IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT HUMANSDORP
Case No. ELRC549-24/25 EC

In the matter between:

NAPTOSA obo NHADIA GLEYONA VITELINGHAM First Applicant

And

EASTERN CAPE DEPARTMENT OF EDUCATION First Respondent

SAOU obo JOYETTE MC CABE Second Respondent

PANELLIST: YOLISA NDZUTA

HEARD: 31 OCTOBER 2024

DATE OF AWARD: 02 December 2024

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – alleged unfair conduct relating to the provision of promotion

SUMMARY: Whether the Respondent perpetrated an unfair labour practice relating to promotion by failing to appoint the Applicant.

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me on the 31st of October 2024. During these proceedings, the first applicant, NHADIA GLEYONA VITELINGHAM was represented by Adv Gavin Duncan Saayman of NAPTOSA while the First Respondent, Eastern Cape Department of Education was represented by Mr Euan Hector and the Second Respondent, Mrs J Mcabe was represented by Mrs Venita Van Wyk of SAOU.
2. The parties confirmed receipt of the notice of set down and upon the presentation of testimony all pre-liminary issues were resolved.

THE ISSUE IN DISPUTE

3. I am required to determine whether an unfair labour practice was committed by the first Respondent relating to the failure to appoint the applicant in to the vacancy of Deputy Principal (Post Level 3 Deputy Principal of Hankey Primary School under open Bulletin Volume 2 of 2004) post.

THE BACKGROUND TO THE DISPUTE

4. In these proceedings the Applicant referred an unfair labour practice relating to the first Respondent’s failure to appoint her as the preferred and successful candidate.
5. The Applicant claimed that she was suitably qualified for appointment given that she was more qualified and scored higher during the interviews than the second Respondent.
6. The Respondents challenged the above.

SURVEY OF EVIDENCE AND ARGUMENT

7. The applicant testified in support of her case while the Respondents relied on the testimony of two witness Ms Van Wyk and Mr Miggels. I have hereinbelow summarised the viva voce evidence (testimonies) of the proceeding and this summary should not be considered as the transcript of the testimony.

Applicant’s Versions

8. Mrs NHADIA GLEYONA VITELINGHAM (the Applicant) testified that:

9.1 She was appointed as an educator since 2013 and is currently employed by the first Respondent.
9.2 At the time of applying for the vacancy in question, she was in active duty for a post level 2 position on notch level R418467.00.

9.3 She met the requirements for the vacancy in question.

9.4 During the interview proceedings, the interview panel could not reach an unanimously decision regarding the preferred candidate and therefore after an impasse was reached on several occasions, the panel decided to rely on interview scores to decide on the successful candidate.

9.5 The interview proceedings were observed by the union representatives.

9.6 The interview panel’s account of the scoring and tallying thereof was incorrect hence the wrong candidate was declared as successful. She disputes the interview panel’s account in terms of the minutes of the interviews.

9.7 On reconsideration of the panel, there were a few irregularities in that; One of the panel was not a parent -therefore could not be considered as a member of the SGB- while another had not attended the requisite training. Also the second Respondent had familial connection with interview panel chairperson (Mr Miggels) amongst other things.

9.8 Based on the second Respondent’s own application and documents, she (the second Respondent’s) did not meet all the requirements and the parameters of the advertised vacancy yet the SGB on several occasion ignored the latter and went on the misrepresent her (Mrs McCabe’s) suitability.

9.9 The error of the interview panel transcended beyond the interview panel and was ratified by the superior officials in the Department of Education as the appointment of the second Respondent was ultimately appointed.

9.10 She strongly believed that there were certain members of the interview panel committed an act of misconduct (i.e. bias) which lead to the irregular appointment of the second Respondent.

9. The latter testimony was challenged and under cross-examination the following was discovered:

9.1 Her testimony was based on the interview scores and the minutes of the interview.

9.2 During the interviews, the Applicant’s union was present to observe and they did not mention there being any issues regarding the interviews.

9.3 During the interview process the Applicant was a member of SAOU.

9.4 The interview panel chair, Mr Miggels declared an impasse on several occasions because consensus could not be reached regarding the preferred candidate.

9.5 The specialisation of the applicant’s qualification vis a vis those of the second Respondent comparable to the learning areas required for the advertised vacancy concludes that they both qualified to be considered as a suitable candidate.

9.6 Each interviewee attended their individual interview alone therefore one cannot comment on the performance of the other interviewees in the absence of the scores.

9.7 The applicant only learned of the various panel members on the day of the interview as such she (the applicant) expected the interview chair to declare the relation that will affect his impartiality.

10. Mrs Venita Elizabeth Ronell Van Wyk testified as follows:

11.1 She is an union representative and official employed by SAOU the teacher’s union.

11.2 During the interview process, she was the representative observing on behalf of CTU/ATU (SAOU).

11.3 A comparison between the recollection of the interview and her experience of the interview can conclude that there were challenges during the interview and the panel was inconsistent. Her view is that the applicant was the better interviewee on the day although the panel could not reach consensus and was at an impasse on several occasions.

11.4 On the day of interviews, the tallying of the scores (as they were counted) lead to a stalemate between the Applicant and the second Respondent which resulted in the score of the chairperson determining the successful candidate.

11.5 On the day of interviews, the scores were read out as we were tallying, The scores as they captured are correct and not disputed though.

11.6 During the interview there were panel members who scored a certain interviewee high although she would have responded incorrectly to a particular question.

11.7 During the interview, she raised issues against the approach and perception of certain interviewees at times. The latter can be attested to by all the panel members, the other union observer and the resource person.

11.8 The error in tallying is an example of one of the product of the injustice committed during the interviews by the panel. She accepted that upon reconsidering the data (recalculating the scores), it is

11.9 There were two posts being interviewed for on the day by the same interview panel and the second Respondent was competing for both posts. The second Respondent performed well in the interview for the other post however her performance was not as competitive for the vacancy in question.

12. The above testimony was subjected to cross-examination and the following was learned therefrom:

12.1 On the day of the interviews, the unions ratified the appointment of the second Respondent because the scores were stalemate.

12.2 When asked why upon recollection of the interview scores there is a discovery of a tallying error, she said she cannot advise how this had occurred. She also attested that it is surprising that the educators who formed part of the interview panel scored the second Respondent low considering that on the day they were adamant that the Applicant could not be appointed as the preferred candidate.

12.3 The process post interview is that the documents of the interview are compiled into a record which is then sent to the district officials of the first Respondent whereafter recommended preferred candidacy is verified before the appointment is finalised. The internal verification can result in the preferred candidate not being accepted therefore any error ought to have been noticed during the internal verification and audit of the interview.

12.4 The interviews ended around 6pm on the day as such the interview file enclosing the compiled documents was kept in the storage at the interview venue as opposed to same being sent immediately to the district office.

The Respondents’ Case:

13. The respondents relied on the testimony of one witness being Mr Miggels who testified as follows:
    13.1 He was the chairperson of the interview panel.

13.2 All the interviewees were interviewed on the same day and the interviewees were asked the same questions.

13.3 The two unions were present to observe and both unions ratified the process as fair.

13.4 During the interview the panel could not reach consensus on several occasions even after hours of deliberations therefore the decision was made to refer to the relying on scores to determine the preferred candidate.

13.5 After tallying of the scores there was a stalement between the Applicant and second Respondent.

13.6 As the chairperson he therefore decided that his scores would determine the preferred candidate and this decision was accepted.

13.7 On the basis of the above, the second Respondent was considered the successful and preferred candidate.

13.8 On reflection of the interview minutes, he confirmed the scores as reflected although he refuted that on recalculation of the scores there was an error.

13.9 He disputes the points as reflected on the interview minutes.

13.10 He is certain that he had scored Mrs Mc Cade (the second Respondent) 3 points for her interview than as reflected in the minutes and the scoring sheet enclosing his signature.

13.11 When he left after the interviews, the evidence showed that the second Respondent was the successful and preferred candidate.

13.12 He disputed any notion that there was an error with the tallying of the scores. The unions did not raise any issues with the scores or the scoring.

13.13 There was a ratification meeting with the full SGB and even then there was no issue with the interview scores.

13.14 In his recollection, he is certain that all the interviewees were treated equally as such the disputes any relation and or bias to an interviewee. His reference of being a cousin with the second Respondent is because it’s a common term due to how intimate Hankey is as an area.

13.15 He can confirm that the second Respondent was and is a church goer with one of the panel members and he disputes that one of the panel members was not a member of the SGB.

14. The latter testimony was challenged and the following was learned from cross-examination:
    20.1 This witness’s highest qualification is matric and did receive the adequate training for conducting interviews.

20.2 When it was put to the witness that his recollection of the scores was incorrect as it contradicts the minutes he refuted the minutes.

20.3 When the witness was called to tally his own points as per the Applicant and second Respondent’s score card, he commented that something was a mis and incorrect although he confirmed that it was his signature and his handwriting.

20.4 When it was put to the witness that he deliberately read out his score for the second Respondent incorrectly to mislead the panel and favour the second Respondent, he testified that other panel members did not find an error in the scoring.

20.5 It was put to the witness that his testimony contradicts the evidence and as such his testimony is not credible, he refuted the evidence.

20.6 When it was put to the witness that his testimony is his imagination and not evidence, he confirmed that assertion.

20.7 When asked about the relation between Mrs Ntshiza -a member of the panel- and the second Respondent, he testified that Mr Ntshiza (the husband of Mrs Ntshiza) was a pastor of the church where the McCabe family attended.

21 The parties submitted closing submissions which the last of was filed on the 7th of November 2024. Their respective submissions were considered and shall be incorporated in the analysis of the argument.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

22 The closing submissions filed by the parties to support their respective cases were considered in conjunction with the viva voce evidence and submissions made during the hearing, the written submissions will not be summarized herein, rather reference thereto shall be made.

23 The applicants referred an unfair labour practice dispute which relates to promotion/appointment which is established in law under section 186(2)(a) as:

“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

24 I considered the parties’ respective case and evidence from the latter perspective. Similarly the latter statutory right is subservient to constitutional rights including section 28(2) which provides that the best interest of the child are of paramount importance in every matter concerning the child. The latter constitutional right is also applicable in promotion disputes as was echoed in Governing Body of Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC)

18. Before I address the testimony given, it is important to consider the dispute as defined in case law. The Labour Court in Jele v Premiere of the province of KwaZulu-Natal & othes (2003) 24 ILJ 1392(LC) went as far as defined ‘promotion’ in unfair labour practice disputes to include being elevated to a position of greater authority and status. Similarly, the Labour Appeal Court has through its interpretation of the section emphasised in the case of NEWU v CCAM (2007) 28 ILJ 1223 (LAC) that the unfairness claimed can be an act or omission perpetrated by the employer which relates to the employability and employment opportunities.

25 The applicant referred a case on the basis of an employment right to fair labour practices which includes a right to transparency and fairness during recruitment. The latter was not disputed by the respondents rather the applicant is called upon to prove the unfairness claimed and the nexus between her dispute and any conduct they claimed as unfair.

26 My assessment of the applicant as a witness is that she was a credible as her account insofar as her account of the recruitment process undertaken and how the panel made an error and acted upon their error. Granted the onus of proving both substantive fairness and procedural fairness rests on her and as such she must establish that there was she was the best candidate and that there was inexplicable unfairness in the recruitment process.

27 The applicant’s account of being the most qualified of the shortlisted was challenged however on an assessment between her and the second Respondent, one could establish that their respective qualifications were equal for the post however they differed on experience. The determining factor for appointed was the reliance by the interview panel on the interview scores. Even on account of the Respondents’ witness, the panel deliberated at length to determine the most suitable and after reaching an impasse on several occasions, it was agreed that the interview scores determined the preferred candidate.

28 My assessment of Mrs Van Wyk as a witness is that she gave an honest account of the proceedings and she admitted that on recollection of the proceedings, the Applicant was the best candidate however on the day the calculation of the panel scores informed differently which. Evidently the scores when calculated on the day of the interviews (21 August 2024) vis a vis the day of arbitration, one issue is realized, the chairperson’s (Mr Miggels) score was called out incorrectly. The first Respondent called Mr Miggels to testify and his account was unreliable to say the least. Mr Miggles contradicted himself and refuted his own hand writing which renders his testimony as undependable.

29 In argument (per submissions) the first Respondent claims that the fairness of the process and the role of the resource person was not disputed. The first Respondent also argues that fairness of the recruitment process, in particular relating to the interview process, was testified to be fair to all candidates through the testimony of the applicant, in that all candidates were treated the same, were asked the same questions and even the number of questions. It is on the basis of the latter that the first Respondent argued that the Eastern Cape Department of Education having complied with Employment of Educators Act 76 of 1998 as amended, the PAM of 2016 document and Resolution 5 of 1998 there was no argument for substantive unfairness. The first Respondent argued that the Applicant’s dispute hinged only on procedural unfairness on the basis of an error tallying the scores.

30 The Applicant’s case raised that had the interview panel honored its decision of relying on the interview scores that she would have been appointed as opposed to the second Respondent as such considering the account of Mr Miggels, it is conclusive that there was irregular conduct. A balance of probabilities leads one to conclude (given the cases presented) that there was an unfair conduct perpetrated. In Department of Justice v CCMA and Others [2004] BLLR 297(LAC) the court held that:
“An employee who complains that the employer’s decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such a decision or conduct. If the decision or conduct is not established, that is the end of the matter. If that decision or conduct is proved, the enquiry into whether the conduct was unfair then follow.” Evidently the conduct accentuated by the applicants (and subsequently circumnavigated by the first Respondent) was unfair.

31 We now turn to the nexus between the unfair conduct and the applicant. In SAPS v Safety and Security Sectoral Bargaining Council, Robertson NO Noonan (unreported Labour Court Judgement Cheadle AJ. Case Number P426/08 dated 27 October 2010: Ngcobo v Standard Bank of South Africa and Others (D439/12) [2013] ZALD 33 (25 September 2013) the courts emphasised that an applicant who claims unfair labour practice in promotion dispute bears the onus of establishing a nexus between the irregular conduct exhibited during recruitment and/ or the error that influenced the appointment and the unfairness experienced by the applicant, once the latter is accomplished then the onus is on the employer to disperse the allegations of irregular conduct and/ or the error that influenced the appointment.

32 Even if one considers the argument raised by the first Respondent regarding procedural fairness and its reliance on the factors emphasized in the matter of City of Cape Town v SAMWU OBO Sylvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC), it stands that the error of the interview panel that transcended beyond internal verification is inexcusable. One cannot refute their own writing and claim evil forces to be at play.

33 The applicant argued that her dispute sought to rectify the process of recruitment and thus the primary relief was to set aside the appointment of the second Respondent on the basis of alleged irregularities by the panel insofar as the finalization of interview process. I therefore will apply the test of nexus to the latter. The evidence presented portray that the employer failed to appreciate its own processes and policies by failing to implement strict verification processes to avoid an error transcending so far.

34 Although the Respondents’ case challenged the nexus between error alleged and whether the applicant was the best candidate. The second Respondent also claimed that the issue of score errors is after the fact and cannot be the only determining factor.

35 Thorough consideration of the Personnel Administrative Measures document and Sithole v Nogwaza NO [1999] 12 BLLR 1348 (LC) it is evident that a party in the position of the Applicants is entitled to be part of a process that is without imperfection given the consequences of the same imperfection in the integrity of the recruitment. It is on the basis of the latter that I determine that the applicant has argued successfully that the conduct of the employer (the first Respondent) directly prejudiced and resulted in the harm incurred hence the dispute.

36 Having found that the Applicant was subjected to unfair labour practice as alleged, now I have I am required to determine appropriate relief. In considering relief, I must consider the best interest of the child and whether the relief serves the public interest. In South African Police Services v Inspector Zandeberg and others (Case No. JR1162/08) the court emphasized that the needs of the community must be taken into account and can play a decisive role in the ultimate finding. Similarly in PAWC (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) the court ruled that the courts and arbitrators should be reluctant in the absence of good cause shown, to interfere with the managerial prerogative of employers in their employment and appointment process. The courts in the latter decision also ruled that arbitrators should have due regard where managerial prerogative should be respected and should only intervene when bad faith or improper motive is present.

37 On a consideration of the evidence of Mr Miggles, it is conclusive that the unfair labour practice experienced by the Applicant is laced with improper motive which influenced the outcome. The latter therefore permits, one consideration of PAWC (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) read with POPCRU obo Nkoko v GPSSBC and others (C291/2018) [2022] ZALCCT 50 (handed down on 10 August 2022), an interference with the employer’s prerogative.

38 I therefore make the following award.

AWARD

39 The Applicants have proven that an unfair labour practice was perpetrated against her by the first Respondent relating to promotion.

40 Considering the relief sought and the unacceptable conduct by the first Respondent, the appointment of the second Respondent is set aside. The first Respondent is directed to appoint the first Applicant in the position of Deputy Principal of Hankey Primary within 30 days of this award.

41 There is no order as to compensation and costs.

Yolisa Ndzuta
Panellist: ELRCUR RELATIONS COUNCIL