IN THE ELRC ARBITRATION
BETWEEN:

Emily Nompumelelo Ngwane Applicant
and
DEPARTMENT OF EDUCATION– GAUTENG Province Respondent

ARBITRATION AWARD

ARBITRATION DATE: 27 March 2024, 29 April 2024, 27 May 2024, 28 May 2024, 27 June 2024 and 28 `June 2024

DATE OF AWARD: 01 August 2024

Pitsi Maitsha
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION
1. On 27 March 2024, 29 April 2024, 27 May 2024, 28 May 2024, 27 June 2024, and 28 June 2024 this dispute came before me at an arbitration hearing. A final arbitration was held on 28 June 2024. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 as Amended “The Act”. The award is issued in terms of section 138(7) of “The LRA”.

2. The applicant is Nompumelelo Emily Ngwane and Advocate Rebeca Molema represented her. The first respondent is The Department of Education: Gauteng Province, as defined by section 1 of the Employment of Educators Act, 76 of 1998, is a provincial department responsible for education in a province and includes all public schools, further education and training institutions, departmental offices and basic adult education centers in such province, and was represented by Mr. John Marakalla, Deputy Chief Education Specialist. The second respondent, Ms Poppy Skhosana, also attended and was represented by Mr. Enock Senoamadi, the union official from SADTU.

3. The parties gave the evidence under oath. The proceedings were held at the Tshwane South District office in Pretoria. The proceedings were digitally recorded, and all the recordings were submitted to the Council.

ISSUE TO BE DECIDED
4. I must determine whether the respondent’s conduct of not promoting the applicant constituted an unfair labour practice. If so, make an appropriate order.

BACKGROUND DETAILS
5. On 23 November 2023 the parties held a pre-arbitration meeting, and they recorded the following in the pre-arb minutes:
5.1 In terms of common cause facts: 5.1.1 This is a promotion that involves Post NO TS43/1112 Ribane Laka Secondary School being the post of the HOD English FAL; 5.1.2 The applicant is currently Post Level (PL) 1 Educator at Ribane Laka Secondary School; 5.1.3 this post was advertised, shortlisting was done and a recommendation for appointment was done; 5.1.4 The applicant applied for this post after it was advertised; 5.1.5 The applicant was invited for the interviews; 5.1.6 The second respondent was appointed on 5 September 2023; and 5.1.7 Both the applicant and the respondent applied for the post.

5.2 In terms of the facts that are in dispute and must be decided by the Arbitrator. 5.2.1 Whether the second respondent was unqualified, not competent, and not experienced; 5.2.2 Whether the appointment of the second respondent was based on emotional attachment, rather than academic performance; 5.2.3 Whether the friendship between the Principal and the second respondent influenced the appointment process; 5.2.4 Whether the applicant produced most distinctions in the entire district in 2022; and 5.2.5 The appointment of the second respondent was based on emotional attachment as opposed to academic performance and the Principal favoured the second respondent as they are friends.

6. Aggrieved by the failure to appoint her, the applicant referred an alleged unfair labour practice dispute relating to promotion to the ELRC.

THE EVIDENCE OF THE APPLICANT
7. The applicant testified that she has been employed as an educator and she offers English as the major subject and Business Studies. She offers English as a First Additional Language for Grades 10, 11, and 12. She previously had Grades 8 and 9.

8. She testified that she has a three-year secondary teacher’s diploma majoring in English and Business Studies. She also has a Bachelor of Arts (B.A) degree majoring in Psychology and Education. She started teaching English in 1989 and Business Studies. She was offering English for Grades 8, 10, 11, and 12 in 1989 for twelve (12) years. She was offering English at Mbalinhle Secondary School.

9. She testified that from 2001 until 2014 she continued to offer English for Grades 9, 10, 11, and 12 and Business Studies for Grade 11 at the same school Mbalienhle Secondary School. She was at Mbalienhle for twenty-five (25) years.

10. She testified that there was workshop training and teacher development organized by the Mpumalanga Department of Education. She received the Classroom Management Certificate.

11. She also testified that in 2015 she started working at Ribane Laka Secondary School teaching English and Business Studies. She has been teaching English since 2015 for Grades 10, 11 and 12. She further testified that there are four teachers teaching Grade 12.

12. She testified that during her period at Ribane Secondary School, she held the position of treasurer for the cultural committee, a member of the disciplinary committee sport convenor for discussion, a member of safety at the school level, and in 2017 she acted as Head of Department for English.

13. She testified that in 2022 she got nine distinctions from Grade 12 results in her four English classes; hence she got the award for the best teacher in Tshwane District South in English. In 2023 she had three classes, and she had 12 distinctions in English with 57 level 6 passes. She was awarded the certificate in Tshwane District for the best teacher FAL. She was the only teacher who was awarded.

14. She testified that by emotional attachment she meant that she used to see the second respondent making tea for the principal. She saw her in and out of the principal’s office, after school remaining in the principal’s office. In her understanding, they are employed to teach learners, not to make tea for their superiors. Since there are people employed to clean, there are the ones to make tea and not the teachers. This has been happening for four years, and that is when she joined Ribane Laka Secondary School. She lately saw her during teatime break. Previously, the Principal was not feeling well, and the second respondent offered to make tea for the principal.

15. She testified that she feels she must be recognized as hardworking. The principal is covering for the friend.

16. She testified that by academic performance she meant that it is a problem in terms of teaching. The second respondent teaches English in IsiZulu. She did not raise it with the School Governing Body (SGB) because the second respondent is part of the SGB. She did not raise it with the district, but she was talking with other teachers. She further testified that this emotional attachment happened before the appointment.

17. She testified that the SGB chairperson Magolego, secretary teacher component Selala, Principal Mam Ngoma, Mam Thembu parent component, Mr. Munyai, parent component, and Sifiso Mnisi from SADTU were present at the interviews. Mam Ngoma, Magolego, and Mam Thembu from the parent component participated actively during the interviews. She also testified that there were seven candidates at the interviews and two were from outside.

18. She testified that the score results show that she was scored by Mam Ngoma giving the total score of 13 over 30. She remembers answering all the questions, regarding the issue of warning. She remembers stating that if the teacher persists with the wrongdoing, the matter will be referred to the principal for further interval.

19. She testified that she believes that she is the best candidate because she will bring a positive contribution to the school, uplifting the standard of education to the learners, not only in the English department but also in the other learning areas, to improve the image of the school in the community and collaborating with other teachers from other schools, and other responsibilities in administration.

20. She further testified that she does qualify in terms of the advert. She never had a learner fail in her class, her results show the passion she put in, and she wishes to work with other teachers to share the stage with her.

21. She also testified that she will be in a better position to assist if she gets appointed. The impact of the decision not to promote her is that she has been sidelined since she made a referral of the dispute to the ELRC. She shouted in front of learners and colleagues which never happened before, she contributed positively to the departmental meetings.

22. She testified that she is a bona fide member of SADTU. She lodged this dispute because she felt she was a suitable candidate.

23. She testified under cross-examination that the second respondent never had awards in terms of national recognition, and she never had distinctions. There were complaints about her teachings. She did not agree with Mr. Marakalla’s statement that the second respondent was equally competent to her because she received more distinctions in the Tshwane South District. She testified that there is no charge for poor work performance for the second respondent if there is no supervision. She testified that the results for Grade 12 learners in the past three years at the school were excellent. She further testified that the Grade 12 learners for the second respondent were below level 3. She produced more distinctions than the second respondent in the past three years in the Grade 12 results. She further testified that the second respondent did not have qualifications in English. She testified that the requirements for one to be shortlisted for the departmental post are three to five years of experience, and the minimum qualification that a person must possess to be shortlisted is English. English should be there as the key subject and RQV13.

24. She testified that she did meet the requirements to be shortlisted because she has a three-year diploma majoring in English and B.A degree. Whilst the respondent did not meet the requirements for shortlisting in terms of requirements, she does not have English at all. She testified that in terms of the second respondent’s GD2R Form for Promotion, she has nineteen (19) years and eight (8) months as an educator, and she taught the English subject. The second respondent is teaching Grades 8, 9 and 12. She testified that her GD2R Form 20 states that her experience is nine (9) years and one month.

THE EVIDENCE OF LUCKY ZWANE: THE DEPARTMENTAL HEAD
25. She testified that she has been the Departmental Head for twenty-five (25 years. She testified that she had seen unprofessionalism at her school where a post had been advertised and taking somebody to do marking for a subject they were not qualified for, which meant learners would not perform.

26. She testified that the post advertisement states English as the requirement. They know as teachers that they must be qualified, they must have been trained. Justice must be done for the post. There are rumours that posts are being sold and social media saying that the principal is selling the posts.

27. She testified that the screening is done at the district. The relevance of qualification and competence is that the teacher must be taught how to teach the subject. She testified that the SGB recommends, and the Department appoints, but the SGB recommendation is more powerful than the Department.

28. She testified under cross-examination that clause 8.1.1 of the Collective Agreement 1 of 2021 states: “In terms of section 23(9) of the South African Schools Act of 1996 the number of parents members must comprise one more than the combined total of other members of the governing body or interview committee who have voting rights.”

29. She testified that the applicant’s score is 13 and looking at the second respondent’s score, she would not hold the view that the principal could be biased. The second respondent does not have English as a qualification, but English in matric.

THE EVIDENCE OF PHINDILE MDINGI: THE DEPUTY PRINCIPAL
30. He testified that he is part of the SMT, but not part of the SGB. He testified that he came to arbitration proceedings because of injustices that happened at the school whereby someone who was not qualified had been appointed. The person who occupies the position does not have English as per the advert requirement.

31. He testified that the second respondent’s GD2R Form under “qualification” did not see any relation to the requirement. She further indicated that under column 3 “English Grade 8 and 9”, which means that she does not teach Grades 8 and 9. The advert states that the person must have English as a requirement. The second respondent indicated in the GD2R Form that she teaches Grades 10, 11, and 12, whereas the advert states the requirement from Grade 8 to Grade 12.

32. He testified that the applicant is correct, favouritism is the cause of conflict. Every day the second respondent remained after school, which is a problem. He remembered the applicant was given many classes after the former Departmental Head left.

33. He testified that she remembers the applicant made a lot of improvements when she came to act, and she has a passion for English subject. She would stop the learners at the gate and help them with English when they were about to write exams.

34. He further testified that the second respondent was not competent because she produced quantity, not quality. They had three teacher components as part of the SGB, two of them had promotional posts namely, Mam Selala and the second respondent. He testified under cross-examination that both the applicant and the second respondent are his colleagues, and they do have a good relationship. He did not have issues with the second respondent.

35. He testified that the second respondent did not qualify because she did not have qualifications. They are aware as the Departmental Heads that in terms of PAM, the second respondent has the basic knowledge of the subject, but they need advanced knowledge. The Departmental Head must develop teachers (i.e. grades 8 and 9). In terms of PAM for the Departmental Head, the Departmental Head must have advanced knowledge of the subject, not basic knowledge of the subject. The second respondent does not have relevant knowledge or qualifications.

36. He testified that the shortlisting minutes state: “The panelists confirmed the total number of disqualified and the qualified candidates are on the list. The package has 26 applications, and the list had 26 names on it, of which six candidates were disqualified from the district sifting. 18 candidates were eliminated due to lack of required relevant subject qualifications”.

37. He testified that the first respondent was not fair because the second respondent was not eliminated. He agreed with Mr. Marakalla that the first respondent’s discretion as to who must be appointed, and that discretion must be in line with the law. He testified that section 6 (3) (a) of the EEA “POWERS OF EMPLOYER” provides: “Any appointment, promotion or transfer to any post on the educator establishment of a public school may be only be made on the recommendation of the governing body of the public school and if there are educators in the provincial department of education concerned who are in access of the educator establishment of a public school due to operational requirements that recommendation may be only made to candidates identified by the Head of the Department who are in access and suitable for post concerned. He agreed with Mr. Marakalla that the advert states “Manage English from 8-12”.

THE APPLICANT’s CLOSING ARGUMENTS
38. Advocate Rebecca Molema indicated that the shortlisting panel recorded criterion A in the minutes to eliminate non-suitable candidates which included subject relevance in terms of the primary qualification. She argued that the second respondent does not match the requirement of the advertised post in terms of area of specialization and/or subject qualification as prescribed in the legislative framework. She argues that preference should in all cases be given to appropriately qualified and competent applicants for promotional posts. She stated that the procedure to recommend the second respondent was arbitrary and unfair resulting in the first respondent acting unfairly in appointing an unqualified and incompetent candidate.

39. She also stated that the procedure of recommendation is unfair as it is motivated by bad faith and inequality based on wrong principles, resulting in the appointment being obtained through undue influence by the SGB members. She indicated that the panel confirmed to have eliminated 18 candidates due to a lack of required relevant subject qualification demonstrating that the discretion was capricious and based on the wrong principle in a biased manner, questioning the sifting and shortlisting process and how the second respondent survived elimination.

40. She stated that the applicant is therefore suitable, professionally qualified, competent and experienced as advertisement requirements and she is therefore entitled to the relief sought. She referred to the Labour Court decision in Malatji v City of Tshwane Metropolitan Municipality and Others, Shauna Patricia Pamplin v Western Cape Education Dept. and Others (LC). She argued that the first respondent had failed to apply its mind to promoting the suitable candidate as verification of shortlisted candidates did not include a vetting procedure before or after the interview process to determine the suitability of the recommended candidate as per the ELRC Collective Agreement NO 1 of 2021. She argued that having regard to the requirement of law regarding a balance of probability, the applicant is satisfied that the respondent’s case stands to be dismissed and her relief is granted.

THE EVIDENCE OF THE RESPONDENT
THE EVIDENCE OF MATLAWENG LAZARUS MAGOLEGO: THE FORMER SGB CHAIRPERSON
41. He testified that he knows the applicant very well, she used to be his daughter’s teacher. Their relationship was professional, all the teachers conducted themselves as professional. When there was a problem with her daughter at the school, she would call him, and they both reprimand the child.

42. He testified that he did play the role during recruitment. A meeting was properly convened where shortlisting took place. The second respondent did attend but recused herself after she declared her interest in the position. The scriber and teacher component Mrs. Selala, attended the meeting, the principal, Mr. Munyai, and another lady.

43. He testified that everyone who was unqualified was dealt with at the district. All who were in the package did qualify or at least had the potential to be appointed. They checked managerial experience: whether you acted before, and skills relevant to the post. He testified that any person who meets the minimum requirements is sifted by the Department. He did not agree that the second respondent did not qualify. He finds it suitable that the second respondent can teach English from the powers that it may be. He further testified that the final decision and prerogative lies with the Head of Department. He also testified that they combined all the scores during the interview. They found that the second respondent would be 1, Ms Selwane would be 2, and 3 would be the applicant. The minutes under “PANEL ANALYSIS” read as follows: “They agreed that the candidate will be scored in deliberations and score. In terms of Ms Ngwane, she did not give management experience and leadership.” She showed confidence, but she did not perform well with the confidence. The best of the best will be selected.

44. He further testified that if the principal had her agenda, he did not know about it. He does not believe that it happened. He is not sure if the principal has preferences, she has an open-door policy.

45. He testified under cross-examination that in terms of the advert, the requirements were English Grade 8 to Grade 12, three years’ experience, and someone teaching English from Grade 8 to Grade 12. He testified that in terms of the second respondent, he saw that the major subjects are Business Management and Isizulu. They have a teacher who has been teaching English and the school has no problem with it. He testified that clause 11.3 of the Collective Agreement provides: “No person must be included if they do not meet the requirements.” The second respondent qualified, she has relevant experience, B. A qualification and she registered with SACE.

THE EVIDENCE OF MARTHA ZIBI NGOMA: TEACHER AT RIBANE LAKA SECONDARY SCHOOL
46. She testified that she works at Ribane Laka Secondary School as the Principal. She knows the applicant; she is the teacher at the school. She does not have grudges with the applicant. She treats her like any teacher, and she respects her.

47. She testified that she is part of the SGB by the mere fact of being the principal. She has no authority to appoint as the principal. As the SGB, they have no authority to appoint but make recommendations. She testified that the allegations by the applicant were baseless as she had been shortlisted.

48. She testified that both the applicant and the second respondent qualified to teach English. They both have diplomas and degrees. They both exceeded the minimum requirement of three years. The Head of Department makes the final appointment.

49. She testified that she could have one-on-one after school any day and at any time. It happens with whoever, not necessarily with the second respondent. She testified under cross-examination that she has a good relationship with all the staff. She also testified that the second respondent never made tea for her, but they shared tea. She can relate to anyone.

50. She testified that there was no elimination on the second respondent as she has been teaching English FAL for 19 years. She testified that she scored the second respondent 4, whereas she scored the applicant 3 based on presentation. She further testified that they would rate and thereafter motivation would be done. More deliberations will be done later.

THE EVIDENCE OF THABISO MPHOSI: THE ASSISTANT DIRECTOR IN HUMAN RESOURCE PROVISIONING
51. He testified that he has been working as the Assistant Director since 2020. He testified that they advertised the post, they prepared the shortlisting process after the closing date. He would go to train the SGB members. He testified that the advert indicated the minimum requirements as follows: the educator’s minimum experience is three years, and qualification RQV13 in education which is a diploma.

52. He testified that sifting is done by the district, they will see who qualifies or not, and they check the minimum experience in education. They also look for late applications. Elimination is done by the district. Before shortlisting can be done.

53. He testified that the second respondent has RQV13 and has experience in teaching the subject. He testified that disqualified applications are not sent to the school, but only qualified ones.

54. He further testified that competence is accounted for at the interview, not what one has. Letswalo scored 41, Masemola 38, the applicant 43, the second respondent 68, and Selwane 51. The SGB then does the motivation. The interview results state that the applicant was confident but did not respond well to some of the questions and demonstrated a limited understanding of management. They are looking for a Departmental Head.

55. He testified that the respondent prayed for the dismissal of the application as the process was followed to the letter.

56. He testified under cross-examination that the subjects were not the subjects as required by the advert. He testified that the advert does not state English as the requirement.

THE RESPONDENT’s CLOSING ARGUMENTS
57. Mr. John Marakalla argued that the narrative that the second respondent was not experienced is galaxies apart from the truth. He indicated that the applicant was unable to prove that the principal had an undue influence on the second respondent’s appointment. He argued that the testimony of Mrs. Zwane did not assist because she was not part of the panel and did not have an idea of how the candidates performed during the interview. He indicated that Mrs. Zwane’s testimony seemed to be cajoled and she was not a reliable witness. He argued that it would be illogical for the first respondent to have considered the second respondent if she did not possess any leadership, management, or communication skills. He stated that Mr. Mdingi’s testimony was not reliable simply because he submitted that the second respondent is teaching English in Zulu, and his testimony should be treated with caution as he appeared not to be a reliable witness.

58. He indicated that in terms of section 4 (b) B.5.4.8.1 of the Employment of Educators Act, of 1998, the Interview Committee must also consider the curricula needs of the institution. He argued that since the Department of Education is mandated to ensure that all learners are taught in the schools, the Department advertised the posts solely to address the needs of the school for the school to be in a better position to serve the best interest of the children. He further argued that there is nowhere, where clause 4(12) of the Collective Agreement, 1 of 2019 made mention of the fact that the ranking determines appointment as the relief the applicant sought. He argued that the rule of law is that the Interview Committee must rank the candidates in order of preference subject to SGB making its recommendations. He indicated that in terms of the South African Schools Act, 84 of 1996, the Superintendent-General has delegated powers to the District Directors and appoints or does not appoint after exploring whether the procedure and substantiveness were adhered to.

ANALYSIS
59. This matter concerns an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the “LRA”. For this award, the proof of the existence of an alleged unfair conduct by the respondent rests on the applicant. The applicant has submitted a bundle of documents hereinafter referred to as bundle A1 and called three witnesses, whilst the respondent had called three witnesses and submitted two bundles hereinafter referred to as R1 and R2.

DEFINITION OF PROMOTION
60. The word [promotion] has been defined in several Labour Court, Labour Appeal Court, Supreme Court of Appeal, and Constitutional Court judgments. In the Labour Court matter of the Department of Justice v Commission for Conciliation Mediation and Arbitration and Others (2004) 25 ILJ 248 (LAC), it defined “promotion” as follows: “Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving (a) unfair conduct by the employer relating to promotion [of an employee]. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.

61. Giving rise to this dispute is the fact that the post of Departmental Head at Ribane Laka Secondary School became vacant and was advertised. Having established the interview committee, the panel members met for shortlisting and probably conducted the interviews. During the shortlisting meeting, the second respondent disclosed her interest before the SGB and recused herself.

62. It is a common cause that both the applicant and the second respondent were shortlisted and were invited to attend the interviews. It is a further common cause that the SGB made the recommendation of the second respondent for appointment to the Head of Department. It is worth stating that in terms of recommendation, the order of preference recorded the second respondent as the first preference, the second is Ms Selwane and the third is the applicant.

63. The first issue I am called to determine is whether the second respondent is unqualified, not competent, and not experienced. Generally, the first step after the closing date of the advertised post is called “sifting”. The duty of sifting is vested with the district office of the Department of Basic Education. The purpose of sifting is to determine the applications that do not meet the requirements of the post and if found, they are put aside. Also, what is important to consider during sifting is that the trade unions are invited to observe the sifted applications to verify if there is no error in the sifting.

64. It is not disputed that the GD2R Form of the second respondent indicated that she has a B.A degree majoring in Business Management and Isizulu and a High Diploma in Education.

65. Personnel Administrative Measure (PAM) places an obligation on the respondent to comply with the requirement of advanced knowledge of teaching as provided for in professional qualification teaching, skills, people management, etc.

66. In terms of clause 11.7 of the Collective Agreement NO 1 of 2021, the SGB is prohibited to include a person in the preference list in the event such person does not meet all the requirements as contained in the advertisement for the post. It further stipulates that appointing a person or candidate who does not meet the advertised requirements is irregular. Also, the purpose of conducting shortlisting is to eliminate such applications and the interview committee has an obligation not to consider such applications.

67. In the present matter, the Ribane Laka Secondary School advertisement for the Departmental Head post set out the requirement for the post as English. It is a common cause that the applicant has a B.A diploma majoring in English and Business Management. It is also a common cause that the applicant is teaching English from Grade 8 to Grade 12. The second respondent is teaching Grades 10, 11 and 12. The Departmental Head is required to lead or manage the English Department from Grade 8 to Grade 12. Mr. Marakalla failed to dispute her version that the teachers understand when an advertisement for a teacher post stipulates that qualification means that a teacher must be taught how to teach the subject. Therefore, I disagree with Mr. Marakalla’s argument that Ms. Zwane’s testimony did not assist because she was not part of the interview panel and did not have an idea of how the candidates performed during the interview, and as a result, she is not a reliable witness.

68. Again, I find Advocate Magolego to have contradicted himself. The SGB agreed during shortlisting that they would check management skills and if the candidate did act on the position. Surprisingly, the applicant who acted in this position of Departmental Head failed to demonstrate management and leadership skills. There is no evidence before me that the second respondent was appointed to act on this position at some stage. I further wish to record that Advocate Magolego’s version was that in terms of the advert, the candidate must be teaching English from grades 8 to 12. There is no evidence before me suggesting that the second respondent is teaching or ever taught Grades 8 to Grade 12, she only teaches English in Grades 10, 11, and 12.

69. In this regard, I wish to record that it is not disputed that the second respondent had taught English subject for 19 years. This experience is unassailable. Given the above, I am of the view that the first respondent did not comply with the provisions of clause 11.7 of the Collective Agreement 1 of 2021.

70. In the present case, sifting took place and according to the completion; after verifying, all applications were sent to the school. There is no evidence before me that there were errors that were discovered resulting from sifting.

71. Ensuing the sifting of applications above, I am of the view that the second respondent’s application should have been eliminated at this stage.

72. In the unreported decision of the Labour Court of v Western Cape Department of Education and Others (2018) (LC), the Labour Court said that the employer is also obliged in the case of unfair labour practice to defend attacks on the substantive and procedural fairness of its decisions in the event it wishes to avoid a negative outcome. In other words, the court said that there is an obligation on the part of the employer to place the evidence of the fairness of the process followed and the rationale for the appointment or non-appointment, to satisfy a tribunal that the appointment or on-appointment was rational and fair.

73. In terms of section 6 (3) (b) (v) of “EEA”, the governing body ought to ensure that in considering the applications the principles of equity, redress, and representativity are complied with and the governing body or the council adhere to procedures that will ensure the recommendation is not obtained through undue influence on the members of the SGB.

74. I also wish to record that the Principal, Mrs. Ngoma, did not dispute or deny that she did not meet or remain with the second respondent after school or at any time of the day. She confirmed that she could meet anyone at any time of the day. Given the above, I am of the view that a balance of probabilities dictates that the second respondent has been with the respondent on numerous occasions even after work. In addition, Mrs. Ngoma did not give testimony stating that she did ever have one-on-one with the applicant. She conceded under cross-examination that she shared tea with the second respondent.

75. Having regard to the above, I am of the view that the respondent’s decision not to eliminate the second respondent during sifting shortlisting, or interview is substantively unfair.

76. It is a tried law that the decision to promote or not to promote is the discretion of or falls within the prerogative of the employer.

77. For an employee to succeed in a dispute of promotion, such an employee must demonstrate that the employer had exercised its discretion Capriciously, for insubstantial reasons, based upon any wrong principle, or biased manner, whether the employer did not comply with applicable procedural requirements relating to promotion.

78. To ensure that the decision to appoint the second respondent was made in bad faith, the respondent had failed to challenge the applicant’s version that all the components have been to promotional dispositions. Mrs. Selala and the second respondent are good examples to benefit from this.

79. In Noonan v Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 2596 (LAC), the Labour Appeal Court held that there is no right to promotion, but only a right to be given a fair opportunity to compete for a post.

80. The evidence before me is sufficient to conclude that the respondent’s decision to appoint the second respondent to the Departmental Head post failed to comply with applicable procedural requirements relating to promotions. Also, the decision was taken in a biased manner. As already stated above, once the applications for an advertised post have been received, the first step of applicable procedural requirements is conducting sifting. However, in the case of the second respondent, the evidence shows that she does not have English as a major subject. This is not an ordinary case in which the qualifications and the scores of the candidates need to be assessed or evaluated, but whether the second respondent met the requirements as per the advert.
81. Having regard to the above, I am satisfied that the applicant has succeeded in discharging the onus to establish that the conduct by the respondent to appoint the second respondent constituted an unfair labour practice.

82. Turning to an appropriate remedy, I wish to state that the applicant has indicated that she is seeking to be appointed to the post of Departmental Head. I am however of the view that this request is not probable. In terms of section 6 of the (3) (e) “EEA”, I can consider two remedies namely: an order to readvertise the post or appoint the applicant. In the present case, the applicant did not claim to be the second best during the interview. The dispute is only considered based on failure by the respondent to comply with the applicable procedural requirements relating to promotion. I therefore consider advertising the post to be an appropriate remedy.

83. In the premises, I find the following award competent.

AWARD
84. I find that the applicant, Nompumelelo Emily Ngwane, has succeeded in establishing the existence of unfair labour practice.

85. The process of appointment of the 2nd respondent is set aside. The appointment of the second respondent is set aside from 01 August 2024.

86. As a result of the above, I hereby order the Department of Education: Gauteng Province, to repeat the process of filling the post from the advertising stage.

P. Maitsha
ELRC Panelist