ELRC377-23/24EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case number: ELRC377-23/24EC

In the matter between

SADTU obo Busiswa Yolanda Nqana Applicant

And

Education Department of Eastern Cape First Respondent

SADTU obo A Maponopono Second Respondent

Appearances: For the Applicant: Mr. Zolani Mathiso (SADTU)
For the First Respondent: Mr. Patrick Nkomana (Chief Education Specialist :Labour Relations
For the Second Respondent: Mr. Sebetseli (SADTU)
Arbitrator: Thobela Ncetezo
Heard: 24 November 2024, 18 January & 5 March 2024
Delivered: 24 March 2024
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2(a) – unfair labour practice relating to promotion

ARBITRATION AWARD

Details of hearing and representation

1. Mr. Zolani A Mathiso who is a SADTU official represented the applicant, Miss. Busiswa Yolanda Nqana. Mr. Patrick P Nkomana, an Acting Chief Education Specialist: Labour Relations represented the first respondent, Education Department of Eastern Cape. The second respondent, Mr. Kutloano A Maponopono was represented by SADTU official, Mr. Sebetseli.

2. The Applicant submitted a bundle of documents, which was accepted by both respondents. The Applicant testified in person and introduced one witness. The first respondent introduced three witnesses and a bundle of documents, which was accepted by the Applicant and second respondent. All witnesses testified under oath. The proceedings which were digitally recorded were conducted in English and interpreted into Xhosa by David Koza on 18 January 2024 and Violet Gwija on 5 March 2024.

3. The parties requested to submit closing arguments in writing for consideration, the last of which were received on 13 March 2024.

Issue to be decided

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

Background to the dispute

5. The Applicant submitted that she is a Post Level 1 Educator at Malcomess Senior Secondary School. She earns R28 372.50 per month. She serves as a secretary of the Malcomess School Governing Body (SGB). On 18 May 2023 she applied for the position of Head of Department (Post Level 2) at the same school. She was shortlisted and invited to an interview.

6. She submitted that during the interview she noticed that the panel was not duly constituted in that there was a panellist who had resigned as SGB member, and the teacher component was not represented. She viewed the process as unfair and made a request that the process should start afresh with a duly constituted SGB.

7. The first respondent submitted that there was no unfair labour practice.

8. The second respondent submitted that the interviews were fair, and the unions were present to observe the process. He was employed by the first respondent as a Post Level 1 Educator at Malcomess Senior Secondary School on 5 May 2019. He is the incumbent in the contested position to which he was appointed on 1 August 2023.

Applicant’s case

9. The Applicant, Busiswa Nqana (Mrs), testified that she has been teaching English to all grades for more than seven years and has mentored new teachers on the same subject. She believes that she met the requirements of the position, which were 3-5 years teaching experience in English, registration with SACE and RQV13 and she is a teacher component and secretary of the SGB.

10. She testified that the reason she says that the interview process was not duly constituted is because Miss. Bushula was a non-teacher component but resigned from the SGB after the advertisement of the post but before interviews were conducted. However, she was part of the interview panel for the post in dispute. This surprised her but she did not question it during the interview as she was not aware that she could question the process in her capacity as the SGB member even though she was also a candidate. The teacher component of the SGB was also not represented in the interview panel. The trade unions were represented during the interviews to observe that the process was conducted fairly for its members.

11. Under cross-examination the applicant testified that she attended the interview as a candidate for the post and not in her capacity as the SGB teacher component. She lodged later a grievance with the school principal about the composition of the interview panel during the interviews. She testified that she would have lodged a grievance even if her application was successful.

12. . In a meeting that the SGB held, the resignation of two SGB members, including Ms. Bushula, was discussed and the resignations were accepted. She further testified that if Miss. Bushula was still a member of the SGB, she should have reversed her resignation formally as she had resigned formally.

13. She further testified that she believes that she performed well during the interview.

14. The witness of the applicant, Miss. Thobeka Ntsuntsha, testified that she is a Post Level 1 Educator and SGB member at Maletswai Primary School in Aliwal North. She attended the interviews for the post in question, as an observer. She further testified that before the commencement of the interviews the school principal, informed them that the SGB is short of a teacher component. He asked if the interviews should continue. They agreed that he should consult someone senior to him. The principal called Mr. Nkomana in their presence and informed him that the teacher component was not represented. The principal told him that the teacher component could be represented by Miss. Bushula who was a non-teaching staff member of the SGB. Mr. Nkomana asked whether the trade unions agreed to the suggestion. All the trade unions agreed. The principal, however, did not disclose to them that Miss. Bushula was not an educator but a non-teaching staff member who had resigned from the SGB. The witness explained the composition of the panel and testified that a meeting cannot proceed if one component of the SGB is not present.

15. After the interviews, they signed a declaration that the process was fair.

16. Under cross-examination the witness testified that the role of the trade union during interviews is to observe and ensure that every candidate is treated fairly. In the event that they observe that the process is not fair, the trade unions can raise a concern at the time of the interview but in this case her observation was that all was going well. However, if it was disclosed to them that Miss. Bushula was not an educator, they would have asked questions. She also assumed that the school principal knew that he cannot replace one SGB component with the other.

First Respondent’s case

17. The first witness, Mr. Thabang Leew, testified that he is a school principal at Malcomess Senior Secondary School and was a resource person during the interview of the post in dispute. He testified that the process was duly constituted and that Miss. Bushula, an administrative clerk and SGB member was also part of the panel.

18. He further testified that Miss. Bushula decided to resign as SGB member after her office was broken into and an amount of R1200.00 was stolen. Another member of the SGB, Mr. Adons, had also resigned but at a different time. On the same day they called the meeting but could not hold any discussions as they did not meet the quorum. He had instructed the SGB secretary (the applicant) to convene a meeting to discuss Miss. Bushula resignation, but she did not, as a result they continued with the latter as part of the panel. Apparently after her resignation Miss Bushula met with some staff members who told her that she had made a mistake by resigning. She then retracted her resignation. She also told him that she was retracting her resignation.


19. Mr Mnyaka , the SGB teacher component, was not available on the day of the interview. The circuit manager, Mr. Nkomana, said that they could continue with the interviews as they were no other teachers to replace the teacher component. The trade union agreed that the interviews should continue. The trade unions (SADTU & NAPTOSA) declared the process free and fair.

20. Under cross-examination the witness testified that Miss. Bushula participated in the interview panel because her resignation was not accepted by the SGB and first respondent. She even continued with her SGB duties as usual.

21. When they continued with the interviews, they did not rely on any regulations or policies that allow Miss. Bushula to participate in SGB. The witness was part of the meeting which rendered the resignation was invalid. He explained that in terms of the regulation the panel constituted of three scorers, usher, and a teacher. When he consulted the circuit manager about the replacement of an educator with a non-teaching staff, the latter said that he could, he told him that the non-teaching staff had resigned but retracted it. However, admitted that the trade unions were not aware that one of the panellists had submitted a resignation letter.

22. He further stated that the resignation letter of Miss. Bushula was given to the applicant who is the SGB secretary. Miss. Bushula was also trained as a member of the SGB on how interviews are conducted. Another resignation letter from Mr. Adons was accepted because he had absconded his duties.

23. The second witness, Miss. Mpho Poone, testified that she was the chairperson of the SGB panel. The scorers were two parents and Miss. Bushula (a non-teaching staff) because Mr. Mnyaka who could have been a scorer was not available on the day of the interviews. A parent, Miss. Nandipha Gweba, replaced Miss. Bushula as a secretary. The school principal, Mr. Leewu, who was a resource person called the Circuit Manager. They discussed this with the trade union, and they agreed to place Miss. Bushula as a scorer and the usher, who was a parent, as a secretary. The interviews were declared fair by SADTU and NAPTOSA.

24. She further testified that Mr. Adonis who last attended the SGB meeting in March or April 2023 resigned formally from the SGB after it was discussed with the secretary to call members who did not attend meetings to resign. Other members responded that they are still members of the SGB.

25. They could not decide on Miss. Bushula’s resignation without the SGB as a result the latter continued to participate in the SGB. Later she informed her that the School Management Team (SMT) did not accept her resignation. The teachers who were members of the SGB were also applicants to the post and they could not have replaced them with teachers who were not members of the SGB.

26. Under cross-examination the witness testified that it was a decision of the interview panel and observers to remove Miss. Bushula from the position of a secretary to a scorer after waiting for about an hour for the teacher component, Mr. Mnyaka. In consultation with the circuit manager, Miss. Nandipha Gweba who is a parent component was then placed in the position of a secretary. The panel saw this decision as correct as they wanted to proceed with interviews and also considered that there were candidates who came from afar. The trade union representatives also agreed that they must continue with the interviews.

27. The witness admitted that there is no policy that requires the SGB to seat in order to accept a resignation. She also admitted that during the interviews they replaced an educator with a non-teaching staff. She also admitted that parent also took a role of a secretary, even though an educator should not be replaced with a parent. She admitted that their decision was incorrect, but the appointment was still valid. It would not have been proper to take any other educator, considering that they were not trained and not members of the SGB.

28. The third witness, Miss. Mamayo Bushula, testified that, she is an Administrative Clerk at Malcomess Senior Secondary School and a non-teaching staff member of the SGB. She testified that the reason she resigned from the SGB was because she was told to buy gas for the school after an amount of R1200.00, which was for rent, was stolen from her office. Even though she made the school aware of this, the applicant came to her office and requested money to buy gas for the school. When she referred the applicant to the school principal, the latter said that they must use the rent money which, he knew had been stolen. The witness made a personal loan so that she can buy the gas.

29. She retracted her resignation the next day, when the SMT did not accept it. She further testified that she was part of the recruitment process, and her role was that of a secretary. However, when it turned out that another SGB teacher component, Mr. Mnyaka was not available, she took the role of a scorer but after the school principal had consulted the circuit manager, Mr. Nkomana. The applicant did not object to the presence and participation of the witness in the interviews.

30. Under cross-examination the witness testified that her duties are that of a secretary or scorer if an educator is not present. The applicant was aware that she had retracted her resignation which was dated 6 June before the interviews. She continued as the SGB member and was even reporting on its finances.

31. She believed that her resignation should have been discussed and accepted by the employer before she could stop participating in the SGB. She resigned on 6 June but continued with her SGB duties on 7 June. She gave her resignation letter to the applicant, but the latter did not at any stage inform her whether her resignation was accepted or not. She denied that performing SGB duties after resignation was illegal, as she believes that it meant that her resignation was not accepted.

32. On the day of the interview the panel was composed of four members, which means that it was short of one panellist (an educator). They received an instruction from Mr. Nkomana that if an educator is not available, a non-educator can be a scorer. She then moved from the role of a secretary to a scorer. A parent who was an usher was then given a role of a secretary. Another parent, Miss. Maseti was then taking the role of an usher. The trade unions did not object to this arrangement.

33. Two members of the SGB could not be part of the interview panel as they were applicants to the position in dispute.

Applicant’s closing arguments

34. The Applicant argued that one of the panelists was no longer part of the School Governing Body as she had resigned and there were no records of SGB meetings where the resignations were reversed. Both the applicant and second respondent were present in the meeting wherein the resignations were submitted and recorded. It was argued that the participation of Miss. Bushula in SGB activities beyond the 6 June 2023 was unprocedural, irregular and unlawful.

First and second respondents’ closing arguments

35. The first respondent argued that the applicant took part in the interview process and did not register her concern with the panel or union observers. It was further argued that her testimony does not prove any form of prejudice or unfair labour practice by the Department of Education and her witness also testified that the interviews were declared free and fair. It was further argued that the resignation of Miss. Bushula was never discussed, and she was retracted it after being persuaded by the SMT and some SGB members. The first respondent cited Thandile Makibeni v ELRC and others.

36. The second respondent argued that met all the necessary requirements of the post in dispute. That the basis of this dispute lies only on the “alleged” SGB panel composition on the day of the interview. Alleged because the evidence provided during the proceedings proves that due process was followed from start to finish and all stakeholder involved in the interview process were all satisfied.

Analysis of evidence and arguments.

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

38. The dispute before me was referred in terms of Section 186(2)(a) of the Act which provides that:
“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving…(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

39. According to the testimony that was before me, the dispute of unfair labour practice in terms of the above-mentioned section arose between the parties when the applicant applied for the post of HoD. She was shortlisted and consequently invited to an interview but was not successful. The Applicant therefore alleged that the conduct of the Respondent constitutes an unfair labour practice because the interview panel was not duly constituted.

40. In challenging the appointment of the Second Respondent the Applicant did not make any suggestions that she was the best candidate out of all the persons who have applied for the posts. Her dispute revolved around the composition of the interview panel, which she alleged included a person, Miss Bushula, who had resigned as a member of SGB. She did not deny the testimony that the said resignation letter was handed to her. She also did not deny the testimony that even after resignation Miss. Bushula continued performing her duties as a member of the SGB. What she relied on was that her participation in the interview panel was irregular and unlawful. The applicant should have raised this issue with the panel, but she did not. In Thandile v ELRC and Others (JR1089/16) [2021] ZALCJHB 226, the Court held that surely if the Employee knew that certain people were not supposed to be part of the interview sitting, he should have objected and actually sought for their removal. He cannot, after having participated in a process and when the results do not favour him, turn around and state that the panel was not properly constituted.

41. The applicant herself testified that she did not object the participation of Miss. Bushula in the interview process. This, in my view, implies that the applicant was aware that the latter had retracted her resignation. The same union, which is now at war with itself, was present during the process and declared the process of the interview free and fair.

42. It is my considered view that the applicant has failed to discharge her onus on a balance of probabilities that the conduct of the first respondent constitutes an unfair labour practice in terms of Section 186(2)(a) of the Act. I am therefore of the view that there is no justification on my side to interfere with the discretion of the first respondent to appoint an applicant that it considers to be the best out of all the persons who have applied for the post. In Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC); [2007] BLLR 1097 (CC) it was held that in terms of the LRA a commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to deter to the decision of the employer. What is required is that he or she must consider all relevant factors and circumstances.

43. I accordingly make the following award;

Award

44. The application is hereby dismissed.

45. There is no relief awarded to the Applicant.

Signature:

Commissioner: Thobela Ncetezo
Sector: Education