12 September 2022 – ELRC511-20/21KZN

Last date of arbitration: 20 JULY 2022
Date of award: 09 September 2022

NOZIPHO B KHUMALO
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The matter was set-down for arbitration in terms of Section 182(2)(a) of the Labour Relations Act (LRA) at the offices of the Department of Education in Empangeni, on 15 March 2022, 5 and 6 May 2022 and 19 and 20 July 2022. Mr S Mkhwanazi appeared for the First Respondent, the Department of Education: Kwazulu Natal. Mr N Mthimkhulu an official of NATU represented the Second Respondent, Mr Phumlani L Mlambo. The Applicant, Ms Nomathemba E Ngcobo was represented by Mr Dan Mkhwanazi an attorney.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

2. The Applicant is employed by the Respondent as an educator at Phumlani Primary School. She was first employed by the Respondent as an educator in 1993. A post of principal at Phumlani primary school was advertised by the Respondent in September 2019 in terms of HRM36/2019.

3. The Applicant was shortlisted and scored third place in the interview. However, the recruitment process was not finalised due to a grievance that was lodged regarding the interview process. The recruitment process was re-done from the shortlisting stage on the 30 June 2020. The Applicant was not short-listed. The Second Respondent, Mkhwanazi was appointed in the position on the 01 November 2020.

4. The Applicant seeks that the appointment of the Second Respondent to be set aside and the process to be redone.

5. The Applicant handed in Annexure “A”. The First Respondent handed in Annexure “B” and the Second Respondent handed in Annexure “C”.

6. I have to decide whether the Respondent’s failure to appoint the Applicant constituted an unfair labour practice within the definition of the law.

SUMMARY OF EVIDENCE AND ARGUMENTS

7. The material facts of this case are common cause as summarized below. They were stated and confirmed in the evidence of both parties, Mbongiseni Hamilton Mazibuko, “Mazibuko”, Jabu Mlotshwa-Khumalo “Khumalo”, Phumlani Lindokuhe Mlambo “Second Respondent” and Nduduzo Selby Magubane, “Magubane” for the Respondent and the Applicant.

8. When the Respondent advertised the post, the Applicant was acting in the position from 9 July 2019 until the Second Respondent was appointed in the position. The Respondent advertised the post in September 2019. The Applicant was shortlisted and went through to the interview stage where she scored third place. The recruitment process was not finalized and was re-done from the shortlisting stage on the 30 June 2020 due to a grievance that was lodged.

9. The Applicant was not shortlisted when the process was redone. There were no new applications as the post was not re-advertised. It is also common cause that Khumalo who is an SGB member was part of the process as the chairperson of the interview committee (IC) and Mazibuko was the departmental representative who was the resources person. It is further common cause that the other members of the IC were principals of other schools

Applicant’s case

10. The Applicant testified and her evidence is summarised as follows. The interview committee was not properly constituted. Clause 10.1 of HRM36 of 2019 which is recorded in “A” states that A School Governing Body constituted in terms of the South African Schools Act No.84 of 1996 must establish an interview committee from its members. In this case there was only one member of the SGB in the interview that took place in July 2020 which is Jane Mlotshwa Khumalo as recorded in “B”20.
11. Clause 10.2.4 also states that members of the School Governing Body excluding educator members who are applicants to the advertised post(s); and 10.2.5. Additional members may be appointed by the SGB for their expertise that may be required for a particular post. In “B”20 there is Mdletshe who is a principal of another school, Nkumane, Manukuza and Mthembu who are also principals of other schools. There was also Mr Nkosi who the Applicant believes to have joined the meeting late as his name only appears towards the end of the interview minutes as recorded in ”B”22. He was therefore not part of the interview committee.

12. The interview committee was not properly constituted in terms of clause 10.3 and 10.5 because only one union member was present at the interview, SADTU was excluded. According to “B”21, NS Magubane from NATU arrived during the interview.

13. The interview committee did not follow the criteria as set in “A”10, clause 10.8. of the circular. The interview committee devised its own criteria which was unfair and not allowed. As a result of this new criteria that was developed by the interview committee, the Applicant was not shortlisted for interview. The Applicant was not surprised that she was not shortlisted for interview because she had a dispute before regarding the same post. The reason why the IC developed its own criteria is because it wanted to eliminate the Applicant. If the IC applied the criteria as set in the HRM Circular, the Applicant would have been shortlisted. However, the new criteria favoured the Second respondent.

14. In terms of the minutes in “B”19, when the Second Respondent and Zikhali who was also a candidate, were contacted for interview, the IC could not get hold of them. There is no indication in the minutes as to how they were invited to the interview. The Applicant did not receive the same treatment as all other candidates in the processes as stipulated in “A”11.

The Respondent’s case

15. Mazibuko’s role was that of a resources person and his duty was to advise and guide the IC in the process. In terms of HRM 36 of 2019, there is a clause which stipulates that the SGB may appoint any persons as members of the IC on expertise. The IC which conducted the process was formulated in terms of that clause in the HRM Circular 36 of 2019. The post was for a principal of a school, therefore the IC members that were nominated were all principals in their schools. The chairperson was Mlotshwa-Khumalo who was a member of the SGB and the secretary was also a member of the SGB.

16. All the unions were invited to be part of the process but only one union was present, NATU, although the union representative, Magubane came in late. There was no apology from SADTU, the meeting proceeded in their absence. There were no challenges or issues raised during shortlisting or the interview stages of the process.

17. The CVs of all candidates were numbered alphabetically and identified as such. The IC did not know which CV belonged to who and who the candidates were until the names of the candidates were read at the end of the scoring process. Only the five top candidates were invited for interview. The candidates who were shortlisted for interview were contacted telephonically in the presence of all IC members including the unions. There were candidates whom they could not get hold of. Text messages were also sent to all the candidates.

18. The IC used the guidelines stipulated in HRM Circular 36 of 2019 to develop the relevant criteria. The EHR8 form in “B”47 contains the categories at which the CVs should be scored against. The criteria were developed based on the categories listed in “B”47. There were no issues raised regarding the criteria used by the IC. Only three (3) of the five candidates were present at the interview.

19. The Second Respondent hold a BA Ed. degree and was permanently employed as a departmental head at Mdunge High School. He had eleven (11) years of experience as an educator. He met all the requirements of the post. He did not know any of the panel members prior to the interview. He has been in the position for one and a half (1 ½) years. The appointment to the post of principal has changed his life both professionally as well as personally.

SUMMARY OF ARGUMENTS

20. The Respondent argued that the IC was constituted in terms of Clause 10.1 of the HRM Circular 3 of 2019. The IC complied with the criteria set out in Clause 10.11 of the HRM Circular 3 of 2019. The Applicant failed to prove any prejudice as a result of the criteria used by the IC. All the candidates were scored against the same criteria including the Applicant and the Second Respondent. Furthermore, the Applicant did not dispute the fact that her CV was considered but was not invited to the interview because it scored low. The Second Respondent and Zikhali were invited to the interview by SMS messages as the chairperson could not get hold of them when they were contacted telephonically. Their identity was also proven at the interview as they had to produce their identity documents. Lastly, that all unions were invited to the shortlisting as well as the interview process. The fact that only one union was present is evidence enough that they were all aware of the dates of the shortlisting as well as the interview.

21. The Applicant argued that the IC was not properly constituted in terms of clauses 10.24. Only Mrs Khumalo was the member of the SGB in the second IC. Mr Nkosi, another member of the SGB did not participate in the first process and was not part of the second IC. Only Mr Magubane from NATU attended the interviews.

22. No evidence was presented that SADTU’s representative was aware of the interviews. The use of the word “must” indicates that compliance with these provisions is mandatory which meant that the SGB did not have a discretion of not complying with these provisions.

23. Applicant further argued that the shortlisting criteria was devised to unfairly eliminate her and that if she had made it during the first process where the IC used the criteria in the Circular surely, she should have made it in the second if the same criteria had been used. Furthermore, the Respondent witnesses also provided contradictory evidence in this regard. It is clear that the reason why the IC formulated another shortlisting criteria was to eliminate the Applicant and all others that it did not want to be fairly considered for shortlisting.

24. No record was provided by the Respondent as proof of how Zikalala and the Second Respondent was invited to the interview. The SGB’s non-compliance with the circular was fatal to the process and as a result, the Applicant should be granted the relief she seeks, that the whole recruitment process be set aside and that it should start afresh.

ANALYSIS OF EVIDENCE AND ARGUMENT

25. It is trite law that in an unfair labour practice dispute, it is the Applicant party which bears an onus of proving the claim on the balance of probabilities. It is trite law that when an employee complains that another was employed instead of him/her, he/she must show that he/she possesses the necessary skills and the appointed candidate does not possess the same level of skills. The Applicant must also demonstrate that there was conduct that denied her a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason or that the successful candidate was dishonest and misled the interview panel or the employer.

26. The Applicant’s contention is that the IC was not properly instituted because there was only one member of the SGB in the IC. The Respondent’s evidence is that the other IC members, Mr Nkumane, Mr Manukuza and Mr Mthembu were appointed by the SGB in terms of Clause 10.2.5. which states that ‘Additional members may be appointed by the school governing body for their expertise that may be required for a particular post’. The SGB has a duty to appoint IC members and the IC members were appointed by the SGB in terms of Clause 10.6 of the HRM Circular No.36 of 2019. I therefore find that there were no irregularities in the appointment of the IC.

27. The Applicant argued that the Respondent did not comply with Clause 10.3 of the HRM Circular No. 36 of 2019 because only one union representative was present at the interview. The Respondent argued in terms of Clause 14.4 which states that Non-attendance of observers will not prohibit the selection process from proceeding as long as teachers Organisation have been informed of scheduled meetings. The secretary must keep records of such invitations and transmission to the union. Therefore, the absence of one union representative could not have stopped the process as their role is to observe and not to participate in the process. I find in this regard that the role of the union observers in the process is simply to observe the process.

28. It is evident according to “B”18 that all unions were present at the shortlisting process. Therefore, all the unions ought to have known that the interview process will follow after the shortlisting process. There was also no evidence presented as proof of any complaints from SADTU for being excluded from the interview process. Therefore, I find that all unions were aware of all the recruitment proceedings in relation to this post.

29. The Applicant’s further averment is that the IC devised its own criteria which is recorded in “C”7 and did not comply with the provision of the HRM Circular No.36 of 2019. The reasons behind the new criteria that was developed was to eliminate her which was unfair. Had the IC followed the criteria listed in the circular, she would have been shortlisted.

30. The evidence of the Respondent is that the HRM Circular provides a guideline in the shortlisting process. The IC complied with Clause 13.2 of the Circular in that the criteria that was used was as a result of a deliberation among IC members and the resources person. I find in this regard that the role of the IC in the recruitment process amongst all others is to manage a meeting to agree on the selection criteria to be used when shortlisting candidates.

31. Therefore, the IC had a duty and a prerogative to decide on the criteria to be used. I find the Applicant’s argument that the criteria developed intended to eliminate her, baseless because that was the criteria used to score all the CVs. The fact that alphabets were used instead of the names of the candidates also fortifies my finding on this issue.

32. The Applicant further argued that five (5) candidates were shortlisted for interview, however, only three (3) were invited for interview in terms of the minutes recorded in “B”, the IC could not get hold of Zikhali and the Second Respondent. In the interview minutes, however, Zikhali and the Second Respondent were present. The Respondent’s evidence is that the Second Respondent and Zikhali were sent SMS messages as they could not be found when all the other candidates were contacted.

33. Further, undisputed evidence of the Respondent was that, at the interview, all the candidates had to identify themselves by producing ID documents to the IC. The fact that the Second Respondent and Zikalala were part of the interview means that they were invited to the interview. I find in this regard that the Applicant failed to prove any irregularities in the invitation of these candidates to the interview.

34. The Applicant did not dispute that the Second respondent met all the requirements of the post. There was also no evidence lead to suggest that the Applicant was the best of all the candidates that applied for the post and that the appointed candidate did not have the necessary skills.

35. Based on the above, I find that the Applicant failed to prove on a balance of probabilities that the Respondent committed an unfair labour practice as envisaged by the law in failing to appoint her.
FINDING

36. I therefore find that the conduct of the Respondent did not constitute any unfairness.

AWARD

37. The application of the Applicant is dismissed.

Commissioner: Nozipho B Khumalo