ELRC702-22/23EC

Case Number: ELRC702-22/23 EC
Panelists: Malusi Mbuli
Date of Award: 09-10-2023

In the ARBITRATION between

NAPTOSA obo CHWAYTA QEZU
(Applicant)

And

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

NONDUMISO XAJI
(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 Engcobo District offices at Engcobo and was finalized on the 21st of September 2023 before Commissioner M. Mbuli.

2. The applicant Mrs. Chwayita Qezu attended the hearing and was represented by Mr. Aaron Mhlontlo an official of the applicant’s trade union NAPTOSA. The 1st respondent, the Department of Education (Eastern Cape) was also present at the hearing and was represented by Mr. B. Nkuhlu an official of the respondent.

3. The 2nd respondent Ms. N. Xaji was also present at the hearing and was represented by Mr. N. V. Veldtman a shop steward of the applicant’s trade union SADTU. The matter was finalized on the 21st of September 2023 and the parties agreed to file their closing arguments not later than the 29th of September 2023 and all the parties filed their arguments.

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, Mrs. Chwayita Qezu applied for the position of a Deputy Principal - at Cala Senior Secondary School in the Engcobo District of the respondent. At the time of the application, the applicant was a post-level 2 educator (H.O.D) at the same school, Cala Senior Secondary School.

6. The applicant was shortlisted and interviewed for the said position and was placed at no 3 in terms of the scores in the interview. Through his Union – NAPTOSA the applicant challenged the appointment of the 2nd respondent at the ELRC because she feels that she was the best candidate for the job based on her qualifications, experience and her performance in the interviews.

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

8. 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.

9. It is not in dispute that both the applicant and the 2nd respondent qualified for the position but the issue in dispute is whether there was flouting of the processes and other procedural irregularities in the short listing, interviewing and ratification processes and also whether the 2nd respondent was the best candidate for the job.

10. 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. The applicant seek the setting aside of the post and starting the process afresh as a remedy.

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 21st of September 2023.

SURVEY OF EVIDENCE

Applicant’s submissions.

12. The applicant Mrs. Chwayita Qezu testified that she started working for the Department of Education in 2003 as a post level 1 educator and became the H.O.D in 2017 and has improved and made a lot of contribution as an examiner at Cala Senior Secondary School.

13. She holds a Senior Certificate, College Higher Diploma Accounting, B.Ed Honours Education Management, Law and policy and is currently studying towards Master of Education in Information and Communication technology in Education.

14. She is currently teaching Economies in grade 10 - 12, EMS and Economics, Moderator EMS grade 8 & 9 and she states that while presenting during interview she was disturbed by the sleeping of a secretary but could not raise that in the interviews because she was a candidate and maybe prejudiced.

15. She averred that she is the member of the School Management Team but was not part of the profiling of this post and could see that the school require state subject and this was made to broaden the scope so that more qualifying people can apply. She testified that the recruitment process was not fair and transparent and before the appointment was made everyone in the school knew who was going to be appointed.

16. She stated that the said Deputy Principal position was vacated by the retirement of the former Deputy Principal and before she retired she said she knew who would be applying and she did not enjoy good relationship with the previous Deputy Principal. She stated that before the post was filled the Principal had pronounced that the post would suite the 2nd respondent and that Mrs. Sturman who is a member of the SGB was already calling the 2nd respondent as the Deputy Principal of Cala Senior Secondary School.

17. She averred that the SGB members who are from the teacher component were not elected by the SGB but were co-opted to conduct interviews and these teachers were Hanise and Ntsele and that Sturman who had pronounced who will be the Deputy Principal was deployed in the panel of interviews as a panelist.

18. She stated that Mrs. Ntsele who was a panelist in the interviews was sleeping and she was discouraged by her lack of participation because she was one of the scorers. She stated that on the interview date whilst Mrs. Xajis car was packed at the parking lot waiting to be called she saw the admin staff member / clerk going to her car from the interview room and she thought that she was going there to share the questions.

19. She stated that Mrs. Xaji took about an hour in the interview room and she referred to the dates and stated that the shortlisting was done before the appointment of the panel of shortlisting which proves that the shortlisting was not done by the shortlisting panel. She reiterated that the Principal pronounced that Ms. Xaji will be the Deputy Principal of the school and this was said in the presence of other educators.

20. She referred to the minutes of appointment of the shortlisting panel and pointed that the 2nd respondent was part of the meeting that appointed the shortlisting panel which means that she participated in the meeting that elected a panel that appointed her. She averred that the 2nd respondent had an unfair advantage over the other candidates and was unduly placed in a position of influence.

21. She further stated that the 2nd respondent attended the meeting that was talking about interviews and again had an unfair advantage over the others. The applicant referred the hearing to the minutes of the appointment of the panel and stated that Mrs. Sturman was a panelist yet she was not appointed in the meeting where the others were appointed as appearing in the attendance register.

22. She pointed to another discrepancy where it appeared that the minutes of the interviews were on and dated the 24th of October 2022 and the same minutes were stamped on the 16th of February 2023. She stated that that the SADTU observer actively participated in the interviews and even suggested questions to be asked.

23. She stated that some of the documents that she requested to put forward her case were not produced by the employer and others had missing pages which suggests that there is information withheld by the employer. She stated that there was a tire that was not properly broken but just ignore by the employer when they proceeded to appoint the 2nd respondent and only 2 names were submitted to the H.O.D.

24. She contended that in all respects she is the best candidate especially when compared to the 2nd respondent and is one of the most productive teachers in the school and that the outgoing Deputy Principal was instrumental in making sure that she is not appointed by sabotaging her programes.

25. The 2nd witness of the applicant was Ms. Aleta Gagela who stated that she started working for the respondent on 03rd of August 2020 as an administrator, learner support agent to assist learners with problems, certificates, registration, messenger, invigilator and assist with documentation and also do some office administration and assisting the Principal.

26. She stated that she know Ms. Xajis hand writing and signature because she was her mentor and she used to type what she has written. She averred that she used to work at the clerk’s office and one day before the appointment the Principal arrived at the clerk’s office and stated that Ms. Xaji was going to be his Deputy.

27. When he said that that she was with Mrs. Mobho and Kayakazi Adam and at that point the post had already been advertised and this was said again by Mr. Madikwa when they were travelling to town. She stated that she told him that she does not have a problem with anyone to be appointed.

28. She confirmed that she was at work on the 24th of October 2022 and after the interviews Ms. Xaji told her that she was laughing because she was there at school working because of her and few months later after she was appointed their contracts were terminated. She averred that Ms. Xaji knew that she was going to be appointed to the said position. She stated that she knew Mrs. Sturman and that Mrs. Sturman had a good relationship with Mrs. Xaji and Mrs. Has been referring to Ms. Xaji as a Deputy Principal.

29. The 03rd witness of the applicant was Ms. Tembeka Norushe who testified that she started working as a teacher at Cala SSS and became permanent in 2012. She averred that the former Deputy Principal had pronounced that she would like Ms. Xaji and that there are people who would like to take her position.

30. She stated that the Principal said it was his wish that Ms. Xaji be the one appointed as a Deputy Principal and they were never informed about the profiling of the post and the profiling was done secretly and were profiled to suite the teachers who are members of the SGB.

31. She testified that there were 2 H.O.Ds at their school Ms. Nohashe & Qezu and she personally did not apply because the principal had already pronounced who should be the Principal. She stated that Mrs. Sturman and other teachers were already referring to Ms. Xaji as the Deputy Principal. She testified that Ms. Xaji is very close to the Chairperson and other SGB members.

32. She confirmed that she know the hand writing of Ms. Xaji and that she is the one who signed the minutes and she was not supposed to be part of the meeting that elected the shortlisting panel that was going to shortlist or not to shortlist her. She stated that she and Mrs. Qezu would not attend the staff meeting because they were not invited to those staff meeting.

33. The applicant’s representative then closed the applicant’s case and the respondent opened the respondent’s case by calling their 1st witness Mr. Makhosonke Armstrong Mazwi who testified that he works for the respondent since 2015 as the Principal at Cala Senior Secondary School.

34. He stated that he participated in the recruitment process for the appointment of the Deputy Principal as a resource person by virtue of being school principal and that the process was free and fair. He testified that the profiling of the post was done by the SGB then went to the SMT and was then taken to the teachers and later sent for advertisement. He averred that the when the post was profiled it required management and any state subject as a requirement and he called on all the teachers who qualified to apply and only 2 teachers applied.

35. He testified that at the time of the application Mrs. Qezu was an H.O.D and Ms. Xaji was a post level 1 educator and also confirmed that the post of the Deputy Principal in question was vacated by the fact that the Deputy Principal retired. He disputed that the 2nd respondent already occupied the office of the Deputy Principal even before the appointment was made.

36. He testified that the shortlisting panel was elected by the SGB according to the prescripts because the meeting to select the panel was convened and the replacement of the teacher component representative was done by the SGB. He disputed that there was panelist or scorer who was sleeping in the interviews and also testified that the ratification process was conducted and went well.

37. He disputed that he announce on the preferred candidate long before the appointment and further stated that both unions SADTU and NAPTOSA were present at the interviews and that he did not have any problem with Mrs. Qezu and she even supported her when she was going to be redeployed. He further disputed that the termination of the contracts of the contract workers had something to do with the appointment of the Deputy Principal and stated that their contracts were terminated because the parents did not pay.

38. He testified that he is experiencing problems with Mrs. Qezu and Ms. Norushe because they are not co-operating at the school and undermine his authority as a school principal because sometimes they don’t attend the meeting called by him. He averred that Mrs. Qezu and her husband spoke to some of the SGB members persuading them to consider Mrs. Qezu for appointment to the post of Deputy Principal. He stated that no one complained about the process as being irregular.

39. He confirmed that Ms. Xaji was taking minutes in the meeting that appointed the shortlisting panel and disputed that the observer from SADTU actively participated in the drafting of questions in the interview but that he was rephrasing the question. He disputed that the secretary Ms. Ntsele slept in the interviews and also stated that he did not have favorites but just encouraged all teachers to apply. He averred that he did not have a problem with Ms. Qezu and is working well with her.

40. The 2nd witness of the respondent was Mr. Thembelani Mbono who testified that he is the chairperson of the SGB of Cala SSS and was also the chairperson of the selection panel. He stated that he has been involved in the recruitment processes before and has been the chairperson in many recruitment process at the school and at other surrounding schools.

41. He stated that he was trained on the recruitment processes and confirmed the members of the panel who were present at the interviews and that there were observers as well from SADTU and NAPTOSA when he went for training it was not for the first time that he attended training. He stated that there were no objections raised by the candidates or observers at the interviews and disputed that the secretary Ms. Ntsele slept at the interviews when the applicant was interviewed.

42. He stated that the interview questions were drafted by the panelists and the panelists were not assisted by the observers in the drafting of the questions. He stated that the process was fair and Ms. Nondumiso Xaji was recommended as a no 1 candidate. He stated that Mrs. Qezu and her husband had tried to bride him in order to assist in the appointment of her, Mrs. Qezu as a Deputy Principal.

43. He testified that this did not sit well with him because he was going to chair the interviews but he did not report this to anyone at the time and that he knew that bribery was wrong and illegal. He confirmed that Ms. Sturman and Mr. Madikwa were not elected by the SGB but were sent by the teacher component to replace the SGB.

44. The 2nd witness of the respondent was Ms. Nothoza Khanyisa who testified that he is a member of NAPTOSA and was an observer in the interview process. She stated that the process was fair and each candidate was given a fair chance of in the interviews and all were treated the same.

45. She averred that she was called by Mr A. Mhlontlo asking the minutes of the process and told him that everything went well and as union representative they worked well with the resource person. She stated that they signed a declaration confirming their satisfaction with the process.

46. She disputed that the secretary sleep during the process of interviews and stated that they did not assist the panelists with drafting of the questions. She stated that Ms. Nondumiso Xaji performed well during the interviews and her appointment was not a surprise to her.

ANALYSIS OF EVIDENCE AND ARGUMENT

47. 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.

48. 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 consider him for appointment to the position in question and appointing the 2nd respondent.

49. The respondent appointed the 2nd respondent Ms. Nondumiso Xaji who was recommended by the interviewing panel and later by the SGB. Both candidates meet the minimum requirements of the position of Principal in relation to all the attributes.

50. As indicated above the applicant contests the procedural as well as substantive fairness of the appointment of the 2nd respondent and her non - appointment. On the procedural aspect the applicant raised a number of issues and the applicant’s dispute is more on the procedural aspects.

51. The applicant feels that the there is no reason why she was not appointed and that it is because the members of the SGB were influenced by the Principal, some had a relationship with the appointed candidate Ms. Xaji. 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 and compromise its integrity.

52. The substantive issue was also placed in dispute because the applicant feel that she was the best candidate for the job or post in question because she possess better attributes than the appointed candidate. It seems from what was provided that that the 2 candidates who are a subject of this dispute meet the minimum requirements for the said position and that both of them are or were eligible for appointment to the post of the principal. However this substantive issue cannot be ignored because the applicant seem to possess better attributes than the appointed candidate in relation to management experience, qualifications and experience.

53. The applicant’s representative led evidence of the applicant and 2 other witnesses in advancing the applicants case, respondent also called 3 witnesses 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 to the said post because she was the best candidate for the job and that the recruitment process was flawed.

54. Applicant pointed a number of irregularities in the process some of which have been confirmed by the respondent’s witnesses in relation to how the 2nd respondents taking minutes in a meeting shortlisting panelists to shortlist and interview her together with other candidates. These issues are interrelated and I must say that the respondent did not call a number of witnesses to explain the process, corroborate the evidence of the 2 main witnesses called by the respondent.

55. Sturman, NtseIe and any one or other witnesses from the school particularly from the teacher component were not called by the respondent to dispute the applicant’s version yet the respondent has all the resources and capabilities at their disposal. I shall therefore deal with and evaluate the evidence led at the hearing in consideration of this background because in Tshishonga v/s Ministry of Justice and Constitutional Development & other (2007) 28 ILJ 195 (LC) the court said that an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavorable to him or even damage his case.

56. The panelists and the SGB are supposed to administer justice when making an appointment and any person who undertakes to administer justice is disqualified or his or her decision will be reviewed and set aside if that person has bias which interferes with his or her impartiality or there circumstances affecting him or her that might reasonably create a suspicion that that that person is biased.

57. The appointment process particularly in the education sector has become delicate and has to be approached with caution and due confidentiality. The applicant alleged that the incumbent appointed, 2nd respondent is not the best candidate for the job in comparison with her and that she was appointed because she is the favorite of the principal and very close to the School Governing Body members.

58. There are a number of type’s relationships that may give rise to bias like, family relationship, pecuniary relationship and family relationship. The evidence led in this hearing confirms that the 2nd respondent has a form of relationship with the SGB. There is nothing wrong with that but it becomes a problem when it can have an effected of compromising the process.

59. The evidence of the applicant was corroborated by her witnesses on materiel issues and some confirmed by the employer witnesses and this is what makes the applicant’s version more probable and will summarize this evidence again. The other members of the SGB were not called as I indicated above to take the hearing to confidence and that the utterances that did not favor the appointment of Ms. Nondumiso Xaji 2nd respondent seem to be true.

60. It is not disputed that according to the panel Ms. Nondumiso Xaji secured number 1 with 70 points whereas Mrs. Qezu secured number 3 with 43 points. There is no clear evidence of a documentary nature confirming that the process of profiling the post was done according to the regulations and that it was not done by the principal as alleged.

61. The SGB members were taken to the workshop by the education officials and trained and there is no issue about that but the question is whether they managed to live up to the expectation of the respondent and candidates. The applicant Mrs. Chwayita Qezu testified that she started working for the Department of Education as a teacher in 2003 as a post level 1 educator and became the H.O.D in 2017 and has improved and made a lot of contribution as an examiner at Cala Senior Secondary School.

62. The applicant gave a clear account of her attributes, experience and capabilities and stated that she holds a Senior certificate, College Higher Diploma Accounting, B.Ed Honours Education Management, Law and policy and is currently studying towards Master of Education in Information and Communication technology in Education. She is currently teaching Economies in grade 10 - 12, EMS and Economics, Moderator EMS grade 8 & 9.

63. She averred that she is the member of the School Management Team and was already an H.O.D at the time she applied for the post and the 2nd respondent was a post level 1 educator. These factors or attributes must considered together in order come to come to a fair determination. At the same time I do not want to act as the respondent and be tempted to pronounce who should be appointed as doing so will amount to acting Ultra Vires.

64. It seems from the evidence of the 3 witnesses of the applicant that it was well known to everyone at school that the 2nd respondent will be the one who will be appointed and this evidence is not adequately disputed as I have stated that some relevant witnesses were not called. Applicant and her witnesses stated that the Principal knew that the post would suite the 2nd respondent and that Mrs. Sturman who is a member of the SGB was already calling the 2nd respondent as the Deputy Principal of Cala Senior Secondary School and this is not supposed to be the case.

65. Applicant led evidence that the SGB members who are from the teacher component were not elected by the SGB but were co-opted to conduct interviews and these teachers were Hanise and Ntseke and that Sturman who had pronounced who will be the Deputy Principal was deployed in the panel of interviews.

66. She further stated that Mrs. Ntseke who was a panelist in the interviews was sleeping and this discouraged by her lack of participation because she was one of the scorers but the applicant is the only witness who witnessed this sleeping and I cannot believe her because this evidence is disputed.

67. . She stated that whilst Mrs. Xajis car was packed at the parking lot waiting to be called she saw the admin staff member / clerk going to her car from the interview room and she thought that she was going there to share the questions. This evidence I will have to accept because it was not disputed. According to the documents the shortlisting was done before the appointment of the panel of shortlisting which proves that the shortlisting was not done by the shortlisting panel and this is another irregularity.

68. The evidence that the Principal pronounced that Ms. Xaji will be the Deputy Principal of the school is corroborated and becomes credible as opposed to the 2nd respondents version. It is not disputed that the minutes of appointment of the shortlisting panel confirm the 2nd respondent was part of the meeting that appointed the shortlisting panel which means that she participated in the meeting that elected a panel that ultimately appointed her. This placed the 2nd respondent at an unfair advantage over the other candidates and was placed in a position of influence.

69. She further stated that the 2nd respondent attended the meeting that was talking about interviews and again had an unfair advantage over the others. The applicant referred the hearing to the minutes of the appointment of the panel and stated that Mrs. Sturman was a panelist yet she was not appointed in the meeting where the others were appointed as appearing in the attendance register. This is another irregularity that is confirmed in the respondent’s documents.

70. She pointed to another discrepancy where it appeared that the minutes of the interviews were on and dated the 24th of October 2022 and the same minutes were stamped on the 16th of February 2023, this is yet another irregularity. She stated that that the SADTU observer actively participated in the interviews and even suggested questions to be asked and I can believe the applicant when I compare her evidence with counter evidence of the employer and the fact that other witnesses were not called to corroborate the respondent’s evidence.

71. She stated that some of the documents that she requested to put forward her case were not produced by the employer and others had missing pages which suggests that there is information withheld by the employer. The employer is the custodian of documents and has to discover all the documents requested relevant to the matter.

72. The issue of a tire that was not properly broken but just ignored by the employer when they proceeded to appoint the 2nd respondent and only 2 names were submitted to the H.O.D is not much of an issue as it was on candidates no 3 & 4. The 2nd witness of the applicant was Ms. Aleta Gagela corroborated the applicant’s version in all materiel facts. The same happened with the testimony of the applicants 03rd witness Ms. Tembeka Norushe.

73. I do not agree that the SGB and the panel had no predetermined decision on who they wanted to appoint in the position of the Deputy Principal and the issue of bias does not have to be a real one but a perception of bias is sufficient to constitute bias.

74. 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. 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.

75. I do accept that the ratification meeting was done and all members of the SGB were called and scores were shown to them and all SGB members agreed on the 4 recommended candidates. The fact that there was no complaint registered at the point of interviews does not automatically translate to a fair process.

76. Similarly the fact that union representatives declare process fair from shortlisting to the recommendation does not mean that the process cannot be challenged. It is not disputed that the applicant and the 2nd respondent met the requirements of the post as envisaged in Regulation 11 of the Employment of Educators Act 76 of 1998. 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 in this matter.

77. Just on these points the process of appointment of the 2nd respondent cannot be said to be procedurally fair. The respondent has authority 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 exercised by a party competent to exercise that discretion.

78. The reason for this is that is clearly that 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.

79. 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.

80. 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.

81. 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 was 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.

82. Whilst I agree with this principle it must be noted that the applicants contention of this appointment is mostly on procedural grounds and whilst the 2nd respondent maybe the best candidate for the position if she is or met the minimum requirements, the procedural irregularities should not be of such a nature that other candidates are prejudiced. This is what happened in this dispute, the nature and extent of the irregularities prejudiced the applicant and possible other candidates as discussed above. The appointment of the 2nd respondent stands to be set aside because it was effected procedurally unfairly.

83. 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 he would like the Council to grant her appropriate remedy including but not limited to protective promotion.

84. The applicant obviously cannot be granted protective promotion on procedural grounds and as I have indicated it was not easy to properly assess the substantive part as I do not want to act Ultra Vires. The applicant has requested that I make an order stating that the appointment be set aside and the process be started afresh from the shortlisting stage and this is not an unreasonable prayer from the applicant’s side in the circumstances.

85. In the circumstances I make the following award.

AWARD

86. The appointment of the 2nd respondent Mrs. Nondumiso Xaji is hereby set aside with effect from the 30th of November 2023.

87. The respondent Department of Education – Eastern Cape is ordered to re – advertise the position of the Deputy Principal at Cala Senior Secondary School (the position in question) not later than the 30th of November 2023 and advise the applicant and 2nd respondent specifically to apply for that position.

88. Nothing stops the respondent to appoint anyone including the applicant and the 2nd respondent to act in the said position from the 01st of December 2023 until the position is filled.

89. There is no order as to costs.


Signature:

Commissioner: Malusi Mbuli