ELRC344-23/24EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case number: ELRC344-23/24EC

In the matter between

NAPTOSA obo Jali, Sandi Applicant

And

Education Department of Eastern Cape First Respondent

SADTU obo M Pantshwa Second Respondent

Appearances: For the Applicant: Mr. Mhlontlo (NAPTOSA)
For the First Respondent: Mr. Nkuhlu (Labour Relations Officer)
For the Second Respondent: Mr. M Mzuku (SADTU)
Arbitrator: Thobela Ncetezo
Heard: 18 October, 30 November 2023, 14 February & 11 April 2024
Delivered: 2 May 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. Mhlontlo, is a NAPTOSA official, represented the applicant, Mr. Sandi Jali. Mr. Nkuhlu, a Labour Relations Officer, represented the first respondent, Education Department of Eastern Cape. The second respondent, Mr. M Pantshwa was represented by SADTU official, Mr. M. Mzuku.

2. The Applicant submitted a bundle of documents, which was accepted by both respondents. The Applicant testified in person. The first respondent introduced two witnesses. All witnesses testified under oath. The proceedings which were digitally recorded were conducted in English and interpreted into Xhosa by Miss. Ayanda Matata.

3. The parties requested to submit closing arguments in writing for consideration.

Issue to be decided

4. I am required to decide whether the conduct of the first 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, who is employed by the first respondent as Post Level 2 Educator, applied for the post of a school principal at Quluqu SPS in the Eastern Cape. He was shortlisted and interviewed.

6. He was ranked first and recommended for appointment by the School Governing Body (SGB). However, the District Director recommended the appointment of the second respondent on the basis of academic qualifications and more experience and communicated this to the SGB in a meeting. The members of the SGB accepted the recommendation by the District Director. The second respondent was therefore appointed as principal of Quluqu SPS.

Applicant’s case

7. The Applicant submitted that he started working for the first respondent as Mathematics, Science and Technology teacher to Grades 5-9 learners on 2 May 1996. He is currently the HoD and teaching Natural Science, Technology and Mathematics at Ngadla Junior Secondary School. He was appointed to the HoD position in 2021.

8. His qualifications are Bachelor of Education (NMU), Senior Teacher’s Diploma (Bensovale Colllege) and has a certificate in Mathematics and Leadership. He applied for the position of a principal at Quluqu Senior Primary School. He was shortlisted and invited to an interview for the post. The SGB and Circuit Manager recommended him for appointment, but the District Director approved the appointment of Mr. Panthswa instead of the Applicant, a decision which he does not agree with. He further testified that he possesses the subjects that are required for the post. His desired outcome is to be appointed to the position of principal at Quluqu Senior Primary School.

9. Under cross-examination the witness testified that he has a leadership certificate which he obtained after they were trained at Trinset in Mthatha. He also testified that he is in management by virtue of being the HoD and has previously acted as a principal when the school did not have a deputy principal. He admitted that his qualifications are not the same as those of the second respondent. He also admitted that the latter has been a school principal since 2009.

10. He stated that according to the Pam document, the SGB recommends a candidate to the District Director. He also stated that he does not agree with the decision of the District Director because he has Mathematics and Science. He also has B.Ed.(Honours) but has not been able to get his certificate because he has outstanding fees. He stated that the decision of the District Director was baseless.

11. He further testified that at the time of application he had three years management experience and the second respondent had fourteen years’ experience. He agreed that the incumbent had honours and is studying towards masters. He disagreed that the SGB only recommends.


First Respondent’s case

12. The first witness, Mr. Pathekile Bhoqo, testified that he is a member of the SGB and was the chairperson of the interview panel for the post in question. He further testified that the Circuit Manager called a meeting and informed them that they saw the second respondent as a suitable candidate for the post and were satisfied with the latter because they wanted a person who has the same qualities as the former principal. He also testified that the parents and himself are satisfied with the appointment of the second respondent.

13. Under cross-examination the witness testified that they were trained on how to conduct interviews and were informed that they must not inform each other how they have scored candidates. During the interviews the witness did not ask questions and could not remember who he recommended for the post. After the interviews they talked amongst themselves that the Applicant was suitable for the post. The Applicant was ranked number one, a Mr. Mnxakwe at two and the second respondent third. Another EDO, Ms. Matshayana who was not part of the interviews gave them another report that second respondent was appointed into the post and not the applicant. He conceded that the persons who had a better position to make a recommendation were those who interviewed the candidates.

14. The second witness, Mrs. Nombulelelo Matshayana, testified that she has worked for the first respondent since 1993. In 2013 she was appointed as a Circuit Manager in 2022. She is currently at Institutional Management Governance at Chris Hani East acting as Circuit Management Centre Head.

15. After the SGB had recommended the appointment of the applicant, which was not accepted, the witness and human resources personnel, Ms. Ndileka Mbenya, met with the SGB to explain to them about the results of their recommendation and that the first respondent has a right to appoint. They changed the decision of the SGB because when they perused the applications of the candidates, they established that the second respondent was more qualified and is studying towards masters. They also considered that the incumbent has been a principal and in management for fourteen years.

16. Under cross-examination the witness testified that the second respondent has more management experience than the applicant. She agreed that she was never appointed as a deputy or principal and conceded that she was improperly appointed in her current position.

17. She further agreed that the bulletin opened the post to everyone, and its requirements were not restricted to management and administration. The witness participated in the training of the SGB for the interviews. She also stated that the District Director told him that he appointed a candidate who was more suitable than the others, after having considered all three candidates’ applications. She agreed with the District Director that the second respondent was more suitable than the applicant. She further testified that she was not aware that the applicant has an experience of twenty-five years. She was told that the second respondent has honours and studying towards masters.

Applicant’s closing arguments

18. The applicant performed to his best ability, which could not be disputed by any witness as he has vast managerial experience and a good track record of her performance at school. The applicant was the best candidate even with the administration and management tasks in line with his presentation in the interviews and scores awarded thereto.

First and second respondents’ closing arguments

19. The first respondent argued that in appointing the second respondent who is more qualified than the applicant, the District Director based his decision on the needs of the school and learners. He consulted the SGB, which agreed to the proposal. It was further argued that the second respondent possessed more academic qualifications and management experience than the applicant.

20. Citing Khumalo and Another v Member of the Executive Council: Kwazulu Natal (2014) 35 ILJ 613 (CC), the second respondent argued that his appointment was not irregular and cannot therefore be set aside.

Analysis of evidence and arguments.

21. 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.

22. 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;

23. In disputes of unfair labour practice in terms of Section 186(2), the principle of “he who alleges must prove” applies and therefore the onus rests with the applicant to prove on a balance of probabilities that the conduct of the respondent constitutes an unfair labour practice.

24. 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 a principal at Quluqu Senior Primary School. He was shortlisted and invited to an interview. The SGB recommended him for appointment, but the District Director recommended the incumbent for the post. The latter was ranked third by the interview panel.

25. The applicant viewed the decision of the first respondent not to appoint him but the second respondent as an unfair labour practice based on the fact that he was ranked first by the interviewing panel. In Noonan v SSSBC and others [2012] 33 ILJ 2597 (LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for the post…If an employee is not denied the opportunity of competing for a post, then the only justification for scrutinizing selection is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.

26. There is no dispute that the applicant met the minimum requirements of the job, a factor which in my view qualified him to be shortlisted for interview. However, that alone does not mean, according to the first respondent, he was the best candidate for the post. The fact that he was initially recommended by the SGB as the best candidate for the post, does not mean that the respondent was barred from appointing a candidate whom it considered the best and more suitable. An employer will be justified in appointing a candidate who will serve the best interests of the learners and the school. The role of the SGB was to recommend and a recommendation, is not, in my opinion, a guarantee to an appointment. An employer has a sole discretion to appoint a candidate it considers the best for a position in question.

27. Furthermore, it was not disputed that the second respondent possess higher academic qualifications and experience than the applicant. In Swarts v National Commissioner South African Police Services and others (D 915/3) 2015 ZALCD 7 the Court held that when considering an unfair labour practice dispute concerning promotion, it is not enough for a candidate to meet the minimum requirements of the job. The question is whether the candidate meets the inherent requirements of the job.

28. The testimony of the first respondent, in justifying the appointment of the incumbent, was that he had higher academic qualifications and management experience than the Applicant. He was considered the best candidate for the position, and I do not believe that the conduct of the first respondent amounts to an unfair labour dispute, for appointing a person they consider the best candidate .Even the SGB which had initially recommended the applicant for the position, they accepted the recommendation that the second respondent was the best candidate for the post. The testimony of the SGB chairperson was that the SGB and parents are satisfied with the appointment of the second respondent.

29. It is, therefore, my considered view that the applicant has failed to discharge his 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 a candidate that it considers to be the best out of all the persons who 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 defer to the decision of the employer. What is required is that he or she must consider all relevant factors and circumstances.

30. I accordingly make the following award;

Award

31. The application is hereby dismissed.

32. There is no relief awarded to the Applicant.

Signature:

Commissioner: Thobela Ncetezo
Sector: Education