called at least five days before the date of the interviews. He stated that the ratification meeting was not held after the interviews but later.

24. The 3rd witness of the applicant was Mrs. Nolubabalo Magazi who testified that she is the member of the SGB and represented the SGB in the shortlisting and interviews for the appointment of the H.O.D at Khanyisa Primary School.

25. She stated that the shortlisting for this position was done on a Friday and the interviews were call for the following Monday because the Principal indicated that it will be late to allow time for the candidates to come in at later dates. She averred that Mhlathuzana stated that they must look for someone with Mathematics and that they must score Mrs. Nonqubela Baleka high.

26. She averred that she met Mqoboki and influenced them to score Nonkqubela Baleka high and there was a meeting held by the Principal with the parent component of the SGB after the bulletin was out. She testified that Ms. Mchiza was scored the highest by the interview panel and was recommended as a no 1 candidate by the SGB.

27. She stated that the SGB was never told that their recommendation was rejected and the SGB was denied its role to recommend a candidate of their choice and the SGB has a right to recommend a candidate of their choice.

Respondent’s submissions

28. The respondents 1st witness was Mr. Siqhamo Jeffery Nkomo who testified that he worked for the respondent as a Principal and now a Circuit Manager and Khanyisa Primary School is one of the schools in his Circuit where he is a Circuit Manager. He stated that he is aware of the recruitment of the position of the H.O.D at Khanyisa Primary school.

29. He averred that he received the profile for the said post and that Ms. Mchiza was not supposed to have been shortlisted to the said position because she did not have the required qualifications for the post of the H.O.D. He stated that she did not have Maths and Natural Science as subjects even though she was recommended as the no 1 candidate at the interviews and by the SGB. He confirmed that Ms. Mchiza was recommended as number 1 candidate and Nonkqubela Baleka was recommended as a number 2 candidate.

30. She stated that Nonkqubela Baleka qualified for appointment to the said position and confirmed that when she reported for duty on the 02nd of December 2022 she was blocked by the members of the community and SGB members and was therefore refused entry to the school and could not get into the school.

31. The second witness of the respondent was Mr. Thembikhaya Tafane who testified that he used to work for the respondent as a Principal at Khanyisa Primary School and that there was a post of the HOD that became vacant at the Khanyisa Primary School. He stated that on the 21st of July 2022 the school received a message from Mrs. Benya that they need to profile the post of the H.O.D. in their school.

32. On the 22nd of July 2022 Tshangana was appointed and the post was profiled during that weekend and he called the SGB members. He confirmed that he profiled the post himself and later set with the panel of shortlisting, interviews and later the ratification meeting. He stated that his role was that of a resource person in the process.

33. He stated that at shortlisting the panel developed a criteria that was close to the requirements of the post and the criteria was made to be inclusive in order to accommodate the other candidates with potential. He confirmed that the interview panel and the SGB recommended Ms. Mchiza as a no 1 candidate and he took that recommendation to the Department and submitted it.

34. He averred that Mr. Nkomo at the Department indicated that the candidate recommended as number 1 candidate does not meet the minimum requirement of the post and the Department proceeded to appoint the second recommended candidate on a permanent basis. He confirmed that he arranged to receive the second respondent at the school on the 1st of December 2022 but called Mrs. Nonkqubela Baleka to come on the 2nd of December 2022 because he was called for a meeting on the 1st December 2022 at the department.

35. He averred that when the second respondent Nonkqubela Baleka reported for duty on the 2nd December 2022 and also signed assumption of duty but could not resume duties because she was chased away by the SGB and the members of the community. He confirmed that when the post was profiled Ms. Mchiza objected to the profiling of the post and that he never had a meeting with the SGB parent component alone.

36. He confirmed at cross examination that Ms. Mchiza was the coordinator of the curriculum at the school and disputed that he ever influence anyone to score a particular candidate to be appointed to the post.

37. The third witness of the respondent was Ms. Bukiwe Mhlathuzana who testified that she works for the respondent as Acting Principal at the Khanyisa Primary School and is also a member of the SMT and the SGB. She averred that she was aware of the instruction that was given by Mr. Nkuhlu to the school to provide the minute book but could not produce the minute book.

38. She confirmed that the shortlisting of this post was held on the Friday the 28th of October 2022 and the candidates were called on the same day to attend interviews on the 31st of October 2022. She confirmed that she was trained together with the other members and they knew what was expected of them. She stated that she was scoring at the interviews and they did not have the names of the candidates.

39. She confirmed that Mrs. Tshangana who vacated the post was teaching Maths, Natural Science and NS Tech and that Ms. Mchiza was also teaching Maths at grade 5 and that Ms. Mchiza took over from Mrs. Tshangana after she left the school vacating the H.O.D position. She disputed that there was a discussion on whom they should appoint. She stated that Mrs. Nonkqubela Baleka performed much better than Ms. Mchiza at the interviews.

40. She averred that Yolanda Mchiza was recommended as a no 1 candidate by the interviewing panel and the SGB and she was a member of the SMT and that she did not know Baleka before the interviews and she was never influenced by anyone. She stated that Mrs. Stemele indicated that it was Mr. Jona who had approached the panelists and influenced the panelists.

41. She stated that the ratification meeting set and recommended Ms. Mchiza for appointment by the department of Education and she was part of that SGB decision which was unanimous in recommending Ms. Mchiza. She stated that Mrs. Mchiza qualified in terms of the criteria. She confirmed that the profiling was done by the Principal and confirmed also that the post was supposed to be profiled by the SGB. She stated that parents were left behind in the profiling of the post.

42. The respondents representatives then called the second respondent Mrs. Nonkqubela Baleka who testified that she started working as an educator in 2002 at Duli Junior Secondary School and was teaching Maths, Natural Science and NT. She stated that she also did Maths, Xhosa, Geography, Agriculture English and Biology. She averred that she was trained in Junior Primary education as is holding a Junior Primary Teachers Diploma and has attended a number of workshops and training also at Stellenbosch University.

43. She stated that she did not know the Principal Mr. Tafane and she first met him at the interviews but confirmed that she knew Mr. Nkomo because he was a Circuit Manager. She confirmed that she was interviewed and received her notice of appointment on the 30th of November 2022. She confirmed that she was also called on Friday 28th of October 2022 for interviews to come to the interviews on the 31st of October 2022 and she was interviewed appointed and accepted the offer.

44. She stated that she was called by the Principal to report for duty on the 01st of December 2022 first but then later the Principal apologized and stated that she must report for duty at the Khanyisa Primary School on the 2nd of December 2022 because he was attending a meeting at the department offices on the 01st of December 2022.

45. When she reported for duty on the 2nd of December 2022 she was refused entry by the members of the community and was told to report at the District Office and that she will be called and she has not been called to resume duties as yet after that incident. The respondents then indicated that the other two witnesses they intended to call were not available and then decided to close their case after this witness.

ANALYSIS OF EVIDENCE AND ARGUMENT

46. 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.

47. 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 her and consider her for appointment to the position in question and appointing the second respondent.

48. The respondent appointed the second respondent Mrs. Nonkqubela Baleka who was recommended number two candidate by the interviewing panel and later allegedly by the SGB. Both candidates meet the minimum requirements of the position of HOD in relation to the profiling and criteria set for the appointment of HOD.

49. As indicated above the applicant Ms. Yolanda Mchiza contests the procedural as well as substantive fairness of the appointment of the second respondent and her non – appointment to the HOD post. On the procedural aspect the applicant raised a number of issues and the applicant’s dispute is premised more on the procedural aspects as opposed to the substantive issue.

50. The applicant feels that the there is no reason why she was not appointed because she was recommend by the SGB and most importantly that there were no reasons advanced by the respondent why they preferred the second recommended candidate. The issue that this award has to deal with is whether there were procedural irregularities that can have an effect of rendering the process procedurally unfair. The substantive issue was also placed in dispute because the applicant feels that she was supposed to be accommodated as well in terms of the criteria set by the SGB.

51. It seems from what was provided that that the two candidates who are a subject of this dispute met the minimum requirements for the said position after the set criteria and that both of them are or were eligible for appointment to the post of the HOD. The respondents’ argument that the applicant is less qualified and less experienced as compared to the second respondent when it comes to teaching mathematics and natural sciences which are viewed as scarce skills subjects does not stand alone. These candidates were placed in the same basket and a decision to appoint one of them must be taken in consideration of all the factors relevant.

52. The applicant’s representative led evidence of the applicant and other two witnesses in advancing the applicants case and their evidence is summarized above in the topic dealing with survey of evidence. The essence of the evidence of the applicant is that there is no reason why she was not appointed as recommended by the SGB. Applicant also pointed a number of irregularities in the process some of which have been confirmed by the respondent’s witnesses in relation to how the second respondent’s appointment process was effected.

53. The applicant applied for this position because she qualified in terms of the criteria set for appointment and there was a reason for introducing and relaxing the criteria in this post and this is within the rights and responsibilities of the school (SGB). She reacted to the advertisement because she was teaching Mathematics, Natural Sciences and Technology and she applied for the post. During the time of advertisement, shortlisting, interviews and even ratification the applicant has always been recognized as the legitimate candidate for the post and even recommended number one at the interviews and ratification meeting. For this reason the argument that she did not meet the minimum requirements of the job cannot be sustained.

54. She has also been a curriculum coordinator and a School Management Team Member at this school and the SGB knew her and knew what they wanted when they recommended her and this does not mean that the applicant had an advantage over the other candidates but that the power of the SGB to recommend must be respected because there is a reason for the existence of that power and is clearly legislated. One of the key responsibilities of the Departmental Head in a school is to coordinate and manage all curriculum related matters in a school and this is what the applicant has been doing as indicated above.

55. This school, Kanyisa Primary School curriculum consists of the following subjects, IsiXhosa HL, English FAL, Mathematics, Natural Sciences, Economic and Management Sciences, Social Sciences, Life Orientation, Life Skills, Technology, Creative Arts and Natural Sciences and Technology.

56. The Personnel Administrative Measures (PAM) document in clause B.5.1.2 as amended in September 2022 states that any appointment or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the SGB. This is why the recommendation of the SGB has to be respected. If the SGB has not met the requirements in paragraph B.5.4.13 the HOD of the department must decline the recommendation.

57. Clause B.5.4.3 states that despite the order of preference (paragraph B.5.4.13) and subject to paragraph B.5.5.1. the HOD may appoint any suitable candidate on the list and if the HOD declines a recommendation, he/she must in terms of clause B.5.5.3.1. consider all applications submitted for the post and B.5.4.7. appoint a suitable candidate temporarily or re-advertise the post. This did not happen in this appointment and obviously the permanent appointment of the second respondent was against what is provided for in the PAM document.

58. In terms of the Employment of Educators Act 76 of 1998 Chapter 3(3) (b) the head of department may only decline the recommendation of the Governing Body of the public school or council of the further education and training if any procedure collectively agreed upon or determined by the Minister for the appointment has not been followed. The procedures collectively agreed her e.g criteria were not followed. The department here did not even go back to the SGB to explain their decision and this resulted in the 2nd respondent being locked out of the school on the 02nd of December 2022. These are the issues that are safeguarded by the existence of the legislative prescripts relating to the appointment of educators.

59. The applicant has through her witnesses Mrs. S. Jonas, Miss. Nolubabalo Magazi and herself led evidence that there was undue influence during the appointment processes of a Departmental Head at Kanyisa Primary School. Even though the circumstances are not very clear here and disputed by the respondents, on a balance of probabilities the submission of the applicant has to stand. The respondent led evidence that the 2nd respondent qualified for the post and this is not disputed and I do not intend spending a lot of time on this part, this dispute is more on a procedural side than the substantive issue. The respondent confirmed that the shortlisting meeting was confirmed by almost all the witnesses that it was done on 28 October 2022 and a resolution was taken that interviews be held on 31st October 2022.

60. Respondents further confirmed that this is not in line with the provisions of the Revised PAM document Chapter B.5.4.5 and any justification does not give the right to any party to break the law. But the respondents however argue that the same chapter demands that all candidates must be given similar treatment which was the case for all the candidates interviewed. They say there was nothing sinister about the short notice as the school was lagging behind the scheduled time and never wanted to lose the post. This argument is rejected because there is a reason why at least five official days must be given and the worst part here is that this was over a weekend and in essence the candidates were not even given at least one or two official days in between the shortlisting and interviews, I cannot accept that.

61. It also cannot be accepted that the applicant or any of the candidates did not suffer any prejudice as they were subjected to similar treatment as meted out to all other candidates. The fact that no one in the interview meeting including candidates complained about that does not mean this was right and the candidates usually do not complain at that point because they fear irritating the panelist and this is natural.

62. The applicant’s representative argued the Principal divided the SGB by calling one component of the SGB parents in a meeting and on conclusion of that meeting discussed the said appointment and influenced them. I cannot neglect this argument as the parent component of the SGB which is at the center of this dispute was not called by either the respondent or the applicant. This component was very much important in this dispute as the 2nd respondent was allegedly locked out of the school and is still not reporting at the school where she has been appointed. It is therefore possible that the parent component decided to remained behind and was influenced to consider anyone for appointment or there is a reason feared by both parties in getting a number of parents to confirm what is going on in that school.

63. The parents are supposed to own the activities happening at the school and this is why all appointments are made at the recommendation of the SGBs which the parents as the most important component and that these parents at the SGB even have to have learners learning in that particular school. This dispute is not more about substance attributes, but about the community, SGB or parents involvement in the affairs of the school. This power is conferred by the legislature and cannot be taken away from them by anyone of us.

64. The extent if the influence if there was any cannot be confirmed through evidence that was led at the hearing and the applicant’s representative argument that the other two scorers were influenced to award more scores to the 2nd respondent is rejected. Even that argument that Mr. Zithobile Mqoboka, the union observer that he influenced them by suggesting how questions for interviews must be drafted is rejected.

65. In SAPS v Safety and Security Sectoral Bargaining Council, Robertson NO and Noonan (unreported Labour Court judgment Cheadle AJ, Case Number P426/08, dated 27 October 2010); Ngcobo v Standard Bank of South Africa and Others (D439/12) [2013] ZALD 33 (25 September 2013), the Court held that where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, he or she should generally, at least demonstrate that there was conduct that denied him or her a fair opportunity to compete for the post, or conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest and misled the interview panel.

66. The same court held further that every applicant must carefully apply his or her mind to the application form and complete it honestly and diligently to compete fairly with other candidates. As I have indicated above the procedural irregularity must be of such a nature as to render the process unfair because it prejudices the other candidates or places the appointed candidate at an unfair advantage than the other candidates. I have also made a point that these issues cannot be dealt with or interpreted in isolation and all these factors must be considered together because they talk to each other. e.g. the issue of shortlisting process, interview and recommendation. I do accept that the ratification meeting was done properly in this dispute but I have no explanation why the applicant who was recommended by the interview panel and SGB was not preferred as discussed above and this cannot be interpreted to be a fair practice.

67. The fact that there was no complaint registered at that point of the interviews does not automatically translate to a fair process. These issues compromised the fairness of the process and the fact that union representatives declare process fair from shortlisting to the recommendation does not mean that the process cannot be challenged. Both the applicant and the 2nd respondent seem to meet the requirements of the post as envisaged in Regulation 11 of the Employment of Educators Act 76 of 1998 after the set criteria. From the argument above it then follows that the decision by the respondent to appoint the 2nd respondent and not to consider to appoint the applicant was procedurally unfair based on the evidence and argument advanced above in this matter.

68. Just on these grounds alone the process of appointment of the 2nd respondent cannot be said to be procedurally fair. I accept that the respondent has authority to appoint but has a responsibility to exercise such discretion reasonable and fairly especially taking into account the wishes of the SGB. 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 exercised by a party competent to exercise that discretion.

69. The reason for this is that clearly the ambit of the decision – making powers inherent in the exercising of discretion by a party, 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. The applicant in this matter has managed to demonstrate that the employer has not applied discretion fairly, procedural fairness has a bearing on the outcome of the process.

70. 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 biased manner. 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 the 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.

71. If one looks at how the discretion was applied by the respondent in this case it is clear that the prescripts that relate to the employment of educators were disregarded. There are serious procedural irregularities in this appointment as discussed above and that justifies interference with the decision to appoint the 2nd respondent. In Nutese v/s Technikon Northern Transvaal (1997) 4 BLLR 467 (CCMA) it was said that the employees have no right to promotion and as long the employer cannot provide rationale basis for its decision, appointment or promotion stand to be set aside. Similarly the applicant has no right to protective promotion.

72. The same principle was confirmed in Noonan v SSSBC and others [2012] 33 ILJ 2597(LAC), where 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 fairly compete for a post constitutes an unfair labour practice. If an employee is not denied an opportunity to compete for the post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the reason can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying the interference with the decision to appoint “.

73. Whilst I agree with this principle it must be noted that the applicant’s contention of this appointment is mostly on procedural grounds and the procedural irregularities should not be of such a nature that other candidates are prejudiced. If that happens it obviously affect the fairness of the outcome and this is what happened in this dispute, the nature and extent of the irregularities prejudiced the applicant and possible other candidates as discussed above. There will be interference with the exercise of discretionary power when they are unfair, arbitrary and unreasonable. The appointment or promotion of the 2nd respondent stands to be set aside because it was effected procedurally unfairly.

74. The appointment of the 2nd respondent and the non – appointment of the applicant was procedurally and substantively unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended. The applicant has indicated that she would like the Council to set aside and reverse the appointment or promotion. The applicant obviously cannot be granted protective promotion on procedural grounds.

75. This does not mean that the applicant nor the 2nd respondent must be automatically shortlisted but simply means that the process was unfair and the outcome of an unfair process cannot stand or cannot produce a fair result. The applicant has requested that I make an order stating that the appointment be set aside and the process be started afresh and this is not an unreasonable remedy to request.

76. In the circumstances I make the following award.

AWARD

77. The appointment of the 2nd respondent Mrs. Nonkqubela Baleka is hereby set aside with effect from the 30th of September 2023.

78. The respondent Department of Education – Eastern Cape is ordered to re – advertise the position of the Head of Department (the position in question) by not later than the 01st of October 2023 and advise the applicant and 2nd respondent specifically to apply for that position.

79. There is no order as to costs.


Signature:

Commissioner: Malusi Mbuli