In the ARBITRATION between

NAPTOSA obo Ncayo Bongi
(Applicant)

And

DEPARTMENT OF EDUCATION & 1 Other
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. This is an award from an arbitration hearing held on the 9th & 10th October 2024 involving the Applicant, Ms. Bongiwe Ncayo, represented by Mr. Aaron Mhlontlo, NAPTOSA Official, whilst Ms. Nokulunga Sikithi, represented the First Respondent, the Department of Education EC and . Mr. M Mongezi Mokoena, SADTU Official, represented the Second Respondent, the incumbent, Mr. Vuyo Nangqo.

2. The proceedings were digitally recorded, and the witnesses gave evidence under oath.

3. The initial hearing was held on the 29th of August 2024, but due to non-availability of certain documents requested by the Applicant’s representative, the proceedings had to be adjourned.

4. With the consent and agreement of both parties two consecutive days i.e. 9th and 10th of October 2024 were confirmed by all parties as ideal to finish to the finalize these proceedings.

ISSUES TO BE DECIDED

5. I am required to decide whether or not the 1st Respondent committed unfair labour practice both procedurally and substantively in appointing Mr. Nangqo to a P3 vacant principal’s post, at Simphiwe Khethwa Senior Secondary School (SSS) within Joe Gqabi District in Aliwal North. The said post was advertised in the open Volume 1 of 2024 / 133 dated 19 April 2024, ,the Applicant, as relief, is seeking to have Mr Nangqo’s appointment set aside and the process starts afresh.

ISSUES TO THE BACKGROUND

6. In essence, the Department of Education of the Eastern Cape Province through its Open Post Bulletin for Principals Volume 1 of 2024, advertised the vacant principal’s posts in the Districts of Aliwal North, including that of Simphiwe Khethwa SSS.

7. At the time of application, the Applicant was a post-level 2 educator graded at the same school. The Applicant was shortlisted and interviewed on 23 May 2024. She was placed number 4 and the Second Respondent was number 1.

8. It further came to light that a Post level 4 (P3 principal) position has a higher status and salary level than a post level 2 (Departmental Head) position. The Applicant would have been placed on a higher status and earning a better salary if the Applicant was successful.

9. She was surprised that she was not recommended by the SGB but instead, the 2nd Respondent, Mr. Nongqo, was appointed, despite her meeting the requirements as against the incumbent who did not meet the minimum requirements of the post, which is a qualification in education management.

10. It is common cause that the Applicant commenced her duties at Khayamnandi School, now renamed Simphiwe Khethwa SSS. She managed to upgrade herself to Grade 10, 11 & 12 as an educator teaching History, Xhosa and Religious Studies. Moreover, she was awarded for good performance in her classes. She further managed to obtain Further Diploma in Education with specialization in Education Management at the University of Pretoria.

SURVEY OF EVIDENCE AND ARGUMENT

Applicant’s case

11. The Applicant’s revealed that the former principal, one Mr. Sigojo of the school, had informed everybody that he was leaving them in April 2024. What then followed was the ceremony to bid farewell to Mr. Sigojo. Officials from other schools graced the occasion with their presence. The opportunity was also given to the local senior staff and the community at large. The Applicant went on to highlight the sifting process based on school and office posts. She further stated that the employing department must handle the process of eliminating applications of those candidates who do not comply with the requirements for the post(s) as stated in the advertisement.

12. In the above regard, the Applicant further mentioned that the Revised Personnel Administrative Measures (PAM) which regulates the recruitment processes for educators indicates the process that the 1st Respondent must follow. Contrary to what was expected, the 1st Respondent could not discover the HR sifting report despite numerous requests. The Applicant further submits that such a report is deliberately withheld to hide critical information.

13. Further, it is the Applicant’s submission that if sifting was done, the incumbent and other shortlisted candidates would not have been shortlisted as their forms were incomplete and/or incorrectly filled and fell short of meeting the requirements of the post. There is no evidence that sifting was done.

The list of short-listed candidates for the interview purposes should not exceed five per post. Further, an educator, who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted. Further, the Applicant pointed out that no yardstick was used to measure the scoring points of the candidates.

In response to all the questions put to her, she focused on the duties she was mandated on. As to whether she was subjected to the normal process, she responded in the negative

It came clear to her mind that the interviewing panel knew who must be appointed to the post of principal.

Respondents’ case

The Respondent’s first witness, Mr. K. Sengoatsi, confirmed his position under oath as the Circuit Manager of the Joe Gqabi District. He further confirmed that in a meeting of SGB and EDO held on the 9th of May 2024 in accordance with No. 1 Principal’s Bulletin of 2024, he was selected as a Resource Person of the panel.

Not long thereafter, the profiling of the principal’s post in Simphiwe Khethwa SSS was attended to so that anybody who has an interest can apply also. As this was a new school, the subjects that the panel focused on were management and administration as these were the key ones.

He further pointed out that after training the SGB members, five (5) were then chosen to become panelists who also formed the Interviewing Committee. The following were the shortlisted candidates:

(a) Mr. Nongqo (Acting Post L3);
(b) Ms. Ncayo (Post L2);
(c). Mr Phaki (Head of Department);
(d.) Mr. Maritz (Post L1); and
(e)Mr. Ngxaki (Post L3

Mr. Sengoatsi also brought to light that out of the two unions who are normally invited to join a panel only SADTU responded positively, NAPTOSA did not attend. He further testified thatafter the interviews, he and the panel went back to the SGB give a report.

It also came to light that one Ms. Fezeka Makhasi was not properly elected from the onset when the SGB was elected in March 2024 and that renders the status of the SGB to be illegal as she never had a child.

The Respondent’s witness, who is also the SGB Chairperson, Mrs. Lidziya, confirmed that she was asked either to vacate or be removed. This was on the basis that her election and election was not consistent with the South African School Act 84v of 1996 …

ANALYSIS OF EVIDENCE AND ARGUMENT

As a point of departure, this is a promotion dispute involving post no. 133 in vol/1/2024, being a principal post at Simphiwe Khethwa Senior Secondary School. The Applicant, Miss. Bongiwe Ncayo, represented by NAPTOSA Official, Mr. A Mhlontlo, is alleging that the First Respondent has committed an unfair labour practice both procedurally and substantively.

The First Respondent was represented by Ms. N Sikithi, who is contending that there was no commission of an unfair labour practice to any of the candidates including the Applicant. On the other hand, the Applicant has a strong view that the post and appointment of the incumbent be reviewed and set aside, and that the process be started afresh with profiling and advertising, as she was prejudiced on the sifting and shortlisting stages where other candidates were not even supposed to have been shortlisted.

The Second Respondent, Mr. V Nongqo, represented by Mr. Mokoena, a union official from SADTU, argued that there was no unfair labour practice committed against the Applicant, and that, the dispute must be dismissed.

Of significance to take note of, is the Revised Personnel Administrative Measures (the PAM) [09 September 2021] (Pg107-108/386) which regulates the recruitment processes for educators and indicates the process that the Respondent must follow. The 1st Respondent could not discover the HR sifting report despite the numerous requests. The Applicant, notably, made the point that such a report is deliberately withheld to hide the information.

Most importantly, the Applicant brought to the attention of the forum that if sifting was done both the incumbent and other shortlisted candidates, would not have been shortlisted as their forms are incomplete and/or incorrectly filled and fall short into meeting the requirements of the post. I have no reason not to accept that there is no evidence to show that sifting was done.

Notably, the First Respondent’s response during the leading and cross-examination of its key witness, the circuit manager (Mr. Sengoatse), the latter confirmed that he did submit a sifting report unfortunately it was blurry printed. I fail to understand the purpose of actually including not blurry, but blank page.

Regarding to an issue of absence of shortlisting, the circuit manager’s testimony explained that this does not mean there was no criteria used in the meeting. This point is alleged to have been collaborated by the SGB chairperson. However, I do not find this carrying any meaningful weight.

Further, the Applicant argued that there was no proof or indication that NAPTOSA was ever invited to the shortlisting and interviews and this was made clear that it was not consistent with the Revised PAM document which that the shortlisting and interview must comprise of the following:

“B.5.4.3.4 One union representative per union that is a party to the provincial chamber of ELRC. The union representatives will be observers to the shortlisting, interviews and drawing up of a preference list”.

The Revised PAM which regulates the recruitment processes for educators indicates that:

“B.5.4.7.4. Procedures that would ensure that recommendation is not obtained through undue influence on the members of the SGB.”

At the time of shortlisting meeting held, the incumbent was only three months into acting position. Both witnesses confirmed that he was automatically shortlisted based on his acting position. That is not consistent with provisions of the PAM document which states as follows:

“B.5.4.9 states that the list of short-listed candidates for the interview purposes should not exceed five per post. An educator, who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted”.

The above makes sense as it states that an educator, who has been acting in an advertised post for 12 months or more (not less) has applied for the post, must be shortlisted.

Further, during the SGB ratification meeting, some members were never members of the SGB, Mr. Sengoautse, Ms. Mhlontlo, Mr. Mnyombolo (union representative), Ms. Fezeka Makhasi (an illegible member of the SGB) is against the policy directive which states:

“B.5.4.12 At the conclusion of the interviews the Interview Committee must rank the candidates in order of preference, together with a brief motivation, and submit this to the SGB for their recommendation to the relevant employing department.”

I certainly go along with the views of the Court in Ngcobo v Standard Bank and Others (D439/12) [2013] ZALD 33 where it held that an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, he or she should generally, at least demonstrate that there was conduct that denied him or a her a fair opportunity to compete for the post, or conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest and misled the interview panel or employer as held in Noonan v Safety & Security Bargaining Council & Council (2012) 33 ILJ 2597 (LAC).

In conclusion, on the issue of trustworthiness of the witnesses, the Applicant brought to my attention that they were witnesses of the First Respondent and were part of the employment meetings, but their evidence is just a mere denial of facts.

The Applicant further pointed out that the witness, Mrs. Lidzia, as the SGB chairlady and the scorer, could not convince the tribunal as to how she had reached on the scores she awarded to the Second Respondent. No wonder that she just gave the marks to fulfill the mission of going to that process with the predetermined decision.

Notably, the Applicant has demonstrated that she was the best of all candidates as she possesses the qualification in education management and has more teaching experience.

That the PAM which regulates the recruitment processes for educators indicate the process that the First Respondent must follow, and this was not done, it could only mean that a report was deliberately withheld to hide information. If indeed sifting was not done, this can only mean that the incumbent and other shortlisted candidates would not have been shortlisted as their forms are incomplete and/or incorrectly filled and fall short into meeting the requirements of the post.

I therefore find that sifting was not for the incumbent and the other candidates. On a balance of probabilities, the decision not to promote was taken in a biased manner. In Noonan v SSSBC & Others [2012 33 ILJ 2597 (LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. In that case, the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.”

AWARD

I make the following award:

I therefore find that taking into cognizance the interests of children, I hold a strong view that the post and appointment of the incumbent be reviewed and set aside, the employment process must be started afresh with profiling and advertising as the Applicant was prejudiced on the sifting and shortlisting stages where other candidates were not supposed to have been shortlisted;

Alternatively, the post of principal of Simphiwe Khethwa Senior Secondary School must be re-advertised and processes be conducted by an independent panel as provided for by section 22 of the South African Schools’ Act of 1996, as amended.

Signature:

Commissioner/ Panelist : Lungile Matshaka