Panelist : Alta Reynolds

Case Number : ELRC487-23/24WC

Date of Award : 5 June 2025

In the ARBITRATION between:

SAUER-JACOBS, SANDRA
(Union/Applicant)

and

WESTERN CAPE EDUCATION DEPARTMENT
(1st Respondent)

SEPTEMBER, GLENDA
(2nd Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down by the Education Labour Relations Council (ELRC) as an alleged unfair labour practice relating to promotion referred in terms of section 186 (2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was conducted both in person and virtually via MS Teams over 12 sittings on 2 April 2024, 3 April 2024, 23 May 2024, 24 May 2024, 23 July 2024, 3 September 2024, 4 September 2024, 5 September 2024, 25 February 2025, 24 March 2025, 25 March 2025 and 11 April 2025. The arbitration was also scheduled for continuation on 13 and 11 November 2024, which sittings were cancelled due to the Panelist being indisposed. Postponement was requested by the Applicant’s and 2nd Respondent’s Representatives for postponement of a sitting scheduled on 26 February 2025, which was acceded to.
2. Present for the referring employee (the Applicant) were Mr Juwa Dimande (SADTU Full-Time Shop Steward as Representative) and Ms Sandra Sauer-Jacobs (the Applicant). Present for the employer, the Western Cape Education Department (the 1st Respondent), was Ms Liezle Diedericks (Labour Relations Officer as Representative). Present too joined in these proceedings were Ms Glenda September (the successful candidate for the disputed post as the 2nd Respondent) and Mr Faez Tassiem (NAPTOSA Executive Officer as Representative).
3. The proceedings were conducted in English, with MS Teams, digital and typed recordings made.
4. An explanation of the arbitration proceedings was provided for the benefit of the Applicant and the 2nd Respondent, which included the basic rules of evidence and the onus of proof.
5. Preliminary issues were raised by the Applicant party and 2nd Respondent at the commencement of the arbitration. The Applicant party obtained agreement for one of their witnesses to testify virtually due to not being able to attend in person at the time. The 2nd Respondent pointed out that they were not party to the conciliation and pre-arbitration minute and were informed that the relevant issues would be addressed in the proceedings.
6. Written closing arguments were requested and agreed to at the last sitting of the arbitration. It was agreed by both parties that they would submit their closing arguments to the ELRC’s Case Management Officer and copied to one another via e-mail, as follows:

The Applicant by not later than 9 May 2025
The 1st and 2nd Respondents by not later than 16 May 2025
The Applicant’s reply by not later than 23 May 2025.

7. The parties were informed that the award due date would be amended accordingly. The parties’ written closing arguments were received on the due dates. ISSUE TO BE DECIDED
8. The purpose of this arbitration is to determine whether the 1st Respondent had committed an unfair labour practice relating to promotion in terms of section 186 (2)(a) of the LRA by wrongfully appointing the 2nd Respondent, Ms Glenda September, in the post of Principal Post Level 4 at Hillside Primary School and not appointing the Applicant in this post, with the relief sought that the 2nd Respondent’s appointment be set aside and that the Applicant be appointed in this post retrospective to 1 October 2023. It was confirmed that the onus of proof would be on the Applicant in this matter.

BACKGROUND TO THE DISPUTE

The following facts were established as common cause

9. The Applicant is currently occupying the post of Deputy Principal at Hillside Primary School in Bishop Lavis, Cape Town. She commenced service with the 1st Respondent in 1991 and previously worked during 1990 as an Educator in Gauteng. She acted in the post of Principal from 1 January 2021 at Hillside Primary School until an appointment was made. Her Persal number is 50654217 and she earned a gross basic salary of R48479.21 per month. Post Number 1174 for the vacancy of Principal at Hillside Primary School was advertised under Vacancy List 3 of 2022 on 5 September 2022. This was the 3rd time that the post was advertised and the Applicant applied each time the post was advertised. Neither the Applicant nor any other candidate was shortlisted in response to the first advertisement. The Applicant was shortlisted in the second round of recruitment and was recommended for appointment by the School Governing Body (SGB). The 2nd Respondent did not apply for the post in the first and second rounds of recruitment. In the second round of recruitment an appointment was not made because the shortlisting scores did not tally. The Applicant and the 2nd Respondent both applied for the third advertisement, for which both were shortlisted and interviewed. The interviewing took place on 21 November 2022. The Applicant scored a total of 60,5% and the 2nd Respondent 69,02 % in the interview process. Three candidates were recommended by the SGB for the post, being Ms Glenda September (the 2nd Respondent), Mr Walter Langley and Ms Sandra Sauer-Jacobs (the Applicant).
10. The 2nd Respondent was appointed in the post on 1 October 2023. The 2nd Respondent prior to her appointment as Principal occupied the post of Deputy Principal at Nooitgedacht Primary School in Bishop Lavis, Cape Town. She commenced service with the Respondent for the first time in 1997 and was appointed permanently with the Respondent with effect from 1 July 2006. Her Persal number is 53048971 and she earned a gross basic salary of R49566.75 per month. The Applicant became aware of the appointment of the 2nd Respondent on 19 July 2023 and lodged a grievance on 21 July 2023, of which the outcome was received on 15 September 2023 stating that the grievance was found to be unsubstantiated.

The following facts were in dispute:

11. Who was responsible for the shortlisting scores not tallying for the second round of recruitment for the post.
12. Whether the Motivation of Nomination document dated 14 June 2023 provided by the 1st Respondent that nominated Ms September, Mr Langley and Ms Sauer-Jacobs for the post and ranked Ms September in position 1, Mr Langley in position 2 and Ms Sauer-Jacobs in position 3, was disputed by the SGB members and was fraudulently signed on behalf of Ms Saayman the SGB Chairperson and Ms Rudolf the SGB Secretary, the origin of which document the Applicant party stated they were not aware of.
13. Whether the Secretary of the SGB was instructed by Mr Hendricks, the Circuit Manager and Resource person in the recruitment and selection process, not to take the minutes when she started doing so and stated that he would take the minutes himself.
14. Whether the nomination process for the post was unfair, flawed and unconstitutional.
15. Whether Mr Hendricks instructed the SGB to change their decision on DPE 2 Recommendation for Appointment form on page 43 of the Applicant’s bundle to that recorded on the DPE 2 form on pages 54 and 55 of the Applicant’s bundle.
16. Whether the Applicant was scored unfairly by some SGB members during the interview process.
17. Whether the Applicant was the best candidate for the post.
18. Whether the 1st Respondent had committed an unfair labour practice by not appointing the Applicant in the post of Principal at Hillside Primary School.

SURVEY OF EVIDENCE AND ARGUMENT

19. Ms Sandra Sauer-Jacobs, the Applicant, Ms Anastacia Saayman, Chairperson of Hillside Primary School SGB, Ms Nadia Rudolph, Hillside Primary School Educator and SGB Secretary, Mr Christopher Whyte, Hillside Primary School Educator and SGB Member and Ms Belinda Amos, Hillside Primary School Administration Clerk and SGB Member, testified under oath for the Applicant party.
20. Mr Wayne Hendricks, Chief Education Officer/Circuit Manager Circuit 8, Ms Shireen Paulse, Personal Assistant/Administration Officer Circuit 8, and Ms Zanele Nkibi, Assistant Director Recruitment and Selection, testified under oath for the 1st Respondent.
21. Ms Glenda September, the successful candidate for the post of Principal at Hillside Primary School, testified under affirmation as the 2nd Respondent.
22. Documents were handed in by the Applicant and the 1st Respondent. The documents were admitted as evidence, except where indicated otherwise, with the authors of statements and affidavits to testify to these documents. The Applicant party had also requested from the 1st Respondent that the Competency Based Assessment (CBA) for the 2nd Respondent could be provided to compare with the Applicant’s CBA. Both the 1st and 2nd Respondent’s refused that this information be provided to the Applicant on the grounds that this contained protected personal information. It was subsequently agreed that the arbitration continue without the CBAs being handed in as evidence.
23. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.

THE APPLICANT’S EVIDENCE

24. The Applicant party’s case was that they would prove that the Applicant was the best candiate for the post and that there was also a lot of irregularity during the process. The SGB members would testify that the SGB took the decision that the Applicant should be recommended for the post and that there was manipulation of what had transpired during the SGB meetings. There was fraud committed in one of the letters submitted to the 1st Respondent in which it was said that it was signed by the SGB Chairperson and the SGB Secretary, yet they never signed the letter. The Resource person was the one who took the minutes and took the powers of the SGB upon himself. The Resource person also prepared and brought the questions to the Interviewing Committee, who knew very well that the questions cannot be set outside the process and must be set by those involved. The SGB members would testify further that whatever happened was not done according to the processes to be followed. The relief sought was the appointment of the Applicant in the post, who was the choice of the SGB, and it seemed that the Resource person who is the Circuit Manager, undermined the SGB’s decision.
25. Ms Sandra Sauer-Jacobs, the Applicant, testified as follows under oath in her evidence in chief: She is presently the Deputy Principal at Hillside Primary School in Bishop Lavis, Cape Town. She is disputing the Principal post advertised in the second bulletin of 2022 Post Number 1174. This was the third time this post was advertised. She did apply the first time it was advertised in the first bulletin of 2021 end January 2021 and was not shortlisted. At the time the position was advertised the first time she was the temporary Caretaker Principal at the school since October 2020 when the Principal had passed away. She acted in the post up till September 2023. She was not aware that in terms of the policy of the 1st Respondent that if you acted in a post for more than a year that you are supposed to be shortlisted for interviewing. She had not completed a year in the acting Principal post the first time that it was advertised.
26. The second time she applied she was shortlisted, went for the interview, was nominated, went for the Competency Based Assessment (CBA) and for fingerprinting and definitely had an expectancy that she would get the position. Mr Hendricks notifed the SGB there was a glitch with the shortlisting and a problem in connection with the rubic of the scoring and that the post has to be readvertised. She was shocked when she saw Mr Hendricks’ letter of 28 June 2022 that as a shortlisted candidate her score was 63,47% and that she did not meet the pre-determined benchmark of 65%, yet according to the SGB minutes for that process her score was 65,8%, which meant that she met the criteria. If she looked at the discrepancies, it looked as if there was a definite effort to keep her out of the post. As to what the reason was for giving her low scores that she did not deserve, she would love to think it was an honest mistake, but could not if she looked at the third process which was handled by Mr Hendricks.
27. She was of the view that she was the best candidate for the post, with the background that she had taught at Hillside Primary School for more than 15 years starting from 2010 as a Head of Department. She was promoted to Deputy Principal in 2015. Her background was more in High School but she learnt to love the little children. She respected the community and the learners, as well as the other stakeholders at the school. It was difficult after the Principal passed away and there was a division at the school as there was a group of teachers who were against her being in charge who loved the Principal who had passed away and tried to disadvantage her. What was very important is that her husband passed away two weeks before the Principal and she was also in the first stage of grieving. She however still tried to make a difference and put all her energies into the school. One teacher who left the school after the first process came to apologise for his conduct for scoring her mostly zeroes on her CV in the first process when nobody was shortlisted. After she was nominated for the second advertisement and got the news that the post must be re-advertised she believed it was a glitch and that nobody was trying to sabotage her, which is why she did not dispute that process.
28. After she went through the process again the third time, the first time she suspected something was wrong was when the SGB Secretary asked permission for her as Caretaker Principal to have urgent SGB meetings, which she did not intervene in as it is a confidential process. The post should have been filled on 1 April 2023. After there were a number of SGB meetings, Mr Hendricks came to her on 19 July 2023 and informed her that he had spoken to the SGB Chairperson and informed her that she was unsuccessful and did not get the post of Principal, which was given to Ms September, the Deputy Principal at Nooitgedacht Primary School. She was destroyed as she had put in a lot of work at the school, as her witnesses would attest to. She highlighted the examples of what she did at the school that qualified her as the best candidate for the post, of which the detail is not repeated here.
29. The performance of the school had changed as a result of her not being appointed in the post of Principal, which was not positive, with the school underperforming at present and not a happy place to work at, and discipline deteriorating, which never happened under her leadership. She was referred to the grievance that she lodged on 20 July 2023 and which she elaborated upon on 24 July 2023. This was the unfair labour practice that she alleged in the third and last interviewing process, such as the confidential information that was leaked, that some of the SGB members voted against her, that the process was compromised and disadvantaged her and robbed her of pension benefits since she was near retirement age. Mr Girchwin Philander the Employee Relations Officer for Metro North forwarded to her on 15 September 2023 the letter from Ms Wendy Horn the Director: Metro North Education District dated 11 September 2023 to advise her grievance was unsuccessful. A formal grievance meeting was held, with Mr Philander, herself and Mr Timothy her SADTU Representative present. Mr Philander chaired the meeting and witnesses were called in the meeting. She did not receive minutes of the grievance meeting and she was not sure who took the minutes. Mr Philander definitely said she had more than enough reasons for the grievance, that he would investigate the matter and get back to her, which he did not do, and she received the outcome from the Director nearly a month after the meeting was held.
30. She lodged a dispute with the ELRC after that, with reference to the ELRC Form E1 that she completed on 19 September 2023. The relief that she sought in the dispute referral form was to be appointed as Principal and compensation for financial losses concerning her pension benefits. As to why the SGB would recommend her as the best candidate for the post, she did not think they did it because she is a very likeable person, but because of her work ethic as she could prove that she could lead by example and took the school from a very sad state. A conciliation meeting was held under the auspices of the ELRC via Zoom, at which consensus was not reached and the 1st Respondent had stated that everything was procedurally above board, with which she, the Applicant, did not agree. She was referred to the undated statement that was written by and would be testified to by Ms Nadia Rudolph the SGB Secretary. She is aware of what was written there and that this was shared with her after the announcement that she, the Applicant, did not get the post. She was also referred to the statements of Mr Christopher Whyte and Ms Belinda Amos both dated 1 November 2023 in which they cofirmed the statement made by Ms Rudolph. Both Mr Whyte and Ms Amos were part of the SGB Interviewing Panel and would come and testify in the arbitration.
31. Under the SGB Submission of Documents Process for the post of Principal at Hillside Primary the first action/activity was recorded that the Circuit Manager had said he must take responsibility for the whole process. She had a reasonable understanding of the selection and recruitment process and what is supposed to happen. If there is an Interview Committee the Resource person is not part of the Committee. Her understanding is that the Resource person is there to guide the Interview Committee and assist with policies and procedures if needed. The Resource person cannot take responsibility for taking the minutes of the process. What happened was definitely not above board as the responsibility for the process is the SGB of the school and not the Resource person. She was referred to the other action items on the submission of documents process for 8 December 2022 and 15 March 2023 and read these out, with it confirmed that Ms Rudolph would testify to this. She was aware of the SGB Ratification Meeting of 22 November 2022. It stated there that the post is effective from 1 April 2023 and she started smelling a rat as Mr Hendricks had said that the post must be filled by April 2023 and it did not happen. With reference to the Minutes of the Interview Meeting for the post of Principal dated 21 November 2022, if one looked at the minutes the process of setting questions and drawing up a business plan was all handled by Mr Hendricks, which according to her was not supposed to happen, but Mr Hendricks said he was asked by the 1st Respondent to handle the whole process. She was aware of the Minutes of the Shortlisting Meeting for the post of Principal dated 7 November 2022. These were the minutes of the meeting that were sent to the school by Mr Hendricks or his Personal Assistant and they just had to put in the names. Mr Hendricks had said he will take the minutes and these are the minutes he sent.
32. The DPE 2 form Recommendation for Appointment as Educator in Advertised Post of Post Number 1174 for Principal reflected how the SGB decided to do nominations for the post, being herself, the Applicant, as first choice, Ms September, the 2nd Respondent as second choice and Mr Langley as third choice. This recommendation was signed by the Chairperson of the SGB and forwarded to the 1st Respondent on 14 March 2023. In the Ratification Meeting minutes of 22 November 2022 it was stated that three candiates were invited for the interviews and met the benchmark of 60% in the order of Ms September, Mr Langley and herself. In these minutes the SGB asked the SGB Chairperson to consult with Mr Hendricks about writing a motivational letter for her to be appointed in the post, hence recommending her for the post. In the Motivation or Nomination letter dated 27 March 2023 signed by the Chairperson and Secretary of the SGB they again motivated why they wanted to nominate her as Principal of Hillside Primary School. The DPE 2 form recommendation dated 9 May 2023 reflected a change in the nomination choices, with Ms September now being the first choice, Mr Langley as second choice and herself as third choice. Ms Shireen Paulse, the Circuit Manager’s Personal Assistant had apparently instructed the Secretary of the SGB to change the DPE 2 form. According to her understanding this was not the decision of the SGB. The third DPE 2 form dated 14 March 2023 reflected the same choice order as the DPE 2 form of 9 May 2023 and was based on conflicting instructions received at the time by the SGB from Mr Hendricks’ Personal Assistant Ms Shireen Paulse. Ms Saayman as the SGB Chairperson and Ms Rudolph as the SGB Secretary who were part of this process would testify to these documents and other correspondence between them and the 1st Respondent relating to the nominations for the post of Principal. The Minutes of the Interview Meeting for the post of Principal dated 21 November 2022 signed on 23 November 2022 by the SGB Chairperson and Secretary were referred to. According to her knowledge these minutes were not written by the SGB Secretary. By both the Secretary and Chairperson signing the document it however meant they agreed to the document. She was referred to the Motivation of Nomination for the Principal post dated 24 May 2023 signed by both the Chairpersonn and the Secretary of the SGB. In this letter they motivated their preference for the appointment of herself as Principal. She could not testify to or comment on the other documents in the Applicant’s bundle.
33. She was referred to paragraph 12.5 Setting of Questions of the Minutes of the Shortlisting Meeting for the Post of Principal in the 1st Respondent’s bundle of documents and asked to read it out. It stood there that the meeting unanimously agreed to mandate Mr Hendricks to draft an instruction to a presentation and a set of eight questions of ten marks each. This was not reported to her about the setting up of the questions. The information that she received is that Mr Hendricks came with the questions and that the 1st Respondent asked him to take charge of the whole process and the morning they arrived for the interviews they received a package and a confidentialy form to sign, that the questions for the interview were in the package and drawn up by Mr Hendricks over the weekend, which they would come and testify to. These minutes were also sent by Mr Hendricks’ Personal Assistant to the SGB.
34. She identified the people who were present at the Ratification Meeting of 22 November 2022. The SGB told her that they nominated her because under her leadership they could breathe and be themselves at all times, that they had an input in the running of the school, that she communicated with all the stakeholders at school and gave them opportunities to express themselves, that they bought into the ethos of the school and had a shared goal and vision, also that she had achieved a lot in the two years and nine months that she acted as Principal. She would like to see that the process be revised and that she gets what she truly deserves because she worked hard to get the school on a level of excellence that they strived for and they were well on their way towards that because of the unity and teamwork that happened under her leadership. She was 56 years old and had 34 years experience as an Educator. On the listing of candidates for Filling of Post of Principal: Hillside Primary School Post Number 1174 in the Respondent’s bundle of documents it was recorded under Years of Experience that Ms September had 16 years’ experience and that she and Mr Langley both had 23 years’ experience. Under Qualifications on this schedule Ms September has a DEIII, Mr Langley a DEIII and ACE and herself a BA Degree, Higher Diploma in Education and a Personnel and Training Management Diploma. Ms September’s REQV was 13, Mr Langley’s 15 and her own 14. Ms September was 58 years old, Mr Langley 59 years old and herself 55 years old on this schedule. Their respective interview scores were 352 (69.02%) for Ms September, 310 (60.78%) for Mr Langley and 309 (60.59%) for herself. According to her knowledge the scores alone did not count to be the best candidate.
35. The SGB had informed her that the interview questions were already prepared when they arrived. If questions are prepared outside the process they could have been rigged. The SGB had shared with her that there was a feeling inside the interview room after the three interviews that Ms September had answered the questions verbatimly, namely word for word, as they explained to her. One of the SGB members had told her she asked Mr Hendricks on how this is possible that Ms September could answer the questions verbatim and he made a joke and said maybe Ms September saw the questions in his office when she went to prepare the Powerpoint presentation and that she had a lot of experience in it. She herself has experience in interviews and have been to several Managerial interviews. After the interviews she did not hear anything but was not bothered at that stage and assumed it went well since she could answer all the questions confidently and had experience in the position. She had not done a Competency Based Assessment (CBA) as the time but had already after the second interview process, hence according to the 1st Respondent it was not necessary for her to do it again. The SGB got the results. She had requested her CBA results, but to no avail. The SGB did discuss her CBA results with her afterwards and told her that in comparing her with the other two candidates there was room for improvement for them. They would come and testify that her CBA results stood out and were way above the others, in particular for managing people. She was referred to paragraph 12.10 of the Minutes of the Shortlisting Meeting dated 7 November 2022 and read out that the CBA will only be used for developmental purposes and not for scoring and ranking.
36. On the Shortlisting Score Sheet dated 4 November 2022 for Post Number 1174 she had scored 81.2% and Ms September had scored 68%. This meant to her that her CV was definitely according to her experience and that she had much more experience than Ms September. On the Principal Post Interview Score Sheet in the Respondent’s bundle of documents reflecting the scoring of the Panel (Interview Committee) members she was the third best candidate with the lowest overall percentage of 60.5%, Ms September 69% and Mr Langley 60.7%. She read out for the record the individual scores given for each candidate by each of the panel members and the total scores for each candidate.
37. Ms Sauer-Jacobs testified as follows under cross-examination by the 1st Respondent: Ms Saayman and Ms Rudolph had told her that the motivation letter dated 14 June 2023 in the 1st Respondent’s bundle of documents was a fraudulent document as it was not their signatures and that they had not seen this letter until they received the 1st Respondent’s bundle of documents. As to Ms Paulse coming to testify that this motivational letter was sent to her from the school by Ms B Amos on 14 June 2023, she explained that all the correspondence with respect to the process for this position went through the SGB and e-mail address of Ms Nadia Rudolph because she was the Secretary of the SGB at the time. She could not answer as to why that e-mail came from Ms Amos, who is the Secretary of the school and not the SGB. As to Ms Paulse Mr Hendricks’ Personal Assistant coming to testify that she was asked to change the ranking order on the DPE 2 form because the interview scores did not correspond with the motivations and Mr Hendricks said the SGB must give a strong motivation for the Applicant over Ms September as Ms September scored the highest, she responded that it was a request that came from Head Office. Mr Whyte, Ms Saayman and Ms Rudolph would also come and testify to the telephonic confusion that they dealt with. Ms Paulse also did not follow protocol as she never spoke to Ms Rudolph the Secretary of the SGB and all the phone calls went to Ms Amos the School’s Secretary. According to Ms Rudolph the last correspondence between her and Mr Hendricks’ office was on 5 June 2023, whilst in the 1st Respondent’s bundle of documents the only motivation letter was on 14 June 2023, with the other motivation letters only received the previous day from the 1st Respondent at the arbitration. When the motivation letter of 27 March 2023 is compared with the one that the Chairperson and the Scretary claimed they did not sign on 14 June 2023 it could be seen that it’s different motivations, with her explaining the differences in the motivation letters.
38. The interviewing and nomination process was explained to her, to which she responded that she understood the process but that is definitely not how it went, with the SGB members to come and testify how it happened. She was referred to the four motivation letters of 27 March 2023, 24 May 2023, 5 June 2023 and 14 June 2023 provided by the 1st Respondent. As to why the SGB in the motivation letter of 27 March 2023 which nominated her for the post only spoke to things outside the interview process such as the seven points that they listed and did not speak to her performance in the interviews, she responded that the SGB was asked to also motivate for the other two candidates and the only reference they had for the other two candidates was the interview process. The reason why they motivated her was because of the seven points and the experience that they had with her in the acting position. The SGB members told her they asked Mr Hendricks if they could motivate her and he first said no and said he would come back to them and then said they can motivate her. This did not happen outside the recruitment process, but as part of the rectruitment process.
39. She did not feel it was unfair for the SGB to motivate a candidate based on their personal experience with them when the other two candidates were not allowed to bring people to motivate on their personal experiences with them. The scoring was done fairly because the SGB used the guideline, but the SGB also stated that Ms September answered the questions verbatimly as it was on the guideline and that was the question mark for them. The SGB was not unfair in motivating her as its not just about the interview as there was also the shortlisting and the CBA scoring which they considered and what would be best for the school when they decided to change their preferred nomination. She was asked to respond to the SGB’s amended motivation letter of 5 June 2023 which also referred to the performance of Ms September and Mr Langley and that Ms September had surely performed the best and was the strongest candidate, to which she responded and repeated that Mr Hendricks had asked the SGB to write a positive motivation for Ms September and the SGB had informed her that Ms September gave the answers to the questions word by word according to the guidelines, as stated in the letter. The SGB said to her that when they questioned Mr Hendricks about this, he said that Ms September had gone for a lot of interviews which is maybe how she answered the questions word by word as in the guideline. It was put to her that it was her responsibility to prove that Ms September had access to the answers and that is why she was able to answer the questions verbatim and that it was not impossible as an example for learners to get full marks, to which she responded that she had a qualification in Psychology and that one could get everything right but not word by word, which is the question mark.
40. It was put to her that Ms Paulse would come and testify that she would send or forward the e-mail request received from Recruitment and Selection first to the school and would follow up with a phone call to check whether they received it. As Acting Principal at the time she was able to see all the e-mails sent to the school. The process was not finished yet and Ms Paulse never sent any e-mails via the school’s e-mail address. She did deserve the post of Principal even if she did not fare so well in the interviews and agreed that the interview process was a necessary process to go through. She had testified that the school is underperforming now, and not in the past when she was acting in the post. She was not saying that the school was underperforming now since Ms September was the Principal, but that things changed for the worst after September 2023 and Ms September started in October 2023. She confirmed her testimony that Ms Saayman and Ms Rudolph had never seen the motivation letter of 14 June 2023 and it was fraud since it was not their signatures on the letter. She had smelt a rat and there was a mistake with this fraudulent letter which had a negative impact on this process. As to Mr Hendricks and Ms Paulse not having a reason to collude for her to not get the post, that they had no vested interest in doing so, that the process was fair an lawful, that she had the opportunity to compete for the post and that the outcome was fair, she responded that according to her knowledge it was not procedural, a lot of things went wrong, Mr Hendricks took charge of the processes that he was not supposed to do and things were messed up further after the interview process. She was obviously not there, but she heard that when the panel members walked into the interview they had folders waiting for them and they had to sign confidentiality forms, with no discussions about the questions.
41. Ms Sauer-Jacobs testified as follows under cross-examination of the 2nd Respondent: She was referred to Resolution 5 of 1998 and agreed that it outlines the process of shortlisting, interviews and nomination of a candidate whether for post level 1, 2, 3 or 4. The purpose of doing the interviews for posts is to find a suitable candidate to fill the position. She would not be shortlisted if she did not meet the criteria for the advertised post. The post interview discussions after the candidates had been ranked would be to reach consensus which one is the most suitable candidate for the position. The decision will be based on the criteria and answers to the questions, but that is not the only thing. The other things are the criteria and the curriculum needs of the school. She was asked to compare the two motivation letters of 5 June 2023 and 14 June 2023. She agreed that the paragraphs relating to Ms September and Mr Langley were the same in both letters. She also agreed that what was read out relating to herself was the same, except for a few omissions and that it was highlighted in the second paragraph of the letter of 5 June 2023 that she is their preference, which is not in the alleged fraudulent letter of 14 June 2023. The SGB discussion post interviews was supposed to be about the scoring, how the candidates fared and the nomination. If the consensus meeting had taken place after the interviewing process was completed then maybe the motivation would have been different, since no consensus meeting was held then, with the SGB only having a meeting after the process was completed. After Mr Hendricks came to tell her she was not the successful candidate the information came out that Ms September answered the questions verbatim and she realised she was compared with Ms September and not what she answered in the previous process when she was successful.
42. If it is assumed that Ms September answered all the questions correctly and she answered poorly, it happens in interviews all the time when some do better than others. She was referred to the Interview Score Sheet for the Principal Post in the 1st Respondent’s documents and asked why her witnesses Mr Whyte and Ms Saayman scored her lower than Ms September, to which she responded that they scored according to the guidelines since Ms September had answered the questions verbatim. They did not have a consensus meeting and the next day they had a meeting and wanted to change the nomination. She had participated in a process of shortlisting and interviews while Acting Principal. As to who was the Resource person and drafter of questions, it would be different for a Principal level, and could be somebody from the 1st Respondent or a Principal in a different school. The Resource person supports but definitely does not take the whole process in his hands.
43. The SGB members would explain that the minutes were sent to them and they had to fill in names. She could not answer if they had objected to Mr Hendricks doing this and that it was unfair. She was prejudiced due to the fact that Mr Hendricks had drafted the questions before the process and not in the process and came with the set of questions, because this left a margin open for the leakage of questions. She had no proof that the questions were leaked. She was referred to ELRC Collective Agreement Number 3 of 2016 relating to the ELRC Guidelines: Promotion Arbitrations and was aware of paragraph 46 that the mere fact that an employee is acting in a post does not give an automatic right to promotion. She was also referred to paragraph 40 that where an employee complains that another person was promoted he or she must show that her or she has the necessary skills and that the person who was promoted does not possess the same of same level of skills, to which she responded that the person who was promoted does not have the same level of skills. She based her answer on her own experience of the 2nd Respondent at the school of more than six months ago.
44. In the nomination letter of 5 June 2023 the ranking was Ms September as first, Mr Langley as second and herself as third. The SGB had made this ranking according to the scoring, but they changed the positions and nominated her as number one, Ms September as number two and Mr Langley as number three on the DPE 2 form dated 14 March 2023. According to her knowledge they changed the ranking because they felt that she was the best suited for the position as confirmed in the ratification meeting minutes of 22 November 2022 which was held the day after the interview process. The SGB’s nomination motivation letter of 5 June 2023 was according to her understanding after they got instructions from Ms Paulse to change the sequence. As to how candidates are ranked, her understanding was that at the ratification meeting there is a discussion, with also the CBA testing and CV scoring coming into play, with all three considered together and not only the interview scoring in isolation. As to whether it was a fair assumption that it was stated in the letter of 5 June 2023 that the other two candidates knew the documents (policies) and that nothing was mentioned about her and the policies, that she did not answer on the policies, she knew she could answer to that but she could not recall the direct question. According to the scoring she would agree that she did not answer the questions as well as the other two candidates. As to the SGB members who rooted for her not having a reason to mark her down, she responded that she was not disputing the scoring procedure, but the unfair procedure before and after that day.
45. She was talking about after the interview process the correspondence is supposed to go through the SGB Secretary and Ms Paulse never contacted the SGB Secretary Ms Rudolph but contacted the School Secretary and never via e-mail and only by telephone. The proof of what she is saying is the letter of 5 June 2023 and the affidavits of Ms Saayman and Ms Rudolph that they did not sign the letter of 14 June 2023, which they only became aware of when they received the 1st Respondent’s bundle of documents. She was asked where it is stated in Resolution 5 of 1998 that the Resource person must communicate with the Secretary of the SGB and responded that in her experience and knowledge there is a certain protocol that must be followed and that the correspondence must go to the Secretary of the SGB. She was not attributing the present underperformance of the school to Ms September, but Ms September did not step in and help assist with the classes or ask for help. They got percentages every term which reflected the underperformance of the school, which had been underperforming since the previous year. She was acting as Principal most of the year, but they tried to prevent it.
46. Ms Sauer-Jacobs testified as follows under re-examination: Ms Belinda Amos was the School Secretary and SGB member at the time and also on the selection (interviewing) committee. It was not right for Ms Paulse to speak to and instruct Ms Amos regarding the processes as she was not the Secretary or the Chairperson of the SGB. According to the SGB Chairperson and Secretary they did not draw up or sign the letter of 14 June 2023 and they wanted to know who sent the letter to Mr Hendricks as there was proof of their motivation letters that were sent. She pointed out again the differences in the motivation letters of 5 June 2023 and 14 June 2023, with the detail not repeated here. According to the SGB’s motivation she was the best candidate. The interviews cannot be used to motivate the best candidate as there is also the CBA testing. The SGB discussed the CBA score with her after the process and told her that she was the best candidate on those scores. They were also supposed to discuss the process after the interviews and that discussion did not take place. The answers to the interviews will not make the person the best candidate as it’s a combination of the CBA and the interviews and there must be consensus to decide that . She believed the SGB did not have consensus on the best candidate after the interviews as they changed it on only the next day. To her knowledge the SGB did not say that Ms September was the best candidate and they wanted her, the Applicant, for the reasons given. The reasons were the seven items listed in the letter of 5 June 2023.
47. She was not done a favour by being shortlisted, as her CV is a true version of what her experience entails and what she did at the school.The motivation letters from 27 March 2023 onwards were written by the persons who signed them, being the Secretary and Chairperson of the SGB. She was referred to and confirmed certain correspondence in the Applicant’s bundle of documents, of which the detail is not repeated here since it was already testified to under her evidence in chief. The SGB was looking for a candidate who could take the school forward and make a positive change and progression and will be an asset to the school and the school community. According to her she would be the best person to take the school forward. The process started with the CV, for which she got the highest score and it was a combination of things, being the scoring of the CV, the interviews and the CBA, followed by the meeting afterwards to reach consensus, and cannot be based on one section of the process only. She repeated her evidence on why the process was unprocedural.
48. The SGB definitely did not do her a favour when they motivated her for the post, because they could prove through her CV that she was the best candidate. There came a letter at that stage that the school was underperforming. When Ms September started in October 2023 she, the Applicant, informed Ms September that she had checked the statistics and that they will be an underperforming school and they must get the class teachers to do more. She would never go against the Principal to do it on her own. Ms September told her if it must happen, it will happen. They are an underperforming school now, which is causing massive strain. In the letter of 28 June 2022 relating to the first advertisement it was stated that the two shortlisted candidates, of which she was one, did not meet the benchmark of 65% and that her score was 63.47%. This information was not correct as her score was 65.8% and not 63.47% as stated there. She explained again why she had stated that Mr Hendricks took charge of the process. The fact that Mr Hendricks set the questions which are supposed to be set by the SGB had disadvantaged her. She explained who are to be part of the process. The Chairperson is supposed to be the Chairperson of the SGB. The parent component, Educators, Resource person and Union representative are also supposed to be present. The role of the Resource person is to guide the process and prepare the documentation. The Union representative and Resource person cannot score in the process. The role of the Secretary is to receive and send all correspondence and compile the minutes. The minutes of the Shortlisting Meeting of 7 November 2022 were sent by Ms Paulse. The Secretary wanted to do the minutes but she was stopped by Mr Hendricks who said he would send the minutes. The Secretary of the SGB never wrote any of the minutes during the process.
49. The purpose of the process and the responsibility of the SGB is to find a suitable candidate. According to the SGB they found the suitable candidate in her. The person who scored the highest in the interview process and is ranked first is not necessarily the best candidate as the SGB can change this after discussion. According to her knowledge she was not the best candidate according to the interview scores. With respect to the motivation letter of 14 June 2023, according to her knowledge the SGB placed Ms September in the first choice position because they were instructed by Ms Paulse to do that. After the instruction they had to put ms September back into first choice. She was also referred to the DPE 2 forms, in which the candidate choices were also changed as instructed by Ms Paulse. She believed she was unfairly treated as she possessed both the advertised qualifications and experience to be appointed as Principal. It is not unhappiness but a perception of unfairness. She had proved to the SGB that she was the best candidate. It did not mean that not answering the questions as the best candidate that she cannot be the best candidate for the job. According to her the person who was appointed did not possess the same or similar level of skills as herself. Her understanding was that one will not be able to see a skill and would only be able to see a skill when working with a person. She agreed that the fact that she was acting in the post did not qualify her to be appointed in the post but she believed she deserved the post because of a combination of her qualifications, experience, decisions, performance and CBA test results.
50. Ms Anastacia Saayman testified as follows under oath in her evidence in chief: She was the Chairperson of the SGB and also a parent on the Hillside Primary School SGB and was responsible for the Principal’s recruitment and selection process at the time. She is currently the Secretary of the new SGB. She was Chairperson of the SGB for the three years of 2021, 2022 and 2023. Her role was to be responsible for the paperwork in all the processes. The Applicant used to be the Principal at Hillside Primary School when she was there and is now the Deputy Principal. That is the only relationship they had working at Hillside Primary, with nothing else before that. She was aware of the vacant post of Principal at the school and the letter of 28 June 2022 from the 1st Respondent relating to the filling of the advertised post of Principal at Hillside Primary School Post Number 1006 of Special Vacancy List 3 of 2021. The post was not filled because the benchmark of 65% was not met by the two shortlisted candidates, of which the Applicant was one. It was also stated in this letter that the overall total for the shortlist was incorrectly tallied with a total of 163 used instead of 167, resulting in the scores being revised and having an impact on the shortlist. The SGB was in agreement to do it over and the post was re-advertised under Post Number 1174 of Vacancy List 3 of 2022. She was referred to the Minutes of the Shortlisting Meeting for the Post of Principal Post No 1174 of Vacancy List 3 of 2022 which were signed by her and Ms Rudolph the Secretary of the SGB on 7 November 2022.
51. Most of the minutes came from the District Office who said they will set up all the minutes, send it to them as the SGB and they must just fill them in and give their ratifications. They did send the minutes to them and they said they must make changes to the minutes. Ms Paulse from District Office sent all the minutes for the processes through to them. Mr Hendricks and Ms Paulse, his Personal Assistant, were the Resource persons from the 1st Respondent. She was not sure and could not remember who took the minutes for the interviews as it could not have been one of the Panel as they were asking questions from the candidates. She thinks the Secretary Ms Rudolph took the minutes but that day they left the minutes there and they said they will send it through. The minutes were sent to them by Ms Paulse. There were only six members of the SGB part of the process for Post Number 1174, of which she chaired the process. They put the benchmark for shortlisting at 60%, of which four candidates qualified for an interview. The Applicant had scored 81.2%, Ms Glenda September 68%, Mr Walter Langley 67.5% and Mr Enrico Saayman 65%. Mr Saayman declined to go for an interview. They did not favour the Applicant by scoring her 81.2%. In the first process the Applicant qualified for everything and had been through the whole process with the CBA test included and they did not know what the problem was. Someone had blocked that one because of the points. For the second process the Applicant did qualify and was ranked the highest and at the end an error was found. For the other two processes the Interview Committee of the SGB did everything, with the SGB doing the business plan and the interview questions. The Resources persons from the 1st Respondent for the first process for Post Number 1006 were Mr Hendricks and Ms Paulse.
52. They did not do the same for Post Number 1174, for which Mr Hendricks asked permission to do the business plan and the questions and answers. The Monday the day of the interviews Mr Hendricks came with the business plan and the prepared questions and answers. As to why they allowed the questions to be prepared outside the process, she replied that questions are supposed to be prepared on the same day and Mr Hendricks set questions on the same day and discussed the questions and answers with them, to which everyone agreed. The reason Mr Hendricks gave as to why he did this is because they did not notice the discrepancy of four points in the previous process and he wanted to make sure that they did not make the same mistake. It was not right for him to prepare the questions and answers, which was strange and new for her as it was the third process and they did all the previous two processes themselves. It never happened before as they always discussed the questions and answers themselves. Mr Hendricks said on the day of the interviews that they will go through the questions and answers and can add to them. They did not add anything but made corrections and things like that. They did not believe it was unfair as they were thinking about the mistake they made previously and they all agreed to give him permission to prepare the questions and answers as they did not want something like that to happen again.
53. She acted as Chairperson as usual. Mr Hendricks was the Resource person sitting in and did all the administration. She was referred to the Minutes of the Shortlisting Meeting for Post Number 1174 dated 7 November 2022 and confirmed the contents. Under the Interview Logistics for Monday 21 November 2022 they had agreed that Mr Hendricks draft an instruction to a presentation and a set of eight questions of ten marks each. When she signed these Minutes it was to verify all that was done for the whole process of shortlisting, etcetera, and was handed in as a checklist for the whole process. The whole interviewing panel was involved in the ratification meeting and included the SGB members who were not included in the interviews. In this meeting they are supposed to report to the SGB what happened in the interviews the previous day, without any scoring of the candidates. They also discussed in the ratification meeting who they prefer for the post, which was the Applicant. They spoke about how the ranking looked and why they wanted the Applicant first in the ranking. They spoke about whether it was possible to send a motivational letter with the paperwork to ask if they could place her first. They phoned Mr Hendricks and asked if they could do that and he said no, that everything is now in the 1st Respondent’s hands and that they cannot do anything now. Afterwards Mr Hendricks came back and said they can do that, with reference to the 1st Respondent’s bundle of motivational letters. He also told them that the motivation must be done at the time on the day of the interviews. Mr Hendricks as Resource person had discussed the points with them but did not tell them that they must talk about consensus. The next day when she phoned Mr Hendricks he told her that they were supposed to discuss consensus on the same day, which they did not know about. This came up in the ratification meeting the next day when they discussed it with all the SGB members and that they wanted to rank the Applicant first and he told them it must be done on the same day (as the interviews).
54. After they were told by Ms Paulse that they can change the ranking with a motivation, the SGB wrote the first motivation letter of 27 March 2023. After this letter was sent, Ms Paulse told them on 9 May 2023 that they are not allowed to do that and she as the Chairperson signed the DPE2 recommendation for appointment form again on 9 March 2023 which ranked Ms September as first choice. She explained why the Applicant was their preferred candidate. The Applicant was the Principal for 2.5 years, the parents, children and staff got used to her, with whom she had built up a relationship in the school and also in the community. The leadership team worked well together and because she worked with the Applicant she saw what the Applicant was doing, with all these facts stated in their motivation on why they wanted the Applicant as Principal.
55. They took instructions from Mr Hendricks where they as SGB had made their own decisions before, because they trusted him and agreed with everything he was saying. The motivation letters of 27 March 2023 and 24 May 2023 as mandated by the SGB remained the same. The motivation letter of 5 June 2023 was based on what they were told to change in their motivation. She was not aware of the motivation letter of 14 June 2023 contained in the 1st Respondent’s document because she and Ms Rudolph did not sign that letter. The last motivation letter that they signed was on 5 June 2023 and they did not receive any other letters after that date. She did not know that happened there and referred to an affidavit that she deposed of on 9 February 2024 in which she declared that the motivational letter was a forgery. She was 100% sure that the signature on the letter of 14 June 2023 was not hers and stated that somebody committed fraud by using her signature. She knew all the other documents that she signed, but not that one. That letter was not discussed with the SGB and did not come from them. The Applicant was regarded as the best candidate in their first motivation, which is not in the letter of 14 June 2023. Ms Rudolph’s e-mail was used for all the process paperwork as they were not supposed to use the school’s e-mail for any documentation as told by Ms Paulse. They checked all the e-mails and the letter of 14 June 2023 was never sent to the SGB to approve and sign.
56. Because the best candidate was not appointed everyone was upset and the community was frustrated as they had to get used to somebody new. Mr Hendricks said to them that they must accept it and give the new person a chance because they did not know her. The staff at the school were very unhappy as all of them wanted the Applicant, resulting in very high absenteeism amongst the staff, who also wanted to send a motivation, but they may not. She and the staff would be very happy if the Applicant is appointed in the post as a result of this arbitration because everybody was happy during the three years that the Applicant was in the post. The Applicant never failed in her performance during the three years. Although they had their fights, they sorted it out immediately. The Applicant was their leader and told her what is right and wrong.
57. Ms Saayman testified as follows under cross-examination by the 1st Respondent: She knew that the post was advertised three times and agreed that nobody was shortlisted the first time and the post had to be re-advertised, and that after it was re-advertised the second time, which the letter of 28 June 2022 referrred to, the scores were tallied incorrectly and the shortlisted candidates did not meet the benchmark. The SGB had accepted that mistake. All went according to procedure and went smoothly for the second process, which was only picked up by the last person. Mr Hendricks was part of the second and third processes. She had known Mr Hendricks before, was comfortable with him and could approach him. She confirmed that with all the interviews and meetings they had for the third process the Circuit Office said that they will set up the minutes, which they would send to through them to sign. The SGB did the ratification themselves which they sent through and was returned to them after making changes. She was referred to the pro forma shortlisting meeting minutes in the 1st Respondent’s bundle of documents. She did not recognise this one but it was the same that was provided to them to use. They signed the minutes, which were sent back to them.
58. Mr Hendricks had asked permission from them to do the interview questions as he knew they were responsible to do that. She agreed because they trusted him in everything he did. Mr Hendricks did not ask the panel the day he arrived for the interviews if they had any questions to add, but this was an hour before the interviews started and there would not have been time to change anything. They trusted him and there were just a few spelling errors that they fixed and he told them the new thing is that the Key Result Areas (KRAs) must be included, which they accepted. They were given the opportunity to add to or change the questions. The day of the interviews was the first time they heard about the KRAs. She agreed that the reason why Mr Hendricks came prepared with the business plan and did not draw up another business plan was because it was the same as the previous one, which was acceptable to them. The questions were not discussed before the day of the interview. They had read the questions one by one that were presented by Mr Hendricks and agreed to them. They had realised afterwards that this was unfair because they did not do the questions themselves. Mr Hendricks told them he had prepared the questions the Sunday evening and he checked them the Monday morning, but according to their knowledge the questions must be set on the day of the interviews.
59. Annexure A of the Departmental Checklist for the Principal Post was completed after the interviews and was signed by herself and Ms Rudolph on 27 March 2023. The purpose of this checklist was to ensure that everything and all the documents were in place for the Panel. She also signed Annexure B of the Departmental Checklist on 27 March 2023. These documents were sent from Head Office and they were just supposed to sign the documents, which were not drawn up at the school. The documents are signed when you are in agreement and everything was positive and done thoroughly according to procedures, which is why they signed it. As to why they signed the document agreeing all as in order if they did not agree with this, she responded that she did not agree with it and says today it was unfair as Mr Hendricks said the questions were drawn up that morning, but one of the candidates answered the questions word for word like the memorandum provided to them with the answers. They had asked Mr Hendricks if it was the first time she had seen the questions and he made a joke that maybe she was sitting next to his laptop. That was all that Mr Hendricks said when they asked about how the questions were answered. This was just a concern that they raised afterwards. The checklist was sent after that day. She was referred to Ms Rudolph’s statement in the Applicant’s documents that Mr Hendricks said afterwards that the candidate went for a lot of interviews for Principal posts which is the reason why she could answer the questions, with which she agreed, but that the KRAs were also new things for them, which was their question to him.
60. Ms Amos was the School Secretary but was also one of the Panelists. The motivation letters were discussed by all before they were sent off. As to whether she was aware that Ms Amos also made contact with Ms Paulse, she explained that sometimes Ms Rudolph, who is also a teacher, cannot be reached on the cell phone and Ms Amos would come to the class to inform that Ms Paulse is looking for them. She was referred to the e-mail of 14 June 2023 from the school’s e-mail address to Ms Paulse signed by Ms Amos. She found this interesting and thought that Ms Amos must come and explain who told her to send the e-mail from the school’s e-mail as the Applicant can also access the school’s e-mail address. She was asked to compare the two motivational letters of 14 June 2023 and 5 June 2023 and stated that she did not know the letter of 14 June 2023 and that her signature was used fraudulently on that letter.
61. Ms Saayman testified as follows under cross-examination by the 2nd Respondent: She was familiar with the process for the filling of Principal posts, but not other posts. She confirmed the process for the filling of the Principal post at Hillside Primary School, of which the detail is not repeated here, and pointed out that the SGB did not get consensus at the end of the process. They had discussed that the CBA will also count with the interview score. She had signed all the documents and minutes from Mr Hendricks indicating her agreement with the contents and had trusted Mr Hendricks with all the documentation. As to how the 1st Respondent’s appointment process works, she thought they normally went with the first candidate, but it was not necessary for the SGB to nominate the first ranked candidate as the best candidate, with the 1st Respondent choosing the best candidate from the three nominations. The SGB did not have a problem with the format in which the pro forma minutes were structured, although this was the first time they had to use these minutes, which were set up by the District and still captured the content incorrectly. She did not agree to all the contents of the minutes when she signed them, but signed them because she trusted Mr Hendricks. These minutes were something new to them as they normally drew up their own minutes. As to why she had testified that she did not know who drew up the minutes, she knew that the Secretary of the SGB did not take the minutes as Mr Hendricks had told her not to take the minutes.
62. In the third process the Circuit Manager had asked permission to do the business plan and to prepare the interview questions and answers, which the SGB agreed to because ot the error in the previous (the second) process. They were in contact with Mr Hendricks when they wanted clarity with something. In the previous two processes one of the SGB members drafted the business plan and Mr Hendricks said it could stay the same for the last process, with only the dates altered. She was referred to the SGB’s nomination motivation letter of 5 June 2023. She agreed that she signed that letter and agreed with the contents, as well as the seven motivation reasons for the Applicant to be appointed. They had put Ms September in Position 1 because she scorest highest in the interviews. Mr Langley scored second highest and the Applicant scored third highest in the interviews. She was referred to the motivations for Ms September and Mr Langley in that letter as to how they responded to the questions and their knowledge of the relevant documents (policies) and asked why they never motivated the same for the Applicant, to which she responded that the seven motivations they listed for the Applicant included everything, including policies. She gave Ms September good points as she answered all questions word by word according to the guidelines, that is why they discussed this with Mr Hendricks after Ms September left the interview and included this in the motivation, because they thought she got the questions in advance. Mr Hendricks had said that to be fair they must treat all the candidates as if they did not know them. She did not respond to the question as to why the SGB assumed that Ms September was a cheater and not the best person for the Principal post and that she maybe knew her business. It was put to her that they were unfair to the other candidates because they knew the Applicant and scored the other two cold, to which she responded that they motivated like that because they knew the Applicant and not the others. They had also mentioned to Mr Hendricks on the day of the interview that the Applicant was not herself, was “somewhere else” and dealing with trauma.
63. The recommendation to nominate the Applicant was made the next day after the interview meeting. She had called Mr Hendricks that day to inform that the SGB wanted to nominate the Applicant, and he told her that they cannot do that and must do the nomination during the process and not after the process. She had discussed the first motivation letter of 27 March 2023 with Ms Paulse, who informed that they only motivated the Applicant in that letter and requested that they must also add Mr Langley and Ms September and put in a paragraph for each of the other two candidates in the motivation letter. The Applicant was still their preference and they had asked Ms Paulse if they could do this as the Applicnat in number 3 on the list, which she said they could do. It was put to her the assumption that the motivation letter of 27 March 2023 was written purely because the SGB knew the Applicant and wanted her in the post, to which she responded that is what the SGB wanted, but not because they knew her, but because they knew what she was capable of and what she did at the school as Acting Principal. As to whether that did not come out in the interviews, she explained that the Panel discussed every candidate after the interviews and that they witnessed that the Applicant was not herself and did not answer the questions well. They told Mr Hendricks that and said to him she is doing the job now and knows the stuff.
64. Ms Saayman testified as follows under re-examination: Although they had ranked the candidates in the scores that they received, their preference was not Ms September or Mr Langley, but the Applicant, which was the decision of the SGB. She was asked to read out paragraph 35 of the Collective Agreement Number 3 of 2016 on the ELRC Guidelines: Promotion Arbitrations. This paragraph stated that a recommendation by a school governing body is an essential preprequisite for the promotion of an educator by the Head of Department as employer and without such a recommendation the promotion is ultra vires and unlawful. The SGB did recommend the Applicant for the post of Principal, which was not based on feelings but because she was the best candidate out of the three candidates. With respect to the first motivation letter of 27 March 2023, they had asked Mr Hendricks if they are allowed to do that, which he said they are not allowed to do, but they as the SGB felt they still wanted to motivate the Applicant. They had spoken to Ms Paulse and she said they could change their preference with a motivation. They sent the next motivation to Ms Paulse with their preference and a few weeks later she said they must change it with Ms September ranked first.
65. She did not believe Mr Hendricks was honest or helpful in this process as he immediately told her it could not be done. The DPE2 Recommendation for Appointment as Educator in Advertised Post dated 9 May 2023 which ranked Ms September as first choice was not completed by the SGB but was sent to them completed by the Office and she signed it. The DPE2 of 14 March 2023 which also ranked Ms September as first choice was also completed by the Office and sent to the SGB for her to sign. There were two DPE2 documents dated 14 March 2023, with the one indicating the Applicant as first choice and the other indicating Ms September as the first choice. The DPE2 of 14 March 2023 with the Applicant first was signed before they had asked Mr Hendricks whether they could change the preference and he said they could not. It was after they had called Ms Paulse to ask if they could change their preference that Ms Paulse sent them the other DPE2 of 14 March 2023 with the Applicant as first choice for them to send the motivation. The first DPE2 of 14 March 2023 with Ms September as first choice was not discussed with them and sent to them for signature. The other DPE2 of 14 March 2023 with the Applicant as first choice was done by the SGB and signed by her. The SGB had a ratification meeting to state their preference, which was the Applicant, and was decided by all the members of the SGB. She repeated again why they motivated the Applicant. They had motivated their preference for the interest of the school and not for themselves. She did not regard it as legal that Mr Hendricks drew up the interview questions outside the process and he had said in the training sessions that the questions must be set up the morning of the meeting while they were set up on the Sunday evening.
66. As to how Ms September answered the questions in the interview, after she left everyone was shocked and asked if the questions were set up that morning as she knew the answers word by word. She got good points as they were told to score as to how she answered the questions. Mr Hendricks made the joke and commented Ms September always goes for interviews when they asked about the KRAs, which was new to them. Only the Ratification Minutes were compiled and signed by the SGB. The whole process was taken away from the SGB. All SGB e-mails were to go the Secretary of the SGB and Ms Amos the School Secretary was not allowed to send e-mails relating to the SGB from the school’s e-mail address. The Annexure Departmental Checklist is to check everything is in place for the process. Everything was done according to the checklist. The District Office submitted this document, not the SGB.
67. Ms Nadia Rudolph testified as follows under oath in her evidence in chief: She is a teacher at Hillside Primary School and was co-opted onto the SGB in the place of a teacher who went on maternity leave. She was also appointed as the Secretary of the Interviewing Committee for the post of Principal at Hillside Primary School. The Applicant is currently the Deputy Principal at Hillside Primary School but was the Acting Principal since 2021. She was referred to the Attachment to the Applicant’s grievance relating to Unjust Procedure for the Principal’s post 1174 Vacancy List 3/22 dated 24 July 2023. She understood what the Applicant said in her grievance and agreed with what was stated there as she was part of the process. The Applicant’s husband and her colleague the previous Principal passed away around the same time and although it was a very emotional time for the Applicant, she had to take over the school because she had a vision for the school, towards which she and all the staff worked together. She was not part of the first two recruitment processes for the post of Principal as she was not part of the SGB when those took place. On the first occasion the SGB informed them that one of the teachers did not want the Applicant in the position, that they had looked through all the CVs and the Applicant did not even qualify for an interview. On the second occasion there was something wrong with the scores in that they did not add up correctly. She referred to the other statements made by the Applicant in the grievance document. The process followed in the third process was not fair, with reasons given.
68. In the Ratification Minutes of 22 November 2022 it was stated that Ms Amos informed the SGB that Shireen (Ms Paulse) will send the layout of the minutes and that everything must be typed and submitted by that Friday. She only received the documents the Thursday and she could not send them back to Ms Paulse on the Friday as there was information missing such as the marks for the scoring process. On 8 December 2022 she sent via e-mail the SGB’s Ratification Minutes of 22 November 2022, the Minutes of the Interview Meeting of 21 November 2022 and the Minutes of the Shortlisting Meeting for the post of Principal of 7 November 2022. In their Ratification Meeting they had asked the Chairperson of the SGB to ask Mr Hendricks if they could write a motivational letter and she came back the next day to say that Mr Hendricks told her that they cannot write a motivational letter and were supposed to reach consensus the previous day after the interviews. The Circuit Manager as the Resource person never said to them they must make a decision regarding the candidates. There were six SGB members on the Interviewing Committee, which included herself. They were not introduced to the process. She understood that during the first and second processes the SGB compiled all the documents, did the planning and preparation and for the third process Mr Hendricks did everything. When she was nominated as Secretary of the SGB she was informed by the SGB that her role was to take minutes, but she did not take minutes during the process. Besides taking minutes, she just completed documents.
69. She did not take minutes during the shortlisting or interviewing processes as Mr Hendricks sent a document with the minutes where they had to fill in the scoring and names of the candidates and send it back to them. She was referred to the Minutes in the Applicant’s bundle of documents for the Interview Meeting on 21 November 2022 and the Shortlisting Meeting on 7 November 2022 and the detail contained in these documents. With respect to the Minutes of the Interview Meeting, that was how they received it and she did not agree with all that was recorded there. She also explained certain of the contents, which are not repeated here, save to highlight the following: A draft assignment and questions were not proposed by Ms Amos and endorsed by Ms Lawrence. They did not write down any information during the interviews and during the shortlisting to have a record of anything that happened as Mr Hendricks had said they don’t have to take minutes as it will be sent to them.
70. The Interview Committee did not formulate or design the questions for the interview. On the day of the the interview the SGB received a folder with the questions already printed, with a copy of the questions and guideline and the confidentiality form. The only person who asked questions during the interviews was Mr Whyte of the teacher component of the SGB. The others did not ask any questions. Mr Hendricks had asked Mr Whyte to ask the questions, which was not the view of the SGB. She did not have a problem with Mr Whyte asking the questions as it was her first experience as part of an Interview Committee. She did score the candidates during the interviews. Ms Saayman as the Chairperson did not receive the candidates upon arrival at the school’s Reception as stated in the minutes, but Ms Paulse Mr Hendrick’s Personal Assistant did this, with the interviews being conducted at the District Office, not the school premises. They did not reach consensus that day as stated under paragraph 10.2 of the minutes and the SGB did not take a decision that after they have completed the scoring they will discuss who is the best candidate. They only agreed on the 60% benchmark but did not discuss the candidates afterwards.
71. The table with the scores for the three candidates as allocated by each of the SGB members reflected in the Minutes were a true reflection of their performance during the interviews. As to whether the candidates deserved these scores, the Applicant’s interview was good and Ms September answered the questions word by word exactly as in the memorandum. This created the impression that she got the questions and guidelines from somewhere. They did not design any of the questions, which were already printed out and they received on the day of the interviews. They did not decide the order of preference in the minutes as they received the minutes and just typed in the names. They put the Applicant’s name first instead of last as based on the results, because the SGB wanted the Applicant to be appointed as Principal at the school. The SGB recommended all three the candidates because they all three met the benchmark of 60%. As to whether her signature on the minutes meant that it bound her and she agreed with the contents and nothing was wrong, she was not forced to put her signature there but she was under pressure because the documents were sent to her and she was told to put in the information and names and she trusted Mr Hendricks with this. The minutes were drawn up on how it is supposed to be, but it did not happen that way. The minutes were falsified as this is not how most of it happened and they were instructed to just add the names and percentages in the minutes and she and Ms Amos were under pressure to complete these documents. They only discovered this after the Applicant did not get the post and they went through the documents again.
72. She was referred to the Shortlisting Meeting Minutes of two pages in length dated 7 November 2022 which she took. In these minutes she took down that Mr Hendricks explained that all Principals’ posts will be handled by the District Offices, with the Circuit Managers responsible. The SGB was not guided on how to do the process but told that Mr Hendricks was going to do it. The other Shortlisting Meeting Minutes in the Applicant’s bundle of documents of the same date of 7 November 2022 were not the minutes that she had taken down. The Ratification Meeting Minutes of 22 November 2022 that she took down were incomplete with no signature and were not submitted since she was told not to take further minutes as Mr Hendricks said his Personal Assistant was going to send the minutes already typed out, after which nobody took minutes.
73. She was referred to the Minutes of the Shortlisting Meeting for the post of Principal dated 7 November 2022 and confirmed that the Applicant achieved the highest score of 81.2% , Ms September 68% and Mr Langley 67.5%, which qualified them for shortlisting based on their CVs. The impression of her CV was that the Applicant was the best person to the appointed. The DPE2 document signed by the SGB Chairperson on 14 March 2023 was discussed by the SGB in the Ratification Meeting of 22 November 2022. The DPE2 lists the candidates according to the choices of the SGB and since the Applicant was their first choice they entered her as their first choice on that DPE2 for 14 March 2023. She wrote the Ratification Meeting letter of 22 November 2022, which was based on the decision taken by the SGB at the school and was signed by herself and the Chairperson. Mr Hendricks was not present at this meeting.
74. She repeated her previous evidence regarding their interaction with Mr Hendricks’ office and the subsequent changes that they were requested to make on the DPE2 documents and motivational letters, and why they had motivated for the Applicant to be appointed in the post, which is not detailed here again, save to highlight the following: Their motivation was informed by what the SGB saw on the Applicant’s CV, that she received the highest score in the shortlisting process and their experience of her work and capabilities when she was acting as Principal. In comparison with the present situation, a lot of things had changed at the school, for example the discipline of the learners is not the way it used to be, the teachers lack motivation and absenteeism of teachers has never been so high, the way the teachers interact with one another has changed, and when the Applicant was there she believed they were a team who all worked together, with other examples cited why they still want the Applicant to be considered as Principal of the school. Their first motivation of 27 March 2023 was sent again on 24 May 2023 with the DPE2 documents, as they were instructed to change the DPE2 on 9 May 2023 according to the interview scoring and again on 24 May 2023 when they were instructed to put Ms September as first choice. They were not instructed what to do with the first DPE2 document of 14 March 2023 on which the Applicant was shown as their first choice, which was the decision of the SGB, and was sent off with the Ratification Minutes. Ms Paulse phoned Ms Amos the School Secretary to tell them that Mr Hendricks said they must change the DPE2 according to the interview scorings. They were told by Mr Hendricks’ office to also change the SGB’s motivational letter to include motivations for Ms September and Mr Langley.
75. She was referred to the SGB’s timeline of communication with Ms Paulse via telephone relating to the Principal post for Hillside Primary School which listed eight telephone communications from 3 March 2023 to 14 August 2023 and confirmed that the information was correct. Ms Paulse had on 5 May 2023 forwarded to Mr Christopher Whyte, who represented the teacher component on the SGB and was part of the Interviewing Committee, an e-mail received on 19 April 2023 from Mr Zuko Roro from Recruitment and Selection Department relating to the nomination documents received for Post Number 1174. Mr Hendricks had in response to this e-mail from Head Office requested Mr Whyte and Ms Amos to go to the District Office to discuss this message. She did not think the Chairperson was informed about this and they as SGB were only informed about this the day after they went to see Mr Hendricks. She felt that it was not right and unprocedural that Mr Hendricks had only communicated with one member of the SGB and did not include the Chairperson and Secretary of the SGB. Based on the comments from Head Office they on 5 June 2023 re-sent the motivation as requested adding in the information about Ms September and Mr Langley, without changing their preference.
76. The Departmental Checklist in terms of Resolution 5/98 in the Applicant’s bundle of documents was signed by only the SGB Chairperson on 27 March 2023 with no signature for the Circuit Manager/Department Representative, whereas the same document in the Respondent’s bundle of documents included a signature for Circuit Manager/Department Representative on 27 March 2023. She was not sure if that was the Circuit Manager’s signature and they had no document from the Circuit Manager to see his signature, with it noted that Mr Hendricks the Circuit Manager would be testifying in the proceedings. She was also referred to the Motivation of Nomination letter of 14 June 2023 which was in the Respondent’s bundle of documents. The SGB did not write that letter and she knew nothing about this letter, which was not in the Applicant’s bundle of documents. Neither she as Secretary nor the SGB Chairperson signed this letter. This meant that her signature was forged on the document, but she did not know who forged her signature. The SGB’s last communication to Ms Paulse was on 5 June 2023 and this letter was sent on 14 June 2023. As to how this could be possible, anything is possible nowadays as a pdf document can be converted and copied and pasted. She never gave permission to anybody to put her signature there. She repeated some of her previous evidence, which is not detailed her again, except to highlight the following: They had not motivated Ms September as the best candidate because she received the highest score in the interviews. Ms September had answered the questions exactly as on the memorandum. A person would receive higher marks for answering questions exactly than a person who is summarising and using their own words to explain and answer something.
77. She was referred to Section C in Collective Agreement Number 3 of 2018 relating to the best interest of the child and public interest. She agreed that everything that they as the SGB does must be in the best interest of the child with the recommendations that they make. They considered this in recommending the Applicant for the post of Principal as the Applicant cared a lot for the learners at the school and also for their wellbeing outside school, with examples provided. They had also been fair in dealing with the process and gave marks according to the guidelines in the interviewing memorandum and the scoring was according to how the person performed in the interview. The Applicant met the minimum advertised qualifications for the post and had the experience. She repeated again why the procedure in not appointing the Applicant was unfair, of which the evidence already presented is not repeated again. She repeated the reasons again why the SGB concluded that the Applicant was the best candidate compared to the other two candidates and added reasons why Ms September was not the best candidate based on her current performance and conduct at the school.
78. With reference to the Departmental Checklist Annexure A of Resolution 5/98 in the Respondent’s bundle of documents she explained that she as Secretary of the Interviewing Committee and the Chairperson signed that document on 27 March 2023. She did not know who the Departmental Representative signatory was. This checklist was an analysis and verification of the process from advertising, shortlisting, criteria setting, interviews, etcetera. The interview questions were regarded as fair and reasonable. As she had stated previously Ms September answered the questions word by word whereas the Applicant used her own wording and also answered the questions well, although she did not do so word by word as in the guidelines. She did not sign Annexure B of the Departmental Checklist, which was signed by the Chairperson and the Departmental Representative.
79. She and the Chairperson attested to the affidavits in the Applicant’s bundle of documents on 9 February 2024. The reason why they did the affidavits is when the Respondent’s bundle of documents was e-mailed to them, they printed them out and saw that the font of the letter of 14 June 2023 was different to the font of the letters that the SGB had drafted and were also typed in bold, which their letters are not. The layout was also different to how their letters were set out and contained no numbering, with the final paragraph that ended off all their letters as to why they believed the Applicant should be appointed not appearing in the letter of 14 June 2023. She did not know who the person was who wrote this letter and it was not discussed by the SGB or Interviewing Committee, but this person did not want the Applicant to be appointed and had also forged her signature. She was very angry for someone to have forged her signature. After the Applicant heard that she did not get the post they had a meeting with Ms Wendy Horn the Director of Metro North Education District and Mr Hendricks, with quite a few people present. Ms Horn had a file with all the interview documents and when they saw the letter of 14 June 2023 they understood that Ms Horn never had the motivational letter that the SGB of Hillside Primary School sent in.
80. Ms Paulse had sent Ms Amos the drafted Shortlisting and Interview minutes and the checklists for the SGB to sign. They received contradictory instructions and every time had to change certain documents and re-send them again. The instructions came from Ms Paulse who always spoke to Ms Amos the School Secretary and on a few occasions to Mr Whyte, but never contacted them directly regarding the changes. As to why there were two DPE2 documents for the same date of 14 March 2023, Ms Amos and Mr Whyte came to them and told them that Ms Paulse phoned that they must change their choices on the DPE2 form in terms of the interview scoring. She and the Chairperson were confused and did not know if they wanted the old date of 14 March 2023 or 9 May 2023 when they were told to change the DPE2, which is why there were three DPE2s submitted. She believed it was unfair to be instructed to choose somebody they did not choose and to be instructed to remove certain sections of the minutes. The SGB followed the process, but they were every time instructed to change things, which made the process unauthentic.
81. Ms Rudolph testified as follows under cross-examination by the 1st Respondent: She started teaching in 2016 at Hillside Primary School and was teaching Grade 6 in 2024. She was not part of the interview process for the first two processes for the Principal post and only for the third process. Although she was not part of the second process, she was aware that the Applicant went for fingerprinting and the psychometric test because the Applicant told them this afterwards when she did not get the post and that it will be advertised again. She was referred to her statement as SGB Interview Committee Member in the Applicant’s bundle of documents. As to whether this was the first time that she met the Circuit Manager Mr Hendricks on 7 November 2022 for the shortlisting process as stated there, Mr Hendricks always came to the school to see the Principal, but she herself had never spoken to Mr Hendricks and this was the first time they were in the same room together. She was part of the process because another SGB member Ms Cleo Jacobs was on maternity leave. She did not volunteer to be on the Interview Committee but was asked by the SGB, which was around the end of the third term. As to whether she indicated to the SGB that she needed training, the SGB explained to her what is going to happen, once before the shortlisting and before and on the day of the interviews, which was also explained to her by Ms Amos and to the SGB by Mr Hendricks.
82. Mr Hendricks told them what the SGB members will do during the process and that the 1st Respondent (the Department) said to him that he must do everything and he told the SGB to go through the questions to see the marks are added up correctly. Ms Amos made her aware that she would have to sign documentation, but only when they received the documentation. Ms Amos also told her to take minutes of the shortlisting and interview process and gave her a book to take minutes, then Mr Hendricks said they must not take minutes and that these will be sent to them. As a teacher she knew what it meant when she put her signature on a document. She read the document that she must sign, although she did not understand all of it, being the Ratification Meeting Minutes, but she was put under pressure as Ms Amos said they must send the documents before 08h00 that Friday. She did not ask questions and did not tell Ms Amos that she was not comfortable with what she was signing as she trusted the SGB and Mr Hendricks. This was the third time the post was being advertised and she thought this was the way things happened the previous time the post was advertised. As to whether she thought it was fair to the candidates in an important process for her as Secretary of the SGB to not be sure about the documents she was signing, she would probably not blame the Secretary, because the Secretary of the SGB and any other SGB members who were part of the process were not the Resource people who drew up the documents and the interview questions.
83. She, with the Chairperson, had signed the Annexure A Departmental Checklist on 27 March 2023 to confirm everything had been checked. She had made the ticks on the Checklist and explained the checklist items, of which the detail is not repeated here. She had not read the paragraph at the bottom of the checklist stating that the governance structure must keep precise record and minutes for future references, especially with a view to possible disputes, before signing the Checklist. They had also not provided any reasons for negative responses as stated further at the bottom of the Checklist. As to why she had not verbalised their concerns at the time when given the opportunity to do so, she did not think about her emotions at the time, but all about the documents for the post. Her understanding when Mr Hendricks told them that he will be doing the process was because it was the third time the post was advertised and that maybe the 1st Respondent wanted the post to be filled and wanted him to do the whole process so that the post can be filled with a permanent person. She agreed that there was no other reason that Mr Hendricks was involved in the third process because of the problems experienced with the first and second processes. With reference again to her SGB Interview Committee Member’s statement, she agreed that they were given the opportunity to add questions to the ones that Mr Hendricks had drawn up, but did not add questions and because of time they only read through and corrected spelling and addition errors. She did not think that Ms September answered the interview questions word for word as in the guidelines because she had gone for many interviews. After Ms September left the interview, they were all shocked and asked Mr Hendricks why Ms September answered like that because he said it was the first time those questions were used as based on the KRAs, to which he responded jokingly that maybe she looked at the questions in his office on the laptop, to which he, but nobody else, laughed.
84. She identified the blank pro forma minutes in the Employer’s bundle used for all Principal posts as that which was sent to them to fill in. She could see that the motivational letter of 14 June 2023 on which she alleged her signature was forged, was sent at 12:19 on 14 June 2023 to Ms Paulse by Ms Amos from the Hillside Primary School e-mail address. All correspondence with respect to the Principal post was to be sent from her e-mail as the SGB Secretary, with the last correspondence that she sent from her e-mail address to Ms Paulse being on 5 June 2023, with nothing further sent to Ms Paulse after that date. It was put to her that after receiving this motivation letter of 14 June 2023 Ms Paulse forwarded it to Mr Roro of Recruitment and Selection and on which motivation the appointment was made, to which she responded that the SGB was not aware of this letter and did not draft it, and that because the Applicant was the Acting Principal they had decided that all the e-mails relating to the Principal post will be sent from her e-mail address as the Applicant has access to the school’s e-mails.
85. Ms Rudolph testified as follows under cross-examination by the 2nd Respondent: She was asked and explained the process to fill a post and how she had experienced the process for the Principal post at Hillside Primary School, of which the detail is not repeated here. She confirmed that the questions were fair but but it crossed her mind that maybe Ms September had seen the questions and answers beforehand. She did not have physical evidence of this, but Mr Hendricks told them he drew up the questions the Sunday before the interview and that it was the first time these questions were used. The Applicant came unprepared into the interview and it seemed Ms September came in prepared and answered the questions word by word as in the guidelines. When this crossed her mind, she spoke up loud and asked Mr Hendricks if this was the first time these questions were used and he jokingly said that maybe she saw that on his laptop and that she goes for a lot of interviews. She had no proof of that, but her experience as a teacher was that this was the only way a person can answer a question like that parrot style. She confirmed her previous testimony that the Applicant and Mr Langley answered the questions well, but used their own words. She was referred to the SGB’s nomination motivation letter of 5 June 2023 and explained the seven reasons why they stated their preference for the Applicant to be appointed into the post of Principal. It was put to her that the Applicant acting in a post and what is stated in her CV is considered during shortlisting and is not a question that is asked in the interviewing process to become the top candidate for a post and was not how a post is filled, with which she agreed, but explained that they never reached consensus.
86. With reference to the other six of the seven reasons that they provided in the motivation letter of 5 June 2023, it was put to her that it would be fair if Ms September and Mr Langley had all been measured against the same criteria, in response to which she referred to the other paragraphs in that letter and the Ratification Minutes in which they spoke about all three the candidates and how their interviews went. They did not in that motivation letter mention how the Applicant’s interview went and only for Ms September and Mr Langley, because their original motivation letter did not include anything about Ms September and Mr Langley, after which they were instructed to add information about them. They were not instructed what to write about Ms September and Mr Langley and these two paragraphs were written by the SGB based on what they observed in the interviews, but it did not state that the SGB thought they were the best candidates for the post. As to why in the motivation letter of 5 June 2023 they had stated that the SGB believed that it would be a great asset to the school community should the Applicant be appointed in the post of Principal and they then placed her in the last position, she explained that it was according to the scoring of the interviews. They did not only consider the interview scoring, but also the scoring on the CVs in the shortlisting process in which the Applicant scored the highest, and the CBA results which spoke to the person they knew when the Applicant acted as the Principal. She agreed that the SGB nominates but does not appoint candidates. They had nominated the Applicant in a few documents and every time they were asked to change these documents.
87. She was asked what she knew about Collective Agreement Number 3 of 2016 on ELRC Guidelines: Promotion Arbitrations (the Collective Agreement) and responded that she knew nothing about this Collective Agreement, but conceded that she had testified to it in her evidence in chief, with reference to Section C The Best Interests of the Child and Public Interest. She explained that it says that the Constitution provides for the best interests of the child and in the school context it will be the learner. It also meant that decisions taken must be in the best interest of the child. With respect to the statement in Section D that fairness requires an evaluation that is multidimensional, to her it meant that everything must be fair for the employer and employee in different contexts, with an example that whatever procedures there are must be fair to all the candidates who in this case applied for the Principal post. She agreed that if CVs met all the basic and additional criteria to go for interviewing and the same questions are asked of all the canidates, that it would be a fair process. All three the candidates were asked the same questions, measured against the same answers, and were scored.
88. She repeated again why she believed the process and procedure for the post of Principal was unfair. With reference to Mr Hendricks’ involvement, it was wrong for him to do everything himself such as drafting the questions, as her understanding was that was something the SGB was supposed to do. As to where this was stipulated, they were under the impression that they would set up the questions the morning of the interviews, but they were already done. They had trusted Mr Hendricks as the Circuit Manager as he knows the procedures and everything about this and trusted him to guide them through the whole process. The trust that Mr Hendricks broke was the contradictory instructions that they received. She did not get any formal training and was just told certain things about the procedure. The Circuit Manager should have been in constant contact with the Chairperson. His Personal Assistant contacted Ms Amos, not the Chairperson, and sometimes Mr Whyte, with herself and the Chairperson never contacted, and them receiving instructions from a third party. The SGB had motivated for the Applicant as their first choice and they were instructed to change the DPE2 forms and motivational letters according to the scoring on the interviews. According to her knowledge the appointment is not just based on the interview scores, but also the shortlisting scoring and the CBA results. The SGB told her that, but this was not reflected in their minutes. It was put to her that the Interview Committee who interviewed the three candidates had already made their minds up that they wanted the Applicant and it became a problem when she was beaten fairly and squarely by Mr Langley and Ms September, to which she responded that their minds were not made up. When they got the CBA results for the Applicant it made it completely sure for them that they wanted her, with the results for Ms September completely the opposite. They have already had a closed-door autocratic Principal, which they did not want again.
89. She was referred again to the motivation of nomination letter of 5 June 2023 and asked where the Applicant’s CBA and shortlisting results were considered, with her explaining that the seven reasons listed there spoke to and came from the Applicant’s CBA results. She was reminded that the Applicant when she testified spoke about and knew all the things she, Ms Rudolph, was saying which were outside the process, with the assumption that they had given the Applicant this information, to which she responded that they did not tell her as the Applicant had the bundles of documents since they had a date for the arbitration. The whole process was confidential and they signed a confidentialy clause. None of the SGB members told the Applicant anything about what happened in the process and she was not one of the SGB members who spoke to the Applicant afterwards. It was not her decision alone but that of the SGB to motivate the Applicant for the post. She disagreed that because the Applicant fared poorly in the interviews that they had to write a motivation about what they knew about her, saying that the Applicant did not do poorly in the interviews and answered all the questions, although she did not answer word by word. The SGB did not know they had to include that in the motivation and wrote what they had observed about the other candidates. Their motivation was based on the first DPE2 which was submitted that showed the Applicant as their first choice. She still believed the process was unfair because the documents had to be changed all the time.
90. Ms Rudolph testified as follows under re-examination: The process was unfair because the SGB did not draw up the interview questions, contradictory instructions were received to change DPE2 forms and to remove chunks of their motivation, they did not reach consensus and were not told to and did not know they could have a discussion after the interviews and then afterwards wrote a motivation based on what the SGB discussed. She did not believe that Mr Hendricks performed his role as Resource person adequately because they only had contact with Mr Hendricks after the interviews and he was not in contact with the Chairperson and herself as the Secretary. She understood the role of the Resource person is to ensure the procedures are fair and to draw up the questions. He did not play a role in empowering and guiding the SGB in the process. It was not explained that they must reach consensus after the interviews and the contradictory instructions that they received. She felt upset for if she knew this as Secretary she would have done her job correctly and procedurally. Despite the Applicant not having the highest score in the interviews, she answered the questions well, her CV score was the highest and her CBA results were good. The SGB and not the Interview Committee takes the final decision to nominate a candidate for appointment and the final decision of the SGB was that they wanted the Applicant to be appointed as the Principal at Hillside Primary School. She did not think it was right for the Circuit Manager to take over the process from the SGB, which is the SGB’s duty. It was also not right for the Circuit Manager to choose the candidate who is right for the school, as the SGB can nominate who they want the 1ST Respondent to appoint at the school.
91. Mr Christopher Whyte testified as follows under oath in his evidence in chief: He was not aware of or involved in the Applicant’s grievance. He is colleague of the Applicant’s who was asked to witness for her. He started teaching at Hillside Primary School in 2015. He was elected on the SGB by the teachers. He was part of the processes for the nomination of the Principal post. This was not the first time he was involved in a recruitment and selection process. He was involved when the Applicant was appointed in the Deputy Principal post and also when she applied for the Principal post. The Principal post was advertised three times. He did not receive training for the setting of interviews for this position, but received general SGB training a few years ago on how to look at shortlisting and how to draw up a business plan, etcetera. During the Deputy Principal post process the Resource person was just observing the process, with no interaction with the Panel. The Union representative was also observing the process and the SGB was responsible for setting up the shortlisting and interview questions, the interviews and the minutes. He was the Secretary for that process and compiled and delivered all the documents. In that process the SGB and Resource person set the questions. For somebody to come with questions from outside the process was not the correct way as they had been trained.
92. He was appointed on the Interview Committee for the Principal post. Ms Rudolph was the SGB Secretary and her role was to take the minutes of the meetings and to communidate with the Resource person and Chairperson if any information is needed in the compiling of the documents. Ms Rudolph did not perform her duties of taking the minutes. She started writing the minutes for the shortlisting meeting when Mr Hendricks stopped her and told her the 1st Respondent (the Department) will be fulfilling that role and she was sent the minutes by Ms Paulse from Mr Hendricks’ office. He explained what happened during the shortlisting and interviewing processes, of which all the detail is not repeated here as this has been covered by the previous witnesses and the documents. The Applicant scored 81.2% in the shortlisting process as her CV was very thorough and outlined everything of the core and additional criteria, with her CV overshadowing all the other candidates. He believed that a CV could show a person to be the best candidate. After they finished the interviews they were advised by Mr Hendricks to reach consensus. They did not receive advice from Mr Hendricks for the Principal post and he just said after the interviews and the scoring is done then it is in the hands of the 1st Respondent. They never discussed the candidates and the only statement was made after Ms September’s interview when Mr Hendricks jokingly said that it looked like the person saw his laptop information. He was referred to the Interview Committee minutes and asked if they ranked the candidates based on preference, to which he replied that they scored the candidates based on the way they answered the interview questions. Ms September had responded to the questions verbatim according to the guidelines and the Key Result Areas, which led to the suspicion that she had seen the questions before the interviews. The Applicant had also answered the questions very well and in accordance with her experience.
93. They had not come into the process from the beginning with it in their minds that the Applicant must be the Principal of the school. As to why, if they had no preconceived ideas as to who should be considered for the Principal position, they did not recommend the candidate who scored the highest but the candidate (the Applicant) who ranked third, he explained that the Applicant’s CV and CBA showed that she was extremely stronger to occupy the position than the first ranked candidate. He was referred to the Minutes of the Shortlisting Meeting for the Principal post dated 7 November 2022, in which his name appeared. These were not the Minutes of the meeting that the Secretary typed herself but a template forwarded to the SGB for them to complete. It was designed by Mr Hendricks and these were the minutes that he said he would forward to them. He pointed what was strange in these minutes, such as at paragraph 12.14 that there was no Covid 19 protocol applicable, that the name of Ms Paulse was not entered at 12.4.2, that at 12.6 Mr Hendricks had mentioned to them that everything will be done at the District Office and that task is now with the Circuit Manager, that at 12.11 no referees were contacted according to his knowledge, that at 12.12 load shedding was not monitored, at 13 that the only administrative responsibilities given to Ms Rudolph the Secretary was the minutes which were forwarded to them and to send all the documentation via her e-mail to Mr Hendricks and Ms Paulse. They as SGB did not see these minutes, which were not a true reflection of the shortlisting meeting. He confirmed that the DPE2 Recommendation for Appointment dated 14 March 2023 reflected the decision of the Interview Committee of the SGB which ranked the Applicant as first choice, Ms September as second choice and Mr Langley as third choice. The SGB in their discussion had done this ranking as they felt that the Applicant was the best and suitable candidate for the post of Principal, as confirmed in their motivation in the Ratification Meeting of 22 November 2022, of which he was part. This was the decision of the SGB and not of the Interview Committee. He repeated the reasons why they felt the Applicant was the most suitable candidate for the post based on her performance whilst acting in the position.
94. He was referred to the Annexure A Resolution 5/98 Departmental Checklist that was signed by the Secretary and Chairperson on 27 March 2023. He pointed out certain inaccuracies in this checklist, such as it was checked off that there was a recusal of members of the SGB, whilst there was no such recusal, and that although it was stated that no reasons were provided for the non-nomination of interviewed candidates, these reasons were provided elsewhere, and confirmed the remainder as being correct. With reference to the statement at the bottom of the checklist that the governance structure must keep precise record and minutes of all the proceedings for future references, especially with a view to possible disputes, this was not complied with since the minutes were not taken by the SGB and were provided by the Resource person, with the checklist also incorrectly ticked off, with no records that would prevent possible disputes, which were all left in the care of Mr Hendricks, who was not a SGB member. In his understanding the Circuit Manager as the Resource person and the Union observer cannot interfere in the process.
95. He agreed with the contents of the Annexure B Departmental Checklist signed by the SGB Chairperson on 27 March 2023. He was referred to the contents of the SGB’s motivation of nomination letter of 27 March 2023 and confirmed that it was the SGB’s decision, in which they were not influenced by anybody. That decision and letter was forwarded to Mr Hendricks by the Secretary Ms Rudolph and was accompanied by the DPE2 form of 14 March 2023 which ranked the Applicant as the first candidate. He explained how the other DPE 2 forms which nominated Ms September as first candidate came about, of which the detail is not repeated here, save to point out that between the dates of 14 March 2023 and 9 May 2023 they received numerous phone calls from Ms Paulse who communicated with the School Secretary Ms Amos, with continuous contradictory instructions on what had to be changed, which Ms Amos had brought to his attention while he was in class for the SGB to discuss. The DPE2 form that the SGB chose was the first one of 14 March 2023 which reflected the Applicant as first choice, with the rest all changed based on the instructions that came from Mr Hendricks’ office to show Ms September as the first candidate.
96. Because he had been through many processes, his colleagues always came to him for advice and they were very frustrated and found it daunting that they had to submit and sign a new form every time, with it seeming to them that they had no power and that what the SGB recommended is rejected. He would not say that it was in Mr Hendricks’ power to change the SGB’s decision, but they trusted him as the Circuit Manager and thought that he, Mr Hendricks, would trust the SGB’s decision, which was evidently not the case. He was referred to the Minutes of the Interview Committee dated 21 November 2022. These Minutes were forwarded to them by Mr Hendricks’ office and was not a true reflection of what was discussed by the SGB, with certain inaccuracies pointed out, such as at 14.1 the Circuit Manager and Secretary were supposed to be mandated to compile all the relevant documents and motivations, which did not take place as the Secretary of the SGB and Mr Hendricks had no direct communication, which took place via Mr Hendricks’ Personal Assistant.
97. The liaison on progress as stated in 14.2 between the Circuit Manager and the SGB Chairperson and Interview Committee Secretary also did not take place as all the communication with Mr Hendricks’ office took place with the School’s Secretary, who came to his class to inform him regarding progress to be conveyed to the SGB. He also explained why there were three different motivation letters with different dates. They however did not change their position as the SGB in that they continued to motivate for the Applicant as the most suitable candidate for the post. He did not know who wrote the motivation letter of 14 June 2023 which Ms Saayman and Ms Rudolph denied that they had signed. The SGB would never have written a motivation letter like that, compared with the format of their other motivation letters. It could be that fraud had taken place as the last paragraph of the motivation letter of 5 June 2023 had been removed in which they motivated for the Applicant to be appointed in the position of Principal. It was the first time that he had seen Ms Saayman’s and Ms Rudolph’s affidavits relating to the letter of 14 June 2023 and it was correct what they had stated there that they never signed or read that letter out to the SGB.
98. He was referred to the Collective Agreement and confirmed that they did consider the best interests of the child and public interest when they nominated the Applicant for the post. With reference to paragraph 40 of the Collective Agreement, the other employee who was promoted, being Ms September, in their view did not possess the necessary skills based on their experience of working with her since October 2023, with examples provided. They had also considered the guidelines in paragraphs 41 and 46 of the Collective Agreement, to which he commented that they did not have in their minds when they went into the interviews to favour the Applicant because she had acted in the position since Mr Hendricks had advised that they must not think with their hearts, but with their minds.
99. Mr Whyte testified as follows under cross-examination by the 1st Respondent: He was also part of the first and second processes for the Principal post. The first process was not successful since the SGB could not find a suitable candidate for shortlisting. One of the members on that Panel said he came onto the Panel to keep the Applicant out of the position, hence he underscored her CV. The second process was unsuccessful because the scoring was three marks short on the scoring sheet, hence it was thrown out. The Applicant was the first nominee in that second process. The Applicant was the only candidate of the two candidates who went for fingerprinting and the psychological test (CBA) in the second process, with only the Applicant’s CBA results discussed in that process. He agreed that Mr Hendricks had informed him that the Principal post interviews would take place at the District Office and not at the school because the one candidate was employed at the school. He had received SGB training before but not in particular on recruitment and selection, which he had not spoken to Mr Hendricks about, although he was comfortable to ask Mr Hendricks questions.
100. On the day of the interviews Mr Hendricks told them that he drew up the questions over the weekend. This was the first time that he was involved in a process that the interview questions were drawn up by the Resource person and not the SGB. Mr Hendricks had stated that everything will be done by the District Office, as things had changed. He responded to Ms Saayman’s testimony that Mr Hendricks had asked permission from the SGB to draw up the questions, that he could not recall that he had asked their permission, and that when the folders came in Mr Hendricks put the questions on the board with the overhead projector and they all agreed to the questions. The questions were not discussed, only the markings. He could not recall that Mr Hendricks asked the Panel if they wanted to add questions to the existing ones. There were more or less eight questions, but he could not recall the number. He did recall that Mr Hendricks gave them the opportunity check whether the questions were relevant and to check for corrections or spelling errors, but they did not pick up any errors and were not unhappy with and agreed with the questions that were there.
101. Mr Hendricks had told them not to take minutes and that they would be sent a template, and had not explained that it was because of errors in previous processes that the template was drawn up. It should however have been Mr Hendricks’ duty to peruse the template to make it relevant to the situation before sending it to the school. He was asked to explain his understanding of the role and purpose of the Competency Based Assessment (CBA). He understood the CBA it is to establish whether a candidate is competent to serve in the position since they were repeatedly told that the CBA will help with the final decision, as also stated in an e-mail from Ms Paulse and in the interview minutes template where it was stated that the final order of the candidates will be decided upon receiving the final component of the CBA report. With respect to the motivation letter which Ms Saayman and Ms Rudolph had testified they did not sign, it was agreed that Ms Rudolph’s e-mail address was to be used for all communications for the process, with the reason that the Applicant had access to the school’s e-mail address, with all correspondence to be between the Secretary and Chairperson of the SGB. He noted that the motivation letter of 14 June 2023 came from the School Secretary Ms Amos at the school’s e-mail address, when they knew that no e-mails regarding the post were to come from the school’s e-mail. Ms Amos would have to answer as to who requested her to send that e-mail from the school’s e-mail address.
102. Mr Whyte testified as follows under cross-examination by the 2nd Respondent: He was asked to explain the steps to be followed to fill any post at a school seeing that he had been involved in a few processes of filling vacancies, not only for a Principal but also for a Deputy Principal, of which the detail of his explanation is not repeated here. He was aware that the Western Cape Education Department (WCED as the 1st Respondent) was the only Province that used the Competency Based Assessment (CBA) to fill vacant posts and that it can only assist in the recommendation. He was referred to the Minutes of the Shortlisting Meeting dated 7 November 2022 in the Applicant’s bundle of documents and read out paragraph 12.10 which stated that the nominated candidates will be required to do the WCED CBA and that it will only be used for developmental purposes and not for scoring and ranking. He questioned why if it states clearly that the CBA is used for developmental purposes why there was an e-mail stating that the ranking order will be decided after receiving the CBA report. He would not discard his previous evidence that they did consider the CBA as stated in the Interview Meeting Minutes of 22 November 2022 at paragraph 10.8 that the ranking order of nominees will be decided after receving the final component of the selection criteria, the CBA feedback. It was put to him that they could not use the CBA as a stand alone and that their own Minutes reflected that the CBA will only be used for development purposes, which was decided before the process started, and that they threw their toys out of the cot when the Applicant failed miserably in the interviews. He responded that they did not throw their toys out of the cot, that this was speculation about the Applicant, that they had mentioned the CBA several times, that the SGB had done their part and had finalised their documentations before the CBA came, with the SGB having a say when it came to the nomination, after which they were bamboozled to make changes.
103. He agreed that the SGB does not go back to the candidates’ CVs once the shortlisting is done and they start with the interviewing process. The seven reasons that the SGB gave to motivate their preference for the Applicant was based on the discussion in the SGB’s Ratification Meeting and the whole process. They did not write this motivation because they knew the Applicant. The purpose of the interviews was to determine a suitable candidate for the position. He had not inferred that Ms September knew the answers to the questions, but all he said was that she answered the questions verbatimly word by word. It could be that Ms September was very well prepared and knew the policies but as he had said numerous times, if it is said verbatim it could raise a red flag. The Interview Committee was impartial, therefore they scored Ms September the way they did as they went according to their guidelines. He conceded that the SGB was not impartial and did favour the Applicant in their motivation, which was based on what they knew about the Applicant. He never said that the Applicant would be prejudiced because of the pro forma minutes. The Resource person is not to be present in the Ratification Neetings. They wrote the motivation for the Applicant like that because the Collective Agreement stated at paragraph 41 that the manner in which candidates perform during the interviews and other subjective impressions may be taken into consideration when making an appointment and there may be reasons for preferring one employee to another apart from formal qualifications and experience. The Applicant did attend the interview, was shortlisted, was asked the same questions as the other candidates and was scored fairly. Ms September scored the highest in the interviews, which he agreed would imply that she was the best.
104. He had asked all the questions in the interviews for the Principal post. He was part of the filling of the Deputy Principal post The Principal at the time, Mr Ronald Coraizen, was the Resource person for that post. It the Principal is absent the Circuit Manager fulfils the role of the Resource person. He was aware that the filling of the vacant Principal post cannot proceed without a Resource person from the 1st Respondent. He did not infer that the process for filling the Principal post was wrong because Mr Hendricks had interfered in the process, which he had stated clearly as a fact since it had presented like that. He had agreed with and also disagreed with part of the Minutes, with the reason that the Minutes are considered as misleading and did not happen in the process as stated in the Minutes which were derived from the template. The process was regarded as unfair because it did not happen as stated in the Minutes.
105. Mr Whyte testified as follows under re-examination: The SGB did not approve the Interview Meeting Minutes of 21 November 2022 since they had not seen nor discussed those Minutes. The Minutes were misleading since it stated that Interview Committee members were allocated a specific question to ask the candidates, whereas he asked all the questions. Other inaccuracies were pointed out such as that he was not the proposer at paragraph 7.6 and with reference to that paragraph they only mentioned 60%, but did not reach consensus after the interviews as stated there. They had treated all the candidates fairly. With reference to the disputed motivation letter of 14 June 2023, he thought the purpose of the person who wrote that motivation letter was to earmark and identify Ms September as the best candidate, which meant the letter was tampered with. The reason why they preferred to use the CBA to decide upon the candidates was because in the e-mail of 19 April 2023 which Mr Zuko Roro sent to Mr Hendricks the Circuit Manager it was stated that the Interview Minutes were corrected to that the order of the three recommended candidates will be decided upon receiving the CBA report. They never saw the CBA report. It was not the correct way for them to add questions already set by Mr Hendricks as they were supposed to be with the Resource person to draft questions before the interviews.
106. Ms Belinda Amos testified as follows under oath in her evidence in chief: She holds the position of Administration Clerk at Hillside Primary School in Bishop Lavis, where she started in 1998. When she started the Principal was Mr Andre du Plooy. The current Principal is Ms September. After Mr du Plooy there was Ms Messier as Acting Principal, who did not get the position, followed by Mr Roland Coraizin who was Principal for plus minus 14 years before he passed away. The Applicant, who was the Deputy Principal, became the Acting Principal. The Applicant when she was in the leadership of the school was very passionate about her position, had an open-door policy, with a heart for each and every one at the school from learners to staff, and had an amazing relationship with everyone. She had served on the SGB before for plus minus 12 to 15 years and had been involved in the appointment of Educators at the school. She was trained in her role as SGB member by two of the previous Principals, Messrs du Plooy and Coraizin, which was how to take minutes, about confidentiality, the importance of certain things they have to do and don’t do and how to act as Chairperson. She acted as Secretary for the SGB when she was working with Mr du Plooy and Mr Coraizin. Her role as Secretary was to take minutes, to issue notices and the agenda for SGB meetings. She also took the minutes during the process of shortlisting and interviews.
107. She was part of the SGB that dealt with the post of Principal for Hillside Primary School. She confirmed Ms Rudolph’s statement of how that process was dealt with by the SGB, of which the detail is not repeated here. They did not take any minutes during the process because they were to use a draft where everything and names will be put in, so it was not necessary to take minutes. She could not remember who took minutes if they were told not to take minutes, which was the instruction from Mr Hendricks. Ms Rudolph the SGB Secretary is supposed to take the minutes and started to write the minutes, after which she was told that it would not be necessary because of the template which would be provided for that purpose. In her view it was not the right thing to be instructed to not take minutes. She was to assist Ms Rudolph to take the minutes because of her experience, since it was the first time that Ms Rudolph was to take minutes. She could not remember who wrote the minutes of the Interview Meeting of 21 November 2022 in the Applicant’s documents. She could not remember if they as SGB had seen these Minutes before.
108. All the preparation for the process happened at the District Office and Mr Hendricks prepared the documentation for them for the shortlisting and interviews. The Interview Panel (Committee) did not formulate the interview questions, which was done by Mr Hendricks the Circuit Manager because he told them that he got an instruction from Head Office to do everything in terms of the Key Result Areas (KRAs) for the new recruitment and selection system. From her previous experience as SGB Secretary the Panel or Sifting Committee was responsible to do everything, such as the shortlisting, the interview questions, phoning candidates to set up interviews, etcetera, hence she found it strange and took the Circuit Manager’s word for it that he would be responsible for everything. Paragraph 7.3 of the Interview Meeting Minutes was not true/correct as Mr Whyte asked all the questions, and not also the other Interview Committee members.
109. In terms of the process after they had finished interviewing candidates and they had left the room they would normally use a few minutes to discuss the candidates and reach consensus, which they did not do for the Principal post. She was referred to the four motivation letters of 14 June 2023, 27 March 2023, 24 May 2023 and 5 June 2023 and stated that she was only familiar with the motivation letters of 27 March 2023, 24 May 2023 and 5 June 2023, with the one of 14 June 2023 not even ringing a bell for her. With respect to the communication between the District and the School, this was done by Ms Paulse phoning her on the school’s landline and if she was not alone, she would call Ms Paulse from her cell phone. She never spoke to Ms Paulse alone, which is why she went to Mr Whyte’s class to have a witness to the conversation, with Mr Whyte instructed to establish what the conversations were about on behalf of the Panel. All her conversations with Ms Paulse were only telephonically. She had never at any stage forwarded documentation relating to the process by e-mail. She did not send the e-mail of 14 June 2023 to Ms Paulse. Mr Hendricks instructed that e-mails relating to the process were to be sent to Ms Rudolph the SGB Secretary since the Applicant was a candidate and could see all the school’s e-mail documentation. Other staff members also have access to the two computers in the school’s Administration building. She could not recall if Mr Hendricks or anybody from the District used the school’s computer to forward documents to the District Office. She could not be held responsible for the motivation letter or e-mail sent on 14 June 2023 since she did not send it. She was not the Secretary or the Chairperson of the SGB and would not do such a thing when she was part of the Panel.
110. She confirmed that Ms September received the highest score in the interviews, then Mr Langley and then the Applicant and that the Applicant was put forward as the best candidate for the Principal post after they received the CBA results. The reason why they still preferred the Applicant after she scored the lowest on the interviews was that they on previous occasions saw the Applicant’s CBA results, had worked with her for two and a half years, that they knew her personally, that she had passion and drive for the school and had an amazing working relationship with everybody. The other two candidates did not score as well as the Applicant on the CBA results. This did not mean that they had in mind to prefer the Applicant before the process started. They also took this decision in the best interests of the child.
111. She did not think that the grounds (playing fields) were level for all the candidates in the interviews because she was dumbfounded and could not understand why Ms September answered all the questions word by word, with Ms Rudolph also asking Mr Hendricks how this was possible, to which he had laughed and said maybe she looked at his computer for the answers. This was because before the candidates came to the interview room they first had to prepare a powerpoint presentation for the Panel in Mr Hendricks’ office. She was referred to the four DPE2 Recommendation for Appointment documents in the Applicant’s bundle of documents. The first one for 14 March 2023 showing the Applicant as the first choice was the one as decided by the SGB. She was not aware of the DPE2 dated 9 May 2023 which showed Ms September as the first choice. She also did not know who decided on the two other DPE2s of 14 March 2023 which showed Ms September as the first choice.
112. Ms Amos testified as follows under cross-examination by the 1st Respondent: She had started at Hillside Primary School on 13 August 1998 and has been the Administration Clerk there for all these years. She was aware that the Principal post had been advertised three times and was part of both the first and second processes. The first process was not successful since nobody qualified at shortlisting for an interview. After the second process was completed Mr Hendricks informed them there was a problem with the marking and the scores. The first two processes took place at Hillside Primary School and the third process took place at the District Office as recommended by Mr Hendricks. Mr Hendricks was also part of the first two processes. During the second process when interviews were held, she was part of the SGB Interviewing Panel and everybody on the Panel were involved in drawing up the questions, of which Mr Hendricks was part. During the second process they as a Panel were allowed to have their say if they had concerns or were unhappy about the questions, and she did not just accept what she was told by Mr Hendricks or anybody else on the Panel. She confirmed she had in the past received training on the role of the SGB and how to take minutes.
113. She was referred to Ms Rudolph’s statement in the documents. Mr Hendricks had told the SGB that he is taking over the whole process and doing it personally this time since it was not done properly the previous times. The whole process definitely changed from the time she was on the SGB when there were no KRAs, hence this was a whole new process and she was following instructions. She could not remember if Mr Hendricks told them that if they disagreed with and were uncomfortable with the process or had any questions, that they must inform him. Mr Hendricks did not ask the Panel permission to draw up the questions prior to the interview day of 21 November 2022. Mr Hendricks did ask them after they received the already drafted and printed questions if they were comfortable with the questions. They were not given the opportunity to read through the questions and were not allowed to add any of their own questions. She could also not recall if they discussed the questions as it was a long time ago in 2022. She was referred to Ms Saayman’s testimony that Mr Hendricks had asked permission from the panel to draw up the interview questions and the business plan for the post as well as that he had a discussion with the interview panel about the questions and that they could add questions, to which she changed her initial responses of denial that she could not remember this as it happened in 2022.
114. She was unhappy because they did not add to the interview questions because the SGB was allowed to compile the questions for the second process and were now not good enough to do it for the third process. She confirmed again that they were not given the opportunity to add to the questions for the current (third) process. As to why she after 12 years on the SGB did not raise her unhappiness with Mr Hendricks or the SGB, she responded that it was sometimes good to just keep quiet and let things go their flow. She was not happy with the pro forma Minutes of the Shortlisting Meeting in which they had to fill in the information for the Shortlisting Meeting since her name is also mentioned in it. She did not raise her unhappiness with Mr Hendricks as she was not the Chairperson or Secretary of the SGB but was part of the Panel. She agreed that the Minutes template was introduced since everything did not go according to the book and mistakes can be made which causes problems. She was referred to Ms Saayman’s testimony that Ms Paulse always called her, Ms Amos, if any changes had to be made, to which she responded in the affirmative that Ms Paulse always contacted her telephonically and asked if she was alone in the office and that she went to Mr Whyte’s classroom who was the spokesperson for the SGB, who would call the Panel together and tell them what to do. Ms Paulse would phone her to say what they had to do and changes to be made but she never spoke to Ms Paulse alone and Ms Paulse never gave her, Ms Amos, instructions to do things. She reiterated that she had no idea where the motivational letter of 14 March 2023 came from, that she had not typed it and that she did not send it from the school’s e-mail address. She had nothing to do with the administration and correspondence of the Principal post, with only the telephonic communication that came from Ms Paulse to herself. She was not the Secretary for the SGB and one of the instructions of Mr Hendricks was that Ms Saayman and Ms Rudolph must provide their personal e-mail addresses for any correspondence relating to the post.
115. Ms Amos testified as follows under cross-examination by the 2nd Respondent: She was referred to the e-mail sent at 12h09 on 14 June 2023 from the school’s e-mail address which had attached the motivation letter of 14 June 2023. She had definitely not sent that e-mail and did not know who sent it. Other staff members also used the Administration computer. There was nothing wrong with the interview questions. She confirmed that the interview process was fair and she agreed that they scored the Applicant the lowest, with an almost 10% difference between the Applicant and the first ranked candidate’s scores. Ms September received the highest marks as everything she mentioned to the Panel was word by word. She knew what she scored as an individual for the Applicant. Because she had worked for two years with the Applicant in the office she knew what the Applicant was capable of and what she had done for the school. The Applicant was good enough personally for her in the interview. Although the Applicant did not answer all the questions word by word like Ms September, the key words were in her responses and she used her own words to the best of her ability. She agreed that they could only score what the candidates say in the interviews and not what they know about them. She went to Mr Whyte when she received calls from Ms Paulse to have a witness and to personally cover her back, as Mr Whyte was part of the SGB and Ms Paulse had requested them it was best to have two people to together receive calls and the requested information. When the Applicant was acting in the Principal post the school was not underperforming. She disagreed that the 2023 results which came out in 2024 reflected that the school was underperforming when the Applicant was acting.
116. Ms Amos testified as follows under re-examination: It was not the right thing for Mr Hendricks to bring the questions already prepared to the interviews, because the SGB also involves the community and parents and they have the right to ensure that the SGB selects the correct Principal. It would be correct to also ask the SGB for questions to put to the candidates. Mr Hendricks took over the responsibility of the SGB and they thought it would have been good if they could have added questions from the community, learners and the administrative side to put to the candidates. She confirmed that there was nothing wrong with the questions which were asked. The interviewing process was not the only tool to conclude the process, but also the CBA results and input from the community. They as the Panel decide what their learners and the community needs. The Applicant was the best candidate according to the SGB, with the reasons previously advanced repeated. When they as SGB designed questions they did not base it on feelings, but what is best for the school. She had constantly approached Mr Whyte whenever she was called by Ms Paulse as she had no written proof of the conversations and Mr Whyte could also hear and take it to the SGB, since the Applicant was sitting in the office. THE RESPONDENTS’ EVIDENCE
117. The 1ST Respondent’s case was that the Principal’s post was advertised three times, with none of the applicants shortlisted the first time. The second time the post was advertised the shortlisting scores were not tallied correctly. The post then had to be advertised for a third time after the Director Recruitment and Selection authorised the post be advertised again. Ms September did not apply the first and second times that the post was advertised and only applied the third time, whereafter she was nominated and appointed as Principal of Hillside Primary School. The 1st Respondent would prove that the whole process as well as the nomination process was lawful, fair and reasonable, that no irregularities took place, and that they would call witnesses to testify to this, being the Circuit Manager, his Personal Assistant and an Official from the Recruitment and Selection Department. The Circuit Manager would address the allegations that he brought his own interview questions without allowing any input from the SGB. His Personal Assistant would testify to the allegations that the motivational letters were tampered with and that she was requested to change the motivational letters on the request of Recruitment and Selection Department. The Circuit Manager’s Personal Assistant would also testify that the signatures on the motivational letters were indeed the signatures of the SGB. The 1st Respondent believed that their process was fair, that there was no irregularity and that the relief should not be granted.
118. The 2nd Respondent party added that they only joined the process late and confirmed that the post was advertised in Vacancy List 3 of 2022 under post number 1174, for which the 2nd Respondent had applied, was shortlisted, nominated and ratified by the Head of Education. As this is a very tedious process followed in the appointment of a Principal, they felt the 1st Respondent had done their work to ensure that the process of appointing the 2nd Respondent was fair and that the right appointment was made.
119. Mr Wayne Hendricks testified as follows under oath in his evidence in chief by the 1st Respondent: He is presently a Chief Education Officer, also known as Circuit Manager, with the 1st Respondent, which position he has held since 2009. He explained the process to appoint an Educator into a post. His role was not to appoint but to ensure the nomination is done by the SGB and specifically the Interview Committee, in the capacity of Resource person and observer and to ensure that the procedures followed are fair and equitable, are implemented and successfully completed. He confirmed that the post of Principal at Hillside Primary Shool was advertised three times. He explained what happened as to why appointments were not made from the first two processes, with reference to the documents, of which the detail is not repeated here.
120. He explained how the post was advertised for the third time and confirmed that Ms Saayman was the Chairperson of the SGB. He was in contact with Ms Saayman throughout the process and told her to inform the SGB that the post would be re-advertised in the next vacancy list. As to Ms Saayman’s testimony that the SGB was not allowed to take minutes during the process, this was definitely not true. They had told the SGB that there was a template on the system to be used to populate and that minutes must be taken for every meeting, which they can populate online into the template provided by the 1st Respondent. This template is in line with the 1st Respondent’s requirements, is used to enter scores and to bring order to the minute taking process. He explained the content of the minutes template under the different headings, of which the detail is also not repeated here. Problems were previously experienced when the Interview Committees wrote their own minutes and this pro forma document was developed as a guide for the Interview Committee to enter the information gathered under the different headings.
121. It was correct that he had set up the interview questions since the SGB Interview Committee had asked him, as being responsible for Resource support, to set up the questions. At that point in time they had started with new KRAs and the SGB wanted him to set up the questions in terms of the new KRAs. He had set up the questions the morning of the interviews and brought them to the Interview Committee to scrutinise, make changes, set up their own questions and to approve or disapprove the questions. He did allow them the opportunity to go through and approve the questions. With respect to the scoring, he had indicated to them they need to be fair and see all the people sitting there as somebody they did not know and score without bias and preference and listen to the answers to the questions as what they want to hear from the answers to the questions.
122. He was referred again to Ms Saayman’s testimony that he told them that they don’t have to take any minutes, and responded that somebody must have taken minutes and that they must have misunderstood him as they cannot go into a meeting without taking minutes. He did not think he had looked at the minutes again after the SGB had completed the templates, which would have been sent to Ms Paulse. With respect to Ms Saayman’s testimony that she had phoned him to ask about the Applicant and if it was possible for the Applicant to be ranked first on their motivational letter, he could remember having such a conversation with her and that his response to the Chairlady was that it is going to be an unfair process if they moved away from what they experienced in the interview process and it would then be an illegal process. He told them afterwards as the Resource person that they could go ahead if they still wanted to bring out a specific recommendation. He recalled that he had told Ms Saayman that if they wanted to put in their own motivation they must motivate strongly as they cannot motivate outside what happened in the process. From where he stood is that what happens in the interview room is fair and just, otherwise they will get disputes. He did not look at the motivational letters that they drew up afterwards as Ms Paulse dealt with that. If the SGB wanted to make a recommendation, they could do so and write directly to Recruitment and Selection, which they did to Mr Zuko Roro, with Recruitment and Selection managing the process from there, and did not involve the Circuit Office. There was a response from Recruitment and Selection afterwards which he thinks came to Ms Paulse and she sent to the Chairperson of the Interviewing Committee.
123. Mr Hendricks testified as follows in his evidence in chief by the 2nd Respondent: After a post has been advertised there are four meetings in the process. The first meeting will be when the business plan is finalised, the second meeting will be for setting the shortlisting criteria and for the shortlisting process, the third meeting will be for the interview process and the fourth meeting will be the ratification process. A cut off score will be set for candidates at shortlisting to qualify for interviews. For this post he thought it was 60% and the candidates will be ranked according to their shortlisting scores. The Interview Committee can determine how many eligible candidates they will invite for interviews. The shortlisting and interview processes have nothing to do with one another and candidates go back to zero for the interviews. The shortlisting score only qualifies one to go to the next round. He described what happens in each of the four meetings, with the detail not repeated here.
124. He came with the prepared questions to the interview meeting, as well as the possible answers to assist with the scoring, for the Panel to scrutinise and discuss. The questions are normally set out to start with the policy and then how it is implemented in practice. Ms September in her responses gave the policy statement first and then spoke about the experience she had, which was the right way to answer the questions. Under no circumstances did he give Ms September the questions with the answers as inferred by the Applicant’s witnesses. There would be implications because his integrity was being questioned and he had other parties to assist in processes. He questioned why he would have given a response to the Chairperson of the SGB when they raised it with him that maybe Ms September looked at his laptop and that maybe it was a joke. He did not use his own laptop to prepare the questions and answers and used Ms Paulse’s laptop. He denied that Ms September had looked at his laptop. He had not even spoken to Ms September.
125. With respect to the Ratification Meeting, the Interview Committee would take their recommendations to the SGB at the Ratification Meeting, explain their conclusions and motivate their recommendation. The SGB Secretary will then complete the documentation and send it to Ms Paulse, who will forward it to Recruitment and Selection. With respect to scoring and consensus, after the interview scores were calculated the Panel was unhappy since they thought the Applicant would do well in the interviews, but did worse than the others in the scoring, hence if they had a consensus discussion it would not have mattered. He explained the role of the CBA and that it is a developmental process in which nominees for appointment in a post go for a behavioural and personal skills test to obtain the development needs. The SGB and Circuit Manager will get together and discuss the development needs identified for the nominated person. The CBA was not part of the nomination process for this appointment and it is only used for development purposes.
126. He was referred to the four motivation letters for the post of Principal. He knew about the letters between Head Office and the school and had no input into them. He was asked to compare them and noted that the last paragraph from the previous three letters recommending the Applicant for appointment, did not appear in the letter of 14 June 2023 which Ms Saayman and Ms Rudolph had testified that they had not signed. He was not sure whether he had cut something out of that letter and only became aware of it when the 1st Respondent spoke about this. He knew nothing about cutting out that paragraph. If he had received that letter of 14 June 2023 he would have sent it to Ms Paulse, who would be in a better position to answer to the content and signatures. He did not fill in the blanks on the Interview Meeting Minutes of 21 November 2022, which should have been done by the Interview Committee Secretary. They would have misinterpreted him when he said to them that they don’t need to keep minutes but that a minute template must be completed, as the process cannot be concluded if there are no minutes. He stated he was lost for words in response to Ms Saayman’s and Ms Rudolph’s testimony in which they implied that he, Mr Hendricks, had written the minutes, since he had never written those minutes nor cut and pasted any letter. He had nothing to do with the motivational letter of 14 June 2023 which Ms Saayman and Ms Rudolph had attested in their affidavits they had not drafted nor signed. He never tampered with the motivational letters and did not tell the SGB to rank Ms September in the first position.
127. Mr Hendricks testified as follows under cross-examination: He had started with the 1st Respondent as an IMG Manager in 2009 and was appointed as Chief Education Specialist at Metro North in 2016 when the new posts were created. His role as the Circuit Manager in the recruitment and selection process, was to act as an Observer and Resource person to the Interview Committee. His support starts when the post of Principal is identified and the post if placed on the vacancy list. It stops when he hands over the letter of appointment for the person who has been appointed to the SGB Chairperson. The post of Principal was advertised twice previously and he explained again why nobody was appointed in the post. His role in Post 1174 of Principal at Hillside Primary School was that of Observer and Resource support. As Resource support he arranged for the Interview Committee to use the District Office for the interviews, some logistical issues and to assist with drawing up the questions. He had drafted the interview questions at the District Office. The Interview Committee was not present when he drafted the questions. The questions are supposed to be drafted by the Interview Committee, but he as the Resource person was requested to draft the questions for them, and that they would scrutinise and rework the questions to agree to on the day of the interviews. As to three of the SGB members disagreeing with this testimony and that he was lying, they had to prove that he was a liar and that his integrity was being questioned. He did not take over the process, but only assisted with the questions.
128. He had participated in these processes since 2009 when he was an IMG Manager. He was questioned as the Resource person on where the interview questions are supposed to be drafted and responded that there is no requirement stated anywhere where the questions are supposed to be drafted, and can be compiled at home, in the office or in the venue where the interviewing process is to take place and put together when the process needs to start. The School’s Interview Committee had asked him to draft the questions and there was nothing wrong in the way they did it for the Principal post, which is allowed and has been done like this for years. He was asked whether he had instructed the SGB not to write the minutes and whether he stopped the SGB Secretary from taking minutes. He had not told them not to write minutes, but had told them that during the interviews when a candidate is busy with the interview, they must concentrate on and need to write down the responses on the answer sheet as they cannot write minutes at the time. He also said to them that a template will be provided to enter the information gathered during the meetings. The template was only released during they time they were busy with the process and was new to all of them. The template was provided to the Secretary of the SGB. The template was not there when they were doing the shortlisting. The template was e-mailed to the Interview Committee after the interviews were conducted by his Personal Assistant. The SGB took minutes for the other meetings before the template was introduced. It was put to him that there were no minutes submitted by the SGB except for the minutes submitted on the template by himself through his Personal Assistant, to which he replied that he had no reason to lie about something which had no personal gain for himself when he is focussing on the processes. If somebody said he wrote the minutes, then they must prove this.
129. He was taken through the Minutes of the Interview Meeting dated 21 November 2022 in the Applicant’s bundle of documents and the contents which the other witnesses had stated were not authentic, of which the detail is not repeated here. These discrepancies were new to him because he and his Personal Assistant did not touch or see these Minutes. The Minutes were written by the Secretary of the Interview Committee and were uploaded on the system when they were returned from the school. As to the entire SGB testifying that they never saw these Minutes, the documents were signed by Ms Rudolph and Ms Saayman and he and his office did not touch these documents, hence they should be questioned about this. It was not disputed that the blank template came from his office, but the populated document did not come from his office. The completed template received from the SGB was a pdf file that cannot be changed. He had only completed the Annexure to the Minutes. As to his evidence that he never saw the Minutes, he had read them now after them being shown to him by the 1st Respondent’s Representative and saw the signatures. He had only discussed certain points raised in the minutes with the Chairperson such as the ranking when she informed him they wanted to change the motivation and he told her they needed to motivate what they experienced during the interview process.
130. He became aware of the motivation letters for the first time when the 1st Respondent’s Representative discussed them with himself and Ms Paulse in 2023. The motivations were e-mailed to Ms Paulse in his office to be sent to Head Office. The SGB was supposed to communicate with him but in this case the documents had to be sent to Head Office. Ms Paulse communicated with Head Office in terms of the 1st Respondent’s protocol. Ms Paulse was not involved in the process, but the administration of the process. The SGB was involved in the process and the Resource person indirectly to guide to SGB and ensure the process was fair and completed correctly. The process was fair but he believed it was compromised by the Interview Committee who broke the confidentiality agreement that they had signed after some of the SGB members discovered after the process was completed that their candidate was not nominated. He was referred to the four motivation letters. He presumed that the motivation letters were written by the people who signed them. He saw the letters which were sent to Ms Paulse and which she showed to him, including the last letter of 14 June 2023 which Ms Rudolph and Ms Saayman had testified they did not sign and had not sent. They (he and Ms Paulse) did not send letters to anyone.
131. He was referred to the first DPE2 document dated 14 March 2023 and confirmed that it is the recommendation for appointment that is to be completed by the SGB Interview Committee, with this one reflecting the Applicant as the first choice, Ms September as the second choice and Mr Langley as the third choice. The SGB Interview Committee will at the ratification meeting inform the SGB, the SGB will recommend and the Head of Department will appoint. The second DPE2 document dated 14 March 2023 was the same as the first one with the names changed. The SGB had done the first nomination based on what their personal feelings were and when they contacted him, he told them they cannot go on personal feelings and that they must complete the process based on what they experienced in the interview process. He did not tell them to change the DPE2, with the proof that they scored the candidates in that order in the amended DPE2 recommendations. He agreed that the correct recommendation of the SGB was that of the first DPE2 dated 14 March 2023 which showed the Applicant as their first choice. The SGB was unhappy because the interview outcomes showed that the Applicant did not perform well on the day of the interviews. The SGB did not indicate their unhappiness during the interviewing process, which only transpired afterwards and when they wrote their motivation. He questioned the fairness of using the information and experience of a person they knew compared to a person whom they did not know, whereas the interviews focussed on factual issues.
132. As to Ms September answering the interview questions word by word, if a person answers a question starting with the policy and answering the policy word by word, he should think the person was well prepared. It was not strange for Ms September to answer the questions as written in the memorandum, since the Metro North Office had various development sessions regarding the compilation of CVs and how interviews are to be conducted, for that is how they were trained. He was questioned on where and when he compiled the interview questions, of which the detail of his responses, which are already on record, is not repeated again. He denied that he had compiled and falsified the SGB meeting minutes contained in the documents as he had never written minutes for any SGB, which was not his responsibility as the Resource person. They would never send a minute template that has already been populated, which needs to be populated by the Secretary of the Interview Committee. It was put to him that the Minutes of the Interview Meeting on 21 November 2022 were falsified because it was stated at paragraph 7.3 that the Interview Committee were allocated a specific question to ask the candidates, whereas it was testified that only Mr Whyte asked questions in the interviews, to which he responded that they at the District Office did not touch the minutes, that whatever was there came from the SGB and they must have written that incorrectly, similar to other discrepancies that were referred to in the minutes. He agreed that the SGB recommends the best candidate for the post, but the best candidate cannot be the one ranked third. They did not have to recommend the candidate ranked first, but there must be a motivation for not doing so.
133. As to why it was stated that the SGB must wait for the CBA results of the candidates before making a decision and what the purpose of this was of sharing the CBA results if it was only regarded as a developmental tool, he responded that it was not supposed to be shared by the Interview Committee or himself as it is the personal information of the candidates and is to assist with the development of the nominated candidate. He confirmed that in the Ratification Meeting of 22 November 2022 the SGB had recommended the Applicant as their first choice, with the reasons provided therefor. The SGB was empowered to make the recommendation, with nobody else, including the Resource person, telling them what to decide, except the Head of Education. Ms Paulse received her instructions from Recruitment and Selection and not from himself. Ms Paulse would inform him of correspondence received from Recruitment and Selection for implementation of the instruction. Ms Paulse would never take any decision without his knowledge. As the Resource person he would advise the SGB of the instruction.
134. Mr Hendricks testified as follows under re-examination by the 1st Respondent: Ms September had answered certain questions from certain sections of the policy verbatim, but not the whole section, with snatches from the Circular as well before she would answer the question. He had conducted interviews before in other processes, but this was the first time somebody had answered the questions like this by quoting the policy before she answered. The minute templates were new and were received at the time the interviews commenced. He did not personally handle the blank template, which was received by Ms Paulse and sent to the school. Ms Paulse did not show the completed (populated) template to him when it was received from the school, as its extremely confidential and he cannot be accused of changing it. Ms Paulse received it straight from the school and uploaded it to go straight through to Recruitment and Selection. He was aware that the SGB was unhappy the day of the interviews as they said afterwards that the Applicant did not perform well on the day as seen by the scores and they were actually shocked by what she produced in the interview on the day. The Applicant had also stated in her grievance of 24 July 2023 that the day after the interviews a SGB member asked her why she performed so poorly as opposed to the previous interview that was excellent, which confirmed this.
135. Mr Hendricks testified as follows under re-examination by the 2nd Respondent: He was referred to the populated Shortlisting Meeting Minutes of 7 November 2022 at paragraph 12.6 in which it reads that the meeting unanimously agreed to mandate the Circuit Manager to draft an instruction to a presentation counting 5 marks and a set of 8 questions of 10 marks each. This confirmed that he was mandated to set the interview questions. The reason that they asked him was because the KRAs were introduced, with no principle to guide and assist them. He assisted in setting the draft and the Interview Committee could check, add or remove any questions before they were approved by the Interview Committee. He was emphatic that he did not give Ms September anything, not questions nor answers, before the interviews commenced.
136. Ms Shireen Paulse testified as follows in her evidence in chief by the 1st Respondent: She is the Administration Officer for Circuit 8. She commenced service in the District Office in 2016 and has occupied this position for eight years. She explained her role during the proceedings to identify and nominate a candidate for a Principal post, which is to download the CVs in the presence of a SGB member and to upload the documents when the process is concluded. She also acts as liaison with Recruitment and Selection from Head Office, who will send correspondence via e-mail that needs to go to the SGB to her or Mr Hendricks, copied to both of them, for forwarding to the SGB, who she would contact to confirm if they received the e-mail. The specific person at the school that she was to send e-mail correspondence to during this process was Mr Whyte, and not Ms Amos the School Secretary, as they were not to send any correspondence to the school’s e-mail address.
137. She was referred to the unpopulated pro forma template for the Shortlisting Meeting in the 1st Respondent’s bundle of documents. She identified it as the template on the recruitment system that the schools use for their minutes and which they downloaded into a zip folder and they send to schools. The document is in Word format so that the schools can populate/complete the document with the relevant information. She was also referred to the populated Shortlisting Meeting Minutes dated 7 November 2022 in the documents. These minutes were signed by the SGB Chairperson and Interview Committee Secretary and were sent to her by either the Chairperson or Mr Whyte, but she could not recall who it was. She received these minutes completed and signed like that. The Minutes of the Shortlisting Meeting, the Interviews, and the Ratification Meeting, as well as the SGB motivation are all sent to her at the conclusion of the process as all these documents must be uploaded together, whereafter she notifies Human Resources that all the documents have been received and uploaded.
138. She was referred to the blank pro forma template for the Interview Meeting Minutes. The purpose of sending out this document was to see how the SGB scored each of the candidates, with these Minutes to be populated from the score sheet by the SGB, of which the 1st Respondent also has a copy of the score sheet. When the populated Minutes are received, they are placed on a file and uploaded on the Recruitment and Selection system. Only Mr Hendricks has access to the system and the documents are uploaded on the system using his access. The school sent the documents to her e-mail address and she uploaded these documents, not Mr Hendricks. When they received minutes from the schools they did not check them and just uploaded them. She did not send the minutes to Mr Hendricks to look at before she uploaded them. She cannot recall if she had worked with Ms Saayman before in a process. She also was not aware of any unhappiness afterwards about the process and cannot recall if any members of the SGB phoned or e-mailed about any unhappiness. She sent the e-mail of 14 June 2023 to Mr Zuko Roro of E-Recruitment with the motivation letter of 14 June 2023 for the Principal post as requested by the latter, which she received from Ms Amos from the Hillside Primary School e-mail address on the same date. This e-mail came from the school’s e-mail address and they were told that under no circumstances was the school’s e-mail address to be used for such correspondence. This was the only e-mail she received from the school’s e-mail address regarding this process. She saw that Ms Saayman and Ms Rudolph’s signatures appeared at the bottom of that motivation letter of 14 June 2023. She was also referred to the other motivation of nomination letters for the Principal post of 24 May 2023 and 5 June 2023. The second motivation letter of 5 June 2023 was sent due to an e-mail which was received from Mr Roro of E-Recruitment on 19 April 2023 in response to her e-mail of 29 March 2023 when all the documents were uploaded and which included the first nomination letter of 27 March 2023. Mr Roro had referred to four points that had to be rectified, such as that the minutes and the nomination did not speak to each other and that the motivation spoke to the Applicant and not the other two nominated candidates. She sent this e-mail to Mr Whyte on 5 May 2023 referring him to the four points raised by Mr Roro.
139. The SGB responded by submitting the second motivation dated 24 May 2023. In that motivation they only made reference again to the Applicant, not mentioning about the other two candidates, with no ranking order as in the Interview Meeting Minutes. She confirmed that the last motivation letter of 14 June 2023 was sent from the school’s e-mail address at 12h19 on 14 June 2023. The first motivation letter of 27 March 2023 came with the pack that was handed in for the first motivation. They receive the pack as a file with dividers in which they put the DPE1, the CVs, the shortlisting scores and the interview sheet scores which are uploaded once all the Minutes are received. The motivation of 24 May 2023 came from Ms Rudolph. She was referred to the affidavits attested to by Ms Saayman and Ms Rudolph that they did not send the motivation letter of 14 June 2023 to her, Ms Paulse. The signatures were on the document when she received it from Ms Amos from the school’s e-mail address. As to them denying that they signed the letter and that it was falsified, she responded that is how she received the letter and that she did not sign the motivational letters.
140. Ms Paulse testified as follows in her evidence in chief by the 2nd Respondent: She opened and shared with the parties on the screen all four the motivational letters that she received for the Principal post. All the contents of the original documents that she received agreed with the copies in the bundles of documents. She could not make changes to the documents as they came to her as pdf files. The letter of 14 June 2023 which Ms Saayman had denied she had written and testified that it was not sent from Ms Rudolph’s e-mail address, was sent by Ms Amos the School’s Secretary. She herself had in no way tampered with the letter that was received from the school and sent to the 1st Respondent.
141. Ms Paulse testified as follows under cross-examination: Mr Hendricks is the Circuit Manager of Circuit 8. She is his Personal Assistant but her job title is Administration Officer, not Personal Assistant. Her role is to deal with the administration of the Circuit. She gets her instructions from Mr Hendricks and cannot do something without getting instructed by him. She confirmed her evidence in chief on how the communication regarding the post was to be conducted. The motivation of 14 June 2023 received from Hillside Primary School did not come from Ms Rudolph but was signed by her, although she did not see Ms Rudolph signing the letter. Ms Rudolph did not send anything from the school’s e-mail address. The only motivation letter that was not received from Ms Rudolph was the one that was sent by Ms Amos. She did not request Ms Amos to forward a motivational letter to herself. She did not receive any e-mail from Ms Rudolph after 5 June 2023. As to the letter of 14 June 2023 never having been written by either Ms Saayman or Ms Rudolph, she could not respond to that because she received a motivational letter signed by the two ladies. She did find it strange that the letter came from Ms Amos but did not do anything about it since Ms Amos is part of the SGB. She did not share the letter with her Supervisor Mr Hendricks, but sent it to E-Recruitment when she received it.
142. She did not send any communication to the school and they knew they had to forward a new motivational letter since the motivation prior to that did not have the positions of the two candiates. The e-mail from Recruitment was sent to Mr Whyte by herself since Ms Rudolph did not initially have an e-mail address. She was aware of Ms Rudolph’s e-mail address from the motivational letters that she subsequently received from Ms Rudolph. She did not receive any motivational letters from Mr Whyte and agreed that it is fraud if someone falsifies the signature of someone else.
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143. Ms Paulse testified as follows under re-examination by the 1st Respondent: She confirmed that she received the motivational letter of 14 June 2023 from Ms Amos.
144. Ms Paulse testified as follows under re-examination by the 2nd Respondent: Ms Rudolph sent three motivational letters to her but she did not know why Ms Amos sent the fourth letter of 14 June 2023.
145. Ms Zanele Nkibi testified as follows in her evidence in chief by the 1st Respondent: She occupies the position of Assistant Director for Institution Based Educators in the Directorate Recruitment and Selection. She commenced service with the 1st Respondent in 2014 and has been appointed in the position of Assistant Director since 2016. She was referred to the blank pro forma Interview Meeting Minutes in the documents and explained that this document is one of their pro forma minutes that they make available to School Governing Bodies to use when conducting recruitment and selection processes. At paragraph 4 it referred to Covid-19 Protocols. It was part of the document since these minutes were drafted during the Covid time in 2019 and 2020 and this paragraph was removed between 2023 and 2024. This paragraph would have no effect on the process if it was still in the pro forma minutes. These minutes are made available to the schools via the E-Recruitment system which they have access to. The advertisement and business plan for a post are captured on the system by the school. All other documents and information are made available to SGBs via the E-Recruitment system, with all the documents uploaded on the system once the process is completed. The whole process is automated.
146. The pro forma minutes document is in Word format for the SGB to complete and make additions to or edit based on the school’s needs and does not preclude the Chairperson of the SGB from taking notes in the meetings. Notes must have been taken in each meeting in order for this document to be completed. She was referred to the Hillside Primary School Ratification Meeting minutes of 22 November 2022 and explained when in the process the Ratification Meeting takes place. The SGB must decide at the first planning meeting if the full SGB will conduct the full recruitment and selection process or elect an Interview Committee (IC). If the SGB has decided to elect an IC, the IC will run the process from shortlisting to interviewing stage. After the interviewing stage the IC must report to the full SGB, which is called the Ratification Meeting. At this meeting the IC must report on the full process followed in terms of shortlisting and interviewing and make recommendations to the SGB, who must ratify the recommendations, which is the final decision for nominations to be submitted to the Head of Department. The Ratification Meeting Minutes of 22 November 2022 were read out, of which the detail is not repeated here. In these minutes it was suggested by one of the SGB members that they must ask Mr Hendricks if they can submit a recommendation for the Applicant who was the Acting Principal. The SGB had also changed their preference from the interviews ranking order with Ms September in first position to the Applicant in the first position for nomination. They received the motivation letter of 27 March 2023 with the documentation for the post. In this motivation letter only the Applicant was referred to, which is not the correct way of submitting a motivation letter.
147. The e-mail from Mr Zuko Roro of 19 April 2023 was sent after the motivation letter was received on 27 March 2023. She was referred to the other motivation letters and noted that there was no difference between the motivation letters of 24 May 2023 and 27 March 2023 since they both only spoke about one candidate, being the Applicant. The motivation letter of 14 June 2023 compared with the other two letters provided information about all the candidates’ interviews as required by the process. A motivation must be provided for all the interviewed candidates and reasons must be provided for their inclusion or non-inclusion, with the reasons to be based on the recruitment and selection process. This meant that the reasons must be based on substantive evidence from within the recruitment and selection process and emanate from the interviews itself, and not from outside the process. The reasons that were provided to motivate for the Applicant were outside the recruitment and selection process and the motivation must speak to how the candidates fared in the interview process and the KRAs in the interview process, which was done in the motivation letter of 14 June 2023 for the other two candidates.
148. Ms Nkibi testified as follows in her evidence in chief by the 2nd Respondent: She was referred to the third motivation letter of 5 June 2023 and noted that there is a motivation for each candidate in that letter and gives the ranking according to the interview process and for reaching the benchmark. The reason why they rejected this motivation letter is that the last paragraph in which the SGB believed the Applicant should be appointed was contradictory to the previous paragraph in which Ms September was ranked first based on the interview process. She agreed that the SGB makes the nomination for appointment, but based on the outcome of the interview processes, which is also the reason why this motivation letter was rejected.
149. Ms Nkibi testified as follows under cross-examination: The pro forma minutes cannot be completed without minutes or notes having been taken. It was questioned whether the Minutes of the Interview Meeting of 21 November 2022 could be a true reflection of what had taken place during the process if the SGB did not write any minutes, to which she responded that from the information in front of her the SGB did take minutes, which were submitted for Hillside Primary School and minutes must have been taken by somebody for these to have been submitted. As to the Secretary of the SGB and other witnesses having testified that they were instructed by the Circuit Manager to not take minutes, her understanding of the process was that the IC once elected, must amongst themselves elect a Chairperson and a Secretary and that the expectation is that the Secretary takes notes during the process. The role of the Chairperson will be to guide and preside over the processes and the role of the Secretary would be to take minutes and to organise all other administrative issues with respect to the process. As to the SGB having distanced themselves from these minutes, she responded that the minutes were endorsed by the SGB on 23 November 2022, somebody took these minutes, they were drafted by the SGB and they confirmed it as a true reflection. She agreed that if something is not disussed it cannot be part of the minutes and that they would then not be authentic.
150. She was not present during the recruitment and selection process for the post of Principal at Hillside Primary School. It was put to her that the seven reasons that the SGB motivated the Applicant for the post in the letter of 27 March 2023 was based on what the Applicant had presented in her CV and during the interview and questioned why this would be outside the process, to which she responded that the information in the CVs are scrutinised during the shortlisting process which qualifies candidates to be invited for interviews, and when candidates come to the interviews they compete equally since the CVs had already been taken into account during shortlisting, and that the decision must be based on the tools and instruments used during the interviews. The SGB will also consider the information on the CBA which will be able to develop the successful candidate in the areas highlighted in the CBA, hence to be fair all the candidates will be subjected to the same questions and the CBA for all of them. The decision to recommend or nominate a candidate is not based on the CBA alone since the CBA only highlights the need to develop in a certain area when a candidate is appointed in the position.
151. She explained the process of what should happen before and during the interviews, of which the detail is not repeated here. With respect to the interview questions, the SGB or IC members can prepare the questions and the Circuit Manager as Resource can guide on how to set up questions. The final questions are however agreed on the day that the interviews commence. As to whether Mr Hendricks did the right thing by preparing the questions beforehand outside the process and that they were not designed or prepared by the IC, she responded that part of the role of the Resource person will be to bring questions and the SGB or IC will agree to or record any objections to the questions. The process will not be compromised if the questions are compiled outside the process. Questions are however supposed to be agreed inside the interview process and they must be based on the advertisement and KRAs of the post.
152. She had received the motivation letter of 27 March 2023 which nominated the Applicant for the post and agreed that it is the responsibility of the SGB to nominate the best candidate. She had also received the motivation letter of 24 May 2023 which nominated the Applicant for the post and confirmed again that it is the responsibility of the SGB to nominate the best candidate for the school. The nomination letters do not come directly to herself, but through Mr Roro the Human Resources Practitioner who works with her and collates all the information to prepare the file. She had also received the nomination letter of 5 June 2023. The SGB had to submit another motivation on 5 June 2023 since they did not accept the other two motivation letters submitted by the SGB as these only spoke to the one candidate of the three interviewed candidates and the motivation must include all the interviewed candidates, whether included in the nomination or not. The third motivation of 5 June 2023 was still not correct since it was contradictory in that the SGB recommended the Applicant whilst she was third in the ranking. As the SGB they should have indicated that they wanted the Applicant as she had more insight and knowledge as tested in the interview.
153. In the Ratification Meeting Minutes of 22 November 2022, which she had received, the SGB recommended the Applicant as their preferred candidate. Mr Roro in his e-mail of 19 April 2023 had referred to the Circuit Manager Report, which she had received and in which Mr Roro had indicated that the report needed to be rectified because it only spoke to Ms September and nothing was said about the other two candidates. She could not recall if there was anything in the Circuit Manager Report about the SGB decision. The Ratification Meeting Minutes of 22 November 2022 were not complete as no substantive reason was provided for the Applicant to be appointed in the post when she did not achieve the highest interview score. It was put to her that the SGB never received any advice as to how they must write the motivation for nomination and that they had to chop and change every time with nobody guiding them on how to write the motivation, to which she responded that if they had to chop and change it meant guidance was provided by the Circuit Manager’s office since they communicate via the Circuit Manager and the Administration Officer. She could not comment on the Circuit Manager’s evidence that he never saw the documents which were uploaded on the system by the Administration Officer and that the Circuit Manager did not rectify anything. The Administration Officer gathers the information and the Circuit Manager must ensure all is done correctly. The SGB did not do anything wrong in the Ratification Meeting by taking a decision about the best preferred candidate. She received all four the motivation letters for the post. She could not answer as to who sent the motivation letter of 14 June 2023 since she is not the first person who receives the documentation as it is uploaded on the E-Recruitment system, but will receive documents via e-mail when they ask the SGB for more information.
154. She was referred to and read out the affidavits of Ms Saayman and Ms Rudolph regarding the motivation letter of 14 June 2023 which they had also testified to that they had not written nor signed. She was puzzled as the motivation letter dated 14 June 2023 was on the school’s letterhead and was signed by the Secretary and the Chairperson of the SGB on 14 June 2023. It is the SGB who are responsible for the filling of posts and sending recommendations and it would be the Chairperson, the Secretary or any other person designated by the SGB who could communicate regarding a post. She did not know that the Secretary Ms Rudolph was designated to do the communications because of confidentiality regarding using the school’s e-mail address. She noted that the e-mail of 14 June 2023 was sent by Ms Amos who was also part of the SGB and present at the Ratification Meeting, and that it was not a confidentiality breach for Ms Amos to send the e-mail since she was still part of the SGB. She wanted to know which e-mail address the SGB used since she noted Ms Rudolph’s e-mail address is a personal e-mail address at the University of the Western Cape. The allegedly fraudulent letter of 14 June 2023 was received by her Department and the original documentation will be with the school as the school does not have access to the profile for a Principal post, with this access only given to Circuit Managers. She could not respond to the statement that there was no original document. The DPE2 Recommendation for Appointment document is completed by the SGB after the ratification meeting. The correspondence in the documents reflected that the communication was consistently between Ms Paulse and Mr Rudolph. She confirmed again that the SGB makes the recommendation about the nominations.
155. No re-examination of this witness was required by the 1st Respondent.
156. Ms Nkibi testified as follows under re-examination by the 2nd Respondent: She was referred to the last paragraph of the Ratification Meeting Minutes of 22 November 2022 in which it was stated that Ms Amos informed the SGB that Ms Paulse will send the layout of the minutes. This implied that the pro forma minute was provided to the SGB to complete the minute and was resubmitted to Ms Paulse. The process would not be compromised if a motivational letter is sent from another e-mail address as the decision was not made under undue influence. The motivation letter of 14 June 2023 was accepted by the 1st Respondent because it included the interviewed candidates and the SGB was clear in their recommendation. The recommendation was also in line with the process whereas the previous letters from the SGB were contradictory since they preferred the third scorer and they wanted the SGB to be clear why they recommended in a specific order.
157. Ms Glenda September testified as follows in her evidence in chief as the 2nd Respondent: She qualified with a 3-year Diploma in Education at Bellville College in 1989, was previously employed on contracts and was permanently appointed as a Post Level 1 Educator in 2006. At J S Klopper Primary School she was Acting Head of Department and then appointed at Nooitgedacht Primary School as Deputy Principal from 2009, which position she held for 15 years. Her inception date at Hillside Primary School as Principal was on 1 October 2023. She had improved her qualifications in the meantime, obtaining an Advanced Certificate in Education at the University of the Western Cape in Science and Technology, and an Advanced Certificate in Education in Leadership and Management at the University of Cape Town in 2012. She also holds a Diploma as a Neurolinguistics Practitioner, qualified as a Pastor, holds a Masters in Philosophy and a Doctorate in Philosophy with respect to Religious Studies, as well as other skills and qualificiations, including having completed the Aspiring Principals course at the Cape Teaching and Leadership Institute when she was appointed as Principal which covers the whole job description. To be appointed as a Post Level 1 Educator the minimum requirement is a Relative Education Qualification Value (REQV) of Matric plus a three-year recognised qualification or REQV13. The minimum qualification and experience for a Principal post is a a teaching qualification and either a degree or diploma or post graduate certificate at University plus seven years’ experience. She met the minimum requirements and years of experience for a Principal post.
158. With respect to the evidence of the SGB members that it appeared that she knew the questions and the answers during the interviewing process, during her 15 years as a Deputy Principal she applied for each of the Principal posts on the vacancy lists and was invited for more than eight interviews. She would remember the questions what were asked, made a list of the interview questions, not just from the interviews but also from the internet, and also spoke to other Principals about the questions to be expected, and ensured that she had read all the policies and knew the nine focus areas on how schools should function. Mr Hendricks did not give her the interview questions and answers. In her opinion she was able to answer the questions that well because of good preparation and for approaching the questions like a test or an exam. With respect to the testimony of the Applicant that ever since she, Ms September, took over the Principal post at the school, that it has become an underperforming school, the underperformance had already started in 2023. She agreed that the school was deemed an underperforming school in 2023. The results for 2023 would be based on the School Based Assessment (SBA) for all four terms in 2023, in March, June, September and November. They received the letter that the school was underperforming in 2023 the following year in January or February 2024 based on the final progression results that were uploaded by 5 December 2023. She was only at the school for the one term in 2023. As to who could be held responsible for the school underperforming in 2023, since she only joined in October in the last term, she would say it was the Acting Principal who should take the flack, as the buck stops with the Principal. If the school was underperforming in 2023 it most probably would have been like that for some time.
159. Ms September testified as follows in her evidence in chief by the 1st Respondent: She was always very disappointed when she was unsuccessful with the many Principal posts she had applied for. She was referred to the Applicant’s testimony that she felt destroyed when she was unsuccessful for the post and that she had deserved the position because she had changed the place for the better, to which she commented that when you go for an interview in her opinion you have to take cognisance that there are other qualified people applying for the same position, keeping in mind that the position is not yours and that is must be advertised and that you must answer the questions to the best of your ability. The first day that she arrived at the school there was nobody at the school, with the teachers, children and parents with plackards standing outside the gate. The security officer had to cut the chains placed on the gate and Ms Wendy Horn had to come to the school to let her in. There was a picture already painted of her before she came to the school and when one of the parents saw her she said she did not know it was her, Ms September, and said she is going home now. She also came upon a typed letter in the system from the community, hence there was already a negative picture painted of her in the community and among the staff. When she started in the post a number of Educators were on sick leave and there were a lot of absences from the staff who testified at the arbitration and surrounded the Applicant, amongst these the Applicant who has been off sick for almost a year with operations. At one stage six Educators were absent, which included those who testified at the arbitration, with it difficult to function with six Educators being off.
160. Ms September testified as follows under cross-examination: As to why it took so long from 1989 for her to become permanent in 2006, she had started in 1990 at Elsies River Primary School and then worked for South African Airways between 1990 to 1995 as a Customer Service Agent for five years. She did not mention this in her evidence in chief as she was not asked that question. When she reported at the school on 10 October 2023 on the first day of term 4 to be introduced to the staff, the first person she spoke to was Ms Amos, who directed her to the Applicant. This was not on 1 October 2023 when the gates to the school were locked. When she received the appointment letter from Mr Hendricks at her previous school, she told him she would think about it and wrote a letter the next day to accept the post. Mr Hendricks told her there would be a meeting for her to be introduced to the staff, which was either the day the school closed or the day before. Upon her arrival Ms Amos directed her to the Applicant, who was not very friendly and told her to sit anywhere, whereafter she went to the staff room, when Mr Hendricks entered with all the staff and he introduced her to them. The Applicant did not attend that meeting. As to why this information that the Applicant was not friendly when she, Ms September, arrived and did not attend the introduction meeting, as well as the issue of the protest was not put to the Applicant when she testified, she responded that she could not answer that question, which was for the 1st and 2nd Respondents’ Representatives to respond to. (After a subsequent debate between the Representatives, the Panelist ruled that the Applicant could be recalled to testify to any new evidence that emerged during Ms September’s evidence.)
161. She had met with the Applicant as the Acting Principal after she was appointed as Principal to discuss the issues of the school. She had said to the Applicant that as Principal and Deputy Principal they had to walk together to take the school forward, and the Applicant said to her she did not fool her, the Applicant. As to why this was not put to the Applicant when she testified, she responded that this was the first time the had the opportunity to testify and could not answer that question. She was referred to the Applicant’s evidence that when she, Ms September, arrived at the school the Applicant came to her and wanted to discuss the performance of the school with her, when she, Ms September, had responded that it does not matter and that her Representative had not challenged that, she explained that she had discussed the performance of the school with the Applicant, but the point is that the fourth term is too late for an intervention. As to whether there is a time frame for interventions, in their type of school there is a base line and intervention is assistance to learners who are not academically strong and should be done latest after the first report in March, or before that starting already from January. The intervention must start in the first term and that is what the teacher should do until the final exam. When she applied for the Principal post at J S Klopper Primary School and was unsuccessful the first time, she did the same thing as the Applicant and lodged a dispute because she felt she was treated unfairly since she felt she did well in the interview.
162. The school was still underperforming. Three Educators have resigned at the school, one of which was Ms Rudolph who said she wanted to study. The group of Educators surrounding the Applicant are absent a lot, with Mr Whyte being one who is either depressed or on sick leave. She was not part of the process at Hillside Primary School and could not comment on whether it was correct that the interview questions can be set outside the IC. As to the main decision that the SGB had to make was who is the best candidate for the post and that according to the SGB it was the Applicant and not herself, she responded that the SGB at the end of any process recommends but the 1st Respondent appoints, with the SGB not making any appointment. She herself was not emotional about not being seen as the best canidate.
163. No re-examination of this witness was required by both the 2nd and 1st Respondents.

CLOSING ARGUMENT

164. Written closing arguments were presented by the parties as agreed to at the conclusion of the arbitration. These closing arguments are not repeated here, but have been summarised under Analysis of Evidence and Argument and taken into account in arriving at the award.

ANALYSIS OF EVIDENCE AND ARGUMENT

165. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the 1st Respondent, the Western Cape Education Department, had committed an unfair labour practice relating to promotion by appointing Ms Glenda September, the 2nd Respondent, into the advertised position of Principal at Hillside Primary School under Post Number 1174 of Vacancy List 3 of 2022 and not the Applicant, Ms Sandra Sauer-Jacobs. Ms September was joined in the arbitration as the 2nd Respondent due to her having a substantial interest in the subject matter of the proceedings.
166. The relevant provisions in terms of section 186 (2)(a) of the LRA are the following:

(2) ‘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 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;

167. It was common cause that the Applicant currently occupies the post of Deputy Principal at Hillside Primary School and had acted as Principal since 1 January 2021 at the same school after the previous Principal passed away. Further, that this was the third time that the post of Principal at Hillside Primary School had been advertised and that the Applicant was the nominated candidate by the School Governing Body (SGB) at the conclusion of the second process, which was invalidated due to a scoring error. During the third (and final) recruitment and selection process four candidates qualified for interviewing after shortlisting, ranked as follows in the order of scoring: The Applicant, Ms Sauer-Jacobs 81.2%, Ms Glenda September 68%, Mr Walter Langley 67.5% and Mr Enrico Saayman 65%, who withdrew as a candidate and did not participate in the interviewing phase. The three candidates’ scores on the interviews were as follows, ranked in order of the scoring: Ms September 69.02%, Mr Langley 60.78% and the Applicant, Ms Sauer-Jacobs, 60.59%.
168. It also became common cause during the proceedings that three motivations were submitted by the SGB for the Applicant to be appointed in the Principal post dated 27 March 2023, 24 May 2023 and 5 June 2023 due to amendments being requested by Recruitment and Selection Department to the motivations. A fourth motivation dated 14 June 2023 was disputed by the Applicant party due to the SGB Chairperson and Secretary denying that they had either written or signed that motivation on behalf of the SGB. The 1st Respondent’s Head of Department selected Ms September, an external candidate employed as Deputy Principal at Nooitgedacht Primary School, to be appointed in the post of Principal at Hillside Primary School, which appointment commenced on 1 October 2023.
169. The facts that were identified as being in dispute at the commencement of the arbitration that require to be addressed are repeated for ease of reference:

• Who was responsible for the shortlisting scores not tallying for the second round of recruitment for the post.

• Whether the Motivation of Nomination document dated 14 June 2023 provided by the 1st Respondent that nominated Ms September, Mr Langley and Ms Sauer-Jacobs for the post and ranked Ms September in position 1, Mr Langley in position 2 and Ms Sauer-Jacobs in position 3, was disputed by the SGB members and was fraudulently signed on behalf of Ms Saayman the SGB Chairperson and Ms Rudolf the SGB Secretary, the origin of which document the Applicant party stated they were not aware of.

• Whether the Secretary of the SGB was instructed by Mr Hendricks, the Circuit Manager and Resource person in the recruitment and selection process, not to take the minutes when she started doing so and stated that he would take the minutes himself.

• Whether Mr Hendricks instructed the SGB to change their decision on the DPE2 Recommendation for Appointment form on page 43 of the Applicant’s bundle to that recorded on the DPE 2 form on pages 54 and 55 of the Applicant’s bundle.

• Whether the Applicant was scored unfairly by some SGB members during the interview process.

• Whether the nomination process for the post was unfair, flawed and unconstitutional.

• Whether the Applicant was the best candidate for the post.

• Whether the 1st Respondent had committed an unfair labour practice by not appointing the Applicant in the post of Principal at Hillside Primary School.

170. The parties’ closing arguments have been taken into account in arriving at this award, with only the relevant and concluding remarks summarised below for the sake of brevity:
171. The Applicant party had concluded as follows in their closing arguments and reply: The Applicant had demonstrated in the arbitration against the successful candidate that she met all the inherent requirements of the position, was the best candidate for the position, by not being promoted caused unfair prejudice to her, and that there is a causal connection between the unfairness complained of and the prejudice suffered by her. The Applicant had furthermore proven to be an exceptionally loyal, hardworking and ethically driven leader within the Education fraternity and had served the 1st Respondent with excellent performance outcomes. The Employer had however overlooked the decision taken by the legitimate structure of the SGB, which was represented in the arbitration by the credible Chairperson and Secretary. This was based on the fabrication of minutes and fraudulent conduct by the person who was supposed to guide and protect the integrity of the process, being Mr Hendricks the Circuit Manager. The Applicant was recommended as the best suitable candidate during the SGB’s Ratification Meeting, as well as in the Motivations of Nomination. Ms September was fraudulently placed as the best candidate by Mr Hendricks and Ms Paulse, the Administration Officer, who ensured that the Applicant was prejudiced. Mr Hendricks could not account for the disputed Motivation of Nomination dated 14 June 2023 and instead said only Ms Paulse could answer on that, whereas he was the person who was to ensure that the whole process was credible. In their view Mr Hendricks had an undue influence on the process by fabricating and manipulating the minutes and allowing the fraudulent Motivation of Nomination dated 14 June 2023 to be submitted to the Recruitment and Selection Department so that Ms September could be appointed, instead of the Applicant who was recommended by the SGB of Hillside Primary School.
172. The 1st Respondent concluded as follows in their closing arguments with respect to their analysis of the evidence presented: The Applicant’s witnesses Mr Whyte and Ms Amos had repeatedly stated in their testimony that they could not recall key facts of what had transpired in the meeting at the District Office before the candidates were interviewed, yet had no trouble to remember details that supported their position, which was not regarded as forgetfulness, but convenience. The witnesses Ms Saayman and Ms Rudolph as Chairperson and Secretary of the SGB had stated that they trusted Mr Hendricks, but trust does not absolve responsibility, for instead of exercising their responsibility they had relinguished it. When challenged they now claimed that their trust was betrayed, which was not an acceptable excuse. The 1st Respondent’s witnesses, Mr Hendricks and Ms Paulse, unlike the SGB member witnesses, provided clear, transparent and consistent testimony. Mr Hendricks did not attempt to shift blame or avoid accountability. He had explained the KRAs and allowed the SGB to scrutinise, add or change the interview questions he drafted. His testimony was corroborated by Ms Paulse and Ms Nkibi the Assistant Director: Recruitment and Selection. Mr Hendricks’ consistency was also in stark contrast to the selective memory and objections raised by the SGB member witnesses, with his account providing a reliable foundation from which the decisionmaking process can be evaluated. The Applicant alleged that the signatures of Ms Saayman and Ms Rudolph were forged on the Motivation of Nomination of 14 June 2023, but could not prove it, with no expert witness called or forensic analysis presented and the sworn affidavits not being sufficient proof that the signatures were forged, since anyone could write an affidavit. They concluded that the 1st Respondent’s nomination process was fair, reasonable and lawful and that the Applicant’s application should be dismissed.
173. The 2st Respondent’s version and argument is summarised as follows: They posed the following questions in argument – whether the Applicant was unfairly treated; whether she was prejudiced in any way; whether the CBA (Competency Based Assessment) was compulsory; and whether the drafting of interview questions by the Circuit Manager was unfair or irregular. Their response to these questions was in the negative, with reasons provided. The Applicant’s witnesses testified to what they knew about the Applicant because she had acted in the Principal position for two years, which is why they had preferred her for appointment in the post. The Applicant applied, was shortlisted and nominated by the SGB, but the problem was that she was ranked third. The SGB Chairperson had admitted under cross-examination that the Applicant was scored in relation to how she answered the interview questions. It was pointed out to all the Applicant party’s witnesses that in terms of their own scoring the Applicant did not score at all well. The allegation that Ms September answered verbatim because she must have received the questions from Mr Hendricks were regarded as absurd, which was not proven by the Applicant, with Ms September testifying how she prepared herself for the interviews.
174. The purpose of any interview for employment is to ascertain who is the best applicant for the post, with the SGB Panel rejecting that once the totals for the interviewees were tallied. Although the Applicant’s witness had alleged that she never drafted the minutes in the new format, the content of the minutes for the interviewing process were not disputed. Mr Hendricks was clear that only the format, but not the content, was prescribed in the pro forma minutes provided to the SGB. Three (actually four) ratification letters were sent from the SGB to the 1st Respondent, of which they claimed that the last letter was fraudulent. Ms Nkibi of Recruitment and Selection had testified that the motivation of a candidate must be based on the interview process and not from outside the process, with the reason that the first two motivational letters were sent back because they were not in line with the interview outcomes. The Competency Based Assessment (CBA) was not part of the recruitment and selection process, but for development purposes only. The Applicant was not treated unfairly or prejudiced in any way since she had the opportunity to compete for the vacancy, she was shortlisted, interviewed, but was nominated third. The questions that were drafted by Mr Hendricks were also in consultation with the Chairperson of the SGB. They concluded that no unfair labour practice had occurred in the filling of Post Number 1174 of Vacancy List 3 of 2022 and requested that the appointment of Ms September should stand.
175. With respect to the parties’ aforementioned averments and the case at hand, I will refer in the findings that follow to the relevant extracts from Collective Agreement Number 3 of 2016 ELRC Guidelines: Promotion Arbitrations dated 23 August 2016 (the Collective Agreement) which guides on how unfair labour practice dispute arbitrations relating to promotion in the Education Sector are to be approached.

FINDING

176. I have considered all the evidence and argument presented, but because section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute, with such findings made on the balance of probabilities and in accordance with the aforementioned guidelines prescribed in the Collective Agreement and the other relevant prescripts. The following is accordingly found, on the balance of probabilities and in the circumstances of this case:
177. To establish unfairness in an unfair labour practice dispute both procedural and substantive unfairness needs to be determined. The Collective Agreement guides as follows in this respect:
178. The conduct of the employer may be substantively and/or procedurally unfair. Substantive unfairness relates to the reason for not promoting the employee whereas procedural unfairness relates to an unfair process applied by an employer during the course of the recruitment and selection process. As soon as the promotion has been made by the employer, the employer becomes responsible for any unfair conduct of the school governing body committed during the process leading up to the promotion.
179. In arriving at a finding, the following allegations of unfairness as raised by the Applicant party require to be considered: Procedurally that Mr Hendricks the Circuit Manager was unprocedural in that he drew up the interview questions outside the process; had instructed the SGB Secretary not to take minutes; fabricated the SGB minutes; that he and Ms Paulse the Circuit Administration Officer had undermined the process to favour the 2nd Respondent, Ms September; that Ms September must have had access to the questions prior to the interviews due to her having answered the questions virtually verbatim in her interview; that the SGB had to continually change their Motivations of Nomination and DPE2 Recommendation for Appointment documents due to lack of proper guidance from Mr Hendricks or the 1st Respondent on how to present the motivations; that Mr Hendricks had not advised that the Interview Committee (IC) must reach consensus on the same day of the interviews before the SGB Ratification Meeting; that the final Motivation of Nomination letter of 14 June 2023 which was regarded as a forgery was the only motivation submitted to the Head of Department (HOD) and that the HOD was misled by this motivation in making the appointment for the Principal post; and that the SGB had the right to motivate and nominate their preferred candidate, being the Applicant, which nomination was ignored by the 1st Respondent. Substantively that the Applicant was the best of all the candidates for appointment and should have been appointed by the HOD in the post of Principal at Hillside Primary School.
180. The following submissions of the 1st and 2nd Respondent also require to be considered in arriving in a fair and just finding: That the Applicant scored the lowest of the three candidates who were interviewed and did not perform well in the interviewing phase; that the SGB had to motivate why they recommended the Applicant for nomination to be appointed in the post of Principal when she had scored the lowest in the interviews and that three of the motivations that they submitted were non-compliant; that they recommended and favoured the Applicant due to them having prior knowledge and experience of her outside the recruitment and selection process and that it would be unfair to other candidates if an acting candidate is preferred; and that the Computer Based Assessment (CBA) was not a tool used during the recruitment and selection process, but was a development tool.
181. Evidence was also presented in the arbitration surrounding the underperformance of Hillside Primary School in 2023 and to whom it should be attributed to, being the Applicant when she was still serving in the position of Acting Principal, or Ms September when she took up the appointment from 1 October 2023. Reference was also made by Ms September in her evidence about the community, staff and learners protesting against her appointment, which evidence could not be tested, although the opportunity was given for witnesses to be recalled should this be pursued. The Applicant and Mr Whyte had also referred in their evidence to Ms September’s leadership/management style after her appointment as to why she was not the most suitable candidate for the post, which was objected to by the Respondents as irrelevant to the appointment dispute. Considerable other and repetitive evidence was also presented over this very lengthy arbitration, whereby I have decided to only focus on that evidence which is relevant to the promotion dispute and whether there was any unfairness committed in both the process and the decision making by the 1st Respondent.
182. To first turn to procedural unfairness. After scrutinising the relevant legislation and Resolution 5 of 1998 the following is noted with respect to procedural fairness as it pertains to the the recruitment and selection process followed for the filling of the advertised post of Principal at Hillside Primary School.
183. Resolution 5 of 1998 Transfer of Servicing Educators in Terms of Operational Requirements and The Advertising and Filling of Educator Posts has as its purpose to provide measures in terms of the LRA to accommodated the obligations of the employer against the role of the governing bodies in making recommendations in the appointment of educators. Schedule 1 The Advertising and Filling of Educator Posts (the Schedule) outlines the procedures to be followed by the employer and the governing bodies in making these recommendations in the appointment of educators. Of relevance is the following with respect to the Schedule, with my observations and findings added with respect to the process in this matter:
184. It is stated at 3.1 that Interview Committees shall be established at educational institutions where there are advertised vacancies and at 3.2 how the Interview Committee (IC) is comprised. At 3.2.1 in the case of public schools it is stated as follows at d):
     d) one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
     It was noted from the documents that a Union Representative was present at the Shortlisting Meeting on 7 November 2022 and the Interview Meeting of 21 November 2022, but not at the Ratification Meeting on 22 November 2022, which means that there was not a Union observer at the phase of drawing up a preference list and that this requirement was not complied with. It is conceivable that the issues that subsequently emerged could have been prevented with a Union’s additional oversight.
185. It is stated further in the Schedule that interviews shall be conducted according to agreed upon guidelines, which are to be jointly agreed upon by the parties to the provincial chamber, that all interviewees must receive similar treatment during the interviews, that at the conclusion of the interviews the interviewing committee shall rank the candidates in the order of preference, together with a brief motivation, and submit this to the school governing body for their recommendation to the relevant employing department. Further, that the governing body must submit their recommendation to the provincial education department in their order of preference. With respect to the appointment, the employing department must make the final decision subject to satisfying itself that the agreed upon procedures were followed and that the decision is in compliance with the Employment of Educators Act of 1998 (the EEA), the South African Schools Act , 1996 (the SASA) and the Labour Relations Act, 1995 (the LRA). Finally, that the employer will inform all unsuccessful candidates, in writing, within eight weeks of an appointment being made.
186. The Personnel Administrative Measures (PAM) containing the terms and conditions of employment of Educators determined in terms of Section 4 of the Employment of Educators Act 1998 (PAM) under Chapter B at 3 Advertising and Filling of Educator Posts mirrors the contents of Schedule 1 of Resolution No 5 of 1998.
187. It is noted from the foregoing sources that there are no prescriptions on for example how, by whom and when interview questions are to be compiled, how minutes of SGB meetings are to be compiled and how the recommendation for appointment by the SGB is to be drafted, other than as stated in the Schedule that all interviewees must receive similar treatment during the interviews, that at the conclusion of the interviews the interview committee shall rank the candidates in the order of preference, together with a brief motivation, and submit this to the school governing body for their recommendation to the provincial education department in their order of preference. It notably does not state how the ranking of the interviewees (candidates) in the order of preference must take place at the conclusion of the interviews by the Interview Committee (IC) or that the SGB in their recommendation must adhere strictly to the interview scores and ranking, or that other considerations can also apply by the SGB in making their recommendation. In this instance the recommendation of the SGB to the Provincial Education Department of 14 June 2023, was disputed as being a fraudulent document that did not emanate from the SGB’s deliberations, on which a separate finding will be made.
188. Chapter 3 Appointments, Promotions and Transfers of the EEA in summary state that any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school; that the governing body must adhere to inter alia procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body; that the governing body must submit in order of preference to the Head of Department a list of at least three names of recommended candidates; that despite the order of preference the Head of Department may appoint any suitable candidate on the list. It is also noted that no reference is made in the EEA that the order of preference in the SGB’s recommendation must be based on how the candidates had scored in the interviews or any other considerations. The allegation was made, and supported by the evidence of the Applicant’s four SGB witnesses, that the SGB’s recommendation to the HOD was obtained through undue influence in that they were repeatedly instructed to change their recommendations and Motivations of Nomination by the 1st Respondent, through the Circuit Manager, to that of the successful candidate as opposed to their preferred candidate, on the basis or pretext that their motivation format and presentation was non-compliant. It was further alleged that the recommendation was obtained fraudulently and was not compiled or submitted by the SGB.
189. The SASA under section 20 Functions of all Governing Bodies states that the governing body of a public school must inter alia –
     (i) Recommend to the Head of Department the appointment of educators at the school, subject to the Educators Employment Act, (Proclamation No 138 of 1994) and the Labour Relations Act, 1995 (Act No 66 of 1995);
     No procedural or other directives on how the recommendations are to be arrived at are provided in the SASA.
190. There may be other supplementary documentation relating to the procedures to be followed in appointment of Educators other than these official prescripts, but these were not presented at the arbitration.
191. In terms of the foregoing guidelines on the procedure to be followed in the appointment of Educators a determination needs to be made whether there was substantial compliance with these procedural guidelines in order to render the entire process unfair, with reference to the following guidelines in the Collective Agreement:
192. Our courts have held that strict complicance with the guidelines for appointments provided for in PAM and ELRC Collective agreements is not necessary. Substantial compliance is sufficient. The courts have further held that one does not go digging to find points to stymie the process of appointing suitable candidates to teaching positions.
193. When deciding on whether a procedure conducted in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure results in unfairness, the arbitrator should not make a finding of procedural unfairness.
194. After examining the actual procedure followed, I do find that there was procedural unfairness, for the following main reasons: Firstly, that the Applicant partys’ evidence and version is supported that undue influence was indeed placed on the SGB in that it was not disputed that they were repeatedly instructed by the 1st Respondent’s Recruitment and Selection Department through the Circuit Manager and the Circuit’s Administration Officer to change their DPE2 Recommendations for Appointments and Motivations of Nomination resulting in three such submissions having to be made, which demonstrates a lack of proper guidance or instruction on how to present these submissions. It was also curious that the Circuit Manager had testified that he had not seen or checked the documents that were submitted by the Administration Officer to the Recruitment and Selection Department, when he was responsible as the Resource person to guide the SGB in the process. This supports the impression that the process may have been manipulated in order to favour the 2nd Respondent.
195. Secondly, Ms Nkibi of Recruitment and Selection had testified that the motivation letter of 14 June 2023 was accepted by the 1st Respondent because it included the interviewed candidates and that the SGB was clear in their recommendation. This was regarded as the compliant submission, and would have been the version on which the HOD had based the decision to appoint Ms September. Both Ms Saayman the SGB Chairperson and Ms Rudolph the SGB Secretary had emphatically denied that this document came from the SGB and that they had signed it, as testified to and supported by their sworn affidavits. They had pointed out the differences in this document to the previous Motivations of Nomination such as the font, that the typing was in bold, the layout, that numbering was omitted and that the final paragraph that ended off all the previous three motivations as to why they believed the Applicant should be appointed, not appearing in the document of 14 June 2023. The other SGB members who testified in the arbitration also denied knowledge of this letter and that it came from and was discussed by the SGB. Ms Amos, whose name appeared on the covering e-mail of 14 June 2023 to this document, denied that she had sent the e-mail and attachment under her name from the school’s e-mail address, which the SGB had been instructed not to use due to confidentiality reasons since the Applicant as Acting Principal also had access to this e-mail address. Ms Amos had testified that other staff members also had access to the two computers and the school’s e-mail address in the school’s Administration building, and not only herself. It could only be speculated that a person who had access to this e-mail address was engaged in some kind of mischief to prevent the Applicant from being recommended for the post since the final paragraph in the SGB’s motivations dated 27 March 2023, 24 March 2023 and 5 June 2023 which states as follows was, pertinently excluded from the disputed motivation of 14 June 2023:
     We as the SGB believes that this will be a great asset to the school community should Ms Sauer-Jacobs be appointed in the position as Principal of Hillside Primary School.
196. Mr Hendricks testified that he had nothing to do with the motivational letter of 14 June 2023 and that he had never tampered with any of the motivational letters or other documents. Ms Paulse the Circuit Administration Officer admitted to receiving this motivational letter signed by the two ladies, which came from Ms Amos the School Secretary, and did find it strange that it came from Ms Amos since all previous communications relating to the post had been received from Ms Rudolph the SGB Secretary, with the last correspondence and letter received from Ms Rudolph being on 5 June 2023. She confirmed too in her evidence that the school’s e-mail address was not to be used due to confidentiality since the Applicant also had access to that e-mail. Although she found it strange that the letter came from Ms Amos, she did not do anything about it since Ms Amos is part of the SGB, nor did she share the letter with her Supervisor Mr Hendricks, but sent it to E-Recruitment when she received it. It is curious that Ms Paulse did not query why this letter came from the school’s e-mail address and had not perused the contents before forwarding it to E-Recruitment, when she could have been alerted that there was an irregularity with this letter. Such diligence could have helped obviate the consequences that are now being dealt with.
197. The mystery surrounding the document, of which the original could not be located, therefore remains unresolved. If the HOD had in good faith made the appointment decision based on this document, then the decision would have been made on a misrepresented and fraudulent recommendation which did not come from, or was endorsed by the SGB of Hillside Primary School. Although forensic experts were not called at the arbitration to confirm that this was indeed a fraudulent document or that content and signatures had been cut and pasted, on a cursory perusal it is noted that the font and presentation of the letter differed from the other Motivation of Nomination letters that it was admitted had been submitted to the 1st Respondent, as well as that it importantly did not include the SGB’s recommendation for appointment amongst the eligible candidates as contained in the three previous rejected motivations.
198. The Collective Agreement guides as follows in this regard at paragraph 35:
199. A recommendation by a school governing body is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such a recommendation the promotion is ultra vires and unlawful.
200. In the circumstances I have to find that unfairness had been committed with respect to the recommendation made to the Head of Department since the evidence supports that it did not emanate from the SGB.
201. With respect to the other allegations of procedural unfairness that the Applicant party contended had compromised the process, it is firstly found that the setting of the interview questions by the Circuit Manager as testified to did not take place in an unfair manner and did not prejudice the Applicant, for the following reasons: It was documented and admitted by the SGB members who testified in the arbitration that they mandated Mr Hendricks as the Circuit Manager to compile the interview questions since the KRA’s were included and were new to them. Ms Rudolph as the SGB Secretary had conceded in her evidence that Mr Hendricks in his role as the Resource person and observer had informed the SGB that he will be more directly involved in this process because of the problems experienced with the previous two recruitment and selection processes for the same post, hence this could not be construed that he had intentionally and deliberately taken over the process in order to prevent the Applicant from being appointed in the post.
202. Mr Hendricks testified that he had compiled the questions prior to the interviews and that he had given the Interview Committee (IC) the opportunity to add, change and confirm these questions on the day prior to the interviews commencing. The four SGB members who testified for the Applicant party were also part of the six members of the IC. Ms Saayman’s evidence as the SGB Chairperson was that the IC were given the opportunity to add to or change the questions before the interviews commenced after they were presented to them by Mr Hendricks and that they agreed to the questions. The SGB had only realised afterwards that this was unfair because the IC was supposed to draw up the questions themselves, on the day of the interviews and not beforehand. She also agreed that the reason why Mr Hendricks came prepared with the business plan and did not draw up another business plan was because it was the same as the previous one, which was acceptable to the SGB. Ms Rudolph, the SGB Secretary, had agreed that they were given the opportunity to add questions to the ones that Mr Hendricks had drawn up, but did not add questions and because of time they only read through and corrected spelling and addition errors. Mr Whyte could not recall that Mr Mr Hendricks had asked permission from the SGB to draw up the questions, but that they had agreed to the questions when Mr Hendricks presented them to the IC. He did recall that Mr Hendricks gave them the opportunity to check whether the questions were relevant and to check for corrections or spelling errors, but they did not pick up any errors, were not unhappy with and agreed with the questions that were there. Ms Amos however presented a different version since she could not recall if Mr Hendricks had asked the SGB permission to draw up the questions prior to the interview day of 21 November 2022. She recalled that Mr Hendricks did ask them after they received the already drafted and printed questions if they were comfortable with the questions, but could not recall if they discussed the questions, as it was a long time ago. In the circumstances I did not find it unprocedural for Mr Hendricks to have drawn up the interview questions in the manner that he did on behalf of the IC and SGB. As already pointed out, the guidelines and prescripts do not dictate when, by whom, where and how the interview questions are to be compiled, with the understanding that the questions and model answers are to remain confidential and have the full agreement of the relevant IC of the SGB on the day of the interviews and that the questions and guideline answers are not shared beforehand with the candidates.
203. Further, with respect to the interview questions, the Applicant’s witnesses who were also members of the IC for the post, had speculated that Ms September had seen the questions and answers in advance due to her seemingly answering the questions verbatim during the interview, which information she must have obtained from Mr Hendricks. No proof was provided to substantiate this suspicion, which was denied by both Mr Hendricks and Ms September, and is regarded as improbable. Ms September’s evidence that she had done her research and prepared herself well for the interviews is found to be the more probable version. It is noted that the Applicant’s witnesses who were part of the IC had commendably not allowed their past experience of working with the Applicant to influence their scorings and had scored the three candidates correctly and fairly based on their performance during the interviews. They were however understandably disappointed when their preferred candidate did not perform well during the interviews, with the Applicant herself not disputing the interview scoring process and regarding it is fair. A breach of confidentiality was not established and no unfairness is therefore found with respect to these concerns expressed by the Applicant party surrounding the interview questions.
204. With respect to the Minutes, all the Applicant’s witnesses testified that the SGB was instructed by Mr Hendricks not to take minutes, but that a pro forma minute template would be provided to them, that the completed (populated) minutes that were subsequently provided to them contained inaccuracies, that they had not been part of compiling these minutes and that they believed that Mr Hendricks had compiled and fabricated these minutes. With respect to certain inaccuracies contained in the minutes such as the outdated COVID-19 protocols, it was pointed out that it should have been Mr Hendricks’ (or the 1st Respondent’s) duty to peruse the template to make it relevant to the situation before sending it to the school. Mr Hendricks, Ms Paulse and Ms Nkibi who testified for the 1st Respondent had explained the newly introduced pro forma minutes that were provided to school governing bodies to promote consistent and comprehensive minutes, which had to populated by the SGB and that the populated minutes that were submitted by the SGB came as a pdf file that could not be edited or manipulated. It may well be that the SGB had possibly misinterpreted Mr Hendricks’ instruction that minutes need not be taken as notes must have been taken by somebody to populate the minutes, which both Mr Hendricks and Ms Paulse had denied they had accessed. Regardless of the concerns that the Applicant party’s witnesses had expressed surrounding the minutes, the Chairperson and Secretary had nevertheless signed off all the minutes and supporting documentation as being a true and accurate reflection of the contents and what had transpired during the proceedings, which they conceded they had done because of time pressure. The witnesses’ allegations in this regard are also found to be without substance, with no procedural unfairness found relating to how the minutes were compiled.
205. To add as an observation and concern, but not a finding, is that the evidence of the Applicant’s four witnesses, who were all part of the IC, was that the six IC members were required to sign confidentiality agreements at the commencement of the interview process. Although the content of these confidentiality agreements was not made available at the arbitration, it can be assumed that what had transpired during the recruitment and selection process was to remain confidential to the SGB and not for discussion with other parties, and in particular the candidates who were competing for the post. Most of the Applicant’s evidence on perceived irregularities in the recruitment and selection process was based on what was conveyed to her by certain SGB members after the news was received that she was unsuccessful for the post. Ms Rudolph in her evidence denied that the SGB had told the Applicant anything about what happened in the process, since the whole process was confidential, and she was not one of the SGB members who had breached this confidentiality. Mr Hendricks was of the view that the process was compromised by the IC who broke the confidentiality agreement that they had signed after some of the SGB members discovered after the process was completed that their candidate was not nominated. Since this did not entail unfair conduct during the process leading up to the promotion, but took place after the appointment was made, a finding in this regard cannot be made in these proceedings, which is a matter to be addressed elsewhere.
206. An issue in dispute also arose that procedurally the SGB was not advised by the Resource person that consensus should be reached on the interview outcomes by the IC on the day of the interviews, and not on the following day at the Ratification Meeting with the rest of the SGB present. Mr Hendricks as the Resource person had submitted that this would not have had a material affect on the result. This minor irregularity is not regarded as a magor procedural defect and unfairness is therefore not found surrounding this issue.
207. To next turn to substantive fairness with respect to the appointment of the 2nd Respondent instead of the Applicant in the post of Principal at Hillside Primary School. The main contentions of the Applicant party in this regard were that the Applicant had an exemplary performance record when she occupied the position of Acting Principal and was well accepted by staff, the learners and the community. In addition, she had attained the highest score in the shortlisting process based on her CV and past experience and her CBA reflected that she possessed the necessary leadership and other skills to occupy the post of Principal and that her CBA results were better than that of the successful candidate. The CBA results for the Applicant and Ms September were not presented in the arbitration due to their confidential content, which the SGB witnesses must have had access to in order to make these interpretations. The SGB witnesses who served on the IC testified that they were very disappointed by the Applicant’s poor performance in the interviews. It was not disputed that the SGB in their admitted Motivations of Nomination of 27 March 2023, 24 May 2023 and 5 June 2023 had consistently recommended the Applicant for appointment in the post of Principal. It is noted that the final paragraph that contained this recommendation was omitted from the letter of 14 June 2023 which it is alleged was forged and which the Applicant party had contended was the one submitted to the Head of Department (HOD) to make the appointment decision, which aspect has already been dealt with under procedural unfairness.
208. From the foregoing a reasonable inference would have been that the Applicant could have been viewed as the most suitable candidate by the HOD and qualified for appointment if she had fared better during the interviewing phase, bearing in mind too that she was nominated as the preferred candidate during the second round of the recruitment and selection process for the same post, which was declared invalid due to a scoring discrepancy. Ms Nkibi the Assistant Director: Recruitment and Selection had testified, as also confirmed by Mr Hendricks in his evidence, that the shortlisting and CV results, as well as the CBA cannot be considered by the SGB in making their nomination recommendation since the CV only relates to shortlisting and to identify the candidate as eligible for interviewing whereafter the shortlisting results and CV are no longer to be considered. The CBA is also to be only used for development purposes and cannot be considered in the nomination process, implying that only the interview results should be relied upon in making a recommendation. Ms Nkibi had testified further that a motivation must be provided for all the interviewed candidates and reasons must be provided for their inclusion or non-inclusion, with the reasons to be based on the recruitment and selection process. She explained that the reasons must be based on substantive evidence from within the recruitment and selection process and emanate from the interviews itself, and not from outside the process. The reasons that were provided by the SGB to motivate for the Applicant were regarded as outside the recruitment and selection process and that the motivation must speak to how the candidates fared in the interview process and the KRAs in the interview process, which according to Ms Nkibi was done in the disputed motivation letter of 14 June 2023.
209. This view is however in conflict with the following guidelines in the Collective Agreement, which supports that it is inappropriate to only rely on the interviews in making appointments:
210. It is generally accepted that the manner in which candidates perform during interviews and other subjective impressions may be taken into consideration when making an appointment. There may be reasons for preferring one employee to another apart from formal qualifications and experience. The employer may take into account subjective considerations such as performance at an interview and life skills. This however does not mean that appointments can be made solely based on subjective impressions. Merit always remains the most important factor to consider.
211. When making an appointment, both the qualifications and experience as recorded in the curriculum vitae submitted by the candidates together with the performance during the interviews must be taken into account. It is irrational to make an appointment purely based on interviews or to reason that the experience and qualifications as contained in curriculum vitae become irrelevant after shortlisting.
212. Two further contradictions relating to in particular the CBA were pointed out by the Applicant’s witnesses, the first emanating from the pro forma Interview Meeting Minute that was provided to the SGB from Recruitment and Selection that states at 10.8 that the ranking order of nominees will be decided upon after receiving the final component of the selection criteria, the CBA feedback, with paragraph 11 confirming the arrangements to be made for the CBA of the nominated candidates. The second contradiction pointed out was in the admitted e-mail dated 19 April 2023 from Mr Zuko Roro of Recruitment and Selection who the witnesses testified dealt with the 1st Respondent’s E-Recruitment system. In this e-mail directed to Mr Hendricks and Ms Paulse and a Ms Anoesjka Julius, Mr Roro acknowledged receipt of the nomination documents for Post No 1174 Hillside Primary School and informed that certain rectifications were made (or required), which included that the order of the three candidates will be decided upon receiving the final CBA reports. The inference from the foregoing is therefore that the CBA feedback for the candidates is to be referred to by the SGB when making their recommendations for appointment.
213. When appointing a candidate the following is also to be considered by the HOD as guided in the Collective Agreement:
214. The Head of Department as employer must place significant weight on the recommendation of the school governing body who has interviewed the candidates. The employer is however not bound by the recommendation of the school governing body and may deviate from their recommendation where there are sound reasons for doing so.
215. In this particular instance the final Motivation of Nomination to the Head of Department was a disputed and allegedly fraudulent document of suspicious origin which the SGB had denied knowledge of and which moreover did not include the preferred candidate that they wished to recommend for appointment. This issue has already been regarded as a serious flaw in this recruitment and selection process.
216. The best interests of the child must as always be considered too, with the position that the best interests of the child is paramount finding support in the Constitutional Court judgement in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) in which it was held that section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. These decision makers are not limited to an Arbitrator in determining a dispute which affects the interests of children, but would apply to all decision makers within the echelon of professions such as the Education sector, which includes schools and school governing bodies, as well as other persons who have an impact on the education, wellbeing and welfare of learners at a particular institution. Any disruption or internal dissent that may adversely affect the best interests of the learners at a school should therefore be prevented and minimised at all costs.
217. I am aware that the employer has a wide discretion as to who to promote and that the managerial prerogative should be respected, unless good cause can be shown as to why an appointment decision was grossly unreasonable, as supported by a number of Labour Court judgements in this regard, which guide that in order to prove that the decision was grossly unreasonable, it needs to be demonstrated that the employer had acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud, failed to apply its mind or had exercised its discretion for insubstantial reasons, or based it on any wrong principle. This approach finds support in the following guidance from the Collective Agreement:
218. The Head of Department as employer is expected to act reasonably in making an appointment. His decision cannot however be interfered with by a court or arbitrator purely because there may be another, perhaps better decision which could have resulted by attributing more weight to some factor or factors and less to others. If the decision arrived at by the Head of Department is reasonable, then it must stand.
219. As to whether the foregoing circumstances and irregularities surrounding the process in this matter are regarded as sufficient to have contributed to a grossly unreasonable decision having been made by the Head of Department of the 1st Respondent, the final decision that requires to be made surrounding substantive unfairness is whether the Applicant was indeed the best candidate for the post, as expressed as follows in the Collective Agreement:
220. Where the employee complains that another employee was promoted, he or she must show that:
     40.1 he or she has the necessary skills; and
     40.2 the person who was promoted does not possess the same or same level of skills.
221. This necessarily means that the applicant must show that not only was he or she better qualified and suited for the post than the successful candidate who was appointed, but also that he or she was the best of all the candidates who applied for the position.
222. The Applicant therefore has the onus to show that she was not only better qualified or suited for the post than Ms September as the successful candidate but also the best of all the candidates who applied for the position, which in this case would include Mr Langley as being one of the shortlisted candidates who were interviewed for the post. The full background, CVs and other supporting information relating to all three candidates were not available at the arbitration, aside from that which was at the time contained in the admitted documents, in particular Annexure A Filling of Post of Principal: Hillside Primary School: Post No: 1174 which summarised the details and interview scores for the three candidates, as well as their shortlisting scores obtained from the Shortlisting Meeting Minutes of 7 November 2022:

• Ms September was 58 years old at the time of the interviews, had 16 years of experience, was in the position of Deputy Principal at Nooitgedacht Primary School, with REQV 13. She scored 68 % in the shortlisting process and 69.2% in the interviews.

• Mr Langley was 59 years old, had 23 years of experience, was in the position of Departmental Head at Seamount Primary School, wth REQV 15. He scored 67.5 % in the shortlisting and 60.78% in the interviews.

• Ms Sauer-Jacobs was 55 years old, had 23 years of experience, was in the position of Deputy Principal at Hillside Primary School, with REQV 14, She scored 81.2 % in the shortlisting and 60.59 % in the interviews.

It is noted that Ms September and the Applicant had both occupied similar positions of Deputy Principal, with both testifying to having occupied this position for about 15 years. It would be fair to assume then that they would both have possessed the same or similar level of skills and experience.

213. As already pointed out, it is understandable that the SGB would have preferred the Applicant since they had a positive experience of working with her for many years, both as Deputy Principal and then as Acting Principal at the same school. The Collective Agreement at paragraph 46 however cautions as follows:
214. The mere fact that an employee is already acting in a post, does not give him or her and automatic right to a promotion when the position becomes available. See chapter B of PAM.
215. It would also be deemed to be unfair to external candidates for a post if such an automatic right applied, with the opportunity to be afforded to all eligible applicants to apply for and to be considered for appointment in a post.
216. I find that the Applicant was able to show that she has the necessary skills and qualifications for the post, but could not show that Ms September does not possess the same or same level of skills, or that she as the Applicant was the best candidate to be appointed in the post given that she had fared so poorly in the interviews, which would also have been unfair towards Ms September who had prepared for and performed better in the interviews to the extent that it was alleged that she had responded word by word to the interview questions. Both the Applicant and Mr Whyte had testified that Ms September as the successful candidate in their opinion did not possess the same level of skills as the Applicant based on their own experience of working with Ms September since October 2023, but this evidence could not be considered since it relates to after the appointment was made, whereas the recruitment and selection process leading up to the appointment is the subject matter of these proceedings.
217. In this regard the Applicant must also be able to show that there was a causal connection between the irregularities and unfairness alleged, in the absence of which, she would have been appointed to the post, as articulated as follows in the Collective Agreement at paragraph 48:
218. The courts have held that even if there was unfair conduct by an employer during a promotion process, this does not mean that there is substantive unfairness. As a legal concept substantive unfairness cannot exist in abstraction. Therefore in order to prove substantive unfairness that would entitle an applicant to substantive relief such as appointment to the post, an applicant in a promotion dispute also needs to establish a causal connection between the irregularity or unfairness and the failure to promote. To do that the applicant needs to show that, but for the irregularity or unfairness, she would have been appointed to the post.
219. The foregoing then poses the question whether, if all the allegations of procedural and other unfairness had not featured in this recruitment and selection process, the Applicant would still have been considered to be the best candidate? Unfortunately not. The SGB in their recommendation had relied heavily on their experience in working with the Applicant whilst she was acting in the Principal post in nominating her as their preferred candidate. If performance, interpersonal or relationship issues are subsequently encountered surrounding the appointed candidate after the appointment, then this would be within the employer’s domain to address and would not be regarded as relevant to the process that led to the appointment being made.
220. The purpose of the 1st Respondent’s recruitment and selection process is to ensure fairness and to provide all eligible candidates, whether internal or external, an equal and fair opportunity to compete for the process, with no automatic right to promotion for an existing acting incumbent. Apart from the Applicant scoring the highest in the shortlisting process and the reference to her CBA results, of which the comparative outcomes for both the Applicant and the 2nd Respondent were not provided, she had regrettably performed poorly and scored the lowest in the interview component of the process, which although this would not be the main determining factor in the selection process, inescapably still stands to her detriment. The Applicant had furthermore admitted that she did not dispute the scoring process. It would therefore be unreasonable and irrational of me to find that substantive unfairness had also been committed and to grant the relief sought by the Applicant party that the 2nd Respondent’s appointment be set aside and that the Applicant be appointed in the post retrospective to 1 October 2023. .In the circumstances I find that the Applicant has been unable, on the balance of probabilities, to discharge the onus to prove that the 1st Respondent had committed an unfair labour practice on substantive grounds by not appointing her in the post of Principal at Hillside Primary School.
221. With respect to the finding of procedural unfairness, the appropriate relief in this regard will be considered below.

RELIEF

220. The Collective Agreement guides as follows regarding the appropriate relief for procedural unfairness in a promotion dispute at paragraph 65:
221. Where an employee who has demonstrated unfairness, but who was unable to prove that he was the best of all the candidates who applied for the post, the most appropriate remedy is generally to set aside the process and direct that it must be repeated. However, this is a remedy that must be applied with great caution in the education sector as indiscriminate use of it may result in instabililty in schools, which in turn may negatively impact on the best interests of the learners at that school.
222. I concur with that last statement, in particular because this was the third recruitment and selection process for this post and that stability needs to be normalised at Hillside Primary School for the sake of all the roleplayers and the best interests of the learners. For the process to be set aside and repeated the successful joined candidate’s appointment would also have to be set aside, which would be unfair to the 2nd Respondent, who cannot be regarded as being at fault in the process.
223. An award as to compensation for an unfair labour practice based on procedural unfairness will accordingly be contemplated. Paragraph 71 relating to remedies for procedural unfairness and compensation of the Collective Agreement guides as follows:
224. Where an arbitrator decides to award compensation, and the applicant has not proved that he was the best of all the candidates, then compensation is solely aimed at compensating the employee for non-patrimonial loss. Where the loss in an unfair labour practice dispute is of a non-patrimonial nature, compensation is in the form of a solatium (meaning solace money to salve injured feelings and sentimental loss) for the loss of a right, or put differently, to compensate for the injuria of being treated unfairly.
225. Based on the guidelines provided by the Collective Agreement and the Courts, in particular that of the judgement in Munsamy v SSSBC and Others (D437/09) [2012] ZALCD 5 (25 May 2012) I deem it appropriate to grant an award as to compensation in the nature of a solatium for non-patrimonial loss to the Applicant for procedural unfairness relating to a promotion dispute.

AWARD

224. The 1st Respondent had not committed an unfair labour practice relating to promotion on substantive grounds by not appointing the Applicant, Ms Sandra Sauer-Jacobs, as Principal in Post Number 1174 of Vacancy List 3 of 2022 at Hillside Primary School.
225. The 1st Respondent had however committed an unfair labour practice relating to promotion on procedural grounds during the process of not appointing the Applicant, Ms Sandra Sauer-Jacobs, as Principal in Post Number 1174 of Vacancy List 3 of 2022 at Hillside Primary School.
226. The 1st Respondent is ordered to pay the Applicant compensation in the nature of a solatium in the amount of R10000,00 for procedural unfairness before or on 31 July 2025.
227. No order is made as to costs.

Panelist: Alta Reynolds (Ms)