IN THE EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

Case Number: ELRC455-24/25 KZN
Commissioner: Protas Cele
Date of Award: 4 December 2024

In the ARB ITRATION between

NATU obo BW Moloi

(Union / Applicant)

And

Department of Education KwaZulu Natal 1st Respondent
Sakhile Gabela 2nd Respondent

(Respondent)

Union / Employee’s representative : S. Shakwana (NATU)

Employer’s representative : J. Dumisa (DOE)

Details of hearing and representation

1. The matter was set down for arbitration at the Department of Education, Zululand district in Vryheid on 18 November 2024.
2. The Applicant, Bongiwe Witness Moloi was represented by Sibusiso Shakwana, an official from NATU and Jabu Dumisa appeared on behalf of the 1st Respondent, Department of Education KwaZulu Natal. Nathi Mseleku, an official from SADTU, represented the 2nd Respondent, Sakhile Gabela.
3. Shakwana presented a bundle of documents which was admitted, marked bundle A(A1-28) and led the evidence of four witnesses. Dumisa called one witness who testified on behalf of the 1st Respondent.
4. The proceedings were conducted in English and isiZulu and digitally recorded. The interpreter was Siyabulela Mthembu. Issue(s) to be decided
5. I am required to decide whether or not the 1st Respondent perpetrated an unfair labour practice against the Applicant, and if so, what relief she is entitled to and the quantification thereof.

Background to the dispute

6. The facts set out below were either agreed or not disputed:

6.1 That the 1st Respondent advertised the post of principalship at Sishongani Primary School in HRM Circular no. 20 of 2023 under post no. 2420.

6.2 That initially five male candidates were short-listed including the 2nd Respondent who was ultimately appointed to the post at the end of the process.

6.3 That the Applicant lodged a grievance on the basis that only male candidates had been short-listed to the exclusion of female candidates.

6.4 That the outcome on the grievance which was issued by the PGC in the form of a directive on 9 February 2024 was that the process must be redone from short-listing stage.

Survey of evidence and argument.
Applicant’s evidence

7. Bongiwe Witness Moloi is the Applicant. She testified that she applied for the post of principalship following the advertisement in HRM Circular no. 20 of 2023 (A14) but she was not short-listed.
8. She spoke to her Union official, Ntobeko Mnomiya from NATU who was an observer during the process, because only male candidates were short-listed which she believes was unfair. Mnomiya thereafter lodged a grievance on her behalf.
9. The District Grievance Committee (DGC) recommended that the process must be redone from shortlisting stage and this decision was confirmed by the chairperson of the Provincial Grievance Committee (PGC), MC Sibanyoni (A2).
10. She stated that the interview committee (IC) however, did not redo the process as directed, instead the members of the panel decided to add the top five female candidates according to their ranking from the initial list to make a total of ten candidates.
11. She explained that in terms of HRM Circular 20 of 2023 the IC is required to conduct the short-listing by using a criteria that is fair, non-discriminatory and in keeping with the constitution of the country (A20 par 8.1.). It also provides that the short-listed candidates for interview purposes should not exceed fiver per post.
12. The circular further provides that promotion post holders that are additional to the establishment or displaced as well as downgraded principals must apply for equivalent level posts and are encouraged to apply for higher level posts advertised in the bulletin (A17 par 5.2).
13. She explained that during the short-listing there were no candidates who were additional to the establishment or displaced, and there were also no downgraded principals who had applied for the position.
14. She stated that Mnomiya told her that the resource person informed them that it would take them time to read the CV’s again and that time was of the essence.
15. During cross-examination she confirmed that she is employed by the 1st Respondent as an educator, post level 1 and that her grievance was based on gender equity.
16. She disputed that the DGC gave the IC a discretion how to redo the process and stated that the IC was directed to redo the process from short-listing.
17. She conceded that she was not among the Five female candidates who were added to the list because she still did not meet the criteria. She confirmed that she did not expect to be automatically short-listed. She did not state how she was prejudiced except to say that the process was not done according to the directive.
18. She confirmed that this was not the only position she applied for and that she did not raise any issue(s) relating to gender equity in respect of other positions she applied for. She also did not state that she was the best candidate except again to say that the process was not done according to the directive.
19. Muzithini Churchill Sibanyoni is the Deputy Director responsible for Human Resource Management in the Zululand District. He was subpoenaed by the Applicant to come and testify.
20. He testified that the grievance was upheld because they (PGC) agreed that there was a procedural flaw during the shortlisting process. The shortlisting was 100% male dominated and the IC was directed to incorporate the issue of gender equity.
21. He stated that when the process is redone, the IC sets its own criteria. In this instance when the IC short-listed ten candidates to address the imbalance in gender equality, they found it to be fair.
22. He explained that they did not prescribe to the IC how they should resolve the procedural flaw. It was also the same IC which did the scoring and if they had to redo the scoring that would still yield the same result of 100%, a male dominated process.
23. The IC members all signed and confirmed that they were happy with the addition of five female candidates. He stated that the State as the Employer has the obligation to achieve equality in the workplace in accordance with the provisions of the Employment Equity Act 55 of 1998 (EEA). He testified that IC members cannot sign and confirm that they are happy with a process and subsequently challenge their own decision.
24. Ntobeko Mnomiya is a principal at Nkande Primary School and a Chairman of Nquthu North branch of NATU. He was an observer from the Union during the 1st and the 2nd process.
25. He testified that his role as an observer was to ensure that the IC conducted the process according to the procedure manual and also that the process was fair. He lodged a grievance on behalf of the Applicant after only males were short-listed.
26. The grievance was upheld and the directive nullified the 1st process. When a process is redone a criteria is set together with new portfolios starting with the election of the chairperson and thereafter CV’s are read as per the criteria on the day.
27. He explained that during the 2nd process the composition of the IC was not the same. One Union observer suggested that they only look at the issue of gender. The Circuit Manager, Mr Ntshangase, said that because they had scored during the 1st process, they should look at adding female candidates to the initial list to save time.
28. He stated that he objected because this was purposely defying the directive which required the IC to redo the process from short-listing. The School Governing Body members (SGB) who were in the IC were also not happy with the approach.
29. During cross-examination he conceded that the grievance was about gender equity. When it was put to him that the directive was not prescriptive about how the process should be redone, he stated that the outcome of the grievance did not replace the procedure manual.
30. He stated that nowhere in the procedure manual are they allowed to short-list ten candidates. He did not state who was prejudiced except to say that the issue was not resolved because the process was not done correctly.
31. He admitted that the IC members signed and confirmed that the process was fair. He however stated that they were forced. On the one hand it was said that the male candidates who were initially short-listed might lodge a grievance. On the other hand one official threatened to leave the IC if the process is protracted.
32. Thuleleni Joyce Mnyandu was a scorer in the 1st process and a chairperson of the IC in the 2nd process. She testified that a grievance was lodged after the 1st process following the short-listing of five candidates who were all males.
33. Although the issue of gender was raised it was however not considered and the resource person did not say anything about it. The outcome of the grievance was that the process should be redone.
34. Mr Nkosi who was co-opted as an SGB member and who was also a scorer said that if the process was started afresh he would leave the panel. The Circuit manager also said that the initially short-listed candidates might lodge a grievance.
35. She stated that they (SGB) did not have a principal at Sishongani Primary School for a long time. They were desperate for the position to be filled because they wanted the school to function. Although they were not happy with the process they signed the short-listing forms. Ten candidates were short-listed instead of 5.
36. During cross-examination she confirmed that she was trained on how to conduct the interview process. She also confirmed that she signed the minutes and EH11 forms. She stated that she would not respond when it was put to her that by signing the minutes and the EH11 forms she was conveying a message to the 1st Respondent that she executed her duties properly because she was trained and that she was happy with the process.
37. She stated that if Nkosi left the panel the IC would be affected because they needed his experience as a principal and further that they wanted the school to function.
38. She disputed that the composition of the IC was no longer the same during the 2nd process. She stated that they also discussed that the five short-listed male candidates should be put aside and that the process should be redone but instead a decision was taken to add five female candidates.

1st Respondent’s evidence

39. Mxolisi Ntshangase is the circuit Manager employed by the 1st Respondent in this capacity since 2019. Prior to this he occupied various positions in different capacities within the structures of the 1st Respondent.
40. He testified that in the present case he was a resource person and that his role in the IC was to give guidance. After they received the outcome of the grievance a short-listing meeting was convened to discuss about the directive and the implications of the income.
41. They felt that because the IC was the same as the previous and that the scores were above board they agreed to use the scores from the 1st process considering that scoring is part of the short-listing process. They also decided to add five top female candidates to resolve the issue about gender equity.
42. He explained that the HRM Circular (A20 par 8.2) is a guideline to manage the number of the candidates. Whilst the EEA places the obligation on the state to achieve equity in the workplace which is a constitutional mandate, the circular is silent on how it should be achieved (A14 par 2.1.3).
43. It was then decided to add five female candidates to resolve the issue. The chairperson of the IC was present when the issue was discussed and no member of the IC was coerced.
44. During cross-examination he confirmed that the gender issue was raised during the 1st process. He stated that the issue was raised by SADTU and that it was in fact NATU who said that the process could continue with all male candidates.
45. He admitted that Mnomiya said that he would lodge a grievance (A7) but he stated that the decision to go ahead was a collective decision. When it was put to him that even the chairperson of the IC was not happy with the decision to add five female candidates, he stated that she is the one who was directing the meeting and that his role was that of an observer and advisor.
46. He disputed that the DGC nullified the 1st process and stated that the only issue was about gender. He also disputed that he coerced the members of the IC and reiterated that he was not the chairperson and that the decisions were taken by the IC as a collective.
47. When it was further put to him that the IC members understood that the process should be redone, he stated that the directive was not prescriptive about how redoing the process was going to be done.

Closing Arguments
Applicant’s Argument

48. Shakwana argued that the instruction from the DGC to the IC nullified the 1st process and hence the directive was that the process must be redone.
49. The HRM Circular made provision for the short-listing of five candidates but during the 2nd process ten candidates were short-listed when there were no surplus educators or principal.
50. The IC ignored the directive simply because it felt that redoing the process would be a waste of time and the 1st respondent breached its own procedure manual.
51. He further argued that if the IC started the whole process afresh and elected new portfolios including scorers, the outcome would not be the same. The Circuit Manager intentionally failed to advise the IC properly on this issue.
52. The chairperson of the IC testified that they were forced to agree to certain things which they knew that were wrong. He argued that this was an infringement of the SGB’s rights.
53. He also argued that the process was simply amended instead of being redone and the Applicants were compromised by the fact that the DGC directive was no implemented.

1st Respondent’s Argument

54. Dumisa argued that the DGC did not specify how the process should be redone. This left the IC with a discretion to decide how the process of redoing should unfold.
55. The only specification was that the Circuit manager must oversee the process. He indeed complied by giving advise during the meeting. The interview committee remained the same as before and it deliberated on how the process should unfold.
56. The IC reached consensus to go back to the CV’s and check all the females and the scores. The criteria was that the highest female scores would be taken and added to the short-listed candidates. The outcome of the deliberation was that ten candidates would be selected for the interviews.
57. She further argued that the Applicant could not prove any prejudice she suffered and she did not even think that she was the best candidate for the post. She argued that the procedure manual was a mere guide to ensure that the number of the candidates is manageable.
58. In this instance there was a plausible reason why the number exceeded five candidates in order to accommodate female candidates. The Applicant was not prejudiced in any way, instead the procedure was extended to be fair and equitable to both male and female candidates.
59. In her evidence the chairperson of the IC stated that in order to address the gender issue they were going to put aside the five male candidates who were short-listed. She argued that this process would have proven to be discriminatory, unfair, unjust and not resolving the issue at hand.
60. She also argued that the chairperson failed to prove how they were forced by the Circuit Manager to take the decision they reached during the process. The IC members all signed the short-listing EH11 Forms and took their decision to be ratified by the SGB Chairperson.
61. None of the members complained to the SGB and to the 1st Respondent until the 2nd Respondent was appointed to the post. The chairperson was trained on how to conduct the interview process.
62. She was entrusted with that responsibility and she executed it in a fair and just manner. She also ensured that all the necessary forms were signed by the members of the IC. She argued that reading the CV’s afresh was going to come with the same outcome since the members of the IC were the same Mnomiya contradicted the evidence of the chairperson of the IC by stating that the IC members were replaced and that the scoring would not be the same.

Analysis of evidence and argument

63. In terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (The ACT), unfair labour practice means any unfair act or omission that arises between an employer and an employee.
64. In the context of the present case the unfair labour practice contemplated in the ACT involves unfair conduct by the employer relating to the promotion of an employee.
65. The onus rests with the employee, as it was held in IMATU obo Visagie v Mogale City Municipality that the law requires the employee to show the existence of the conduct or decision complained of.
66. The Applicant presented the evidence of four witnesses and one of them, Churchill Sibanyoni, Deputy Director, was subpoenaed to come and testify. The 1st Respondent led the evidence of one witness, Mxolisi Ntshangase, Circuit manager.
67. It is common cause that a directive was issued by the PGC after the recommendation from the DGC that the interview process must be redone from shortlisting stage, following a grievance which was lodged by NATU on behalf of the Applicant.
68. It is also common cause that the IC reconvened and discussed about the directive and engaged in a process which concluded with the appointment of the 2nd Respondent. It is further common cause that the 2nd Respondent was the preferred candidate at the end of the 1st process.
69. The question to be answered is whether the IC acted in compliance with the directive or it acted outside the parameters of the directive as well as the procedure manual.
70. If I have regard to the issue(s) or events which gave rise to the dispute, it is apparent from the evidence presented before me that the sole contention by NATU and the Applicant, was that the IC short-listed five applicants who were all male candidates.
71. Central to their grievance was the issue of gender equity. The response from the DGC and from the PGC was aligned to this particular issue which was the core of the grievance. When the IC reconvened, the scope was how to address the issue which was raised by the Union and the Applicant in their grievance.
72. In this regard the circuit manager testified that in their deliberations they all agreed that there was no issue in terms of how the candidates were scored. I must record that there was no mention in the grievance itself as well as in the Applicant’s evidence that there was an issue with the scoring.
73. The Circuit Manager further testified that the composition of the IC was the same as in the previous or 1st process and that even if they did the scoring again, the outcome would be the same because it was properly done.
74. When the chairperson of the IC testified she confirmed that the IC was relatively the same except that she was the scorer during the 1st process, Mnomiya contradicted the evidence presented by Joyce Mnyandu and stated that new portfolios were set and that the composition of the IC was not the same.
75. I find no departure by the IC be it from the directive itself or the procedure manual in deciding to add five female candidates in order to address the issue of gender equity which is a constitutional mandate.
76. The Circuit Manager also testified that the procedure manual does not provide a mechanism as to how the obligation to achieve equality in the workplace should be approached. He further testified that the directive itself is not prescriptive about how the process should be redone.
77. I therefore accept the 1st Respondent’s version that the decision to add five female candidates to the initial list of the five male candidates was rational and fair, and that the IC complied with the directive.
78. I reject the Applicant’s version mainly because of the contradictions, inconsistencies and improbabilities inherent in the evidence presented by three of the four witnesses that were called.
79. Firstly, the Applicant was not short-listed in both processes. On her own version she did not expect to be short-listed automatically and most importantly, nor was she contending that she was the best candidate for the past.
80. Secondly if the scoring was correctly and properly done in the 1st process it would be disingenuous, irrational and unfair to eliminate the initially short-listed candidates by scoring them down simply to accommodate female candidates.
81. I am also not persuaded by the contention that the procedure manual requires slavish adherence. In dealing with short-listing it states that the interview committee must conduct short-listing subject to the following “guidelines”:

81.1 The criteria used must be fair, non-discriminatory and in keeping with the Constitution of the country.
81.2 The curricular needs of the school (A20 par 8.1).

82. The second contention that the IC short-listed ten instead of five candidates is also misdirected. I do not find the provision at par 8.2 of page 20 to be peremptory in anyway. Firstly, it says “should not” and not “must not” or “may not”.
83. For practical purposes the provision mentions five candidates simply to ensure that the number of the candidates is manageable. If that was not the case it would not also provide for the short-listing of more than five candidates in certain situations, otherwise it would result in the outcomes which are absurd and unfair.
84. Furthermore, it certainly does not provide for, nor does it totally exclude any other approach arising from different situations, like in the present case, nor does it purport to be the answer to all the situations that may arise from time to time. The underlying principle is that the criteria used must be fair.
85. In these circumstances it is my finding on a balance of probabilities that the Applicant failed to discharge the onus of establishing the existence of the unfair conduct or decision complained of.
86. I therefore make the following award; Award
87. The First Respondent, Department of Education KwaZulu Natal did not perpetrated an unfair labour practice relating to promotion against the Applicant, Bongiwe Witness Moloi when she was not promoted to the position of principal at Sishongani Primary School.
88. The application is dismissed.
89. I make no order as to costs.

P Cele: ELRC Commissioner
04 December 2024