Panelist: Ncumisa Bantwini
Case Number: ELRC591-24/25EC

Date of Award 04 March 2025

IN THE MATTER BETWEEN

NAPTOSA obo Vakalisa Lombard Ceshemba : Union/Applicant

AND

Department of Education – Eastern Cape : 1st Respondent

Ms. Lizette Nel : 2nd Respondent

       DETAILS OF HEARING AND REPRESENTATIONS

1. This arbitration was part heard on 29 November 2024 and was finalized on 21 February 2025 in the respondent’s offices at Siyakhula Public School in Stutterheim. The dispute came before the ELRC in terms of Section 191 (1) (5) (a) read with section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended, (the LRA).
2. Mr. Aaron Mhlontlo of NAPTOSA appeared for the applicant, Mr. Vakalisa Lombard Ceshemba who was also in attendance. Mr. Toto Tsheko appeared for the 1st respondent, the Department of Education-Eastern Cape while Ms. Venita Van Wyk of SAOU appeared for the 2nd respondent Mrs. Lezette Nel who was also in attendance. Parties agreed to submit written closing arguments on 28 February 2025. All arguments have been considered in the preparation of this award. ISSUE TO BE DECIDED
3. The issues to be decided is whether the respondent’s conduct of not shortlisting the applicant to a position of a Departmental Head Mathematics and English Home Language at Cathcart High School in Cathcart was fair or not.
4. I have considered all the evidence and arguments, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons. I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and determination of the dispute. BACKGROUND TO THE DISPUTE
5. The applicant referred a dispute to the ELRC regarding an alleged failure by the 1st respondent to shortlist him to the position of a Departmental Head at Cathcart High School. When the dispute could not be resolved at conciliation level, the applicant filed a request for arbitration through his union. SURVEY OF EVIDENCE AND ARGUMENT Applicant’s case </code></pre></li>According to Mr. Mhlontlo ‘s opening statement, the dispute relates to unfair labour practice based on promotion. The applicant applied for a position of a Departmental Head: Mathematics and English Home Language at Cathcart High School and was not shortlisted. Three candidates, including the incumbent who did not meet the qualifications were shortlisted. The profiling of the position was never done by the staff but by the Principal and the Deputy Principal alone. The panel was not properly constituted. The 3 panelists viz Yanga Ndevu, Thula Siphango and Siyabulela Mzalwana were not supposed to be SGB members as they do not have children at the school. When the panel was elected, the Resource Person was not present at the school. During the shortlisting, the panel selected 3 candidates who did not meet the requirements of the position. The incumbent misled the panel in terms of teaching experience and subjects she is teaching. The panel was biased towards the 2nd respondent. The appointment was obtained through undue influence by Resource Person Mrs. Kene. The remedy sought is the setting aside of the appointment and recruitment be done afresh by individuals who were not part of the first process. The applicant, Mr. Vakalisa Lombard Ceshemba testified under oath as follows: He works for the respondent as an Educator at Cathcart High School since 2014. He started teaching in 2010 at the Western Cape as an Educator and he applied for the position of Departmental Head at Cathcart High School which was advertised in an open bulletin on 10 May 2024. He qualifies for the position having Bachelor of Arts (BA) and Post graduate qualification in Education (page 18 -24 bundle B). The position is for someone with English home language and Mathematics to teach grades 8 to 12. The applicant testified further that Siphango and Ndevu, one of SGB members do not have children at the school (page 29). The position requires someone with English Home language and Mathematics and the list of shortlisted candidates appears in page 34. All the candidates (1, 2,3, and 4) were not supposed to be shortlisted as they do not meet the requirements of the position. This is where biasness comes in. The panel was not supposed to proceed with shortlisting. The Deputy Principal was in charge of the school during the recruitment process as the principal was on sick leave. The incumbent’s appointment must be set aside and the independent panel must deal with the recruitment of this position. Under cross-examination, the applicant testified as follows: The independent panel must include the 1st respondent. The applicant could not respond when it was put to him that the independent panel does not exist. He stated that he does not possess Mathematics and English Home Language which are the requirements of the advertised position but he thought he could be shortlisted because of his teaching experience. He has never taught the 2 required subjects but he thought his experience will be considered. The selection panel was elected on 30 April 2024 in the absence of the principal as she was on sick leave. There was nothing wrong with that as it is not regulated. The SGB members Siphango, Ndevu and Mzalwana do have children at Cathcart High School and are eligible to be elected as SGB members. Under cross-examination by Ms. Van Wyk, the applicant testified as follows: The position was advertised in an open bulletin and knows Ms. Odendaal as they are both teaching in the same school. She is a qualified Teacher and she is employed by the SGB and was eligible to apply for the position. He (the applicant) does not have English and Mathematics, he teaches Isixhosa language. The applicant was referred to the application form wherein he did not write the NQF level and his response was that it was a mistake, he should have written REQV 14. He could not respond when it was put to him that his application should have been disqualified as it was incomplete. Under re-examination, the applicant stated that Ms. Nel does not have the qualifications for the position. Sipambo and Ndevu do not have children in the school. In closing, Mr. Mhlontlo argued as follows: The inconsistent application of the criteria drawn up by the panel where treatment of the candidates is not the same is noted. Other candidates who do not meet the requirements of the position were shortlisted while others were not. The incumbent together with other candidates were not supposed to have been shortlisted as none of them meet the requirements of the position. The applicant was dishonest in completing the declaration form. Sifting of the position was not done hence the sifting document was not disclosed by the 1st respondent. Profiling of the position was done by the principal and his deputy. Messrs. Ndevu and Mzalwana were not SGB members and as such were not supposed to be part of the selection process. The panel was not properly constituted as the principal was represented by the deputy principal in the role of a resource person. Mr. Mhlontlo finally argued that the respondent had failed to prove its case and that the appointment must be set aside.
The 1st Respondent’s case Mr. Tsheko, the 1st respondent’s representative stated in his opening statement that the process of appointment of the 2nd respondent was conducted fairly and all necessary procedures were followed. The applicant was not shortlisted based on the provisions of the PAM document and the criteria set at the shortlisting process. With the relief sought, the ELRC should consider the interest of the learners as it is of paramount important and consider the legislation guiding appointment process. We will argue that profiling and composition of SGB are legislated and the respondent will argue that those issues are mute as they are legislated Mr. Thula Siphango the first witness for the respondent testified as follows: He is the deputy chairperson of the SGB. He does have a child at Cathcart High School hence he was elected as member of SGB. His name is Ubukosi Siphango, he is the biological father and he is in grade 4. He was part of selection panel and the panel was not biased as the applicant was not treated differently. The principal attended the shortlisting session but left early as she was to undergo an operation. Under cross-examination, the witness testified as follows: His child is Ubukhosi Siphango and is doing grade 4. He was initially using Dyantyi as a surname. Messrs. Ndevu and Mzalwana do have children at the school hence they were elected as SGB members. The principal attended the shortlisting meeting and left early as she was to undergo medical surgery. The Deputy Principal participated at the shortlisting process because the Principal was on sick leave (pages 29 and 35). He (the witness) was the chairperson of the shortlisting meeting. The criteria was drawn by the panel at the meeting as reflected in page 34. The incumbent was shortlisted based on her qualifications and teaching experience (pages 57 and 60). Under re-examination by Mr. Tsheko, the witness stated that Mr. Kene, the Deputy Principal was the resource person because the principal was on sick leave. This is in line with clause B5.4.2.2 of ELRC Resolution 5 of 1998 (page 27 of the bundle). Under re-examination by Ms. Van Wyk, the witness stated that both unions (SADTU and NAPTOSA) were present during short listing and interview processes and they confirmed that the processes were conducted fairly. The second witness Mr. Wandile Vellem testified as follows: He is the chairperson of the SGB at Cathcart High School since April 2024. He was part of the appointment of Mrs. Nel to the position of Departmental Head. The SGB attended a workshop at Siyakhula Public School before the process started. The panel followed due processes until the recommendation of the incumbent was done. Four candidates were shortlisted and after looking at all the candidates the panel recommended Mrs. Nel. There was never a way that the panel would be biased towards Mrs. Nel. All candidate’s CVs and qualifications were looked at without any prejudice of being biased. The panel acted to the best of its ability with no elements of bias in recommending Ms. Nel for appointment. Under cross-examination by Mr. Mhlontlo, the witness testified as follows: It was his second time to be nominated as SGB member at the school. A person with a child as a biological parent or a guardian is eligible for nomination as SGB member. Messrs. Ndevu and Mzalwana were also nominated as members of SGB but Ndevu resigned due to the transfer of his child to another school. He does not know the child’s name, the SMT would have such information. Siphango was the deputy chairperson of the SGB. Mzalwana is still a member of SGB and is a guardian to a child at the school. It is hard for him to say the names of the children. He is aware that there is English 1st language and English home language. The requirement for the position is English home language and Mathematics. The criteria was discussed before the interview commenced and there were 4 candidates who were shortlisted as reflected in page 34. Candidate number1 meets all the requirements of the position as reflected in the transcript in page 60 as she studied English and Mathematics at tertiary level. This was part of the selection criteria which was discussed by the selection panel. The witness disputed that Ms. Nel has no teaching experience in Mathematics and English as she reflected in paragraph 21.2 page 53 that she can teach all subjects, that means, including English and Mathematics. English is the medium of instruction at Cathcart High School and it does appear in the incumbent’s CV (page 53). He could not agree or disagree that Ms. Nel never taught Mathematics at Cathcart High School, stating that the principal is the person to talk to about that. With regards to the applicant’s CV and qualifications, nothing talks to English or mathematics. No transcript was attached to his application (pages 8 to 12) hence he was not shortlisted. The declaration was made by all candidates which were interviewed. Under re-examination by the 1st respondent, the witness stated that the panel of the interview could not find anything about the applicant’s qualifications as no transcript is attached to his application. The statement/declaration was made by all interviewed candidates and not by him. In closing, Mr. Tsheko argued as follows: Evidence led indicates that the panel members were duly elected SGB members in terms of section (24) (1) (a) of the South African Schools Act 84 of 1996. All panel members were parents and or legal guardians of children at the school. The resource person was the deputy principal of the school because the principal was to undergo medical surgery and this is not against the law. This means that the panel was properly constituted and duly elected by the SGB. The panel shortlisted 3 candidates and there is no law prohibiting shortlisting of fewer candidates. The only requirement is that the panel must not exceed 5 candidates. The argument advanced by the applicant on the matter is mute and should not be entertained as valid. Both the 1st and 2nd respondents believe that correct and proper procedures were followed in appointing the 2nd respondent. Profiling of the position in terms of PAM document does not have to be done by the staff, this is not a legal prerequisite for the position to be filled. The 2nd respondent was the best candidate for the position and had English in her studies as well as the required teaching experience. The applicant was never denied an opportunity to compete for the position and all points raised by the applicant were disputed by the 1st respondent’s witnesses. He was reckless as he failed to submit the transcript to enable the panel to determine his candidature. He did not meet the requirements of the position as per his own evidence and as such he cannot claim unfair labour practice. Mr. Tsheko finally argued that the applicant failed to prove unfair labour practice against the 1st respondent and that his application must be dismissed. ANALYSIS OF EVIDENCE AND ARGUMENTS The issues of common cause that relates to this matter are as follows:
• That the applicant applied for an advertised position of Departmental Head Mathematics and English Home Language at Cathcart High School in Cathcart.

• That the applicant was not shortlisted and was never interviewed.

• That Ms. Nel was recommended by the SGB and appointed as the best and suitable candidate for the position.

• That the requirement for the Departmental Head position is English Home Language and Mathematics (page 1 of bundle A).

• That the position was profiled by the principal and the deputy principal and was endorsed by the SGB before it was advertised.

• That the applicant did not attach the transcript with his application to enable the selection panel to determine his candidature.

47. Although it is the applicant’s case that profiling of the position should have been done by the teachers, he failed to cite the relevant prescript/policy to corroborate his version.
48. It must be noted that although the applicant in his evidence in chief testified that he qualifies for the advertised position, under cross examination he stated that he does not possess Mathematics and English Home Language which are the requirements of the position but he thought he could be shortlisted because of his teaching experience. This clearly means that the applicant does not qualify for the advertised position.
49. Both respondent’s witnesses testified that even in the applicant’s CV nothing talks to English and Mathematics hence he was not shortlisted.
50. The evidence of the 2 respondent’s witnesses who were part of the selection panel testified that candidates who studied English and Mathematics at tertiary level were considered and this was part of the selection criteria. This evidence was not disputed.
51. It is undisputed evidence that Candidate number1 or the incumbent meets the requirements of the position as reflected in the transcript in page 60 as she studied English and Mathematics at tertiary level.
52. The applicant could not prove his allegation that Messrs. Ndevu, Maphango and Mzalwana were not duly elected SGB members and did not have children studying at Cathcart High School. He (the applicant) conceded this under cross-examination. The same evidence was corroborated by both respondent’s witnesses.
53. The Deputy Principal was the resource person, in charge of the school during the recruitment process as the principal was to undergo medical surgery or on sick leave. This therefore means that the selection panel was properly constituted.
54. It is the undisputed evidence of the 1st respondent that profiling of the position in terms of PAM document does not have to be done by the staff, and this is not a legal prerequisite for the position to be filled
55. It is the respondent’s case that the selection process was fairly conducted in terms of the prescripts of the respondent (PAM and ELRC CA 5 of 1998 as well as PELRC CA 2of 2002) as the qualifying candidate was appointed.
56. On the basis of the above evidence, it appears that the incumbent met the requirements of the position hence she was recommended unanimously by the SGB for appointment to the position.
57. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC (handed down on 18 November 2016) it was held that a finding that a failure to promote was unfair must be a rational one i.e. it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the Employee’s qualification and/ or suitability for the position in question, against that of other candidates. The court held that in promotion disputes it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for the Employee to show that the breach of the procedure had unfairly prejudiced him. This means that the Employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate”
58. See also in Buffalo City FET College v CCMA and others (P 372/12) [2016] ZALC CPE 18 handed down on 4 November 2016) it was held that in unfair labour practice disputes, particularly in those relating to promotion, the onus is on the Employee to prove that she/ he is a suitable and better candidate for the position in question”
59. It appears from the parties’ evidence that the 1st respondent followed a fair procedure in appointing the best candidate for the position of Departmental Head at Cathcart High School and as such did not exercise its prerogative in a biased, unfair, capricious and unjust manner in appointing Ms. Lizette Nel to the position.
60. The applicant has failed to discharge the onus to prove the claim of unfair labour practice based on promotion on balance of probabilities by the respondent.

AWARD

I therefore make the following award:

The appointment of the incumbent, Ms. Lizette Nel by the respondent, the Department of Education – Eastern Cape was both procedural and substantively fair.

The 1st respondent, the Department of Education –Eastern Cape cannot be compelled to set aside or to nullify the appointment of Ms. Nel.

The applicant, is therefore not entitled to any relief.

The application is dismissed.

There is no order as to costs

Signature

Ncumisa Bantwini

ELRC Panelist