IN THE EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: ELRC929-24/25EC
IN THE ARBITRATION
Between
NAPTOSA obo ZWELIHLE NANOSI APPLICANT
AND
DEPARTMENT OF EDUCATION – EASTERN CAPE 1ST RESPONDENT
LUYANDA MATSIBA 2ND RESPONDENT

            ARBITRATION AWARD

DATE/S OF HEARING: 7 FEBRUARY 2025, 19 AND 20 MARCH 2025
DATE AWARD SUBMITTED: 4 APRIL 2025
NAME OF PANELIST : BONGANI MTATI

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DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) at Alfred Nzo East Department of Education Bizana on 7 February 2025, 19 and 20 March 2025. Mr A. Mhlontlo A, an official from NAPTOSA represented the Applicant. Ms N Damane an official from the Department of Education, represented the First Respondent being the Department of Education Eastern Cape. Mr X Bhani from SADTU represented Second Respondent, Mr Luyanda Matsiba.

ISSUES TO BE DECIDED

2. I am required to determine whether an unfair labour practice relating to promotion was committed. Further, depending on my finding, l am required to determine the appropriate relief.
   BACKGROUND OF THE DISPUTE
3. This is a promotion dispute involving post volume 2 of 2024 in the Eastern Cape being the head of department (HOD) post for Mzamba Comprehensive School.
4. During their application for the post of head of department, the Applicant was teaching at Enyanisweni Secondary School and the Second Respondent was teaching at Mzamba Comprehensive School.
5. After the post was advertised, seven candidates applied for the post, but others were not qualifying for the post and only Applicant and Second Respondent qualified for the post and both were invited to the interviews.
6. The Second Respondent’s appointment was approved by the Department of Education on 30 October 2024 to assume duties as head of department at Mzamba Comprehensive School.
7. The Applicant initiated his dispute by first lodging a grievance which was set down for hearing and his claim was not resolved.
8. The Applicant alleged that he was not appointed in the post in question despite meeting all the requirements of the post more than the incumbent appointed in the advertised post of head of department at Mzamba Comprehensive School.
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   SURVEY OF EVIDENCE AND ARRGUMENT
   Applicant’s case
   Witness: Zwelihle Nanosi
9. He testified under oath that he was an educator of the Department of Education at Enyanisweni Secondary School teaching Geography and English since 2013.
10. He submitted that he was qualified with Bachelor Education on Humanities with Curriculum Studies in Geography and Bachelor Education Honours.
11. He stated that Mzamba Comprehensive School had an advertised post of Head of Department (HOD) with requirement of Geography in the open bulletin number 2 of 2024 dated 24 May 2024, which he applied for the post.
12. He testified that he submitted his application in compliance with the requirements of the post as he filled in all spaces in the form, had detailed curriculum vitae (CV) and all his qualifications and references
13. He submitted that the incumbent had not complied with post requirements as his application form had gaps and not fully completed with no detailed curriculum vitae.
14. He referred to gaps in some sub paragraphs of the application form as not completed as was supposed to fill in with N/A in the gaps as sub-paragraphs.
15. He submitted that the incumbent has indicated in his CV that he was teaching at Kulanathi Secondary School where he understood as the school doing teaching practice for WSU students and never taught at Kulanathi S.S.
16. He stated that the incumbent had never taught Geography at Mzamba CHS in 2024 and in other years, so viewed himself better experienced than the incumbent. He referred to the Geography group of Geography teachers created by subject advisor with his name appearing and the incumbent’s name not appearing indicating that he was not teaching Geography at his school. He further referred to the school time table that the incumbent was teaching Tourism and not allocated with Geography in his school, but Geography was taught by Mr Tuta.
17. He explained that the incumbent had awards of excellence in Tourism for grade 12 which he viewed as a proof that the incumbent was not teaching geography in his school.
18. He submitted that he was better than the incumbent as he had some awards in Geography at
    Grade 12.
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19. He further referred to the sifting minutes of the Department of Education where he submitted that it was agreed in those minutes of the 23 August 2024 that schools with two or less candidate qualifying for the post to be re-advertised in the next bulletin and not proceeding with interviews. He further referred to recruitment and selection policy of the Eastern Cape Province where it is stated under shortlisting that in the event that there are candidates fewer than three suitable to be interviewed, the post must be re-advertised and head hunting may be explored when warranted with the exception of posts identified as scarce skills. So he submitted that at Mzamba CHS proceeded with selection of the two candidates contravened the policy and minutes of the sifting committee in the district as he viewed Geography as not a scarce subject.
20. He further noted shortlisting dates that were different being 28 August 2024 and 2 September 2024.
21. He further submitted that he viewed that there was no criterion set by the panel as he was not seeing it and there were no questions in the minutes of the interviews as they were sked by the panel.
22. He submitted that the incumbent scored better that himself and stated that some questions were not clear and relevant to the post like question 3 being relating to corporal punishment and question 5 not relevant or no link for extra-curricular needs of the school as post was for geography.
23. He further submitted that some panellists have scored the incumbent total and high marks due to favouritism of biasness towards the incumbent and was scored lower than the incumbent.
24. He confirmed during cross examination that the incumbent has degree in Geography including curriculum studies and qualified for the post of HOD to be employed, but has to meet other requirements like properly filling in the application form with no gaps.
25. He stated during cross examination that he will dispute that the incumbent taught Geography as he never taught it as was not appearing in the district geography educator’s group and further stated that not all educators teaching geography appear in the district list for geography and others used codes which he did not know them.
26. He further submitted during cross examination that he must not be relied to for the incumbent whether or not taught at Kulanathi Secondary School as was not sure.
27. He further submitted during cross examination that Mr Tuta who was teaching geography at Mzamba CHS was not there in 2024 and did not knowing who taught Geography in 2024 and
    ELRC 929-24/25EC Page 4 during employment period.
28. He further stated during cross examination that the highest qualification was not a requirement for the post as required by the bulletin for shortlisting and was given a chance to be shortlisted to the interviews, but during interviews was not considered although accepts as not requirement from the panel to consider highest qualification as panel considers answering of questions, so confirmed that the SGB did its job properly.
29. He further submitted during cross examination that scoring high scores is not biasness, but to himself was granted scores he did not deserve compared to the incumbent, although accepts that he was not present when incumbent interviewed and how he answered questions and further referred to question 3 and question 5 during interviews where he submitted that he did not understand and or relevant questions and expected low score from the panel.
30. He further stated during cross examination that he was not aware that the incumbent taught Geography in 2010.
31. He was further referred to the recruitment and selection policy of the respondent where he maintained that the employment process should have been halted based on having two candidates for the post, but continued contravening the policy and no consultation done to the provincial HOD to approve two candidates to proceed with interviews. He further stated that he was not aware that the district director is delegated with that power to approve two candidates to proceed with interviews.
32. He further admitted during cross examination that panellist differed in scoring although the difference is almost the same which he was not happy with.
33. He further maintained during cross examination that the question on extra- curricular was irrelevant as he expecting questions on geography and not on extra-curricular, but agreed that extra-curricular is part of management by the HOD at schools.

RESPONDENT’S CASE
Witness Solomzi Malimba

34. He testified under oath that he was the Principal and resource person of the employment process of the post of HOD Geography at Mzamba Comprehensive School and knew the incumbent as an educator currently teaching Geography at Mzamba Comprehensive School since 2010.
35. He testified that the incumbent qualified to be shortlisted for the post as he had minimum
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    requirements as per the bulletin, so was shortlisted to be interviewed.
36. He stated that only two candidates qualified for the post from six candidates applied and they decided to return documents to the respondent for re-advertising the post as required by the recruitment and selection policy and the minutes of the district sifting committee.
37. He stated that they reported in the package of documents that they were not meeting requirements to proceed with interviews, so decided to return all documents and also reported orally that they had not proceeded with employment process due to having two candidates qualified for the post.
38. He submitted that he was phoned by the circuit manager who informed him to proceed with selection of the candidates for the post of HOD in their school and indeed proceeded by recommending the incumbent which was employed by the respondent.
39. He disputed that the incumbent did not properly fill in his application form as he stated that indeed he filled in properly all space he was supposed to fill in.
40. He further disputed that the panel was biased in scoring as they used Xhosa language to interview to cater for parents to understand their questions and answers in order to score. So their scoring was based on the responses of the candidates with same treatment by the panel.
41. He further submitted that there was a letter issued by the District Director confirming appointment of the incumbent as HOD in the school as was aware that there were only two candidates qualified for the post at their school.
42. He further testified that both candidates met minimum qualifications and applicant has further honours in management.
43. He further submitted that the incumbent was more experienced than the applicant as he started teaching in 2010 and applicant started in 2013.
44. He maintained during cross examination that the curriculum vitae of the candidates met requirements of personal details, qualifications and references as required, but applicant’s CV was more detailed.
45. He further confirmed during cross examination that both application forms of the candidates were properly filled in and disputed that the gap in the sub paragraph requires to be filled in with N/A.
46. He further submitted during cross examination that interviews were done in Xhosa and were translated into English when submitted to the respondent and Xhosa version minutes were not

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submitted to the respondent as were not required.

47. He further stated during cross examination that all questions were relevant and proper to the candidates including question 3 and question 5 as were covering management.
48. He further stated during cross examination that circuit manager Mr Mlambo did not provide them with the letter or minutes of the decision to proceed with interviews as he orally informed him through telephone.
49. He finally disputed during cross examination that the district director exaggerated his recommendations for the approval of the incumbent to be appointed in the post of HOD at Mzamba Comprehensive School as he viewed correct and procedurally done.
    ANALYSIS OF EVIDENCE AND ARGUMENT
50. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act 66 of 1995(LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
51. I have considered the departmental guidelines for sifting, shortlisting, interview procedures, post requirements, recruitment and selection policy of the respondent together with sifting minutes of the district and related memorandum and relevant case law.
52. Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee relating to the provision of benefits to an employee”. In this case unfair labour practice involves promotion.
53. I have to decide whether the First Respondent acted fairly or not in not appointing the Applicant in the position of the head of department (HOD) at Mzamba Comprehensive School.
54. As this is a HOD promotional post, in terms of the Employment of Educators Act PAM Regulations, the role of the departmental officials as resource persons is 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 is conducted with the interview committee to enhance its understanding of the selection and interview processes.
55. In this case SGB members together with interview panel were trained by the First Respondent
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    to conduct the employment process as per the prescripts of the employment policies of the First Respondent. The Principal of the school was the resource person to assist and guide the panel on this employment process of the HOD post at Mzamba Comprehensive School, so l find that the school panel properly constituted and complied with the requirements, except proceeding with interviews with two candidates as prohibited by the recruitment and selection policy together with minutes of the district sifting committee
56. Considering post requirements and appointment process, l find that both candidates qualified to be appointed as they both met minimum requirements of the post of HOD and were different on answering questions during interviews which led to the recommendation and appointment of the incumbent. I reject evidence that the incumbent’s application form was not properly filled in, due to not putting not available (N/A) to gaps where he had enough information as required in the column, so conclude that incumbent’s form was properly filled in as testified by the resource person being principal of the school and personally observed the application forms of the candidates.
57. I reject evidence that the panel was biased towards the incumbent as testified by the resource person that both candidates were equally treated based on their responses of scores that were different as further testified by the applicant that he did not understand some questions and their relevance to the interviews and l viewed confirming that he performed below the incumbent during interviews.
58. Considering whether panel should have continued with the interviews with two qualifying candidates, l find that the panel should not have continued with interviews as stated in the recruitment and selection policy that they should have re-advertised the post and further confirmed by the sifting minutes of the district that two and less candidates qualified for the post, the post must be re-advertised, but decided to contravene the rules which led to the breaking of the policy and minutes of the district sifting panel.
59. I reject evidence that panel was instructed by the circuit manager telephonically, which l view as hearsay evidence with no interest of justice as l viewed that the circuit manager should have written to the school panel and possibly be a witness in the hearing to authenticate his instruction that interviews proceeded with two candidate as his instruction from the District Drector with delegated powers from the departmental head in the province. Further to this the resource person submitted that he reported orally to the district and made his report of not
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    proceeding with interviews in the package he returned back to the human resource, which l consider not properly submitted to the attention of the District Director. Based on this reason alone, l conclude that this post should have been re-advertised and not continued with process of employment, so l viewed this decision contravened the recruitment and selection policy and minutes of the district sifting panel, as there was no evidence led that indeed employment of two candidates was approved and or declared Geography as a scarce subject to interview two qualified candidates for the post of HOD, therefore requires to be set aside and re-advertise the post for the next bulletin.
60. I therefore conclude that the Second Respondent was appointed in contravention of the recruitment and selection policy and sifting minutes of the district sifting committee to re-advertise the post on two or less candidates qualified for the interview, so this appointment of the second respondent has to be set aside as the Applicant was highly prejudiced by the conduct that was unfair to him to continue with appointment of the candidate on two candidates qualified for the interviews that required re-advertisement of the post.
61. Considering relief sought by the Applicant that the Second Respondent’s appointment be set aside and re-advertise the post, l find that the appointment of the second respondent must be set aside and re-advertise the post of head of department at Mzamba Comprehensive School with immediate effect possible.
62. .” To determine if the failure to promote the employee was unfair the court in Ndlovu v CCMA and others (2000) 21 ILJ 1653(LC) stated that: “it can never suffice in relation to any such question for the complainant to say that he/she is qualified by experience, ability and technical qualifications such as university degree and the like for the post, that is merely the hurdle. The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair”. In this case l view that the appointment of the Second Respondent was procedurally unfair as the panel continued with appointment of HOD with only two candidates qualified for the interviews in contravention with the rule of sifting committee and recruitment and selection policy of the province. So I conclude that the Applicant proved the necessity for the remedy he sought, that the appointment of the incumbent to be set aside and re-advertise the post.
63. Based on the evidence before me, I find that the Applicant proved on a balance of probabilities that the first respondent contravened the recruitment and selection policy of the province and sifting minutes of the district by continuing appointing from two candidates qualified for the post
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    instead of re-advertising the post. I therefore set aside the appointment of the Second Respondent and order that this HOD post for Geography at Mzamba Comprehensive School be re-advertised for another employment process.
64. Regarding the issue of costs, I am guided by clause 64 of Annexure B to the ELRC constitution .64.1 “subject to clause 62.6 the council will pay the costs of conciliation or arbitration proceedings including the costs of venue (if any) the fee of the panellist and expenses incurred by the panellist in terms of the Councils fee. 64.2 Each party to the dispute must pay its own costs with regard to travelling, meals, legal representation (if applicable) and other related expenses. 64.4 If any time during the proceedings, the panellist is satisfied that: 64.4.1 a party or person who represented that party in the proceedings acted in a manner seriously compromising the proceedings, the panellist may make an appropriate order of costs against the party or person compromising the proceedings. Such order may also relate to the costs of the Council referred to in clause 64.1”
65. Clause 64 is very clear that each party must pay his or her own legal costs, unless there are exceptions provided for in clause 64.4.
66. I am satisfied that the Applicant, the First and the Second Respondents did not compromise the proceedings. Each party to the dispute is to pay its own costs as provided by clause 64.2.

AWARD

67. I find that the First Respondent committed an unfair labour practice relating to promotion as is intended in section 186 (2) (a) of the LRA against the Applicant for appointing the Second Respondent as HOD from two candidates by contravening recruitment and selection policy of the province and sifting minutes of the district on appointment of the candidates in the district.
68. The appointment of the Second Respondent being Luyanda Matsiba is set aside with effect from 11 April 2025.
69. The First Respondent is ordered to re-advertise the post of head of department (HOD) Geography at Mzamba Comprehensive School with immediate effect to expedite the process of appointing HOD Geography.
70. No order is made to costs. ELRC 929-24/25EC Page 10 Signature: </code></pre></li>

Commissioner: Bongani Mtati
Sector: Basic Education