ELRC137- 23/24KZN

Case No ELRC137- 23/24KZN

In the matter between

L.L. Mbatha Applicant
And
Department of Education - KZN 1st Respondent
S.K. Mazibuko 2nd Respondent

ARBITRATOR: R. Shanker

DELIVERED: 22 February 2024

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration and was heard on 18 October 2023, 03 November 2023 and 18 January 2024. The parties were thereafter granted until 29 January 2024 to submit written closing arguments.

2. The applicant, L.L. Mbatha (“Mbatha” / Applicant), was represented by M. Ntshangase, an official of SADTU. The 1st respondent, the Department of Education (“Respondent”), was represented by B. Mdlalose, an official of the Department of Education. The 2nd respondent, S.K. Mazibuko (“2nd Respondent”), was represented by V. Msimanga.

3. The applicant referred an unfair labour practice dispute relating to promotion.

ISSUES TO BE DETERMINED:
4. The issue to be determined is whether the conduct of the 1st respondent in not shortlisting the applicant for the position of Deputy Principal was unfair and, if so, to determine the appropriate relief to award.

BACKGROUND TO DISPUTE AND NARROWING OF ISSUES
5. The position of a Deputy Principal at the Hope Combined School was advertised in HRM 5 of 2022 as post number 875. The applicant was a Post Level 1 educator at the said school and she applied for the position, was shortlisted and interviewed. The applicant was ranked number one (1) and her name appears in the list of five recommended candidates. The 2nd respondent was not invited to that interview. The said process was, however, suspended pending the outcome of a grievance lodged by one of the candidates.

6. The grievance lodged was about the misrepresentation on the part of the applicant on her CV by stating that she had “Acted as a Deputy Principal on several occasions”. The grievance was tabled before the District Grievance Committee (“DGC”). Upon verification and investigation, the DGC found no records of the applicant acting as a Deputy Principal. The DGC upheld the grievance and ruled that the process recommences from the shortlisting stage without the inclusion of the applicant’s CV. Upon finalisation of the second process, the 2nd respondent was appointed to the post of Deputy Principal.

7. In summary, the applicant contends that she did not misrepresent herself in her CV, that she was the best candidate for the post of Deputy Principal but the 1st respondent, by excluding her CV at the second shortlisting process, had denied her a fair opportunity to compete for the post. It is common cause that the applicant was never appointed to act in the position of Deputy Principal in terms of the ELRC Collective Agreement No. 8 of 2002 (“Collective Agreement”).

8. The applicant testified and called one witness to testify in support of her version. The 1st respondent called two witnesses to testify in support of its version. The 2nd respondent did not testify or call witnesses but cross-examined witnesses. The parties relied on bundles of documents marked Bundle A – E.

9. As relief, the applicant requested that she be appointed to the advertised post of Deputy Principal.

SUMMARY OF EVIDENCE AND ARGUMENT
10. The evidence listed hereunder is not verbatim accounts of the proceedings but a summary of the evidence deemed necessary to determine the key issues in dispute. All evidence and arguments were considered prior to drafting this award.

11. Item 1.16 of the applicant’s CV is of relevance in determining this dispute and is quoted below for ease of reference:
1.16 LEADERSHIP: ADMINISTRATIVE, MANAGEMENT AND RELATED EXPERIENCE (DO NOT EXCEED THE NUMBER OF LINES PROVIDED)
Acted as Deputy Principal on several occasions. Formulated year school programme through strategic planning. Accountable, responsible for managing educators, support staff + learners. Determined school needs through mission, vision + set target goals. Formulated policies + made consensus decisions. Evaluated, assessed + appraised staff for professional growth through IQMS + EPMDS. Preserved good + collegial working relations by mediating conflict situations through dispute resolution processes. Using PFMA, drew school budget with SGB + SMT. Applied principle of participatory democracy. Guided, supervised, controlled + managed school curriculum, its coverage + departmental heads. Instil discipline + effective communication. Held development workshops.”

12. The applicant testified that she lodged the dispute because the 2nd respondent was not part of the first five candidates that were shortlisted during the first process. Her CV was the only one that was scrutinised and this was done after the interviews. She was not afforded the opportunity to put her version, either in writing or in person, prior to the finding of the DGC that she had misrepresented herself by stating that she acted as a Deputy Principal. When she wrote on her CV that she acted as a Deputy Principal, she meant that she was given tasks to perform at a Deputy Principal at various times. She did not state in her CV that she was “appointed” but only stated that she “acted”.

13. At school, she was given duties/tasks to perform of a Deputy Principal which was a norm at this school when there was too much work. In 2015, she signed the report cards for learners on behalf of the Deputy Principal. The principal was present at the time but was busy so he delegated the signing duty to her. On several occasions in 2018 she was given the duties of the Deputy Principal to sign the report cards for learners. She was the Grade Head and the Deputy Principal was busy with something else so she had to sign the report cards. It was a verbal appointment announced by the principal on that morning that Grade Heads must oversee the signing of reports and sign on behalf of the Deputy Principal because of the workload.

14. With regard to whether she was the best candidate for the position of Deputy Principal, she maintained that her 23 years of experience and the skills she gained through teaching made her a suitable candidate. She also gained management experience whilst performing union functions. She led the union at branch level and spent four years at regional level. She was the sports arts and culture convener and then the Deputy Secretary. She was exposed to providing support including strategic planning, workshops and training, PMFs and budgets.

15. Under cross-examination, she agreed that with her four (4) years’ experience of union leadership, she was familiar with terminology used in the Department. She did not agree that it was reasonable for a person to conclude that “acting” would be in terms of the Collective Agreement. She stated “acted” and not “appointed” because “appointed” would be in terms of the Collective Agreement and she would have been given a letter of appointment. She was appointed as Deputy Principal without incentives but not appointed in terms of the Collective Agreement. She agreed that she was delegated tasks but maintained that she was acting as the Deputy Principal whilst she was performing the tasks.

16. She put a full stop after the words “Acted as Deputy Principal on several occasions.” and the rest of the duties listed in Item 1.16 of her CV was not linked to this first sentence. She performed those duties as a Grade/Phase Head. When it was questioned as to why she did not indicate that those duties were performed as a Grade/Phase Head, she stated that there was no space. When it was put to her that the panel members should have been informed that she performed those duties as a Grade/Phase Head and would have scored her accordingly and not as a Deputy Principal, she maintained that the sentences were not linked and “Acted as a Deputy Principal on several occasions” is a stand-alone point. She agreed that she got to the interview stage base on the scores from her CV. With regard to signing the report cards, she agreed that the Deputy Principal was present but was busy with other work.

17. On her CV, with regard to “Determined school needs through mission, vision + set target goals”, she performed those function as a Grade/Phase Head. She agreed that she did not determine school needs and never set targets for the school but maintained that she done so for the Grade. She disagreed that “determining school needs” was misleading because Grade/Phase needs were included in the school.

18. With regard to “Evaluated, assessed + appraised staff for professional growth through IQMS + EPMDS”, she developed staff by providing support to staff, eg cleaners, when classrooms were not clean. She agreed that she was not responsible for supervising cleaners. She agreed that staff development in terms of policy is done by supervisors. She did the assessments verbally and informally and agreed that there was no informal part in terms of policy. In terms of IQMS, she assessed teachers and did class visits for teachers that she assessed and appraised. In terms of EPMDS, she conceded that she did not assess or appraise anyone and that this was misleading. She disagreed that a reader of her CV would have scored her marks that she did not deserve just by putting EPMDS.

19. With regard to “Preserved good + collegial working relations by mediating conflict situations through dispute resolution processes”, she performed this function as a Grade/Phase Head and not as an acting Deputy Principal. She denied that she deliberately did not state that she performed this function as a Grade/Phase Head in order to mislead the reader into thinking it was performed as an acting Deputy Principal. She maintained that there was no space in that section to do so.

20. With regard to “Using PFMA, drew school budget with SGB + SM”, she did so as part of the SGB. She agreed that she performed this function as a secretary and that she was not solely responsible for drawing up school budgets as implied in her CV. She denied that she tried to take the credit for work that she did with the principal. She maintained that there was no space in the document to indicate that she performed this function as a secretary but she did indicate that it was with the SGB and SM. She denied that this was misleading.

21. With regard to “Guided, supervised, controlled + managed school curriculum, its coverage + departmental heads, she did that as the Grade/Phase Head. With regard to control, she agreed that Departmental Heads are superior and they supervised Grade Heads. She, however, maintained that Grade/Phase Heads are superior to Departmental Heads for that subject and there was no space in the document to indicate that this function was performed as Grade/Phase Head.

22. With regard to “Instil discipline + effective communication”, she performed this function as Grade/Phase Head. With regard to “Held development workshops”, she attended a workshop and gave feedback when she returned. She agreed that it was not known in terms of which capacity she performed this function in her CV but disagreed that she wanted to mislead the reader.

23. She agreed that she was not appointed to act but that she was delegated certain functions. She maintained, however, that in performing those functions, she acted as a Deputy Principal. She agreed that there is no other document that regulates acting in a higher position other than the Collective Agreement.

24. Mzimkhulu Mazibuko (“Mzimkhulu”) testified in support of the applicant’s version. He was a scoring member of the Interview Committee and chairperson of the SGB. He was not called to the DGC meeting. After he received the outcome of the DGC, he called a SGB meeting. The SGB decided in the majority to run with the outcome of the DGC. The applicant’s CV was excluded and the second process continued.

25. In terms of Item 1.16 of the applicant’s CV, he understood “Acted as a Deputy Principal on several occasions” to mean that a person has been a Deputy Principal and given duties of a Deputy Principal on several occasions. As a scorer, it meant to him that the person was not permanent but the person did some duties as a Deputy Principal. He did not see any relation between the first and second sentence. He looked that the applicant’s entire CV.

26. Under cross-examination, he agreed that CVs have the same structure for all applicants. He was guided by Resolution 11 of 1997 for a holistic approach. He disagreed that a candidate with Deputy Principal experience would be scored higher. He would keep the first sentence in mind but it could be one of other things, eg experience not as a Deputy Principal. He disagreed that a person acting as a Deputy Principal show that the person has more experience. Another person could have longer experience but not act as a Deputy Principal.

27. When he was questioned as to how he would have credited the applicant for leadership if he did not know whether the applicant performed those duties as a Deputy Principal, he maintained that he was satisfied that the applicant had performed those duties. He knew that the applicant had performed those functions and not whether it was as a Deputy Principal. He did not know if those functions were linked to her role as a Deputy Principal. He just focused on the actual function and whether the applicant can perform or has the capacity to perform that function. He therefore looked at each sentence on its own and whether the applicant had the capacity to perform the necessary function. He denied that he credited the applicant for things she did not do. He considered the CV to be true. He disagreed that the first sentence is linked to the duties listed in the CV.

28. He was of the view that “acting” would be different to the way people understand it. There were many instances where a person would act for a day or two. He knew the difference between delegated duties and acting and would have looked at the applicant’s CV if she said that she had been delegated Deputy Principal duties. When it was put to him that the applicant did not conduct EPMDS and that was misleading, he agreed that if it was blatant then it was misleading. He agreed that if there was any incorrect information on the CV then it was misleading.

29. He disagreed that he knew the applicant. At the shortlisting stage, there were no names, only numbers. He agreed that he and the applicant served at the union at the same time and that the applicant was his superior. He served at the branch level and the applicant served at the regional level. He agreed that both of them were part of the executive of the branch. He did not disclose his history at the Interview Committee because the applicant was not close to him. He agreed that he was required to declare any vested interest but maintained that he did not have any vested interest. He was subpoenaed to testify at this arbitration process and did not attend voluntarily.

30. His understanding of the first line “Acted as a Deputy Principal on several occasions” was that the applicant was bestowed with responsibilities and delegation would be duties and functions that are allocated. In the Department of Education, it would be sitting in a particular position. The Collective Agreement was silent on a person acting for one or two days and this happens whether formal or informal. When it was put to him that the applicant could not have acted because the Deputy Principal was present, he maintained that the principal would have the authority to decide who to delegate to. He agreed that the responsibility to implement EPMDS rests with the principal. He agreed that it was misleading for the applicant to indicate that she conducted EPMDS unless she was delegated.

31. MCL Ntshangase (“Ntshangase”), the principal of the school, testified for the respondent. His view was that when a person says “acted as”, it gives the impression that the person has experience, was exposed to the position and is in a better position than other candidates. In his view, the duties listed by the applicant were linked to the first line and shows that the applicant executed those duties as an acting Deputy Principal. By using words such as “determining school needs” and “strategic” suggest that the applicant was part of school management. “Accountable for” would mean that you responsible for those below you. “Controlled … Departmental Heads” was another example.

32. The applicant was a Level 1 Educator at the school. She may have evaluated peers but not as a supervisor. He had never delegated EPMDS duties to the applicant because there were no EPMDS employees at the school. Deputy Principal is a management position and the leadership section carries 14 points and is crucial for scoring in the shortlisting phase. If the applicant once performed those duties, then it tells you that she knows what she is talking about and is scored higher.

33. There was no other policy regulating acting positions apart from the Collective Agreement. On occasions, he delegated the responsibility to the applicant to sign report cards. It was about the distribution of work. It was a delegated responsibility and not “acting”. If it was an acting position, staff would have been informed and staff would have contested for the position. He delegates duties to all grade heads.

34. The misrepresentation gave the applicant an unfair advantage. At the shortlisting process, they didn’t know who the person was because they worked with numbers only. If he knew it was the applicant, it would have raised eyebrows.

35. Under cross-examination, he agreed that not all the duties listed by the applicant were at management level. If the applicant performed some functions as a union member, she would not shy away and would have mentioned it. He disagreed that applicant could not provide details in her CV because the space was limited. Once the applicant said “Acted as a Deputy Principal” everyone became attentive. The applicant did not say that she performed those duties at Post Level 1 or as a Deputy Principal and that was misleading.

36. Lindokhule Sibisi (“Sibisi”), a panel member of the DGC testified that, following the receipt of the grievance, she conducted an investigation and found that, in terms of their records, the applicant was never appointed to the position of Acting Deputy Principal at any stage of the applicant’s career.

37. In response to the applicant not being called to the DGC, she stated that the DGC acted correctly by not calling the applicant. It would have been irregular for the DGC to call the applicant because no appointment had been made at that stage and because they were satisfied with the information that they had to take a decision. The DGC don’t call candidates before they are interviewed. There was no need to check on the duties performed by the applicant as the applicant had already stated that she acted in the position of Deputy Principal. The Collective Agreement is the only document that deals with acting appointments.

38. Under cross-examination, she stated that the aggrieved was called because he brought the misrepresentation to their attention. It was not in the procedure manual but they had to attend to what was received from the aggrieved and the information was sufficient to take a decision. She agreed that the principle of fairness is supreme. She stated that it was fair because the applicant stated that she acted as a Deputy Principal but she didn’t act at any school. If a person is delegated to act for a week, the person still holds their original post title, in this case Post Level 1 as they are only delegated to perform higher duties. Delegated powers and Acting are two different things and if the applicant said she Acted, it is misrepresentation. She maintained that the DGC would have arrived at the same decision even if the applicant attended and said that she meant delegated duties.

39. The parties submitted written argument which was considered prior to drafting this award.
ANALYSIS OF EVIDENCE AND ARGUMENT:
40. In terms of section 186(2)(a), “Unfair Labour Practice” means any unfair act or omission that arises between and employer and an employee involving …unfair conduct by the employer relating to the promotion… of an employee”.

41. An employee who alleges that he/she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted.

42. In this case the key issues to be determined in this award is whether the applicant had misrepresented herself in her CV, whether the applicant had been prejudiced by not being invited to make representations prior to a decision being taken to exclude the applicant's CV from the second process and, finally, whether the applicant was the best candidate for the position and should be appointed to the position of Deputy Principal.

43. In the first line of Item 1.16 of the applicant’s CV, the applicant states that she “Acted as a Deputy Principal on various occasions”. I accept that in the education sector, any acting position has to be in terms of the Collective Agreement and that there is no other policy that deals with acting appointments. As set out in the evidence, this is a very formal process that ends with an appointment letter to confirm that the person is acting in the position. I accept that no person can claim to have acted in a position of a higher level unless the appointment is in terms of the Collective Agreement and the necessary formal process is followed.

44. I accept it is normal that on occasions, perhaps for a day or two or even longer, staff would be delegated duties that are normally performed by a person of a higher level. Clearly the Collective Agreement is silent on this and, therefore, does not recognise this as an acting appointment. I accept that in the education sector, there is a distinct difference between a person being delegated responsibilities and a person acting in a position.

45. As the applicant’s CV is a declaration of truth, any reader is entitled to believe that the applicant did act as a Deputy Principal. This is particularly so given the applicant’s version that this is a stand-alone sentence and that the applicant does not provide any context to it in her CV. It is not disputed and I accordingly find that the applicant had never been appointed in the capacity of Acting Deputy Principal in terms of the Collective Agreement. It is reasonable to conclude that the applicant would have known that any acting appointment for any position can only be made in terms of the Collective Agreement given the applicant's lengthy service in the education sector, her experience as a senior trade union official and the management position she was contesting for. It was, therefore, misleading for her to write in her CV that she acted as a Deputy Principal.

46. Even if the above was not known to her and the layman’s understanding of “acting in a position” is considered, I reject the applicant’s contention that, because she signed some report cards on behalf of the Deputy Principal, she was entitled to write in her CV that she “Acted as a Deputy Principal on several occasions”. I accept that those duties were delegated to her by the principal because of the workload. It cannot be held that she “Acted as a Deputy Principal” when the Deputy Principal was actually present in school at the time. There were no other examples provided to show that she “acted” or performed the duties of a Deputy Principal. In her CV, the applicant does not list any of the duties she performed as Deputy Principal. At this arbitration, the applicant agreed that none of the listed duties in her CV were performed in the capacity of an Acting Deputy Principal.

47. I accordingly find that the applicant’s declaration in the first line of her CV that she “Acted as a Deputy Principal on various occasions”, is a misrepresentation of fact.
48. I also find that the content of Item 1.16 of the applicant’s CV was misleading by causing the reader to assume or believe that the duties she listed thereafter, were performed in her capacity as the Acting Deputy Principal. The applicant states in the first line of her CV that she “Acted as a Deputy Principal on several occasions” and then goes on to list the duties she performed. I reject the applicant’s contention that the first line “Acted as a Deputy Principal on various occasions.”, was not linked to the duties she listed thereafter because of the “full stop” at the end of that sentence. Whilst a full stop, used as a punctuation, would indicate an end of a sentence, it does not necessarily mean an end of a proposition or trend in thought, especially when used after the first sentence of a paragraph.

49. The applicant does not specify in which capacity she performed the listed duties. It is odd that someone will write acted as a Deputy Principal, list functions that would ordinary be performed by a Deputy Principal and expect the reader to know that the two were not linked. I am of the view that, unless otherwise specified, any reader is entitled to assume or believe that the applicant performed the listed duties in her capacity of Acting Deputy Principal.

50. This is particularly so given that the key attributes required of a Deputy Principal is that of leadership and/or management experience or potential to perform those function. It is apparent that the duties listed in the applicant’s CV are leadership/managerial duties that are normally performed by a Deputy Principal. Examples of this are: “determined school needs… and set targets”, “Evaluated, assessed + appraised staff”, “Using PFMA, drew school budget with SGB + SM”, “Guided, supervised, controlled + managed school curriculum, its coverage + departmental heads”, “Held development workshops”. It would, therefore, make sense for a reader to automatically assume that these managerial/leadership duties that the applicant listed were linked to the first sentence (“Acted as a Deputy Principal on several occasions”).

51. I find it difficult to accept that, in assessing whether a candidate has adequate or potential skills/experience/knowledge to perform the duties of a Deputy Principal, Mzimkhulu would have considered the duties that the applicant mentioned without questioning the level at which it was performed unless he presumed that it was at the level of Deputy Principal.

52. I find that, by deliberately omitting to indicate that the listed duties were performed in her capacity of Grade/Phase Head was mischievous and misleading. I reject the applicant’s contention that there was no space in the paragraph to indicate that these duties were performed as a Grade Head. Having regard to the space utilisation at Item 1.16, I am satisfied that there was sufficient space for the addition of a few extra words particularly if the applicant had not included certain of the duties that she had not actually performed (discussed below).

53. I also find that the applicant had deliberately misrepresented herself by including in her CV some duties that she did not actually perform and by exaggerating some of the duties she performed. Although contained in her CV, she agreed that she did not determine school needs and did not set targets for the school. She did not assess and appraise staff in terms of policy. She did not conduct any EPMDS assessments. She was not solely responsible for drawing up school budgets but rather did so as a secretary whilst assisting the principal. She did not guide/supervise or control Departmental Heads (apart from subject matters). She did not hold development workshops.

54. Having regard to the above, I find that the applicant misrepresented herself in her CV by stating that she acted as a Deputy Principal, by creating the impression that she performed the listed duties as a Deputy Principal and by including duties in her CV that were factually incorrect and not performed by her. This was clearly a misrepresentation of facts that gave the impression that the applicant was exposed to the position, had the necessary experience of performing the duties of a Deputy Principal and was in a better position than other candidates. In other words, it gave her an unfair advantage over other candidates.

55. I had regard to whether the applicant would have been the most suitable candidate for the position. Firstly, there was insufficient evidence to draw such a conclusion and secondly, given the findings of misrepresentation mentioned above, the applicant could hardly be seen as the best candidate for the position of Deputy Principal.

56. I accept that the applicant was not invited to make representations at the DGC prior to a decision being taken to exclude the applicant’s CV from the list of candidates for the second process. I reject the 1st respondent’s contention that to do so would have been irregular as this goes contrary to the accepted principal that everyone has a right to be heard before a decision is taken that may affect their rights. I therefore find that the 1st respondent’s conduct in this regard was unfair. However, given that the serious findings that the applicant had misrepresented herself in her CV, I deem it inappropriate to award the applicant any relief in this regard.

57. I, therefore, find that the applicant is not entitled to the relief she seeks or any other relief.


AWARD
58. In the circumstances I make the following award:
58.1. The application is dismissed.
58.2. There is no order as to costs.

Raj Shanker
Senior ELRC Arbitrator
Kwazulu Nata