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08 April 2025 -ELRC1007-22/23EC

Panelist: Ncumisa Bantwini Case Number: ELRC1007-22/23EC Date of Award :07 April 2025

IN THE MATTER BETWEEN

Xolelwa Mzwali Telana : Union/Applicant

AND

Department of Education – Eastern Cape : 1st Respondent

Lulama Mbanga : 2nd Respondent

       DETAILS OF HEARING AND REPRESENTATIONS
  1. This arbitration was part heard on 25 October 2024, 26 October 2024, 31 October 2024, 01 November 2024, 19 March 2025 and was finalized on 20 March 2025 at the respondent’s offices at Rubusana Complex in Mdantsane.
  2. The arbitration process was postponed on 25 and 26 September 2024. This was based on the non-compliance of the 1st respondent with pre arbitration minute to share documents to be used for the arbitration. The referring party could not commence with the arbitration as they needed time to peruse the documents. The bulk of the documents were shared on 25 and 26 September 2024 respectively. Both parties were given an opportunity to argue the issue of costs for the postponement of 25 September 2024 and I reserved the order of costs until the finalization of the arbitration process.
  3. 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).
  4. Mr. Lindile Thapa of SADTU appeared for the 2nd respondent, Ms. Lulama Mbanga. Mr. Ben Washington, an Attorney from Maphosa and Associates appeared for the applicant, Ms. Xolelwa Mzwali Telana who was also in attendance while Mr. Toto Tsheko appeared for the 1st respondent, the Department of Education-Eastern Cape.
  5. Parties agreed to submit written closing arguments on 27 March 2025. The first set of arguments from the referring party was received on 28 March 2025, the second set of arguments from the 1st and 2nd respondent’s representatives were received on 30 and 31 March 2025 respectively. All arguments have been considered in the preparation of this award. ISSUE TO BE DECIDED
  6. The issues to be decided is whether the respondent’s conduct of not appointing the applicant to a position of a Head of Department at Sakhikamva High School in Beacon Bay East London was fair or not.
  7. Whether wasted costs for the postponement of 25 September 2024 should be ordered against the 1st respondent or not.
  8. Whether the appointment of the incumbent can be set aside or not.
  9. 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
  10. The applicant referred a dispute to the ELRC regarding an alleged failure by the respondent to appoint her to the position of a HOD at Sakhikamva High School in East London. The dispute could not be resolved at conciliation level, the applicant filed a request for arbitration through her attorney. SURVEY OF EVIDENCE AND ARGUMENTApplicant’s case </code></pre></li>According to Mr. Washington ‘s opening statement, the dispute relates to unfair labour practice based on promotion. The applicant applied for a position of a HOD Geography and IsiXhosa at Sakhikamva High School and was not appointed. The process was unduly influenced and the incumbent does not meet the qualifications of the position. The conduct of the interviewing panel and observers amounted to misconduct which resulted in the unfair appointment of the incumbent. The applicant was chased away or removed from the interview process. The interview process was constituted by improper panel which was a breach of the PAM Directive. The applicant will indicate that she possesses more qualifications and experience than the incumbent in teaching IsiXhosa and Geography. Given that the applicant was not interviewed, she seeks the appointment of the incumbent be set aside, the interview be conducted afresh and be remunerated from the date the incumbent was appointed to the HOD position. Should she be successful, she would request an order as to the costs of previous postponement be reserved. The applicant, Mrs. Xolelwa Mzwali-Telana testified under oath as follows: She started working for the 1st respondent on 16 February 1992 as an Educator for IsiXhosa and Geography. She had 29 years working experience when she applied for this position as reflected in her application form (page 154 of bundle A) while the incumbent had 25 years’ experience. She possesses the required qualifications for the position and she was shortlisted and invited for the interview on 10 November 2022. The requirements of the position as contained in the advertisement (page 153) is Head of department in IsiXhosa and Geography with management course. Ms. Mbanga does not have management qualification while she has a diploma in management (page 140). The comparison of their qualifications is contained in pages 144 and 156. She would have been a best candidate as she possesses Geography and IsiXhosa as majors that are required in the advertisement. She also acted as HOD Xhosa and Geography. The incumbent does not have Geography qualification and she was supposed to have been eliminated. The principal, Mr. Lucky Macozoma who was supposed to be in the interview to observe was introduced by the chairperson as a Resource Person. Nobuntu Fetsha was the secretary, Zola Qwesha is the SGB member for teacher component. Tandiswa Tokwe was the SGB member for the previous term and he must have been trained in the past year. The staff was never advised of her co-option to the current SGB at the time. Vundu Tabisa was seen at beginning of the year and disappeared. She was only seen during the recruitment of the position. Mdingi Mlamli represented SADTU and is always seen during recruitment of positions. Ngamlana Nomfundo is NAPTOSA representative and Tsonono Sinazo was the chairperson of the SGB. The principal was supposed to be a departmental representative instead of being a Resource person. There were 4 SGB parent component members and that is not in compliance with clause 5.6.2 page 4 of bundle B. She was not happy about the constitution of the panel as the chairperson is not 1 level higher than the advertised position. The panelists must have qualifications that are equivalent to the advertised position and the chairperson was not 1 level higher than the advertised position (page 125 bundle A). During the interview she was called by the principal while she was waiting in the car. He was introduced as the resource person. The union representatives from SADTU and NAPTOSA were also present. She was advised by the SADTU official about the questions which were to be posed before the interview date as she is SADTU member. She visited the SADTU office immediately after receiving the interview invitation. She was advised by a certain question which needs to be asked and if this question is not asked, she should remind the panel to ask the question. Before the interview commenced, she noticed that the question is not asked, she raised her hand and checked if there is a question that the panel needs to ask her and as to when are they going to ask it, if there is something she needs to disclose which may be a conflict of interest between her and the panelists. As she was sitting straight to the chairperson, she noticed the change in her (the chairperson) facial expression/reaction and she said the question will be asked at the end of the interview. When the chairperson asked her as to why is she interested in asking the question, her response was that she is not satisfied about how the panel is constituted and she does not trust the panel. The Resource person’s reaction changed and started the noise asking as to why she was undermining the panel, there was commotion. The principal was not supposed to talk as he was the observer, Thandiswa stood up and the commotion was started by the principal and others intervened making noise. The principal said she (the applicant) cannot be forced to be interviewed by the panel she does not trust. The applicant testified further that she was not even allowed to raise her concerns as she was chased out of the interview room, all of them saying she must go away. She resisted as if she did not hear them until the chairperson said she must go outside. She waited outside thinking she will be called after they sought some guidance from other people on how to handle the matter but she was never called back. This means that she was not given an opportunity to be interviewed. The principal was biased and influential in the panel and he started that commotion. The panelist members who were trained are Vundu and Qwesha. Abrahams was also trained but he did not participate in the interview. The remedy sought is the setting aside of appointment of the incumbent and a new/independent panel be appointed. Under cross-examination, the applicant testified as follows: The remedy she is seeking is for the appointment of the incumbent to be set aside and an independent panel be appointed as trust has broken down. She was communicating with Beauty Sandlana at SADTU office after he received an invitation for an interview. It was her first time to be invited for an interview for a senior position. The SGB is not functional at the school and only 3 members are active. She consulted with Beauty at the SADTU office because she could see that the principal wanted a certain individual to be appointed to the position. Beauty advised her that a certain question will be asked at the interview, and if it is not being asked, she must ask the question. She is familiar with some of PAM document clauses. The SGB in her understanding conducts interview of school-based Educators in line with clauses B5.4 as well as B5.6 of PAM document (page 2 Bundle B). SGB members are elected regardless of their qualifications (clause B5.6.2 of bundle B) a parent with a learner/ child at the school is eligible for election. The issue of qualifications does not apply in school-based educators but they do apply in office-based educators. When it was put to the applicant that when she went to the interview room, she did not trust the panel after merely looking at them, they were not competent enough to interview her and this was after she had a discussion with Beauty, the SADTU official, the applicant’s response was that it is his (Mr. Tsheko) opinion and she is not going to argue with him. The applicant testified further that there is no specific clause that deals with the number of teachers and parents in the panel (page 2 bundle B clauses B5.4, B5.4.2.1, 5.4.2.2, and B5.2.2.3 and B5.4 were read). The applicant could not respond when it was put to her that she went to the interview with preconceived ideas and standards that the SGB was not supposed to interview her (the applicant), and that the principal influenced the entire panel. The applicant later narrated an incident whereby she alleged that the principal during the meeting advised staff not to apply for the advertised position as it belongs to Ms. Mbanga (page 112 read). When it was put to the applicant that she attended the interview with pre-determined idea that she does not have confidence in the panel as they are incompetent, looking for an independent panel, her response was that this can be looked at in different ways but the principal was biased and he attacked her question as if they (the panel) were waiting to attack them. There were conflicting ideas between her and the panel hence her question. The applicant conceded to the assertion that the SGB was dysfunctional, only 3 members were active and the principal was biased as he wanted to appoint the 2nd respondent. She kept quiet about this because she did not know what to do but she wrote the letter that appears in page 22 after the interviews were held when she got an advice from SADTU office. The applicant further testified that SGB member Tokwe and Mngomeni ‘s names do not appear in the training list. She does not dispute that the principal was the departmental representative in line with clause B3.5.4.2.2. of PAM document. She conceded that section 23 of SASA under the membership of SGB (clause B5.6 Bundle B) election does not make mention of the levels of the Teacher’s positions or qualifications nor status. The requirement is that one has to be a biological parent or guardian of a learner at the school regardless of the qualification. The applicant conceded that office-based educators are not based in schools and their recruitment is also regulated by PAM document after (clause B.5.6 page 4 of bundle B was read. When a question as to whether she had confidence with the interview panel and SGB, her response was yes, she did but she became hesitant when she saw people which she did not know they were in the panel of interview. The applicant conceded that there is nowhere in the PAM document where it specifies the number of parents and teachers who must constitute the interview panel. The principal was the resource person and can be a departmental representative in line with clause B.5.4.2.2. of PAM document (page 2 of bundle B). The applicant could not recall as to when the SGB was elected as well as the number of the elected members at the time. She stated that some of them disappeared with the exception of Vundu, Mngomeni and Tsonono. This is the reason why it was not easy for her to know them; they are scarce at school. She (the applicant) was not a member of the school’s SGB and was not privy to their activities. On the interview day (10 November 2022) she wanted to ask a question before the panelist commence with the questions. The chairperson advised her that she will be afforded an opportunity to ask the question later, she noticed that the principal was speaking, influencing the whole panel saying she can leave and she cannot be forced to sit for the interview. The principal during school meetings told staff not to apply for the position as it was for Ms. Mbanga. When she applied for the position, she had that information in mind. The applicant conceded when it was put to her that 99% of her evidence confirms that she did not want to be interviewed by the panel because she did not have confidence with them (panel) and she wanted to file a dispute to suggest that an independent panel must handle the interview. She did not trust the panel because the chairperson was not interested in listening to her question. The panel attacked her and the principal was biased as he was talking although he was the resource person. Under cross-examination by Mr. Thapha, the applicant testified as follows: She attended the interview process but she was chased out by Ms. Tokwe. She stood up and said if she does not trust them, she must leave and they will continue with the work. Mrs. Tsonono said the same thing. Mr. Thapha made reference to the interview minutes and put to the applicant that she was never chased away, she voluntarily decided not to sit for the interview, her response was that it’s his opinion. She did not see anything wrong in leaving the interview room after she was told to do so by the chairperson. The applicant could not respond when it was put to her that her application is incomplete (page 154 2.1) is not completed and that the panel was not biased as they shortlisted her despite her incomplete application form. Any parent can be voted as the member of SGB regardless of education qualifications or status. The main focus of the qualification is IsiXhosa as it is HOD Languages. Under re-examination, the applicant stated that there was nothing stopping her from consulting with SADTU office. She had 29 years teaching experience at the time of the interview whereas the incumbent had 25 years’ experience. Tokwe was trained to conduct selection process before the interview. She did not cause chaos at the interview, instead, the principal did and there was nothing wrong in asking a question. By independent panel she means a neutral panel conducted by the district office. Her majors are IsiXhosa and Geography and someone with both subjects should have been appointed. Ms. Mbanga and Qwesha are SGB members for teacher component. It is only reflected in the minutes being HOD for languages but the advertisement states IsiXhosa and Geography. The panel was not correctly constituted. In closing, Mr. Washington argued as follows: Amongst the interview panel, the 2 of them (Tokwe and Mngomeni) were not trained prior to the interview process and this contributed to the chaos that erupted. It was unfair for the 1st respondent to subject Ms. Telana to untrained personnel who did not know how they had to handle the interviews. It follows that without being trained, they could not be in a position to optimally contribute to the process. The applicant was chased out of the interview and as such was deprived an opportunity of being interviewed. The applicant’s representative made reference to clause 5.4.1.1 of PAM document which provides- “All interviewees must receive similar treatment during the interviews” The 1st respondent did not adhere to the prescripts and this led to the appointment of Ms. Mbanga. The resource person, Mr. Macozoma influenced the panel by telling them that they were being undermined by the applicant. He told the panel not to listen to Ms. Telana and his utterances resulted in the untrained mind of Tokwe to chase Ms. Telana out of the interview. Mrs. Tsonono’s evidence was unreliable and is full of contradictions. Her evidence was tainted with biasness, evasiveness and was improbable. Ms. Telana was not rude and this evidence was corroborated by Ms. Fetsha, the 1st respondent’s witness. Mr. Washington finally argued that the 1st respondent’s conduct was capricious, unacceptable, irrelevant, arbitrary and the reason not to promote was taken in a biased manner. The applicant seeks the cost order of postponement that the arbitrator reserved, that the interviews be started de novo with an interview panel other than the one that promoted Ms. Mbanga 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 afforded an opportunity to present her candidature for the Departmental Head position which she applied for. She was shortlisted and presented herself for the interview but recused herself from the interview process. As a result, all other requirements of being a candidate could not be tested. The applicant cannot claim that she is the best candidate as she voluntarily waived her right and walked out of the interview process. Even if she can claim as a better candidate, she cannot be appointed and this appointment cannot be set aside as the heart of the education system are the best interest of the learners and a stable, vibrant and well-structured management of the school. The SGB was trained and the applicant went to the interview with a predetermined idea of not subjecting herself for the interview. The appointment was made 2 years ago and the tempering of the structure can create confusion and chaos in the school. With regard s to costs, the ELRC took a decision of what should happen but the referring party said they were not ready. It’s the respondent’s view that the application for costs should fail. According to Mr. Thapa’s opening statement, Ms. Mbanga deserves to be appointed to the position as advertised as she meets the requirements of the position. She used the opportunity presented to her to apply and was subjected to the interview process just like other candidates and was appointed in terms of section 7 of the SASA. The first witness, Mr. Lucky Macozoma testified as follows: He works for the 1st respondent as the Principal of Sakhikamva High School since 2014. Part of his duty is to adhere to the policies of DOE. He started teaching in 1993 and he knows the applicant. She applied for a position of HOD which was advertised in 2022. He called staff meeting as well as the SGB before the position was advertised advising them about the position. It was then profiled as HOD IsiXhosa and Geography. He disputed that he advised other staff members not to apply as the post was for Ms. Mbanga as he does not even have such an authority. When the position was advertised, SGB was trained and selection panel was elected. During the shortlisting process, a criterion to be used was put in place and the panel shortlisted 5 candidates. On the day of the interview, he was the resource person and he submitted all the documents to the district office of the DOE. The composition of the interview panel was in line with the PAM document. It is not true that he disrupted the interview and further narrated what happened. The witness stated that he was ushering candidates to the interview room and Ms. Telana was the 3rd candidate. The chairperson welcomed her and the candidate asked if she can ask a question, the chairperson said she (Ms. Telana) can ask the question later. The applicant said “I can’t be interviewed by you, I have no confidence in you, I will lodge a complaint” Everyone kept quiet but a union official from SADTU advised her to sit for the interview as she may be missing an opportunity to be interviewed. The applicant said she does not have confidence on the panel and she said she does not want to sit for the interview. He (the witness) stepped in by saying the applicant cannot be forced to sit for the interview. The witness testified further that there was no havoc and he did not disrupt the process but he was assisting the process as the applicant was making gestures, undermining the panel and not being professional to them. This was after the SADTU official spoke to her (the applicant). She was never chased out, instead she said she is not going to be interviewed by the panel and the chairperson released her. When minutes of the interview process were read, the witness stated that this is what happened on the day of the interview. The applicant ended up not asking the question she said she wanted to ask before she was to be interviewed. According to the shortlisting minutes, the candidate that is reflected in paragraph 11 was eliminated because he did not attach the transcript reflecting that he had Geography and IsiXhosa. In 2022, the SGB constituted of 9 parents and 3 teachers. Ms. Tokwe was elected in the SGB in the previous year and was part of the trainings which were conducted by the DOE before the interview for this position. The same principle applies to Mngomeni as well. All candidates were asked the same questions and were afforded the same time by the panel. Under cross-examination by the 2nd respondent’s representative, the witness testified that the position was HOD for languages and he is not sure if the applicant could have been considered or not as the focus was on languages. He was the resource person at the interview managing resources. Under cross-examination by Mr. Washington, the witness testified as follows: He was involved in the recruitment process of the HOD IsiXhosa and Geography as a resource person. He was not involved in the decision making of the best candidate from the shortlisting process. According to the minutes, the decision made was that the position was for all languages and this decision was taken in the best interest of the learners. On the day of the interview, the chairperson was in control of the interview process until it was finalized. Panelists were trained by the Circuit Manager before the process of recruitment started. The process was free and fair with no interference of an outsider. Principals in schools are in the position of power. When the applicant entered the interview room, she wanted to ask a question before she was being interviewed. When she was advised to ask the question later, she told the panel that she cannot be interviewed by them (the panel) as she does not have confidence in them. The applicant was undermining the panel using gestures. The panel was shocked with the conduct of the applicant. He intervened when things were getting out of hand by advising them not to force the applicant if he does not want to be interviewed. The SADTU official advised the applicant to sit for the interview as she may miss the opportunity of being interviewed. He is not sure about the applicant and the respondent’s teaching experience as that can be determined by their applications. Under re-examination, the witness stated that he does not have powers to appoint educators. Both the applicant and the 2nd respondent were shortlisted because they meet the minimum requirements of the position. As a principal, he is part of the SGB committee. The position as per the advertisement is HOD: IsiXhosa GET, /FET Geography FET (page 62 bundle A). The applicant was shortlisted but she was not interviewed. The interview was constituted of the resource person SGB parent and teacher components in line with clauses B5.4 to B.5.4.3.4 of the PAM document. He does not have powers to appoint educators. The applicant was given an opportunity to ask the question but she was told she can do that at a later stage of the interview. He (the witness) intervened by saying the applicant cannot be forced to sit for the interview after she said she cannot sit for the interview as she does not have confidence and trust on the panel. Under re-examination by Mr. Thapa, the witness stated that the role of the resource person is to facilitate the process and see to it that resources are made available. As the resource person, interaction is made by guiding the process. The second witness Mrs.Sinazo Tsonono testified as follows: She was chairperson of the SGB at the time of selection of the position of the HOD Geography and IsiXhosa at Sakhikamva High School. She knows both the applicant and Ms. Mbanga. The process followed was that the principal called the SGB in a meeting advising them about the advertised position and that SGB members has to attend training. At that time, Ms. Mbanga was the secretary of the SGB and she recused herself from dealing with SGB functions as she had applied for the advertised position. The SGB members were trained by the Inspector of the school (EDO). The election of the interview was done and shortlisting of candidates was also conducted. Out of 11 candidates who applied the panel selected 4 candidates. Candidates were advised of the interview date and the clerk of the school was requested to take minutes. On the day of the interview, candidate number 3, Ms. Telana was not interviewed. Upon her arrival at the interview room, the panel welcomed her and she (the witness) explained the process. Ms. Telana said she is not going to sit for the interview as she does not have confidence in the SGB or the panel. She excused herself and advised the panel that she will file a dispute within a period of a week and come up with an answer. The SADTU official, Mr. Mdingi who was the observer pleaded with her to sit for the interview as she was not going to be afforded another opportunity to be interviewed, but she refused and left. The panel continued with the interviews and recommended Ms. Mbanga as the suitable candidate for appointment. The applicant was never chased away. Under examination by Mr. Thapha, the witness testified that the applicant, Ms. Telana said she is not going to sit for the interview as she does not have confidence in the SGB or the panel. She excused herself and advised the panel that she will file a dispute within a period of a week and come up with an answer. This was after she asked that panel if she can ask a question and being advised by her that she will be afforded time to ask her question after she has been interviewed by the panel. The resource person confirmed with the applicant if she was willing to sit for the interview and her answer was that she cannot continue with the interview and left. She was never chased away. Under cross-examination by Mr. Washington, the witness testified as follows: The HOD position was for IsiXhosa and Geography as reflected in page 62 of bundle A. When it was put to the witness if she disputes that the applicant had 29 years of teaching experience while the 2nd respondent had 25 years’ experience or not, her response was that she cannot answer that question as the applicant did not sit for the interview. The resource person intervened when the applicant said she has no confidence in the interview panel and asked if the applicant was willing to be interviewed or not. The applicant stated that she will file a dispute and left the interview room. Her relationship between applicant and the 2nd respondent is the same as they are both teachers of the same school. The resource person addressed the panel when the applicant said she will not sit for the interview. As the chairperson of the interview, she responded first. The resource person had no power in controlling the interview panel. The SADTU official, Mr. Mdingi who was the observer intervened and pleaded with the applicant to sit for the interview as she was not going to be afforded another opportunity to be interviewed, but she refused and left. The gestures made by the applicant when she was addressing the panel of interview were undermining them. They were shocked by the applicant’s behavior but not angry. There was nothing peculiar that was said or done by Tokwe, they were all shocked. Under re-examination, the witness stated that the applicant refused to be interviewed by the panel, saying she has no confidence in the panel and that she will file a dispute within a week’s time. The applicant did apply for the position and she has been in the school for many years. Mr. Tokwe was his second term as member of SGB. The SGB is composed of 9 parents and 3 educators. The interview panel constituted of 5 parents and 1 Teacher; the quorum allowed them to continue with the process. It is impossible for the school to appoint someone who was not interviewed. The panel felt undermined by the gestures made by the applicant. She is employed by the Buffalo City Metropolitan Municipality as a Street Sweeper and the applicant is an Educator at Sakhikamva High School. As a parent she respects and trust teachers more especially at Sakhikamva in ensuring their children get quality education. The panel was shocked by the conduct of the applicant as they expect teachers whom they trust to teach their children well and respect parents as well. The applicant caused commotion and chaos on the day of the interview and her conduct was not what is expected from a teacher. She was never denied an opportunity to ask the question, she (the witness) told her that she will be given time to ask questions later, she never agreed to that. The applicant was the 3rd candidate and she was the only one who caused commotion. Under re-examination by Mr. Thapha, the witness stated that the applicant said she will not be interviewed by the panel and they were shocked as the panel. She did not take Mr. Mdingi’s advice as she refused to be interviewed and left. She believes that the applicant was supposed to be respectful to the panel. The third witness Ms. Nobuntu Fetsha testified as follows: During the interview, she was a scriber and was not scoring candidates. The applicant came in and was welcomed and shown a sit just like other candidates. She said she would like to ask a question because she is not confident with the panel and she would like to lodge a complaint. She was advised by Mr. Mdingi of SADTU to sit for the interview and lodge a complaint later. The applicant insisted that she will not sit for the interview and was allowed to leave. The witness stated further that what is in the minutes is exactly what happened. Under cross-examination, the witness testified that the applicant was not rude she was stating what she wanted to say and left after the chairperson allowed her to leave as she wanted to leave. In closing, Mr. Tsheko argued as follows: The applicant declared her lack of confidence in the panel of the interview and the panel could not force the applicant to sit for an interview. The applicant ought to have known that the SGB and the panel is a creature of statutes and there is no other structure which could be used to appoint the applicant other than the SGB. The applicant was advised by her union SADTU to remain in the interview and thereafter lodge a dispute if she is not satisfied but she ignored the advice. The applicant was not prepared to be interviewed from the beginning and her statement that she does not have confidence with the panel does not hold water. The question that must be asked is, why did she did not raise this matter prior the interview date as she knew that nobody except the SGB was going to conduct the interview. The applicant could not answer this question and it is not as if she was not expecting the SGB members to be in the interviews. The applicant refused to subject herself to the conclusion of the interview and as such denied herself an opportunity to be assessed. She waived her right to be interviewed during the interview and as such does not have a right to be appointed to the position. Mr. Tsheko finally argued that the applicant could not have been recommended by the panel or SGB for appointment in the light of her failure to present her candidature and that her application must be dismissed. In closing, Mr. Thapha argued that all the processes were conducted fairly and the candidates were given the same treatment but Ms. Telana decided to voluntarily leave the interview room without being interviewed. She undermined structures that are entrusted with a huge responsibility of governance in the institutions of learning and her 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 HOD: Geography and IsiXhosa at Sakhikamva High School in East London.

• That the applicant was shortlisted but was neither interviewed nor appointed to the position.

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

• That SADTU and NAPTOSA unions were observing the selection processes and no issues were raised until the incumbent was appointed.

  1. Although it is the applicant’s case that she was chased away from the interview process before it started, this evidence is disputed emphatically by all the three 1st respondent’s witnesses.
  2. The 3 witnesses of the respondent testified that the applicant was never chased out, instead she said she is not going to be interviewed by the panel as she does not have confidence and trust in them (the panel) and the chairperson released her.
  3. It is my view that the applicant’s refusal to subject herself to the interview means that she denied herself an opportunity to be assessed by the panel of the interview.
  4. The applicant did not adhere to the SADTU official’s advice of sitting for the interview and lodge a dispute later.
  5. It appears that the applicant waived her right to be interviewed during the interview as she voluntarily left the interview room stating that she will lodge a dispute/complaint.
  6. With regards to the allegation that the 2 SGB members were not trained prior the selection process, (Misses. Tokwe and Mngomeni), Mr. Macozoma’s evidence was that the 2 members were elected in the SGB in the previous year and were part of the trainings which were conducted by the DOE before the interview for this position. This evidence was not disputed.
  7. It must be noted that although the applicant alleged that the principal was biased towards Ms. Mbanga, and that she (the applicant) used to raise this conduct during the meetings at the school, no record of the minutes of the meeting or meetings were produced by the applicant during arbitration to support her claim. The applicant did not call a witness to corroborate her version.
  8. Mr. Macozoma disputed this allegation stating that even during the interview stage he stated that he never participated in the decision making of the panel he only intervened by addressing the panel when there was commotion saying, the applicant cannot be forced to sit for the interview.
  9. 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.
  10. It is not disputed that during the ratification process no issues were raised and the selection process was declared as free and fair.
  11. 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.
  12. 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”
  13. 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”
  14. It appears from the party’s evidence that the 1st respondent followed a fair procedure in appointing the best candidate for the position of HOD Geography and IsiXhosa at Sakhikamva High School and as such did not exercise its prerogative in a biased, unfair, capricious and unjust manner in appointing Ms. Lulama Mbanga to the position.
  15. 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

The 1st respondent, Department of Education-Eastern Cape is ordered to pay wasted costs of the Council occasioned by the postponement of 25 September 2024.

Signature
Ncumisa Bantwini
ELRC Panelist

I therefore make the following award:

The appointment of the incumbent, Ms. Lulama Mbanga 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. Mbanga.

The applicant, is therefore not entitled to any relief.

The application is dismissed.