Panellist/s: Jonathan Gruss
Case No.: ELRC 616-21/22 EC
Date of Award: 7 July 2021

In the ARBITRATION between:

NAPTOSA obo Lauraine Currie (Applicant)

and

Department of Education – Eastern Cape & Others
(Respondent)

Applicant’s representative: Adv Saayman

Email cosec@naptosa.org.za

Respondent’s representative: Ms A Slabbert

Email ansie68lro@gmail.com

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held virtually utilising Zoom. The proceedings were electronically recorded and held on 16 March 2022 and 20 June 2022. The applicant, Lauraine Currie was represented by Adv Saayman, an official from NAPTOSA, a registered trade union. The respondent, Department of Education: Eastern Cape was represented by Ms Slabbert, a Labour Relations Officer. The incumbent third party, Ms Sithiwe Patricia Mcwabeni appeared in person and was represented by Mr Stuurman from SADTU. The SGB of Nomathamsanqa Primary School was represented by Mr Ntsinga, the chairperson of the SGB. The parties agreed to submit written closing arguments on 27 June 2022.

ISSUE TO BE DECIDED

2. I am required to determine whether or not, the respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA in not promoting the applicant, Lauraine Currie in the post of Head of Department : Foundation Phase at Nomathamsanqa Primary School. .

BACKGROUND

3. In terms of narrowing of the issues at the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:

3.1 The applicant is currently employed as a Post Level 1 Educator at Nomathamsanqa Primary School and earns R317106.00 per annum. She commenced employment on 1 April 1997.

3.2 Both the applicant and the incumbent, Sithiwe Patricia Mcwabeni along with 2 other candidates were shortlisted and interviewed for the advertised post. The incumbent was ranked number 1 and the applicant was ranked number 2 by the interview panel and the SGB recommended the incumbent who was appointed to the post.

3.3 The applicant seeks for the appointment of the incumbent to be set-aside and for her to be appointed the disputed HOD post, alternatively for the post to be re-advertised, alternatively she seeks 12 months compensation.

4. The applicant claims that the Principal who was the resource person unduly influences the panel as well as the process that culminated in the non-appointment of applicant. The applicant further claims that she has more experience and better qualifications than the incumbent.

SURVEY OF EVIDENCE AND ARGUMENT

5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter. The digital recording of the proceedings will reflect the complete testimony of the witnesses.

APPLICANT’S EVIDENCE

6. The Applicant testified under oath to the following effect.

6.1 As a cluster leader, she trained the incumbent. She is also a secretary of the SGB and both her and the incumbents are SGB members representing the educator component of the SGB..
6.2 She was informed by Mr Mqume, a week before the interviews after she gave him a lift. Mr Mqume wanted to know the difference between scoring and consensus. He told her that the Principal said that they should look for educators from within the school and not from those from outside. Mr Mqume, was the treasurer and member of the SGB, he represented the parent component.
6.3 She and the incumbent were awarded a higher score than those who were outside candidates.
6.4 Had it not been for the scoring of Mtengwane and Khune she would have received the highest score and there would have been a discussion as to outcome.
6.5 In 2020, the same post was advertised and the SGB recommended that she be appointed. After a week, the post was removed in that the new Post Provisioning Norm (PPN) of the school provided for one less post. The ratio of pupil per teacher had changed. However, according to a revised PPN that came out a week later the HOD post re-appeared and a decision was taken for the post to be re-advertised. However in 2020, the Principal indicated that they should not consider someone who was not from the school.
6.6 Under cross-examination, the applicant was asked what she regarded as undue influence, she responded, this is when someone influences the outcome of the interview knowing what outcome they are seeking. It was further suggested to the applicant that Mtengwane an educator who was a panel member knew what they were looking for in a HOD more than a parent. The applicant conceded this point. It was also suggested to the applicant that she was given 20 minutes and not 45 minutes and that she look 45 minutes to answer question and that was why she got a bad score.

7. Mr Nonwabasi Joseph Ntinga testified under oath to the following effect.

7.1 He is the current chairperson of the SGB and was the chairperson of the promotion panel. During February 2020 he was a member of the SGB and the filling of the post of HOD was postponed. The letter dated 17 November 2021 addressed to the respondent was written by him. (Pg 2-3) there was a dispute in that the principal as a resource person had told them that they must not appoint a person from outside the school. Mr Ncume, an interview panel member wanted the panel to score the candidates whereas he wanted to use consensus as a means in deciding who the best candidate for the position was. The resource person, the principal did not give any input into this. It seemed to him that Mr Mtengwane an educator and a panel member favoured the incumbent to be appointed. The principal he can recall before the interviews in 2020 where the applicant was the recommended candidate told them that they should not consider the applicant in that she was not attending school appropriately.
7.2 Under cross-examination when referred to the minutes, the witness indicated that the decision taken was a panel decision not his. He conceded that the applicant’s name was never mentioned by the principal and that he never mentioned the applicant was not attending school frequently. When the witness was referred to the complaint letter that was written into English he indicated that he wrote the letter in Xhosa and it was translated into English and he signed the English version. When pressed what he meant by someone talking eloquently he understood this to mean someone the talks too much.

8. Mr Makhosi Kume testified under oath to the following effect.

8.1 He is a member of the SGB that form part of the parent component and was present when shortlisting and interviews were conducted. They all agreed (interview panel) that they would use scoring as a method in evaluating candidates that they were interviewing. As it relates to the letter written by the chairperson of the SGB, Mr Ntinga wherein it is mentioned that there was an argument when the issue of deciding whether to use scoring or consensus as a method in identifying the strongest candidate. He did not see any arguments. The principal, Mr Maqungo was the resource person for the interview process and it is not correct that the principal told them that they should choose someone from inside the school.
8.2 It was suggested to the witness by the applicant’s representative that he told the representative that the principal had indicated that they must choose someone from inside the school, this he denied. It was further suggested to the witness that he received a bribe in the value of R5000.00 to vote for the incumbent. This the witness also denied. After the they had completed scoring the candidates there was a discussion as to how the candidates fared.
8.3 Under cross-examination by the incumbent representative, the witness indicated that the discussion as to method of choosing a candidate was dealt with before the process started.

RESPONDENT’S EVIDNECE

9. Mr Tozamile Maqungo testified under oath to the following effect.

9.1 He is the Principal of Nomathamsanqa Primary School and has been the principal for the past 20 years. He was the resource person for the interview panel that culminated in the promotion of incumbent.
9.2 The post was initially advertised with closing date for application being 20 March 2020. Due to the lockdown they could not proceed with the interviews. During September 2020 they return back to school and Mr Hempie, the EDO instructed them to continue with the interviews. Whilst they were busy, the new post establishment came out and the post in question no longer existed. The first PPN dated 30 September 2019 provided for 26 posts, 4 of them were HOD posts. The pre-final post establishment for 2021 dated 30 September 2020 provided for 24 post with 3 of them were HOD posts. The staff establishment changed again on 27 October 2022 providing for 26 posts of which 4 were HOD posts. The changes in post number arose due to the change in the learners to teacher ratio, it changed from 32, to 36.5, to 33.7.
9.3 Therefore they restarted the processing afresh in 2021 with the shortlisting. As it relates to the complaint letter from the SGB the impasse that was discussed in the letter could have occurred before the start of the process, he requested the panel to decide whether they would use consensus or scoring and it was agreed that they would use scoring. There was no fight between the panel members. Both unions, NAPTOSA and SADTU sent representatives to observe the process and they lodged no objection during the process or at the conclusion thereof. Further there was no objection to scoring. As to the allegations that he offered Mr Kume money, R5000.00 this is a fabrication. He cannot on his salary afford to pay out R5000.00. He never suggested to the panel that they must choose someone from within the school.
9.4 Under cross-examination, as to the question of time given to candidates they gave each candidate 20 minute and it is not true that the applicant took 45 minute and had she taken longer than 20 minutes it would not have been much longer.
9.5 On a question by the incumbent representative as to the 45 minutes utilised for interview for the HOD post this was not possible in that HOD post is an entry-level post. Before the interviews they exchange document, this was before they called the candidates.

10. Mr Lulamile Mtengwane testified under oath to the following effect.

10.1 He’d been an educator member of the SGB since 2021. Mr Kume propose using scoring and the interview panel members agreed and there was no argument as to this method. As it relates to the scoresheet in the bundle as contained in page 26, with reference to question 1 the signature next to the mark “5” that was crossed out was not his and therefore he did not change the mark allocation. The Principal, Mr Maqungo did not attempt to influence the panel.
10.2 Under cross-examination, he indicated that each candidate was given 20 minutes to answer questions, however he could not recall how much time the applicant used. As alleged in the complaint letter signed by the chairperson of the SGB, he disagreed that there was an argument. He conceded that he is a member of SADT and is a site representative for the union. The incumbent is a member of his union and the applicant is a member of NAPTOSA. He as well as the applicant are members of the teacher component of the SGB. They never left the interview room during the interviews.

ANALYSIS OF EVIDENCE AND ARGUMENT

11. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable.

12. The principles which determine promotion disputes are summarised by Commissioner Rycroft in Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA) at 1517 where he is reported as follows:
“The principles which must determine this dispute are, in my view, the following:
1. In the area of appointments and promotions, in the absence of gross unreasonableness which leads the Court or the CCMA to draw an inference of mala fides, the CCMA or Court should be hesitant to interfere with the exercise of management’s discretion.
2. In drafting the unfair labour practice provision, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. The Commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates.
3. The relative inferiority of a successful candidate is only relevant if it suggests that the superior candidate was overlooked for some unacceptable reason, such as those listed in section 6 of the EEA (Employment Equity Act 55 of 1998).
4. The division of the unfair labour practice jurisdiction between the Labour Court and the CCMA indicates that the legislature did not intend Commissioners to concern themselves when deciding disputes relating to promotion with the reasons why the employer declined to promote the applicant employee, but rather with the process which led to the decision not to promote the employee when selecting a candidate for promotion are relevant only insofar as they shed light on the fairness of the process.”
See also Cullen and Distell (Pty) Ltd [2001] 8 BALR 834 (CCMA).”
13. As was said in Public Servants Association obo Dalton & Another v Department of Public Works [1998] 9 BALR 1177 (CCMA) at 118 F–G, an employee will only be considered for promotion by the CCMA, or for that matter by an arbitrator, if he or she shows both unfair conduct on the part of the employer as well as that he or she would have been promoted, but for that unfair conduct. There must be a causal connection between the unfair conduct proved and the failure to promote the employee ( – see also Garbers, Contemporary Labour Law, Vol 9, No 3 of October 1999 at p30 and the cases cited there.)

14. One has to look at the matter SA Police Service v SSSBC, Robertson NO & Noonan case no P426/08, Cheadle AJ at [14] held:

“(a) There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
(b) Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
(c) The employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
(d) As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.”

15. On Appeal in, Noonan v Safety & Security Sectoral Bargaining Council and others [2012] 9 BLLR 876 (LAC), the LAC indicated that there must be a causal connection between the consequences of the procedural irregularity (omission) and its unfair effect on the promotion process.

16. I pause at this juncture to emphasize as an arbitrator in such disputes, my job is not to evaluate each candidate and determine who the best candidate is. That is a job of the interview panel. I’m required to determine whether unfair labour practice was committed when the applicant was not appointed. The proverbial question is whether the applicant was afforded a fair opportunity to compete for the position.

17. The evidence tendered by the applicant concerning alleged irregularity in the promotion process was based on hearsay reports. I must mention that the chairperson of the SGB, Mr Ntinga did not impress me as a credible witness and the way he testified it appeared as if his evidence was choreographed. I am not saying nor am I suggesting that the applicant’s representative was involved. He came over as argumentative when cross-examined. However, when one has regard to the letter purported to be drafted by the SGB chairperson that was sent to the respondent, I have serious reservation concerning the language used and as well as his assessment of the applicant that he was the author of the letter. From the correspondence the letter suggests “that the interviews can be conducted afresh and that the applicant would be the best candidate as she showed her expertise based on curriculum matters and health advisory matters. She was the best candidate last year and even worse this year. She is showing leadership qualities, even if the MEC can intervene she or he can attest that. This is not the first incident that the principal influenced panel members when there is a senior position in the school. The forerunner chairperson can witness this, as he knows there is a case lodged during the period relating to the same manner” This informs me that the witness was doing the bidding for the applicant. Why suggest that the interviews we conducted afresh and in the same sentence argue that the applicant was the best candidate.

18. The applicant’s challenge in this matter is two-pronged, it’s alleged that the two interview panel members Mr Mcwabeni and Mr Khume along with the principal were biased towards applicant and that they were unduly influenced by the principal. Mr Mcwabeni was a SADTU site representative and it was argued by the applicant’s representative that both Mr Mcwabeni and Mr Khume should have recused themselves from the process because they had a vested interest, albeit union affiliation and money, in the outcome of the promotion process of HOD. I was referred to Section 26 of the South African Schools Act that provides that a member from a governing body must withdraw from a meeting of the governing body for the duration of the discussion and decision making on any issue in which the member has a personal interest. It was argued that the recusal is defined as to withdraw from the decision making process because of personal interest or unfairness.

19. One of the shortfalls of the appointment process within the public education sector considering how SGB’s function as prescribed in terms of the South African Schools Act. There is always a chance that candidates who are part of the SGB would have an advantage over candidates who are not SGB members or candidates from other schools. This is human nature in that panel members especially parents due to SGB interaction with educators would always be influenced by educators on the SGB. This is largely dependent of the professional make-up of the parent component. This I view as a type of institutional biasness. I have on numerous occasions in dealing with such disputes questioned how a parent who is not an educator would be able to assess the competency of an education candidate for a post, especially that of HOD, Deputy Principal and Principal. Unfortunately, this is the nature of the beast that the legislature has chosen as to how schools should be run and how appointment are to be made. Therefore, in the interview process Mr Mtengwane other than the resource person (principal) was the only panel member who was able to know what the characteristics are of a good HOD candidate. What I find strange as to the processes followed is that it appears from my experience that Principal’s act in the majority of cases as resource persons whereas they do not form part of the interview panel as a member members. I find it strange in that Principals are best suited in determining what the characteristic, competencies and skills they are looking in for a candidate. At the end of the day, they are the ones who are responsible to ensure schools are performing.

20. As it relates to the fact that Mr Mtengwane, a panelist is a SADTU site representative and Ms Mcwabeni, the incumbent is a SADTU member this on its own does not mean that Mr Mtengwane has a personal interest or there is a conflict of interest. When an educator serves on a SGB he does so wearing the cap of an educator and not of a union member or a union representative. When an educator is chosen to serve on an interview panel it is expected of that panel member to act in the best interest of the school and the children and not be prejudiced due to union affiliation. That is what is expected. Is it possible that SADTU had captured the SGB and the interview panel in order to decide who must be appointed? It does happen and unfortunately I have experienced this in a previous arbitration where evidence therein pointed to SADTU holding at a meeting before the interviews where it was decided who must be appointed. In that case certain members of the interview panel and from the SGB attended the SADTU clandestine meeting. In that case, the interview panel or members who attended the meeting ignored the decision taken as to who to appoint. Nevertheless, one cannot generalise and at this stage it amounts to mere suspicion. The principal, Mr Maqungo testified that he never told the interview committee that they must only choose candidates from the school. He further denied ever paying Mr Kume a bribe to the value of R5000.00 and indicated he could never afford to pay such a bribe. Mr Kume also denied receiving payment in the amount of R5000.00.

21. I am not convinced from the evidence tendered that the applicant was the strongest candidate in that I have no justifiable reason to conclude to the contrary. It was suggested in the arbitration that the applicant did not have a good interview in that she took longer than other candidates. I do however sympathies with the applicant considering that she was initially recommended unfortunately due to circumstances beyond her control, the processes had to be done afresh with a new panel that chose someone else. Her unhappiness is understandable. This does not mean that she was unfairly treated.

AWARD

24. The respondent, the Department of Education: Eastern Cape did not perpetrate an unfair Labour practice relating to promotion when they did not appoint the applicant, Lauraine Currie.
25. The Applicant is not entitled to any relief.

Name: Jonathan Gruss
(ELRC) Arbitrator