IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN CENTURION

CASE NO.: ELRC665-24/25 LP
In the matter between:-
TUMEDI PETER SEKHUKHUNE APPLICANT

and
PROVINCIAL EDUCATION DEPARTMENT: LIMPOPO 1st RESPONDENT
SHAKU MATHABATHA 2nd RESPONDENT

ARBITRATOR: MMAKGARE PIET SHAI
HEARD : 22ND JANUARY 2025
DATE OF AWARD: 3rd FEBRUARY 2025
SUMMARY: UNFAIR LABOUR PRACTICE

        ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The matter was heard as arbitration on the 22nd of January 2025 at the Department of Education, corner Biccard and Hospital Street, Polokwane.
2. Both parties were present. The Applicant, Mr Tumelo Sekhukhune, was represented by Mr Modiele Maenetja, a legal practitioner with Maenetja Attorneys. The latter withdrew during the proceedings and the Applicant conducted his own case. On the other hand, the Respondent was represented by Mr Nyathela, its deputy director of Labour Relations.
3. The proceedings were recorded digitally. At the end of the proceedings, parties filed closing arguments, the Applicant in writing whereas the Respondent did so orally.
   ISSUE TO BE DECIDED
4. I am called upon to determine whether the Respondent by not appointing the Applicant into a principalship post he applied for committed an unfair Labour Practice or not. If I find that the Respondent indeed committed an unfair Labour Practice, I am enjoined to determine an appropriate remedy for him.
   BACKGROUND TO THE ISSUE
5. The Applicant applied for a position of a principal at Maphutha Primary School, which was advertised. He was shortlisted, interviewed and ranked by the interviewing panel as number one. However, the school governing body when it made a recommendation, he was placed number 5, which meant that he was not recommended, the 3rd ranked candidate was recommended instead.
6. The Applicant regards this as unfair Labour practice and prayed for setting aside the appointment of the 2nd Respondent or that he is granted protected promotion to the post of principal.
7. The Respondent confirmed the above situation, however, raised a defense that it applied its employment equity policy, and that the Applicant was not recommended by the school governing body and 1st Respondent could not therefore appoint him.

SURVEY OF EVIDENCE FOR THE APPLICANT:
MR TUMISI PETER SEKHUKHUNE, THE APPLICANT TESTIFIED UNDER OATH AS FOLLOWS:

8. He applied for the position of principal at Maphutha Primary School. He was shortlisted and interviewed and ranked number one. However, he was not recommended by the school governing body, instead a 3rd ranked candidate was recommended and appointed. When he realized this, he lodged a grievance which was never resolved, but postponed.
9. He was a better candidate than the 2nd respondent. The 2nd Respondent according to him was not supposed to be shortlisted as she lags behind in terms of leadership experience.
10. According to him, the Employment Equity Act requires that where one uses employment equity as a criterion, there must be an equity plan. He testified that the 1st Respondent lacks an equity plan at the regional and circuit level, and therefore a defense of implementing equity plan was unjustified.
11. Further that, the 1st Respondent contended that it used employment equity as a criterion, same was not used at two schools as male principals were appointed, viz Phakeng and Dithotwaneng primary schools.

UNDER CROSS EXAMINATION HE TESTIFIED AS FOLLOWS:

12. He admitted that he was not recommended by the school governing body and this was made fraudulently, he however did not open a case of fraud against the school governing body. He further admitted that paragraph 35 of the collective Agreement 3 of 2016 provides that the 1st Respondent is bound by the recommendation of the school governing body. He further conceded that page 12 paragraph 3 shows that the grievance he lodged was dismissed although he disagrees therewith.
13. He cannot dispute that the Head of Department had delegated the Regional director, the power to appoint but not to develop Employment Equity Plan. He further conceded that the goals or targets in the Equity Plan need to be achieved.
14. He is not sure if the Departmental plan was presented at the school governing body meeting when the recommendation was made.

SURVEY OF EVIDENCE FOR THE RESPONDENTS
MR PHASHA MAMONGATO SIDWEL TESTIFIED UNDER OATH AS FOLLOWS:

15. He was employed as a Deputy Director attached to corporate services.
16. The decision to Appoint the 2nd Respondent was not unfair. The Applicant was not recommended by the school governing body and did not meet the employment equity plan target, and he was not the best candidate in terms of qualifications.
17. The Departmental Equity Plan comprises all districts and should be relied on when making appointment decisions. The relevant circular was distributed to all the districts and circuit offices.
    ANALYSIS OF EVIDENCE AND ARGUMENTS
18. In this matter, the Applicant contended that the 1st Respondent committed an unfair Labour practice by not appointing him to the principal position he had applied for, despite being ranked number one by the interviewing panel. The School Governing Body recommended the 3rd ranked candidate as the successful candidate.
19. In this case the principle of “he who alleges must prove applies.” Thus, the Applicant bears the onus to prove that the 1st Respondent committed unfair labour practice when it acted in the aforementioned manner.
20. It is common cause that the Applicant was shortlisted and interviewed and ranked number one by the interviewing panel. It is further common cause that the school governing body recommended the 3rd ranked candidate, the 2nd Respondent.
21. The 1st Respondent led evidence to show that it applied employment equity policy and followed its plan to adhere to its targets. According to the evidence of the 1st Respondent, the Applicant was not recommended by the school governing body, did not meet the employment equity plan target and was not the best of all the candidates in terms of qualifications.
22. The 1st Respondent’s witness insisted that the 2nd Respondent met the above criteria hence the 1st Respondent did not commit unfair labour practice by appointing the 2nd Respondent.
23. The Collective Agreement number 3 of 2016 paragraph 35 provides as follows:
    “Recommendation of school governing body is an essential prerequisite for the promotion of an educator by the Head of the Department’s employer, and without such a recommendation the promotion is ultra vires and unlawful.”
24. Paragraph 37 of the same Collective Agreement provides further that:
    “There is no general right to promotion. What employees do have is the right to be fairly considered for promotion when a vacancy arises. It is however, expected that the employer should appoint the best candidate when selecting suitable candidates for promotion. This expectation is subject to the employer’s right to appoint a weaker candidate in the name of affirmative action in order to address imbalances of the past,”
25. The 1st Respondent led evidence of the existence of the Employment Equity plan and a directive that should be applied to all districts and circuits.
26. The 1st Respondent was able to show that it followed the plan in appointing the 2nd Respondent in order to meet the targets as outlined in the plan. In this instance, the targets are the female principals as they are underrepresented on the plan.
27. The Applicant further led evidence that the 1st Respondent in implementing the employment Equity Act is inconsistent as it appointed male principals in the surrounding schools. However, the 1st Respondent was able to distinguish between the two as the Applicant was not recommended and the male candidates he mentioned were recommended by the school governing bodies. I find that no inconsistency can be found in the application of the rule.
28. I consequently conclude that the 1st Respondent followed its policies and procedures in appointing the 2nd Respondent and hence has not committed an unfair labour practice.

AWARD

29. I find that the 1st Respondent, the Provincial Education Department, Limpopo, has not committed an unfair labour practice against the applicant, Tumedi Peter Sekhukhune.
30. The Applicant’s case is dismissed.

MP SHAI
ELRC Panelistf an unfair labour practice is dismissed.

A.Singh-Bhoopchand
Senior ELRC Panelist