ELRC307-23/24EC

Case Number: ELRC307-23/24EC
Panelist: Thobela Obey Mqamelo
Date of Award: 17 May 2024

In the Arbitration between

NAPTOSA obo Mfundo Siyo
(Applicant / Union)

And


Department of Education-Eastern Cape & 1 Other (Lidelwa Dakada)
(Respondents)


DETAILS OF HEARING AND REPRESENTATION

1. This unfair labour practice dispute with specific mention to promotion was set down for arbitration in terms of section 186(2)(a) of the Labour relations Act 66 of 1995 (LRA), under the auspices of the Labour Relations Council, on 20 October 2023, 30 January 2024, 31 January 2024, 11 March 2024, 12 March 2024, and 26 April 2024, at the offices of the Department of Education in Queenstown.

2. It is worth mentioning that there was no evidence held 20 October 2023, due to the absence of the 2nd respondent Mr Dakada, I then directed the Council that the 2nd respondent must be properly notified and afforded an opportunity to be present in the proceedings as she was not properly notified for the arbitration date of 20 October 2024.

3. The applicant, Mfundo Siyo (Mr Siyo) was present on all the days was and represented by Mr Aaron Mhlontlo (Mr Mhlontlo) an Official from NAPTOSA (Union) on 20 October 2023, and by Loyiso Mbinda (Mr Mbinda), on 30 January 2024, 31 January 2024, 11 March 2024, 12 March 2024, and 26 April 2024, an Official from NAPTOSA (Union).

4. The 1st respondent, Department of Education Eastern Cape was present on all the days and was represented by Thobelani Mlahleni (Mr Mlahleni) an Employee Relations Manager at the 1st Respondent.

5. The 2nd respondent, Lidelwa Dakada (Ms Dakada) was also present by Mr Thobelani Mlahleni.

6. Parties submitted their opening statements orally.

7. Parties submitted their bundle of documents, and were marked (Applicants Bundle-EE1, and 1st Respondent’s Bundle-ER1).

8. Mr Mfundo Siyo, Mr Unathi Panzi, Mr Thanduxolo Fatyela, Ms Pamela Skeyi, Ms Linda Madolo, testified during the proceedings.

9. Evidence was tendered under Oath.

10. The proceedings are manually and digitally recorded

11. Both parties agreed to file their closing arguments in writing by no later than 03 May 2024.

12. The applicant filed his closing arguments on 01 May 2024, and the respondent filed on 03 May 2024.


BACKGROUND TO THE MATTER

13. The applicant commenced employment with the respondent on the year 2006, he is currently employed as a P1 School Principal, and is earning a salary amount R364,599.00 per annum.

14. He is challenging an Unfair Labour Practice in the respondent has failed to promote him when he applied for a position of a P2-School Principal at Masakhane Primary School.

15. The applicant is challenging the following:

• The panel that conducted the shortlisting and the interviews was not properly selected.
• For the year 2022/2023and 2023/2024 the was no SGB Executive elected as the law requires.
• The minutes of the 15 March 2023 contained in the bundle are not genuine.
• The meeting with the credentials list of 15 March 2023, never sat.
• The sifting stage was never done by the 1st respondent; hence the sifting report was never discovered.
• The resource person Mr Fatyela never played his role as an observer, and advisor of the selection panel, instead all processes in the short listing were done by him.
• The selection criteria was never crafted by the selection panel.
• The minutes of the shortlisting meeting were never written by the secretary of the panel.
• Among the shortlisted candidates, Mr Nyoka was never invited to the interviews.
• Two Departmental Heads were shortlisted at the expense of the applicant.
• The second respondent was not supposed to have been shortlisted, as her application incorrect and incomplete.
• The resource person was related to the second respondent but never disclosed.
• The 2nd respondent misled the panel in terms of the number of years of experience.

COMMON CAUSE MATTERS

16. On 27 March 2023, the respondent advertised in an Open Bulletin for Principals Volume 1 of 2023 (Bulletin) a position of Position of a P2 School Principal at Masakhane Junior Primary School, in the Chris Hani West District, in the Eastern Cape.

17. The closing date of the applications was 24 April 2023.

18. Both the applicant, Mr Mfundo Siyo and the 2nd respondent, Ms Lidelwa Dakada applied for the position.

19. The applicant was not shortlisted and was unsuccessful and the 2nd respondent was successful in the position.

20. It is common cause that all Principal positions are Post Level 4, and that the higher the school grading is, the higher the salary.

ISSUE TO BE DECIDED

21. I must determine whether the 1st respondent, Department of Education-Eastern Cape has committed an Unfair Labour Practice, in not promoting the applicant Mfundo Siyo.

22. The applicant seeks the appointment of the 2nd respondent Ms Lindelwa Dakada to be set aside.

SURVEY OF EVIDENCE AND ARGUMENT

23. This is a summary of the evidence pertinent to this dispute as in terms of Section 138(7)(a) of the LRA.

APPLICANTS 1st WITNESS
MFUNDO SIYO (MR SIYO)

24. The applicant testified that he started working for the respondent during the year 2006 as a School Teacher and has been in a Position of a P1 School Principal at hackney Primary School since 2022.
25. He applied for the position of the P2 School Principal at Masakhane Primary School, which was expiring on 24 April 2024, as advertised in the Open Post Bulletin for Principals Volume 1 of 2023. The position that he applied for a Masakhane Primary School would have been and promotion to him, and it would have increased his salary.

26. He applied for the position of the P2 School Principal for Masakhane Primary School and submitted his application form at the Department of Education in Komani. The respondent did not inform acknowledgement receipt of his form as required by item B.5.3 of the Personnel Administrative Measures (PAM) document.

27. According to the applicant the work of the Departmental Head Mr Fatyela was to guide, and a resource person to the Selection Pannel. It is the applicant’s testimony that during the shortlist process, the selection panel received the criteria from the Circuit Manager Mr Fatyela who was supposed to be the resource person on the day. He referred to the typed minutes of the shortlisting meeting dated 30 May 2023 in support of his testimony which read as follows, ‘’Each panellist received the criteria from Mr Fatyela’’.

28. He further testified that the entire process of shortlisting was tainted by the actions of Mr Fatyela direct involvement in the shortlisting process. He referred to the minutes of the shortlisting which read as follows ‘’all done by Mr Fatyela, He explained what we needed to do on all of them’’.

29. According to the testimony of the applicant, there were five (5) people who were shortlisted, and they are, Binase GP, Mhlontlo BZ, Gqoboka ZN, Vava V, and Dakada LV, and that he was not short listed.

PRELIMENARY ISSUE

30. At this moment it was raised by the 2nd respondent that whenever the applicant is responding to the questions posed to him by his representative Mr Mbinda at examination in chief that the applicant is looking at his cellphone for pre-arranged questions and answers.

31. I gave the applicant an opportunity to respondent to the allegation. It was discovered that indeed the applicant in his cellphone has pre-arranged questions and answers in his cellphone.

32. In my view the above-mentioned testimony given by the applicant cannot carry any probative value as the answers are clearly pre-arranged, and not the genuine answers of the applicant.

33. I therefore make the following ruling.

RULING

34. The above-mentioned evidence is discarded.

CONTINUATION OF THE APPLICANT’S TESTIMONY

35. The applicant further testified that the meeting for the selection of the SGB Executive dated 15 March 2023 never took place, and that the signatures of some of people in list of credentials of the meeting dated 15 March 2023 as indicated in page 60 of bundle EE1 were fraudulently obtained, and that the SGB Executive that appointed the applicant was not in good standing as they were lastly elected in 2021.

36. He compared the signature of Mr Unathi Panzi with the credentials list of the other meetings as reflected on pages 47, 55, and 60 of Bundle EE1 and testify that the signatures are not the same, as it was never appendix by the Mr Unathi Panzi who is a member of the School Governing Body.

37. The applicant further testified that the signatures of Ms N. Gobozi on the credential list for the meeting dated 15 March were also fraudulently obtained. He compared them with the signatures reflected on pages 47 and 55, and 60of bundle EE1.

38. It is the applicant’s testimony the if the SGB executive meeting dated 15 March 2023 had materialised, the cellphone number 0789685112 of Ms Dakada would not have been reflecting on the letterhead of the school, as during the 15 March 2023 Ms Dakada was not yet appointed. It is the applicant’s testimony that because the meeting to select the SGB Executive never materialised the credentials for the alleged meeting were manufactured after the appointment of Ms Dakada to cover up for the meeting that never took place.

39. According to the applicant, if the meeting of the selection of the SGB portfolio had materialised on 15 March 2023, the letterhead of the credentials would have been reflecting the contact details of the then Principal Mr Qolo.

40. The applicant further submitted that the application form of Ms Dakada was signed and completed by the 2nd respondent on 25 April 2023, and that the applicant applied for the position after the closing date of the application. He referred to page 64 of bundle EE1.

41. It is the applicant’s further testimony that the application for of the applicant was also incomplete. He referred to page 63 paragraph 20.6 in that it does not reflect the previous racial group of the applicant.

42. In terms of experience, the applicant testified that he has more experience that the 2nd respondent, and that the 2nd respondent should not have been shortlisted. The applicant testified that he started teaching in 2006, and that the 2nd respondent started teaching on the year 2015 according to her Curriculum Vitae.

43. The applicant further testified that the application for of Ms Dakada is defective, as even in her Curriculum Vitae it indicated that she was employed at two schools at the same period during 2015 until 2017. It is the testimony of the applicant that the appointment of the 2nd respondent (Ms Dakada) must be set aside, as he is a better candidate than Ms Dakada.

APPLICANTS 2nd WITNESS
UNATHI PANZI (MR PANZI)

44. He testified that he is the deputy Chairperson of the School Governing Body (SGB) at Masakhane Primary School.

45. He testified that there was never a meeting on 15 March 2023, and that never signed any credentials of the meeting on 15 March 2023.

46. It is Mr Panzi’s testimony that the list of credentials on page 60 bundle EE1 have been fraudulently obtained to portray an alleged meeting of the SGB Executive selections that never took place.

47. It is further the testimony that the signature alleged to be his signature is not his signature as he never signed the attendance credentials for such meeting.

48. It is Mr Panzi’s testimony that on 15 March 2023, the 2nd respondent Ms Dakada was not yet appointed as the principal of Masakhane Primary School.

APPLICANTS 3rd WITNESS
PAMELA SKEYI (MS SKEYI)

49. She testified that she was working a Teacher at Masakhane Primary School and she also served in the SGB as from 2021 until when she was redeployed on 29 March 2023 to a different school Sibanye Primary School.

50. It is her testimony that she was still employed at Masakhane Primary School and was in school attendance on 15 March 2023, and that being an SGB Member she is not aware of any meeting that took place on 15 March 2023.

51. She compared that signatures of the SGB secretary Ms Gobozi and testified that the signatures are not the same in the attendance registers in page 47,51,55, and 60 of bundle EE1.

52. He further testified the signatures of the SGB Treasure Ms Maneli are also not the same in the attendance registered in page 47, 51, 55, and 60 of bundle EE1, and that the signatures were fraudulently obtained as they Ms Gobozi and Ms Maneli also never attended any meeting on 15 March 2023.

RESPONDENTS 1st WITNESS
THANUXOLO FATYELA (MR FATYELA)

53. He testified that he is currently employed by the respondent Department of Education Eastern Cape, as the Circuit Manager for the SADA Circuit. He posed a working experience as a Teacher, a Deputy Principal, and a School Principal at Inyathi High School.

54. His current position as Circuit Manager involves supporting, training, and developing the school’s principals under his circuit, training of the SGB on the recruitment procedures.

55. He testified that he started to know the 2nd respondent Ms Dakada when Ms Dakada assumed her duties as a school principal on 01 August 2023. He was involved in the process of appointment of the 2nd respondent as a resource person to the shortlisting panel.

56. He became aware of the advertisement bulletin that came out and was closing on 24 April 2023, and he was involved in training of the SGB and guiding the SGB to elect a Shortlisting Panel. The panel consisted of four (4) people. He met with the shortlisting panel, and Ms Madolo the Secretary of the SGB was asked to draft letters to invite the trade unions to the shortlisting process.

57. On the day of the shortlisting, he took the two envelopes from the Human Resource department of the respondent with contained thirteen (13) application forms that were sifted out, and the other envelope contained twenty-three (23) application forms that were selected for shortlisting.

58. It became apparent that there were five (5) people who were sifted out for not having academic record, and it was clarified by the panel that an academic record is not a requirement as per the bulletin, and those people were sifted in back for shortlisting. That then meant that there are 28 shortlisted candidates for the position.

59. It is Mr Fatyela’s testimony that one of the Ms Tubeni a non-teaching member of the shortlisting panel decided to recuse herself as she knew one of the candidates in the shortlist. That made the shortlisting panel to compose of three (3) people.

60. According to Mr Fatyela, the panel started the shortlist process and were looking for the following requirements from the candidates.

 Complete application form.
 Experience of the applicants.
 The management qualifications of the applicants
 This already in the managerial positions.
 Supporting documents.
61. Mr Fatyela testified that he only acted as a guide to the panel and did not exceed his bounds of limitations.

62. Mr Fatyela testified that when the applicant was not shortlisted, and the panel was left five (5) candidates being shortlisted for interview. He further testified that the minutes of the shortlisting were written by Ms Madolo and are reflected on page 6 of bunder ER1.

63. According to the testimony of Mr Fatyela that the reason for Mr Siyo not being shortlisted is that his application was incomplete and and that he has incorrectly filled his application form with ‘’N/A’’ on paragraph 19 which required the highest NQF Level passed, and his application form consist of blank spaces left on paragraph 24.4; 26,5; 28.5; that led to the application being declared incomplete and incorrect.

64. In terms of the legitimacy of the SGB, Mr Fatyela testified that the tenure of the SGB in terms of the South African Schools Act is three (3) years. And that at the time of the shortlisting the SGB was in good standing. It is further the testimony of Mr Fatyela that the two Union’s SADTU and NAPTOSA were represented on the day of the shortlisting.

65. It is the testimony of Fatyela that the 2nd respondent posses a hight academic qualification in that she holds a Bachelor of Education qualification and that she was also a principal at her previous school.

RESPONDENTS 2ND WITNESS
LINDA MADOLO (MS MADOLO)

66. She is the Chairperson of the SGB at Masakhane Primary School, and that she was involved in the recruitment process with led to the appointment of the applicant.

67. When the bulletin was out, and the other SGB members attended the training at the Department of Education, Komani District.

68. She testified that on the day of the shortlisting, Mr Fatyela arrived with forms that were to be shortlisted, and forms that were sifted out by the Human Resource department of the 1st respondent. She further testified that the SGB executive that was involved in the recruitment process was in good standing in that it was elected in 2021 and its tenure to end on 31 March 2024.

69. It is the testimony of Ms Madolo that the reason that led to the applicant not to be shortlisted is that his application was incomplete and incorrectly completed.

ANALYSIS OF EVIDENCE

70. This matter was referred in terms of Section 186(2)(a) of the LRA with specific reference to a promotion. In this regard an unfair labour practice means any unfair act or omission that arises between an employer and employee involving unfair conduct by an employer relating to promotion.

71. In this matter the applicant bears the onus to prove that the above unfair conduct occurred. The applicant’s testimony is that the SGB Executive that selected the SGB shortlisting panel was not properly selected, in good standing. Mr Unati Panzi in his evidence testified that he has been a member of the SGB at Masakhane Primary School since 2021, and that was not disputed by any of the witnesses of the respondent. However, the respondent version is that the fact that SGB Executive was not elected yearly, it did nit render the SGB in good standing. In terms of the South African School’s Act 84 of 1996 as amended the terms of office of the office bearer of the SGB is not more than one year. The argument by the respondent that, the period office of the SGB execute is three years cannot be sustained.

72. He further testified that the last meeting for the election of the SGB portfolio’s members was in 2021. This version was disputed by the respondent through the testimony of Mr Fatyela and Skeyi who testified that the election of the SGB Portfolio’s were done on every year basis.

73. Evidence proof that the SGB executive was not in good standing at the time of selecting the shortlisting panel. The undisputed evidence of Ms Madolo was that the meeting dated 15 March as reflected in page 59 A, with credentials on page 60 of the applicant’s bundle was that there was no meeting on 15 March 2023, she received a phone call from the principal of Masakhane Primary School (Ms Dakada) that the meeting of the selection of the SGB Executive should have taken place before the actual date of shortlisting.

74. According to the testimony of Ms Madolo, this manufacturing of the minutes of this meeting took place after Ms Gobozi has left at Masakhane Primary School. This confirms the version of the applicant that the signature of Mr Panzi and Ms Gobozi have been fraudulently obtained as there was no such meeting of the alleged meeting that selected the SGB Executive, and that the alleged meeting never materialised. Under the circumstances, I accept the applicant’s version that the minutes of the alleged meeting of 15 March 2023 are not genuine.

75. In this regards the burden of proof is on the respondent to substantiate that indeed the meeting took place, and the respondent failed to substantiate its testimony. In this regard, and in the absence of any corroborating evidence the testimony of Mr Fatyela cannot be probable.

76. It is evident that the SGB Executive that selected the Shortlisting Panel was not in compliance with the requirements of the provisions of the South African School’s Act 84 of 1996 as amended.

77. Moreover, a period of two years 2022 and 2023 without an election of the SGB executive is a clear indication that the SGB of the school at Masakhane Primary School is not functional on its duties, and that its participation fraudulently obtaining of signatures of its members, and manufacturing of the minutes of the meeting caused its integrity to be tainted.

78. The South African Schools Act 84 of 1996 regulated the management of schools. the failure of the SGB to elect the executive proves nothing more than a failure of the SGB to perform its duties and manage the school properly.

79. Despite the fact that there is no strict requirement for compliance in the recruitment, it is evident that the appointment of Ms Dakada was characterized by fraudulent activities.

80. In terms of the shortlisting criteria being alleged to have been crafted by Mr Fatyela, under cross examination Mr Fatyela, vehemently disputed that interfered with the work of the shortlisting panel and avers that he never interfered with the duties of the selection panel.

81. Despite the minutes of the disciplinary hearing written ‘’Everyone received the criteria from Mr Fatyela’’, his averments are that he was guiding the panel on how to create the selection criteria following the requirements from the bulleting. In my view to guide the shortlisting panel as a resource person does not amount to interference.

82. The purpose of sifting by the Human Resource division is to identify based on the requirements of the bulletin which of the application form should be sent for shortlisting. It is the testimony of the applicant that had sifting been done the 2nd respondent would not have been shortlisted, as her application was defective and incomplete.

83. I have assessed the application forms of both the applicant and the 2nd respondent. In the application form of the applicant, its is reflected that that he completed the application form on 21 March 2023.

84. On evidence in front of me and on assessing the application from of the 2nd respondent, it is evident that the application form of of the 2nd respondent as reflected on page 64 of the Bundle EE1 was signed on 25 April 2023, a day after the closing date of the open bulletin as advertised on 27 March 2023, and closing on 24 April 2023. In my view if the process of sifting was done, it would have been picked up that the application of the 2nd respondent is late. A negative inference is drawn from the absence of the sifting report, and fact that even the trade union NAPTOSA was never present during tha period of the alleged sifting. On evidence in front of me, I accept that the sifting was never done by the Human Resource department of the 1st respondent.

85. The applicant’s application for is incomplete on paragraph 16; 19; 24.4; 24.’; 26.4; 26.5; 27.5, as it contains blank spaces. However, it was signed on 21 April 2024. The application form of the 2nd respondent is also incomplete on paragraph 20.6; 24.2; 24.4; 25.4; as it contains blank spaces, it is also the number of years of work experience does not correspondent with the years written on the Curriculum Vitae, and it is incorrect and defective as it was signed after the closing date.

86. There was no evidence as to why was the application from of the applicant allowed to pass through even at the shortlisting panel. It is clear that the appointment of the 2nd respondent was achieved through misrepresentation by the application, it warrants the appointment to be set aside, and that respondent re-advertise the position

87. Although the applicant holds a Higher Certificate in Education as his highest qualification, and the 2nd respondent holds a Bachelor of Education as her highest qualification, the applicant does have the management experience as required in the bulletin as he has been employed as a P1 School Principal as from 2018. Evidence and the qualification of the applicant proves that had it not be of the arbitrary conduct of the 1st respondent of unduly favouring the late application form of the 2nd respondent. I am convinced from his experience, exposure, and qualifications that had proper shortlisting been done, he would have remained the most suitable candidate in the position.

88. If find that the conduct of the 1st respondent denied the applicant and opportunity to compete fairly in the interviews.

89. I find that the conduct of the 1st respondent amount to an unfair labour practice.

90. Under the circumstances, I therefore make the following order.

AWARD

91. I find, the 1st Respondent, Department of Education has committed an unfair labour practice against the applicant Mfundo Siyo.

92. The appointment of the 2nd respondent Ms Lindelwa Dakada is set aside.

93. The 1st respondent Departments of Education Eastern Cape is ordered to re-advertise the position of the P2 School Principal Post level 4 of Masakhane Primary School, in the Chris Hani West District.

94. The 1st respondent is ordered to appoint a panel of selection experts for the shortlisting and interviews and to give recommendations to the 1st Respondent.

Signature:

Commissioner: Thobela Obey Mqamelo
Sector: Education