ARBITRATION AWARD

Arbitrator: Macjon Maarman
Date of Award: 29 November 2023

SADTU on behalf of Sicelo G. Shabalala Applicant
and
Eastern Cape Education Department and 1st Respondent

Ms. D. Koeberg 2nd Respondent

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing took place virtually and concluded on 10 November 2023. The applicant, Mr. Sicelo G. Shabalala was present and represented by Mr. Siyabonga Gashi, an official from the South African Democratic Teachers Union (SADTU).

2. The first respondent, Eastern Cape Department of Education was present and represented by Mr. Euan Hector, the labour relations officer for the Sarah Baartman Education department district. The 2nd respondent, Ms. D. Koeberg, was absent from the proceedings despite proper service. The proceedings were manually and digitally recorded. Parties submitted bundles of documents which were accepted for what it purported to be. Parties further submitted closing arguments on the agreed date.

ISSUE TO BE DECIDED

3. I am required to determine whether the first respondent committed an unfair labour practice by not appointing the applicant to the advertised position of Head of Department [in school] position. The applicant seeks that the recruitment process be started afresh.

BACKGROUND:

4. The applicant is employed as a Post level 1 teacher at Nqweba Senior Secondary School in Graaff-Reinet and earns a monthly salary of R28 623, 63 per month. The 1st respondent advertised a position of HOD Business and Accounting sciences. The applicant and the second respondent were shortlisted and interviewed for that post with another candidate. The second respondent was appointed on or about 18 July 2023. The annual salary attached to the post of HOD Business and Accounting is R343 483, 56.

5. The applicant, and an observer of his trade union that was in the shortlisting and interviews, allege numerous irregularities in those processes. The second respondent was ultimately appointed. The applicant seeks that the recruitment process be started afresh for the advertised position of HOD Business and Accounting Volume 2/ 2023 post number 576.

SURVEY OF EVIDENCE AND ARGUMENT

6. This award does not contain everything that was said that the arbitration or in the closing arguments of the parties. It only records the evidence and arguments material to the subject matter and the finalization of the dispute. This is in line with section 18.6.1 of the ELRC constitution as well as section 138 (7) of the LRA.

The applicant’s case
7. Mr. Sicelo Shabalala (herein after “the applicant”) testified that he has a National diploma in management, a post graduate certificate in Senior and Tertiary Phase (EMS and Business) and that he started working for the first respondent in October 2018 and thus he has 5 years of teacher experience.

8. The applicant said that three candidates were shortlisted and interviewed. The interview questions were 1- Why do you think you are the best candidate for the job 2- Tell us about the roles and responsibilities of an HOD 3- How would you manage conflict in the school 4- how would you improve the subject performance 5- How will you manage late or non-submissions?

9. The applicant said that he is only in possession of the typed out minutes of the interviews and not the handwritten notes of the interviews. Those typed out minutes are also not a true reflection of the answers he gave. In fact there were contradictions in the types of responses as noted against the asked questions. In other words, the typed out answers did not make sense. This was not disputed by the respondents.

10. The applicant said that the questions that the panel developed did not have any [model] answers and the panelists did not know what the teacher candidates were speaking about hence he wrote a dispute letter on 22 June 2023 which was one day after the interviews relating to the observances he saw in the interviews.

11. Those observances were the fact that the resource officer, who is also the school principal, played secretarial roles in the form of meeting and greeting the candidates. The resource officer further went to print the interview questions, left the printer unattended and only went to retrieve the interview questions when he raised the issue with another candidate and was overheard by the interview secretary who is the school’s clerk. The resource person furthermore suspiciously conversed with the successful candidate prior to the interviews.

12. The other “unfair observance” of the applicant was that during the interview process the candidates were told to use their home language if they have difficulty explaining something. The common native languages in the area are Afrikaans and isiXhosa. The applicant said that his home languages are isiZulu or Setsotho but there were no zulu or sotho interpreters in the proceedings. It thus meant that some of the things that the applicant said was lost in translation which inevitably will impact the scoring of the candidates.

13. The further issue or gripe that the applicant had was that the other two candidates had longer interviews even leading up to an hour but the panel was stricter towards him in regards to time. Only when it was his interview did the panel have a timekeeper.

14. A fifth gripe that the applicant said that he had with the interviews is that the panel was not “properly constituted”. He said that “normally” a teacher a non-teaching staff member and members of the SGB formed part of the interviewing panel. In this case the panel consisted of three SGB members being Mr. Giyose, Mr. Matomela and Ms. Maya. The teaching staff member was Ms. Menzi. Also present in the interview room was the resource officer, Mr. Mdingi and the secretary Mr. Tyumbela.

15. Mr. Shushu who was a union observer was also present in the interview room and a Ms. Elias (another SGB member but not a panelist) also asked him a question being why he thought that he is best candidate. Mr. Mdingi lastly said that Ms. Koeberg listed the principal who was the resource officer as a reference on her CV clearly implying biasedness.

16. Under cross examination the applicant said that normally first the scoring of the candidates and then their ranking happens and that the typed out minutes of the interviews are not 100% reflective of the proceedings as he raised the issue of language use but it was not in the typed minutes.

17. The applicant also said that he did not go to have a look at the questions that the principal left at the printer but it was the same papers [and thus the questions] as the principals placed it straight on the desk where the candidates will sit.

18. The applicant lastly said that he believes that he was the most suitable person for the role as he has managerial experience has an ICT “qualification”, has been the subject head elsewhere, sits on the district education forum and is part of the SADTU leadership. He also has 10 years working experience.

19. Mr. Solomon Shushu (herein after “Mr. Shushu”) testified next. He said that he was a SADTU observer in the interviews and was also part of the shortlisting committee for post 576. Mr. Shushu said that the shortlisting committee, which also consisted of the interview panel members, agreed that the candidates must have an ICT related qualification. Ms. Koeberg did not have such a qualification but was nonetheless shortlisted. He made clear objections to that.
20. There was further agreement amongst the shortlisting committee that the applicants must have both subjects of Business management and accounting [have done it or qualifications]. Ms. Koeberg does not have the accounting subject.

21. Mr. Shushu said that the candidates were never scored, he raised the issue of having model answers prior to the start of the interviews but the chairperson objected to that and said that discussions about the applicants will only happen after the interviews are concluded. Mr. Shushu said that the panel did not discuss the scores but the secretary merely calculated them at the end.

22. Those results being Ms. Koeberg “scoring” 89 with an average of 22.25; Mr. Shabalala scoring 75 with an average of 19 and Mr. Zawula scoring 67 with an average of 17. Ms. Koeberg was thus recommended for the HOD post.

23. Mr. Shushu said that after he raised his concerns in the interviews the chairperson no longer noted him and that there will be favoritism as Ms. Koeberg listed the principal as a reference on her CV.

24. Under cross examination Mr. Shushu said that the shortlisting panel wanted the successful candidate to be computer literate and have a related qualification in that regard (ICT). Mr.Shabalala has a ICT related qualification and Ms. Koeberg did not have a ICT related qualification. This was not disputed by the respondent.

The employer’s case
25. Mr. Zanovuyo Mdingi (herein after “Mr. Mdingi”) was the first and only witness for the respondent. He said that he is the principal of Nqweba Senior Secondary School in Graaff Reinet and he was the resource person in the interviews on or about 21 June 2023 for the position of head of department Business management and Accounting.

26. Mr. Mdingi said that there were only three applicants for the position of HOD Business management and accounting and all three candidates were shortlisted and interviewed. He further said that all the applicants qualified for the post as they had all had one of the three requirements for the post being that of Business management.

27. Mr. Mdingi continued to testify and said that all the candidates were asked the same questions and he was not allowed to score the candidates on the answers given. Three of the four panel members were parents and part of the School governing body being Mr. Giyose, Ms.Maya and Mr. Matomela. Ms. Menzi is a SGB teacher at the school [teaching staff].

28. Mr. Mdingi said that Ms. Koeberg had 89 scores with an average of 22.25; Mr. Shabalala had 75 scores with an average of 19. Mr. Mdingi said that he “thinks that the total due scores were 100”.

29. Under cross examination Mr. Mdingi said that all the information that relates to the interviews were sent to the Department of education after the interview process.

30. Mr. Mdingi said that there was no “formal” SGB meeting that appointed the interview panel members.

31. Mr. Mdingi was asked if he knows about the fact that the SGB must appoint the interview panel as per the Employment of Educators Act and that Chapter 3 of the Personnel and Administrative measures outlines the same to which Mr. Mdingi responded that only four of the SGB members appointed the interview panel.
32. Mr. Mdingi further said that after the interview panel concluded the work, the interview minutes were typed out and sent directly to the Department of Education district offices.

33. Mr. Mdingi said that the school has a fully functioning 9 member School governing body and that there is no problem with Ms. Koeberg putting his name as a reference as he is the school principal and Mr. Shabalala also put his as “a reference” on the post application form namely “DP01”.

34. He further said that isiZulu and isiXhosa are similar to each other and that Ms. Koeberg did not have a ICT related qualification as opposed to Mr. Shabalala but that was not the only skill that they looked for. Mr. Mdingi said that the applicant did not have the necessary skills and track record as opposed to Ms. Koeberg. Mr. Mdingi lastly said that both Mr. Shabalala and Ms. Koeberg did not have accounting as a major but Mr. Shabalala does have a “EMS” qualification which is a combination of Management and business sciences.

ANALYIS OF ARGUMENT:

35. Section 186 (2) (a) of the LRA states that “Unfair Labour Practice means any unfact act or omission that arises between an employer and employee involving- unfair conduct by the employer relating to the promotion…of an employee”.

36. In this case the applicant is a teacher who applied, was shortlisted and interviewed for a higher position of head of department business and accounting. The position of HOD Business and Accounting is of higher status and with more remuneration than the current role of teacher P1. This is thus a promotion related dispute.

37. The position of Head of department Business and Accounting was advertised in Volume 2 of 2023 and was post 576.

38. In 2019 the Eastern Cape Department of Education issued a circular to schools and school governing bodies titled “Procedure manual for recruitment of educators” (PAM document). Point 4 of clause 6 of the PAM document says that “ The panel will reproduce the interview questions to the interview panel before the commencement of the interview of the first candidate”.

39. Point 5 & 6 of clause 8 of the PAM document states that “The panel must use a consensus-based scoring approach, which secretary will facilitate. The panel needs to reach consensus on scores per candidate. As soon as the last candidate has been interviewed, the panel discusses the candidate (s) compares, scores and decides on the most suitable candidate (s) in a preferential sequence.

40. Clause 9 of the PAM documents says that “The panel must submit their recommendation to the School Governing Body withing one day after the completion of interviews. This outcome and recommendation together with the motivation from the SGB must be submitted to circuit managers within three days. The circuit managers must submit within one day to HR District office for verification.

41. The applicant’s main gripes relating to procedural and substantive fairness is that it says the resource person played a secretarial role; the resource person was over friendly prior to the interviews with the successful candidate and that the successful candidate used the resource person (principal) as a reference on her CV; the interview panel did not submit the recommendations to the SGB for ratification as per the policy, the appointed candidate, Ms. Koeberg, did not have the required ICT qualification; the interview panel did not use a scoring method as there was no agreement on the answers to the questions nor the scores attached to each question;

42. In Pamplin v. Western Cape Education department (C1034/2015) [2018] ZALACTT the Constitutional court emphasized that whilst in unfair labour practice dispute the onus is on the employee to demonstrate that the failure to promote was unfair, the Employer, is in the same token, obliged to defend challenges on the substantive and procedural fairness, if it wishes to avoid a negative outcome. According to the court, there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence, it would be irrational and unreasonable to conclude that the Employer acted fairly, regardless of where the onus lies. The court also highlighted that Commissioners should warn parties about the adverse inference that might be drawn against them for failing to call witnesses.

43. In this case the second and successful respondent, Ms. D. Koeberg was absent from the proceedings. The employer representative outlined that Ms. Koeberg was aware of the proceedings but said that she “would await the arbitration outcome”.

44. The respondent further only called one witness who was the resource officer and not a panelists for the HOD interviews. None of the School Governing Body members who formed part of the interview panel testified in this arbitration. The panel members were the actual decision makers.

Procedural fairness
45. The respondent’s policy document and the School’s Act outlines and instructs that the recommendation of the interview panel must be “ratified” by the school governing body. It was the argument of the applicant that the afore mentioned was not done.

46. The respondent’s witness testified that the school has a full school governing body. No school governing body meeting minutes, agenda nor attendance registers were submitted outlining that the SGB did meet to ratify the appointment of the successful candidate. It was in fact not disputed that the full school governing indeed did not meet to ratify the appointment of the successful candidate. It was a direct and intentional violation of the sector policies and prescripts of the respondent. The non-appointment of the applicant was thus procedurally unfair.

Substantive fairness
47. The applicant “had issue” with the fact that the resource officer played secretarial duties. That in itself does not indicate any bias against the applicant. Furthermore the resource officer was not a scoring panelist and the applicant could not say what exactly the resource officer said to the successful candidate. The applicant did not dispute that isiZulu is in fact similar to isiXhosa meaning that the interview panel would have been able to understand him when he conversed vernacularly.

48. The applicant said that he had 10 years working experience and that he had an Information Technology qualification as opposed to the successful candidate. Neither the applicant nor the successful candidate had a qualification in Accounting.

49. No evidence was led by the respondent as to how the scoring of the interview candidates were done. No score sheets were submitted as evidence to prove that indeed the appointment process was fair. There was further no clear outset as to how the interview panel ended up scoring the successful candidate highest and the applicant second highest.
50. The only witness for the respondent, Mr. Mdingi, was not a interview panelist who could score or rate the candidates. He further was not able to state how the panel got to the ranking of the candidates. In other words why the successful candidate was recommended.

51. The respondent could not give any cogent reason as to why the applicant was not appointed nor how it arrived to the scoring of the candidates. When the school principal was asked if he knows what the total tally was he said that he “he thinks it was 100”.

52. No further justification was done by the respondent saying why Ms. Koeberg was successful as opposed to the applicant despite not having the ICT qualification. Primarily due to lack of evidence in this arbitration. It was for the respondent to defend the allegation of the applicant that there was no good reason as to why he was not appointed and that indeed the interview process was conducted fairly.

53. The applicant discharged it’s onus which was to prove that a Unfair Labour practice was committed in his non-appointment.

54. The applicant was prejudiced in the procedural and substantively unfair appointment of the successful candidate. The decision to appoint Ms. Koeberg, was unfair, irrational and no reasons were provided for the non-appointment of the applicant. The breach of procedure prejudiced the applicant. The applicant met the inherent requirements of the job and based on his uncontested version was the best candidate to appoint.

55. It is for all the abovementioned reasons that I find that the appointment of the successful candidate in the promotional post of HOD post 576 in Volume 2 of 2023 amounted to an unfair labour practice against the applicant. The respondent will retain their discretion whether it will recoup any monies that was paid to the second respondent as a result of the promotion that is subsequently set aside.

56. The applicant sought that the recruitment process be started afresh. I am in agreement with this.

AWARD
57. The respondent, Department of Education Eastern Cape, committed an unfair labour practice through the non-appointment of the applicant, Mr. Sicelo G. Shabalala.

58. The appointment of Ms. D. Koeberg to the promotional post of HOD Business and Accounting at Nqweba Senior Secondary School in Graaff Reinet under Volume 2 of 2023 post 576 in July 2023 is set aside with effect from 30 November 2023.

59. The respondent, Eastern Cape Department of Education is ordered to re-advertise the position of HOD Business and Accounting at Nqweba Senior Secondary School in it’s next promotional advertisement bulletin subsequent to the receipt of this award.

Panelist: Macjon Maarman