IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT MTHATHA
CASE NUMBER: ELRC 501-23/24 EC
In the matter between
NAPTOSA obo THANDIWE HILDA MAGIDELA APPLICANT
And
EASTERN CAPE DEPARTMENT OF EDUCATION FIRST RESPONDENT
MZIWONKE MAGOSWANA SECOND RESPONDENT
ARBITRATION AWARD
DATES OF THE HEARING: 22 FEBRUARY TO 15 AUGUST 2024
DATE AWARD SUBMITTED: 25 AUGUST 2024
NAME OF PANELLIST : BONGANI MTATI
PRELIMINARY 1
1. The Applicant submitted that she requested sifting report, application form and CV of the Applicant, SGB minutes electing executive of the SGB for 2022 to 2024 years documents from the First Respondent which she was not provided with them although had issued a subpoena to them.
2.
3. The Responded submitted that they did not do sifting as they agreed as an interviewing committee that they will start at shortlisting of candidates as appeared in the masterlist.
4. He further submitted that all documents were lost at school and reported to police, so some were not in their possession, but have provided Applicant with other documents.
RULING
5. I ruled that these requested documents will be dealt with when they arise in the main case, but with lost documents l viewed as interference at school to disrupt these proceedings as the incumbent was employed from outside school educators, but left to the police as was reported to the police.
PRELIMINARY 2
6. The Applicant submitted during the middle of the case that the First Respondent’s representative has no legal standing in terms of ELRC rule 17 as he has retired from the First Respondent, therefore he must not be allowed to proceed with the case.
7. The Fist Respondent’s representative issued his letter of appointment to finalize his cases including this case.
RULING
8. I ruled that the First Respondent’s representative Mr Liphapang has legal standing to proceed with this case as per the letter authorizing him for re-employment to finalize his pending case, so Mr Liphapang must proceed with this case up to finality.
DETAILS OF THE HEARING AND REPRESENTATION
9. This matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) at Trinset Mthatha on the 22 February, 8 May, 4 July, 14 and 15 August 2024. Mr A Mhlontlo from NAPTOSA represented the Applicant. Mr Liphapang Tsili who was replaced by Ms Sibahle Mkosana represented the First Respondent being the Department of Education. Ms Cekiso who was replaced by Mr Tyantsi represented the Second Respondent Mr Mzonke Magoswana.
ISSUE TO BE DECIDED
10. I have to determine whether any unfair labour practice relaing to promotion was committed and if so, issue the appropriate relief.
BACKGROUNG TO THE DISPUTE
11. This is a promotion dispute involving post bulletin Volume 1 of 2023 in the Eastern Cape being post of principal for Vulingcobo Junior Secondary School (JSS).
12. The Applicant was teaching at Vulingcobo Junior Secondary School (JSS) since 1990 as post level one educator up to date and currently was senior teacher The Second Respondent has been in various post levels including post level one, three and four as an educator with the Department of education of the Eastern Cape.
13. After the post was advertised the Applicant, Second Respondent and other candidates applied for the post of principal at Vulingcobo JSS and ultimately the Second Respondent was appointed into the post of principal.
14. The Applicant challenged after interviews that she was not shortlisted and appointed although she qualified for that post.
15. The Applicant was alleging that the selection and appointment of the principal was both procedurally and substantive unfair.
16. The Applicant sought a relief that she be compensated for the prejudice and suffering she experienced during the employment process based on unfair procedure committed by the First Respondent.
SURVEY OF THE EVIDENCAPPLICANT’S CASE
Witness: Tandiwe Hilda Magidela
17. She testified under oath that she has been an educator since 1990 and now senior teacher at Vulingcobo JSS with senior teacher’s diploma and Bachelor of Arts degree.
18. She testified that she applied for the post of principal and her application was accepted by the First Respondent through signing register of candidates at the offices of the department of education.
19. She identified all required documents she submitted and stated that she qualified for the post and expected to be shortlisted as she viewed herself qualifying for the post of principal.
20. She referred to the master list with twenty seven candidates where their required qualifications, post levels and SACE certificates were listed and Applicant was number twenty seven in the list.
21. She submitted that all shortlisted candidates have not fully completed their application forms as they have gaps including the Second Respondent and were not supposed to have been shortlisted.
22. She stated that the Second Respondent has falsified as he submitted that he had not taken severance package, but had resigned in the department of education and came back again, which she viewed as misrepresentation to say no on the question of severance package in the application form column 29.
23. She submitted that the Second Respondent has also contravened HRM 4 circular where resigned educators are not allowed to be re-employed as preference must be given to serving educators than resigned educators, so regarded the First Respondent breached the mentioned circular by employing the incumbent.
24. She further compared her experience and qualifications with other five shortlisted candidates as more experienced to other candidates and didn’t know why not shortlisted as her experience and qualifications are almost the same with other candidates.
25. She stated that the First Respondent had failed to implement its own equity plan issued on 14 June 2022 lasting up to 2025 where it is stated that all departmental bodies and official must consider equity plan in order to reach balance on employment including principal’s posts, which she viewed as not implemented by the First Respondent as was only one female shortlisted by the panel.
26. She further stated that the recommendation of two candidates by the panel was not in line with PAM document B5.4.13.1 as panel was supposed to have recommended three candidates and not two candidates as panel did.
27. She stated during cross examination that she has management experience as she is a senior teacher involved in management, so did not have academic qualification in management.
28. She submitted during cross examination that she did not know that it was stipulated in the advert that persons not called must regard their applications not successful.
RESPONDENT’S CASE
Witness: Sindiswa Ncobo
29. She testified under oath that she was the circuit manager and resource person for the employment post of principal of Vulindlela JSS and knew the Applicant as an educator at Vulingcobo JSS.
30. She stated that she was responsible to train, guide and monitor school governing body (SGB) in the employment process of the principal, in which she did it to the SGB.
31. She submitted that she received master list from the department with twenty seven candidates and started at shortlisting of the 27 candidates where they manage to get five shortlisted candidates.
32. She stated that the Applicant was part of short listed candidates as she had minimum requirement of the principal post. She submitted that they had invited unions which were present during shortlisting and interviews being SADTU and NAPTOSA.
33. She submitted that they formulated a criterion where they considered experience, qualifications, management and administration, experience and further explained that they used points and facing down forms in order to shortlist five candidates.
34. She stated that they manage to shortlist five candidates whom they invited them into the interviews in the presence of the interviewing committee.
35. She submitted that during interviews she started by guiding panel on how to formulate questions of the shortlisted candidates to be interviewed and interviews proceeded well.
36. She submitted that after the interviews they gave unions a chance to comment about the process where unions declared process free and fair.
37. She explained that the Applicant was amongst candidates that were not shortlisted based on Applicant’s qualifications that were lower than the shortlisted candidates, as further had letter stating that she missed her BA in Xhosa and Anthropology degree certificate.
38. She submitted during cross examination that all shortlisted candidate’s application forms were fully completed and disputed that they were not fully completed, but acknowledged gaps in their forms including Applicant’s form that gaps were present due to long space with enough information provided for each candidate in the form and covered in the CV. She stated that all candidates shortlisted qualified to be shortlisted as all of them had minimum requirements with some had high qualifications although not having management and passed criterion set to get five candidates.
39. She stated during cross examination that most of their selection criterion was written in the board and in the minutes appeared summary of their selection criterion as the reason for absence of management and experience requirements written in the minutes.
40. She submitted during cross examination that sifting of candidates was not done as was agreed by the interviewing committee that all 27 candidates be put on shortlisting only to get five candidates for the interviews.
41. She finally stated during re-examination that the incumbent was better qualified than the Applicant as incumbent had management experience and management qualification than the Applicant as Applicant had no management qualification and not less experienced compared to the incumbent.
ANALYSIS OF EVIDENCE AND ARGUMENTS
42. It is trite that the employee bears an onus to prove that an unfair labour practice was committed by an employer as was confirmed in the case of Ethekwini Municipality v SALGABC and Others [2009] JOL 23625 (LC) and in terms of the Labour Relations Act 66 of 1995 (LRA) section 186 (2). The Applicant has to convince arbitrator that the conduct of the First Respondent amounted to an unfair labour practice.
43. I have considered the Fist Respondent’s guidelines for sifting, shortlisting, interview procedure, post requirements and relevant case law.
44. In this case unfair labour practice involves promotion in terms of section 186(2) of the LRA as the Applicant alleges that she was not shortlisted although qualified for the post of principal at Vulingcobo JSS and in terms of the pre-arbitration minute the Applicant challenged procedural fairness of the promotion of the incumbent.
45. I have to decide whether the First Respondent acted unfairly or not in not appointing the Applicant in the position of principal at Vulingcobo JSS.
46. In terms of the Employment of Educator’s Act 76 of 1998 as amended in PAM Regulations a departmental official as resource person has to assist the school governing body (SGB) towards the appointment of qualifying school management by giving control to manage appointment processes. The resource person will be responsible to ensure that capacity building sessions are conducted with the interview committee to enhance its understanding of the selection and interview processes.
47. In this case the SGB was trained by the First Respondent on selection and interview processes as Ms Ncobo was responsible and conducted training of the SGB as the resource person of the First Respondent.
48. Considering issue of absence of sifting minutes, l find that the interviewing committee agreed that they will start the processes at shortlisting of 27 candidates as appeared in the master list and not do sifting as testified by Ms Ncobo, which l find not to the detriment and prejudiced to the candidates.
49. Considering the issue of application forms not fully completed and all shortlisted candidates should not have been shortlisted, l find that all shortlisted candidates have fully completed their forms based on the evidence of Ms Ncobo and the application forms. I reject evidence that gaps in the forms should have been completed even if the information of the candidate is enough and following gaps in the column should have been filled in. This is further corroborated by the conditions of the bulletin on important information for all applicants in B, where it states that application forms are to be accompanied by all relevant documentation as recommended list at bullet one being completed application form and detailed CV. l view as not peremptory as it is a recommendation. So, setting aside of application forms that have gaps would be against the purpose of the First Respondent and the law as candidate’s information is full in the column.
50. Considering the issue of not considering Equity Plan of the department, l find that two females were shortlisted being Solani Nombeko and Nqwena Tembela and in the letter dated 14 June 2022 bullet six is stated that SGBs should take equity plan into consideration when shortlisting candidates, so in this case l view interviewing committee considered equity plan as they have included two females in their shortlisting. I reject evidence that the incumbent should not have been appointed based on the equity plan as there was no evidence led on the issue of equity grid, aswas to be developed by the department for the district or Vulingcobo JSS to determine equity in these centres as per the letter bullet seven.
51. Considering issue of the incumbent’s resignation and not disclosing such in his application form, l find that the incumbent has disclosed his resignations in his CV and reject evidence that he committed fraud for not writing in his form as he wrote in his CV that he resigned and re-appointed by the First Respondent.
52. Considering the issue of contravening HRM circular 4 of 2023, l find that the First Respondent did not breach such circular by employing the incumbent, as the incumbent was teaching at Transkei Primary School during his appointment as a principal at Vulingcobo JSS as per his CV, so the incumbent was already in the employment system of the First Respondent and qualified to be selected and appointed as the principal of Vulingcobo JSS without being referred to the head of department of the first Respondent for consideration and approval.
53. I reject evidence of the Applicant that the incumbent was not supposed to have been appointed by the First Respondent as incumbent was on pre- matured retirement as the incumbent was employed as post level one at Transkei Primary School during his appointment as principal at Vulingcobo JSS.
54. Considering the issue of Applicant not shortlisted, l find that the Applicant was less qualified to the shortlisted candidates and could not make shortlisted five candidates as testified by Ms ncobo that she had no management qualification and less experienced than shortlisted candidates, as the incumbent has more experience in management being the principal for many years and had management qualification at the university. I reject evidence that the Applicant should have been shortlisted based on her teaching experience being 33 years and management practice as senior teacher, as other candidates she competed with were better than her, so the First Respondent chose best candidate for the post as testified by Ms Ncobo and corroborated by the employment profile of the incumbent.
55. In Aries v CCMA and Others [2006] 27 ILJ 2324 (LC) the court held that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously or for insubstantial reasons or based upon any wrong principle or in a biased manner. In this case l view the appointment of the Second Respondent was procedurally and substantively fair.
56. The Applicant bears onus to prove that the First Respondent committed unfair labour practice relating to promotion and furthermore that there was some form of unfair conduct on the part of the First Respondent during the promotion process and that such unfair conduct constituted an unfair labour practice and is entitled to the relief sought being compensation.
57. Based on the evidence before me and on what l have highlighted above, l find that the Applicant failed to discharge the onus placed on her and the First respondent had committed a fair labour practice to the Applicant.
58. In the result , the appointment of the Second Respondent into the position of principal at Vulingcobo JSS is sustained and confirmed as fair labour practice and the incumbent to remain as principal of Vulingcobo JSS as approved by the First Respondent.
AWARD
59. I find that the First Respondent committed fair labour practice relating to promotion as is intended in section 186 (2)(a) of the LRA as the First Respondent appointed the incumbent being Mziwonke Magoswana into the principal post at Vulingcobo JSS.
60. I confirm, sustain and stand that the position of principal at Vulingcobo JSS remains with the incumbent being Mziwonke Magoswana as appointed by the First Respondent.
61. No order is made to costs.
Signature:
Panelist: Bongani Mtati
Sector : Basic education