12 July 2022 – ELRC928-21/22LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD VIRTUALLY ON 17 MAY 2022
Case Number: ELRC928-21/22LP
Commissioner: Moraka Abel Makgaa
Date:
In the matter between: –
Tshikovhi Inc Attorneys obo Mongwe Hlanganani Applicant
And
Education Department of Limpopo Respondent

ARBITRATION AWARD

Nature of the dispute: Section 186(2) of the LRA: unfair labour practice relating to promotion.
DETAILS OF THE HEARING AND REPRESENTATION
1 The hearing was held virtually on 17 May 2022. The applicant was present and represented by Mr Monyepao Kgatla from Tshikovhi Inc Attorneys whereas the respondent was represented by Mr Mokgoba Matlou, employed by respondent as an Assistant Director: Labour Relations .
2 The respondent submitted three separate, paginated bundles of documents which were marked as Bundles A, B, C and D, made up of pages 1-89. The applicant submitted a paginated bundle of documents which was marked “Bundle HM”, pages 1-102.
3 The proceedings were digitally recorded and conducted in English. Both parties filed written closing arguments, which have been taken into consideration in arriving at the conclusions herein. I am indebted to both representatives for their comprehensive and persuasive submissions, which included extensive reference to the relevant case law.
THE ISSUE IN DISPUTE
4 The issue to be determined is whether the non-appointment of the applicant to the position of Deputy Principal at Mhitlwa Primary School notwithstanding the fact that he was the best candidate, constitutes an unfair labour practice for the purposes of section 186(2)(a) of the LRA. If so, I will determine the appropriate relief.
BACKGROUND TO THE DISPUTE
5 The applicant applied for the post of Deputy Principal at Mhitlwa Primary School (“Mhitlwa”) during September 2021. He was shortlisted, interviewed, got position one and ranked by the interview committee as such. He was recommended by the governing body as the most preferred candidate but was not appointed.
6 The responded decided to appoint the second best candidate in the name of Ms Maluleke L on the basis of employment equity considerations. The promotion of Ms Maluleke has apparently been made with effect from 01 January 2022. Aggrieved by this decision, the applicant decided to refer a dispute of unfair labour practice relating to promotion to the ELRC on 22 February 2022. The dispute could not be resolved at conciliation stage. The certificate of outcome to this effect was issued on 13 March 2022. The matter was ultimately set down for arbitration and it came before me on 17 May 2022.
PRELIMINARY ISSUES
7 At the commencement of the arbitration hearing, the parties’ representatives raised a number of preliminary issues. The applicant indicated that they had written a letter to the respondent’s Head of Department and other relevant departmental officials including Mr Matlou on 10 May 2022 requesting discovery of specific documents relating to the appointments which were made in Mhitlwa and three other schools in the same Circuit, which is Groot Letaba Circuit. Their request was never responded to. During my engagement with the parties, it became clear that what the applicant wanted to establish was reasons as to why the respondent had decided to appoint candidates from the over-represented groups in the case of the post of Departmental Head at Mhitlwa Primary School, and for posts of Principal and Deputy Principals in the other schools, but decided not to do the same in respect of the applicant.
8 The respondent’s explanation sought to suggest that the requested documents could have only been released if the applicant’s Attorneys had followed the Promotion of Access to Information Act 2 of 2000 (“PAIA”) route moreso that the information requested affected persons who are not party to the present proceedings. I suggested to the applicant’s representative to consider writing a letter and send it to the respondent’s representative requesting reasons for the respondent’s deviations, which was declined on the basis that such an approach may result in an unnecessary delay. The respondent’s representative made an undertaking that reasons as to why the applicants was overlooked will be disclosed to the applicant in the course of the arbitration proceedings.
9 The respondent representative raised an objection in limine relating to non-joinder of the successful candidate. I issued an ex tempore ruling dismissing the respondent’s objection, and made an undertaking that a written ruling with reasons will follow in due course. The written Jurisdictional Ruling was issued on 20 May 2022 and sent to the parties by the ELRC.
SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT
10 Mongwe Hlanganani Archibald Errol, testified under oath, and his evidence can be summarized as follows. He is appointed by the respondent as a Departmental Head and was transferred from Sihlomola Primary School to Mhitlwa Primary School (“Mhitlwa”) during April 2019 through the process of rationalization and redeployment.
11 He applied for the post of Deputy Principal at Mhitlwa, one of the posts which were advertised by the respondent in the Open Vacancy List No. 1, Volume 2/2021 dated 01 September 2021. He was shortlisted and called to the interviews on 19 November 2021. On Tuesday, 23 November 2021, he got an information that the Circuit Manager sent a communication to the school governing body (“SGB”) informing them that they had made an error by recommending the applicant to the post of Deputy Principal, because the recommendation was contrary to the Departmental Circular on employment equity.
12 He thereafter came across the letter dated 24 November 2021 which was written by the SGB to the Circuit Manager in response to the Circuit Manager’s letter concerning the SGB’s non-compliance with the employment equity profile for posts of Deputy Principals. The Circuit Manager is said to have accused the SGB for not following the Departmental equity policy by recommending a male candidate for the Deputy Principal post and a female candidate for the post of Departmental Head, as they were expected to recommend a female for Deputy Principal and male for Departmental Head.
13 The SGB’s letter was about a refusal to reconsider its initial position of recommending the applicant to the post in dispute. Several reasons were given the SGB’s refusal, which included the following: the applicant had displayed an outstanding performance during the interviews, demonstrated incredible management skills by maintaining stability at the school during the period when the school principal was on sick leave. He provided great leadership to the educators, and helped struggling Grades 4-7 learners in Languages ( reading and writing) and Mathematics through Saturday Learning programme. He has a Degree in chemistry and is qualified to teach scarce skill subjects such as Mathematics and Natural Sciences.
14 For Mhitlwa the respondent advertised two posts, i.e posts numbers 14 and 15, which are the posts of Departmental Head and Deputy Principal respectively. The female candidate, in the name of Ms Ngobeni TS, was appointed for the post of Departmental Head, but he was not appointed as recommended.
15 He testified about the Departmental Circular No.150 of 2021 concerning the employment equity profiles of appointments already made in the posts of Principals, Deputy Principals and Departmental Head, with specific focus to race and gender. For present purposes, the Circular showed that African males were, at the time, over-represented for the posts of Principals and Deputy Principals whereas African females were over-represented for the posts of Departmental Heads. It came to his attention that this Circular was only applied with regard to the post he was recommended for appointment and not applied with regard to appointments made in other schools.
16 In Ndambi Secondary School (“Ndhambi”), which is next to the village where Mhitlwa is located, both the newly appointed Principal and Deputy Principal are African males whereas in the case of Dzumeri and Ukuthula Primary Schools (“Dzumeri” and “Ukuthula”), CS1 educators with little managerial experience , who are also African males, were appointed as Deputy Principals. Even at Mhitlwa the Circular was not applied in its entirety because the respondent appointed an African female to the post of Departmental Head even though African females were over-represented at that level but in his case the SGB was told that a male candidate could not be appointed as the Deputy Principal because they were over-represented at that level.
17 The SGB also became aware that the employment equity Circular was not applied in other schools, hence they became agitated, started writing letters to the Circuit Manager and even sent a delegation to the Circuit Office. The Circuit Manager wrote a letter dated 12 January 2022 to the SGB as a response to the notice of protest action at Mhitlwa against the appointment of a Deputy Principal. The Circuit Manager’s letter was read into record. It made reference to the letters received from Khaxani community and the Headman dated 19 December 2021, 20 December 2021 and 11 January 2022. Reference is also being made to the SGB’s visit to the Circuit Office on 12 January 2022. The SGB was accused of having disclosed confidential Departmental recruitment processes whereas the principal was blamed for having failed to resolve the matter. The SGB was informed that an APPOINTMENT is the SOLE responsibility of the HOD, the SGB can only recommend, and their recommendation CAN be REJECTED by the HOD if it does not comply with the legal requirements.
18 During January 2022 he wrote a letter to the School Principal enquiring as to why he has not been appointed as per the recommendation of the SGB. The Circuit Manager came to school on 07 January 2022 and met with him. He tried to console him and also told him to stop writing letters to the Department about the appointment of the Deputy Principal as such a conduct puts him in bad light in the Department. The Circuit Manager also asked him to be patient as he stood the chance of being appointed the Principal of the school as the incumbent Principal will be going on retirement in three years’ time or so.
19 He seeks protective promotion backdated to 01 January 2022 and compensation for the financial loss and emotional stress he suffered during the period of the dispute.
20 Under cross examination, the applicant was asked about his knowledge of employment equity, the role and function of the SGB with regard to appointments. He was also made to read the employment equity profiles of the posts of Principals, Deputy Principals and Departmental Heads as stated in Departmental Circulars Numbers 154 of 2020 and 150 of 2021 ( hereinafter to be referred to, collectively, as employment equity Circulars), the interview results for the post in dispute, as well as the ELRC Collective Agreement No. 3 of 2016 dealing with Guidelines: Promotion Arbitrations.
21 The applicant was also made to read an internal memo generated by the Corporate Services advising the District Director to appoint Ms Maluleke to the post in dispute instead of the applicant. He was specifically requested to read into record the scores obtained by the four candidates who were interviewed for the post in dispute, as well as the recommendation of the Deputy Director: Corporate Services. The applicant obtained a score of 86.25% and was ranked and recommended as the number one candidate whereas the successful candidate, Maluleke L, who obtained 69% was ranked and recommended as the number two candidate.
22 Regarding the role and function of the SGB, he testified that the SGB is responsible for making a recommendation as to who is the best and suitable candidate for appointment. He further testified that the SGB is best suited to advise the HOD because they are on the ground and understand the dynamics at the school unlike the HOD who is far away from the school.
23 He testified that if the appointment of Ms Maluleke L is to be looked at as an isolated case, it would mean that the appointment was made in line with paragraph 5 of Circular No. 5 of 2021. He further testified that at the time of making its recommendation, the SGB was not in possession of the employment equity Circular as it was only brought to their attention after interviews were concluded.
24 He testified that if male candidates at Ndhambi were appointed as Principal and Deputy Principal on the basis of teaching scarce skills subjects, he should have also been appointed because he is in possession of a Bsc degree, majoring in Mathematics, Physical Science, Chemistry, Statistics etc. He further testified that at school he is the only one using technological devices when teaching, which is in line with the 4th industrial revolution. He uses technological such as an overhead projector. The SGB’s recommendation for his appointment should be understood as part of the scarce skills retention strategy to keep him at school as a key personnel. The SGB is afraid that he could easily be poached by other schools.
SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT
25 Sam Nyiko Sono, testified under oath, and his evidence can be summarized as follows. He is working for the respondent as an Education Specialist, based at Mopani East District. He is the Head of Corporate Services. His responsibilities involve ensuring that policies of the Department, especially those dealing with appointments, are applied to the latter, and to advise the District Director and the HOD in making well informed decisions.
26 The Departmental Circular No. 150 of 2021 reflects Provincial statistics , with specific focus on race and gender, of appointments made at the various levels of the promotion posts in the Limpopo Department of Education. To the extent relevant for the present purposes, the employment equity profiles show that African males were, at the time of filling the advertised posts, including the post in dispute, over-represented as regards the posts of Principals and Deputy Principals, whereas the African females were under-represented in these posts. The only category were the African females were over-represented, with African males under-represented, was in respect of the posts of Departmental Heads.
27 The Departmental Circular Number 154 of 2020 deals with guidelines for implementation of the Employment Equity Plan in the appointment of employees in Limpopo Department of Education. The main purpose of the guidelines was described as being about ensuring that the Limpopo Department of Education Employment Equity Plan is effectively implemented.
28 As to the reasons why the applicant could not be appointed to the post in dispute, he testified that the applicant’s recommendation as the most preferred candidate was in contravention of Circular No. 150 of 2021 and sections 6(3)(b)(i) and 7(1) of the Employment of Educators Act. The SGB’s recommendation for the appointment of the applicant was described as being negligent or ignorant of the Provincial employment equity profile in the category of Deputy Principals, hence it was rejected by the HOD. Ms Maluleke on the other hand was appointed on the basis that her appointment was addressing the equity requirement in terms of the Provincial Employment Equity Plan.
29 He also testified about the memo which was generated by Corporate Services concerning the filling of the post in dispute wherein it is stated that the SGB’s recommendation for the appointment of the applicant was not supported based on sections 6(3)(b)(i) and 7.1 of the Employment of Educators Act. Ms Maluleke L was instead recommended for appointment to the post in dispute. The recommendation for the appointment of Ms Maluleke was approved on 02 December 2021, by the District Director obo of the HOD.
30 As regards the applicant’s argument that the respondent applied its employment equity policy inconsistently, he confirmed that African male candidates were indeed appointed in Ndambi, Dzumeri and Ukuthula Primary. In Ndambi an African male candidate was appointed because he was teaching Maths and Physical Science whereas the Deputy Principal, in the same school, was appointed because he was teaching Agricultural Science, which is a scarce skills subject.
31 In Dzumeri, an African male candidate was appointed as the Deputy Principal because the School Principal was a female. The appointment of a male candidate resulted with the School Management Team (“SMT”) being made up of three females and two males, thus achieving employment equity at the level of the school. In Ukuthula, an African male candidate was appointed as the Deputy Principal because the SMT was made up of females only.
32 Under cross examination, he conceded that in appointing an African female candidate as the Departmental Head in Mhitlwa, Circular 150 of 2021 was not followed. The explanation for such a deviation was because the post of the Departmental Head was for a Foundation Phase, which requires a female educator as it was dealing with young children. In Ndambi they also considered the principle of continuity. The respondent did not want to destabilize the school’s good performance in Grade 12 results because the school was one of the best performing schools in the Circuit.
33 He ultimately conceded that the Department’s Employment Equity Policy was not consistently applied. He, however, insisted that the composition of the SMT is one of the considerations in Circular No. 150 of 2021. He denied that the Department decided to pick and choose when and where to apply its employment equity policy.
ANALYSIS OF EVIDENCE AND ARGUMENT
34 According to clause 4 of Collective Agreement 3 of 2016: ELRC guidelines on promotion arbitrations, an arbitrator who prefers a different interpretation than the one contemplated in the Collective Agreement is required to set out the reasons for doing so in the award. I intend to adopt a different approach as regards the following issues: mandatory joinder of the successful candidate; the expectation that the applicant must prove that he or she was the best of all the candidates who applied for the post in dispute if such an applicant wishes to establish the existence of substantive unfairness on the part of the respondent.
35 As already indicated in paras 7, 8 and 9 (supra), at the commencement of the arbitration hearing, the respondent’s representative raised an objection in limine relating to the non-joinder of the successful candidate. The objection was dismissed on the strength of the SCA judgment in Gordon v Department of Health: Kwazulu-Natal . It was later brought to my attention that my ruling may be inconsistent with specific provisions of Collective Agreement 3 of 2016.
36 During the process of writing this arbitration award, I read clauses 23, 24, 25 and 26 of the relevant Collective Agreement dealing with what is clearly a mandatory joinder of the successful candidate. Though I could not find reference to any specific authority, it appears to me that the Collective Agreement is effectively restating the legal position in Public Servants Association v Department of Justice and Others . I must confess that I am not aware of any judgment either of the SCA or the Constitutional Court which may have reversed the precedent set by the Gordon judgment. I am as such moving from the premise that there is no such judgment but if it does exist, whatever I am going to say hereunder should be regarded as having no legal effect.
37 In Ex Parte Minister of Safety and Security and Others: In Re S v Walters and Another , the Constitutional Court said the following about the principle of judicial precedent:
“…High courts are obliged to follow legal interpretations of the SCA, whether they relate to constitutional issues or to other issues, and remain so obliged unless and until the SCA itself decides otherwise or this Court does so in respect of a constitutional issue”.
38 The above legal position was confirmed by the same Court, in Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Ltd ( In Liquidation) and Others (2020) ZACC8, in a unanimous judgment written by Jafta J, where the Labour Court was criticized for having construed section 191 of the LRA differently from both the LAC and the Constitutional Court. Jafta J specifically said that “ it was not open to the Labour Court to prefer a different meaning of the provision because the correct meaning had already been authoritatively settled”.
39 My respectful opinion is that judicial precedent obliges lower courts and dispute resolution tribunals such as the ELRC to follow the binding authority of superior courts, which in this case is what the SCA in the Gordon case said about non-joinder of the successful candidate where the relief sought has nothing to do with his or her rights and interests.
40 The second issue where I part ways with the guidelines in Collective Agreement 3 of 2016 is with regard to the threshold which must be reached by the aggrieved applicant in establishing substantive unfairness on the part of the respondent. It appears to me that this threshold has something to do with the LAC judgment in Noonan v Safety and Security Sectoral Bargaining Council and Others . I have had the opportunity of reading this judgment, and it appears to me that the threshold may have emanated from some of the submissions made by the Minister of Police ( who was the respondent in that case) in his review application, particularly where the following was said at para 13 of the judgment:
“…It is insufficient for a complainant to allege that he was the better candidate compared to the successful candidate, he must in addition, prove that he was better than any of the other candidates applying for the job”.
41 The Court, if my understanding is correct, did not make any finding or express a definite opinion on this specific submission or any other submissions which were intended to justify that the applicant would not have been able to prove that his non-appointment to the post in dispute was substantively unfairness. The Court’s decision that the applicant must be awarded compensation equivalent to 9 months remuneration was only based on the finding of procedural unfairness towards the applicant.
42 My view is that expecting the aggrieved employee who was shortlisted, interviewed and recommended as one of the candidates who may be considered for appointment, to embark on a journey of comparative suitability with the second best candidate as well as all the other candidates, including those who may have been sifted out or shortlisted out at the initial stages of the recruitment process, would not only be an almost insurmountable task to the applicant but may also be a nightmare to the respondent who may be required to discover even documents which would not serve any purpose. In any event, why would the applicant, particularly the one who got position 1 during the interviews and recommended by both the interview committee and the governing body as the most suitable candidate for a specific job, be expected to compare himself or herself with candidates who should , by virtue of having fallen by the wayside at the initial stages of the selection process, be presumed as being inferior to him or her.
43 Before dealing with the merits of the present case, I wish to restate certain legal principles which are relevant to promotion disputes. In Apollo Tyres South Africa (Pty) v CCMA and Others [2013] 34 ILJ 1120 (LAC), it was, inter alia, held that “an employee who wants to use the unfair labour practice jurisdiction in section 186 (2) (a) relating to promotion or training does not have to show that he or she has a right to promotion or training in order to have a remedy when the fairness of the employer’s conduct relating to such promotion (or non-promotion), or training is challenged” .
44 What is expected from an employee who is aggrieved by his or her non-appointment is to prove the unfairness of the employer’s decision not to promote him or her. Once the unfairness has been proven, the applicant must allege that he or she would have been appointed but for the respondent’s unfairness. It is admitted that, as a general rule, an employee does not have an automatic entitlement to be promoted.
45 It is also settled law that the employer has the prerogative or discretion as to whom he or she intends to appoint, which include appointing what the Collective Agreement describes as “a weaker candidate in the name of affirmative action in order to address imbalances of the past” . As it will later become apparent, I do not think section 6(2) of the Employment Equity Act 55 of 1998 (“EEA”) should be construed as envisaging the appointment of ‘a weaker candidate’.
46 The case of the applicant, as understand it, is far from suggesting that the applicant has a general right to be promoted to the post in dispute, neither is it suggested that the respondent does not have a discretion to appoint any person who, in its view, is the most suitable candidate for the job in question. The applicant’s case, in simple terms, is to the effect that the statutory discretionary power to be exercised by the respondent cannot be exercised in a manner which seeks to suggest that the respondent has an unfettered discretion.
47 I wish to start with one of the propositions which were made by Mr Sono which sought to suggest that the recommendation of the governing body in respect of the post in dispute was fatally defective. To this end he testified that the recommendation was rejected because of the governing body’s failure to give due regard to the principles of equity, redress and representivity as well as failing to adhere to the requirements listed in section 6(3)(b) (i – v) of the Educators Act. The situation such as the one described by Mr Sono and the remedies which are available to an employer in such a situation are contemplated in section 6(3) (e) and (g) of the Educators Act. Paragraphs (b), ( e) and (g) of section 6(3) provide as follow:
“ (b) In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or the council, as the case may be, must adhere to—
(i) the democratic values and principles referred to in section 7 (1);
(ii) any procedure collectively agreed upon or determined by the Minister for the appointment,
promotion or transfer of educators;
(iii) any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators which the candidate must meet;
(iv) a procedure whereby it is established that the candidate is registered or qualifies for registration as an educator with the South African Council for Educators; and
(v) procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.
( e) If the governing body has not met the requirements in paragraph (b), the Head of Department must decline the recommendation.
(g) If the Head of Department declines a recommendation, he or she must—
(i) consider all the applications submitted for that post;
(ii)apply the requirements in paragraph (b) (i) to (iv); and
(iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post”.
48 In Head, Western Cape Education Department and others v Governing Body, Point High School and Others , the Supreme Court of Appeal (“SCA”) held that ‘if the Head of Department is of the view that the requirements in section 6(3) of the Educators Act have not been met, he or she is bound by section 6(3)(e) to reject the governing body’s recommendation as a whole and to proceed in terms of section 6(3)(g)’.
49 The memo which was generated by Corporate Services concerning the appointment of Ms Maluleke L (‘the successful candidate”) and approved by the District Director on 02 December 2021 suggests that the District Director had the delegated authority to grant such an approval. In addition to the fact that the memo was addressed to the District Director, it is specifically stated that the authority resides with the District Director in terms of delegation number 192. We now know that that the District Director has elected not to exercise his or her discretion in terms of section 6(3) (g) of the Educators Act.
50 The evidence tendered obo the respondent suggests, prima facie, that the District Director had made a permanent appointment in circumstances where the recommendation of the governing body was in contravention of the provisions of section 6(3)(b)). If indeed that was the case, it would mean that the District Director had acted ultra vires his or her powers. It would also mean that even the applicant would not be entitled to the relief he is seeking for the simple reason that he would be relying on a fatally flawed recommendation which ought to have been rejected by the HOD or the District Director.
51 My understanding is that the recommendation of the governing body cannot be regarded as being in contravention of the requirements in section 6(3)(b) (i – v) solely because a candidate from the over-represented group has been recommended. To the extent relevant to allegation of a non-compliant recommendation, the governing body’s recommendation and the discretion of the HOD or his or her delegate are regulated by paragraphs (c ) and (f) of section 6(3) of the Education Act, which provide as follows:
(c) The governing body must submit, in order of preference to the Head of Department, a list of—
(i) at least three names of recommended candidates: or
(ii) fewer than three candidates in consultation with the Head of Department.
( f ) Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list”.
52 The material evidence in the instant case, suggests that the governing body’s recommendation was made up of four candidates, which included both male and female candidates, who were from both the under-represented and over-represented groups. The only challenge is that it is not clear as to what the governing body may have said about all the candidates on the list because this evidence was not tendered in these proceedings. The only evidence which is known is the one relating to the motivation made as to why the SGB was not willing to reconsider its initial recommendation in favour of the applicant.
53 Notwithstanding that, I am of the view that the District Director’s decision is problematic for different reasons, which have nothing to do with non-compliance with the provisions of section 6(3)(b). From both oral and documentary evidence which was led, it appears as if the decision of the District Director was not based on the actual recommendation of the governing body. It is not clear as to whether the governing body’s motivation and representations as to why the applicant was recommended as the most preferred candidate were ever brought to the attention of the District Director. The evidence tendered obo the respondent suggests that the District Director’s decision was based on the recommendation of the respondent’s Corporate Services section. What appears to have happened in this case is a blatant usurpation of the powers and functions of the governing body by Corporate Services, and by extension the District Director.
54 The comments I have made with regard to the Corporate Services memo, and those that will be made in relation to the employment equity Circulars should never be understood as if I am embarking on a review process because I do not have powers, in law, to do so. These comments are made either for purposes of providing a context to a specific point or with the hope that the respondent will consider doing things differently in future.
55 I acknowledge that, in the absence of a contrary decision by a court of law or the respondent where applicable, the District Director’s decision to appoint Ms Maluleke as well as the employment equity Circulars or any other policy directives issued by the respondent in pursuit of employment equity targets remain lawful and valid. It is within this context that I am of the view that the omissions which may have been made by Corporate Services and the District Director do not vitiate the relief sought by the applicant, hence I proceed to determine whether the applicant has established the existence of an unfair labour practice on the part of the respondent.
56 Section 186(2)(a) of the LRA defines unfair labour practice as including “any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer relating to the promotion of an employee”. In Department of Justice v Commission for Conciliation, Mediation and Arbitration and Others , the Labour Appeal Court (“LAC”) described the onus to be borne by the applicant in establishing the existence of an unfair labour practice in the following terms:
“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 decision or conduct. If that 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 can then follow…”
57 It effectively means that, once the existence of the decision or conduct being complained about is established, the applicant will be required to show that the appointment of someone else to the post at his or her expense constituted an unfair labour practice in breach of section 186(2) of the LRA. The second stage of the enquiry will almost invariably involve comparing the qualities of the two candidates, which will include proving, by comparison, that the applicant is more qualified in terms of ability, experience, training, education, qualifications and any other relevant attributes, than the successful candidate ( See Ndlovu v CCMA & Others (2000) 21 ILJ 1653 (LC), at paras 11-12).
58 In casu, the existence of the impugned decision or conduct is easily ascertainable from the common cause issues. It is, for instance, common cause between the parties that the applicant got the highest scores during the interviews, he was ranked by the Interview Committee as the number one candidate, and recommended by the SGB as the most preferred candidate for the job, but the respondent had preferred the appointment of Ms Maluleke ( who got position 2 during the interviews, ranked by the interview committee as such, and recommended by the governing body as the second best candidate). It effectively means that the real issues which are the bone of contention between the parties relate to the alleged deviations from the respondent’s own employment equity policy and directives, and the reason(s) as to why a different candidate was preferred by the respondent over the applicant.
59 For purposes of both procedural and substantive fairness, it is worth noting to indicate that the applicant’s evidence about the intervention or interference by the Circuit Manager, inconsistent application of the employment equity Circulars, the contributions made by the applicant to the running of the school in the absence of the principal and extra tuition to the struggling learners, his qualifications and experience in management were either conceded or not disputed by the respondent. In fact, all the factual allegations made by the applicant concerning his suitability, qualifications, scarce skills subjects, unfair treatment by the Circuit Manager and the general outcry by the governing body and the broader community concerning his non-appointment were never disputed or contradicted by the respondent. In Small v Smith , it was held that a failure to cross-examine may, in general, imply an acceptance of the witness’s testimony. It may safely be concluded that there may be some merit in the applicant’s version that he is the best candidate for the job and that he would to have been appointed had it not been because of the unfairness on the part of the respondent.
60 The approach adopted by the respondent in this matter suggests that the fact that the applicant was the best candidate for the job had been, directly and indirectly, conceded by the respondent. It effectively means that the real enquiry should be about the question as to whether, in the present circumstances, there was a valid justification supporting the appointment of “a weaker candidate in the name of affirmative action in order to address imbalances of the past”. My view is that the only safest route, in the present circumstances, which ought to have been followed by the respondent was to lead evidence intended to prove that the successful candidate was preferred because she was understood as a suitably qualified person within the contemplation of section 1 read with section 20(3) and (4) of the EEA, which read as follows:
“ (3) For the purposes of this Act, a person may be suitably qualified for a job as a result of anyone of, or any combination of that person’s-
(a) Formal qualifications;
(b) Prior learning;
(c) Relevant experience; or
(d) Capacity to acquire, within a reasonable time, the ability to do the job.
(4) When determining whether a person is suitably qualified for a job; the employer must-
(a) review all the factors listed in subsection (3); and
(b) determine whether that person has the ability to do the job in terms of anyone of, or any combination of those factors”.
61 The respondent has, probably because of a flawed understanding of the discretionary power of the Head of Department and/or his or her delegate, elected to mount its defence solely on the basis of its employment Equity Circulars and the law. In the absence of a countervailing version on the part of the respondent about the facts which must be relied on when assessing the comparative suitability between the applicant and the successful candidate, I do not see any reason why it should not be concluded that the applicant has succeeded in establishing a prima facie case of unfair labour practice relating to promotion, which calls for assessment of the respondent’s reasons for non-appointment of the applicant.
62 In Ncane v Lyster NO and Others , the LAC described the enquiry relating to procedural fairness, in the context of promotion, as being about determining whether an employer had acted fairly towards its employees by abiding by the law and the objective standards and criteria that it has set for promotion including eligibility for the post and ensure that an eligible employee has a fair opportunity to compete for the post’.
63 The applicant’s contentions included launching an attack on the manner in which the respondent had gone about implementing its own employment equity policies and directives. It was argued that there were instances where other candidates from the over-represented groups were appointed, who included CS1 educators with no managerial experience at all. It was specifically contended that the respondent deviated from its own employment equity policy and directives as contemplated in the employment equity Circulars. The deviations were said to have occurred with regard to the appointments made in Mhitlwa, Ndhambi, Dzumeri and Ukuthula. The allegation regarding the appointment of CS1 educators with no managerial experience is, in fact, suggesting that candidates who may have entered the contest illegitimately had been appointed. I do not understand why had the Department decided to leave such a serious allegation unchallenged.
64 My view is that there are several fundamental problems with the respondent’s reliance on subjects in trying to justify the appointment of candidates from the over represented groups in the examples cited by the applicant. If indeed the respondent had intended to use subjects as one of the criteria, such curriculum requirements would have been part of the minimum requirements specified in the advertisement or at least be part of the criteria which should have been used at the sifting and shortlisting stages. When looking at the advertisement in question and any other advertisement dealing with posts of Principals and Deputy Principals, it is clear that they have general and standard requirements which do not include subjects to be taught by the successful candidates. Even if the subjects could have been one of the requirements for these posts, such subjects would have not been capable of distinguishing the situation of the successful candidates at Ndhambi from that of the applicant. The applicant’s evidence, which could not be disputed, suggested that he is in possession of a Bsc Degree, with Maths and Natural Sciences as some of the modules which are ordinarily referred to as scarce skills subjects.
65 The other reason that appointments in Ndhambi were informed by continuity and good matric results considerations and fear of destabilizing the school is also equally problematic. If that was one of the critical considerations, what was the point of allowing an open contestation? Secondly, why were the same considerations not extended to Mhitlwa, in the light of the fact that the applicant was also an internal candidate. Why has the SGB’s motivated refusal to reconsider its original preference of the applicant not taken into account? These reasons, just like the reason that a candidate from the over-represented group was appointed as the Departmental Head at Mhitlwa because the post was for a Foundation Phase which required a female candidate, are unmeritorious.
66 The reason relating to the achievement of employment equity in the SMTs is equally without any merit. The composition of the SMT, as correctly pointed out by the applicant’s representative, is not one of the requirements which are stated in the employment equity Circulars, either expressly or by necessary implication. In fact, the composition of the SMT, had nothing to do with achieving employment equity targets at any specific level of the promotion posts, whether at the Provincial level or at the level of the school. There was no evidence suggesting that the respondent had, at the time of making the new appointments, already appointed one or more Deputy Principals from the under-represented groups at Ukuthula and Dzumeri, hence candidates from the over-represented groups had to be appointed so as to achieve employment equity at that occupational level.
67 Lastly, the respondent has clearly treated the issue of appointments made at Ndhambi, Ukuthula and Dzumeri in a casual manner, both before and during the arbitration hearing. The applicant’s bundle of documents were accompanied by a letter written to the respondent’s HOD by the applicant’s Attorneys of record requesting discovery of several documents in respect of appointments or promotions made at these schools. This was done on 10 May 2022, seven days before the date of arbitration. During arbitration, Mr Matlou confirmed receipt thereof. The respondent chose neither to discover the requested documents nor to respond to the request at all. The reason as to why the respondent has acted in that manner was given for the first time at the arbitration hearing, which was that the applicant’s Attorneys ought to have followed the route prescribed in the PAIA. I indicated to Mr Matlou that the approach adopted by the respondent in dealing with the applicant’s Attorneys is not different from litigation by ambush.
68 The documents which were requested by the applicant included scores obtained by the interviewees, recommendations of the various governing bodies, CVs and attachments in respect of candidates appointed as Deputy Principals at Ndhambi, Ukuthula and Dzumeri. If indeed there was any merit in the reasons advanced during the arbitration proceedings, the respondent would have either responded to the applicant’s Attorneys giving reasons why the requested documents could not be discovered or as to why the applicant’s situation was distinguishable from the situations where candidates from the over-represented groups were appointed contrary to the respondent’s own employment equity Circulars.
69 The respondent did not even realize the importance of calling the Circuit Manager as one of its witnesses, especially in the light of the fact that the applicant had made far reaching factual allegations about the role that the Circuit Manager is said to have played in this dispute, which included being heavy handed on both the SGB and the applicant. Secondly, the deviations are alleged to have occurred in the Circuit he is responsible for. The Circuit Manager was as such in a comparatively better position to give firsthand information and to explain as to whether interventions similar to the one made in Mhitlwa were also made in Ndhambi, Ukuthula and Dzumeri or in any other school in the Circuit.
70 There was nothing which precluded the respondent from calling any other witness to come and testify about the Department’s Employment Equity Plan so as to give a proper context to the employment equity Circulars or to even give the Provincial picture about other instances where the best candidates for the job were overlooked on the basis that they were from the over-represented groups.
71 It could have also been helpful if some form of documentary evidence was relied on, in support of the oral evidence tendered by Mr Sono. This could have included the qualifications of the candidates appointed as the Principal and Deputy Principal at Ndhambi, composition of the SMTs in Ukuthula and Dzumeri, recommendations of the governing bodies as well as the District Director’s decisions in respect of appointments made in Ndhambi, Ukuthula and Dzumeri, for purposes of proving that the reasons advanced by the respondent were not a thumb suck.
72 It is my finding that the respondent has acted in contravention of its own employment equity policies and directives. The respondent is also found to have failed to proffer convincing and acceptable reasons as to why the applicant was treated differently from the other candidates who were similarly situated. It is clear that the applicant was treated differently on the basis of irrelevant and unacceptable reasons. The respondent’s conduct in this regard was procedurally unfair towards the applicant.
73 Regarding substantive fairness, my understanding of the applicant’s evidence, when analyzed in its totality, the applicant was trying to prove or suggest that his appointment to the post in dispute would have been in the best interests of the governing body, the school ( including learners) and the broader community, whereas the cumulative effect of the respondent’s evidence, on the other hand, was about an attempt to prove that the HOD had the necessary discretion in terms of the provisions of section 6(3) read with section 7(1) of the Educators Act, to appoint a different candidate on the basis of employment equity considerations. Sections 6(3) and 7(1), in the relevant parts, provide as follows:
“Powers of employers.—
6(3) (b)(i) In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or council, as the case may be, must adhere to the democratic values and principles referred to in section 7 (1).
Appointments and filling of posts—
7(1) In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195 (1) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and which include the following factors, namely—
(a) the ability of the candidate; and
(b) the need to redress the imbalances of the past in order to achieve broad representation”.
74 Besides the fact that the applicant was the second best candidate and that she was appointed on the basis of employment equity considerations relating to gender, the only factual evidence which could be linked to the comparative suitability between the applicant and the successful candidate is the memo generated by Corporate Services. Both the applicant ( under cross examination) and Mr Sono (during examination-in-chief) were requested to read the names of the four candidates who were interviewed for the post in dispute and the scores they had obtained. The applicant and Ms Maluleke obtained 86.25% and 69% respectively. It was not clear as to why the applicant and Mr Sono were made to read the scores obtained by the candidates because there was no suggestion made as to what the relevance of the scores was to the assessment of the comparative suitability between the applicant and the successful candidate.
75 I intend to revert to the significance of the scores that are usually obtained by candidates during an interview, at a later stage. I first wish to reflect on some of the important obligations that a respondent has, especially in a situation where the successful candidate is not joined to the proceedings. The SCA, in Gordon v Department of Health: Kwazulu-Natal , said the following about what should be understood as the onerous responsibility that the employer has in defending its decision to appoint a different candidate other than the aggrieved candidate:
“… In a situation where a number of applicants compete for a position, they provide information to the prospective employer to influence the decision in their favour. That is as far as they can take it. Once the employer selects from amongst them it is up to the employer to defend its decision if challenged. This is because the employer, as the directing and controlling mind of the enterprise which is vested with the managerial prerogative to manage it, has a legal interest in the confirmation of its decision as it faces a potential order against it… The successful appointee can only have a legal interest in the proceedings where the decision to appoint him is sought to be set aside which can lead to his removal from the post. He becomes a necessary party to the proceedings because the order cannot be carried into effect without profoundly and substantially affecting his/her interests”.
76 In Shauna Patricia Pamplin v Western Cape Education Department and Others, Case Number
C 1034/2015 ( delivered on 9 May 2018), the Labour Court per Tlhotlhalemaje J at para 37, said the following about the question of onus in unfair labour practice disputes:
“The circumstances of the litigation in unfair labour practice disputes such as in casu is that despite the onus being on the complainant/employee to demonstrate that the failure to promote or appoint was unfair, the employer is in the same token, obliged to defend attacks on the substantive and procedural fairness of its decisions if it wishes to avoid a negative outcome. This therefore implies that there is an obligation on the employer to place evidence of the fairness of the process followed and the rationale for the appointment/non-appointment, to satisfy a tribunal that the appointment/non-appointment was rational and thus fair. The employer must demonstrate that it acted fairly, in good faith, and applied its mind to the selection. A conclusion that an employer acted fairly or in good faith in making an appointment cannot be reasonable nor rational in circumstances where that employer places no such evidence before a tribunal, irrespective of where the onus lies”.

77 I am of the view that the respondent, in the present case, had a duty to traverse the information which was provided by the job applicants, particularly by the successful candidate and the applicant. In other words, the respondent had a responsibility to share as much information as possible about reasons why a different candidate was preferred over the applicant, especially in the light of the fact that the successful candidate was not required to place any evidence or argument about her comparative suitability because she is not a necessary party to these proceedings. The respondent had instead elected to put all its energy and focus on legal questions related to the statutory discretionary power of the HOD and/or the District Director much to the exclusion of the factual foundation upon which such a discretion must be exercised.
78 Returning to the issue of scores, the respondent’s understanding of the meaning and purpose of scores which are obtained by candidates, particularly by candidates from the over-represented groups vis-a-vis the preferential treatment that must be afforded to candidates from the under-represented groups is captured in the following paragraphs of the employment equity Circulars:
“ Appointments to posts created in terms of the Employment of Educators Act, 1998 ( as amended)
3.1 The Interview Committee shall shortlist at least three (3 ) candidates from the under-represented group based on the employment equity profile of the Province and economically active population provided that the candidates satisfy the minimum requirements of the post.
3.2 In the event that under-represented groups do not meet the minimum requirements of a post, the Interview Committee will be required to report it in writing and proceed with the shortlisting process.
5 The Head of Department or the delegated official shall always strive to appoint any qualifying candidates from the under-represented group as guided by the statistics of the employment equity profile of the Province and economically active population regardless of scores that could be attained by the candidates from the over-represented groups.
Employment Equity Profiles of Principal, Deputy Principals and Departmental Heads post
4 The provisions of Departmental Circular No 154 of 2020 together with the employment equity profiles of advertised posts must be strictly adhered to when candidates are selected for appointment to the posts ( that is advertised posts must be filled by applicants from under-represented groups)”.
79 Strictly speaking, what is implied by the above paragraphs is that the only hurdle which must be overcome by a candidate from the under-represented groups is the minimum requirements of the post to be filled. According to sub-paragraph 4.1.3 of the PELRC Collective Agreement 2 of 2020, Limpopo Chamber: Guidelines for sifting, shortlisting and interview procedures for school based and office based educator posts, the following are the prescribed minimum requirements for the advertised posts ( these requirements are relevant to both the advertisement and the sifting stage):
“(a) A recognised three-year (REQV13) qualification which must include appropriate training as an educator;
(b) Registration with the South African Council for Educators (SACE);
( c) The minimum years of experience for appointment to the promotion post as outlined in Chapter B of the revised PAM, which according to sub-paragraph B.3.2.1 of PAM, is 5 years of actual teaching experience in the case of the post of Deputy Principal.
(d) Inclusion of certified copies of qualifications and statement(s) of results”.
80 Three of the requirements in sub-paragraph 4.1.3,with the exclusion of the SACE registration certificate, are repeated under Phase 1 of the shortlisting process for the posts of Deputy Principals and Principals ( See dimensions 13, 18 and 20 of Annexure A to Collective Agreement 2 of 2020). The net effect of the respondent’s policy position with regard to the achievement of employment equity targets, is that it may not be necessary for a candidate from the under-represented group to be subjected to Phase 2 of the shortlisting stage, which consists of the following shortlisting criteria: (i) management experience, (ii) leadership experience in curriculum activities, (iii) participation in departmental and (iv) professional bodies, seminars and courses as per the advertisement.
81 The employment equity Circulars are written in peremptory terms, and the only reasonable inference that may be drawn is that they are meant to inform all and sundry that candidates from the under-represented groups who satisfy the minimum requirements of the post must, from the shortlisting and recommendation stages as well as at the point of making an appointment, be given some kind of an automatic and absolute preference.
82 If scores are less or not important at all what is the purpose of shortlisting candidates from the over-represented groups in instance where they have already been red-carded even before the game could start to be played? In the Point High School case(supra), the SCA said the following at paragraph 14, about the significance of scores obtained during interviews by competing candidates:
“…A difference in actual ability between two candidates where one is from a so-called ‘designated group’, though marked, may be rendered insignificant by the potential of the candidate from the designated group. In other words the benefit of employing such a candidate may only become perceptible with training and experience. I do not intend to embark upon an analysis of what precisely is meant by ‘insignificant’ in this particular passage, but the general intention behind the precept is plain. Employment equity provisions should only prevail in circumstances where there is approximate equality between the ability or potential ability of the two candidates…”.
83 In casu, there is a difference of about 17.25% in actual ability between the applicant and the successful candidate. This difference is significant, and cannot be said to constitute approximate equality between the ability or potential ability of the two candidates. It would therefore not be in the interest of fairness and equity for the respondent’s employment equity considerations to be allowed to take precedence in circumstances where the applicant came out as the most suitable candidate for the job in all respects except that he belonged to the over-represented group.
84 According to section 6(3)(c)(i) of the Educators Act, the governing body must submit, in order of preference, a recommendation made up of at least three names of candidates for consideration by the HOD, who, may, despite the order of preference by the governing body, appoint a different candidate in terms of paragraph (f) of section 6(3). In the circumstances of this case, I do not think it is necessary to say anything about the manner in which the section 6(3)(f) discretion was exercised or ought to have been exercise by the District Director, for the simple reason that the appointment of the successful candidate appears to have been made on the basis of the recommendation of Corporate Services as opposed to the recommendation of the governing body.
85 The overriding consideration, at least as it relates to the applicant’s situation, appears to have been the respondent’s unwavering commitment to pursue the achievement of the employment equity targets against all odds. In Minister of Justice and Constitutional Development v South African Restructuring and Insolvency Practitioners Association” , the SCA said the following about remedial measures :
“[R]emedial measures must not … encroach, in an unjustifiable manner, upon the human dignity of those affected by them. In particular, as stressed by Moseneke J in para 41 of Van Heerden, when dealing with remedial measures, it is not sufficient that they may work to the benefit of the previously disadvantaged. They must not be arbitrary, capricious or display naked preference. If they do they can hardly be said to achieve the constitutionally authorised end. One form of arbitrariness, caprice or naked preference is the implementation of a quota system, or one so rigid as to be substantially indistinguishable from a quota.”
86 My respectful opinion is that the remedial measures relied on by the respondent with regard to the non-appointment of the applicant qualify to be described as being arbitrary, capricious or displaying naked preference. Over and above that, the remedial measures in question appear to have been implemented in a random and/or selective manner. As to what must happen in a situation like this, the LAC in the Ncane case, (supra), held that an arbitrator may only interfere with an employer’s substantive decision to promote a certain person where the decision is irrational, grossly unreasonable or mala fides. The applicant’s undisputed evidence suggests that he was the only one who had to bear the brunt of the respondent’s ruthless pursuit of employment equity targets. The remedial measures contemplated in the employment equity Circulars may, in addition to displaying naked preference, be regarded as being arbitrary, capricious, and grossly unreasonable, particularly towards the applicant.
87 The substantive relief sought by the applicant is what is referred to as protective promotion, which in this case would result with the applicant being given the salary and all the benefits attached to the post of Deputy Principal without necessarily having to occupy such a position. I am not inclined to grant this remedy for the reasons which will follow shortly. Sections 93(4) and 94(4) of the LRA read as follows:
“ Remedies for unfair dismissals and unfair labour practice
“ 93(4) An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.
Limits on compensation
94(4) The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months remuneration.”
88 In Billiton Aluminium SA Ltd t/a Hillside Aluminium & Others (2010 31 ILJ 273(CC), the Constitutional Court held that the remedies awarded in terms of the provisions of section 193 of the LRA must be made in accordance with the approach set out in Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others , which is the approach based on underlying fairness to both the employee and the employer.
89 I am not only troubled by the applicant’s decision not to pursue an appointment to the post in dispute, but I also have a problem with the fact that the applicant did not even bother to advance reasons as to why he would not want to be appointed to the post in dispute, because such a remedy is ordinarily the primary remedy in circumstances where the respondent’s failure or refusal is found to have been substantively unfair. The applicant has instead opted for a remedy which, if granted, would inevitably result with the same consequences which would have resulted from the granting of the ordinary primary remedy. In the circumstances, granting protective promotion would invariably impose an unjustified financial burden on the respondent, and by extension on the tax payers. It would clearly not be fair towards the tax payers by creating some kind of a double parking in the sense that the respondent would be expected to pay both the successful candidate and the applicant in circumstances where one post had been advertised and filled.
90 I am also of the view that the respondent deserves to be criticized for having adopted a litigation strategy which was clearly oblivious of the possibility of adverse findings against the respondent. I do not understand why the respondent never wanted to engage with the relief sought by the applicant ,by at least advancing some reasons as to why, in the event the commissioner may find in favour of the applicant, the relief being sought would be unduly prejudicial or unfair to the respondent.
91 Consequently, it is determined that payment of compensation equivalent to 12 months remuneration would be fair and equitable in present circumstances. According to the salary advise submitted by the applicant’s representative dated 22 June 2022, the applicant’s basic salary per month is R29 940.00, which translates into a compensation of R359 280.00.
AWARD
92 The respondent is ordered to pay the applicant compensation equivalent to 12 months remuneration, amounting to R359 280.00. This amount must be paid by not later than 31 August 2022 or in the next salary run immediately after receipt of this arbitration award by the respondent. This amount will attract interest at the prescribed rate from 01 September 2022.