Panellist/s: ELIAS KHUTSO MPAI
Case No.: ELRC 844-21/22LP
Date of Award: 12th July 2022

In the ARBITRATION between:

MATOME JOB BOPAPE APPLICANT

(Union / Applicant)

and

DEPARTMENT OF EDUCATION – LIMPOPO 1ST RESPONDENT NGWETJANA NKOE HELLEN 2ND RESPONDENT

(Respondent)

Union/Applicant’s representative: MR MATOME JOB BOPAPE

Email: thobejane@webmail.co.za

Respondent’s representative: MR N.E. NYATHELA
DEPARTMENT OF EDUCATION – LIMPOPO
PRIVATE BAG X 9489
POLOKWANE, 0700
Telephone: 015-290 9352
Telefax: 015-297 6920/4320/4494/0507/086-611 8194
Email: RafapaMG@edu.limpopo.gov.za___________________

DETAILS OF THE HEARING AND REPRESENTATIONS.
1. The arbitration hearing was held on 19 May 2022 via online virtual hearing and finalized on 21 June 2022 at 09h00 at the Department of Education-Limpopo, 113 Biccard Street, Polokwane where all the parties were in attendance.
2. The Applicant, Mr M.J. Bopapeappeared in person assisted by Mr N.S. Setati, an official from PEU, a registered trade union.
3. The first Respondent, Department of Education was represented by Mr N.E. Nyathela from Labor Relations while the second Respondent, Ms N.H. Ngwetjana appeared in person without a representative.
4. The services of an Interpreter were not utilized while the proceedings were both manually and digitally recorded.
BACKGROUND TO THE ISSUE.
5. The parties did not submit any Pre-Arb minutes hence we had to narrow down issues as recorded below.
Common cause.
6. The Applicant and the second Respondent are employed by the Respondent effective from 8 January 1993 and 2 September 1996 respectively.
7. The first Respondent advertised a Principal position for Makgofe Secondary School under open vacancy list No. 1 per Volume 1/2021 dated 1 September 2021. The post was not prescriptive.
8. The Applicant and the second Respondent applied for the advertised vacant Principal position. They were shortlisted and they attended the interviews where the Applicant was rated No.1 with 75.1% while the second Respondent was recommended as No. 2 with 57%.
9. The Applicant was recommended by the School Governing Body (“SGB”) as the first preferred candidate while the second Respondent was recommended as the second preferred candidate.
10. The first Respondent appointed the second Respondent to the advertised post effective from 1 February 2022 with a salary notch ranging from R579 756-00 to R1 038 126-00 per annum.
11. The second Respondent is on salary notch of R585 525-00 per annum.
Dispute.
12. The Applicant feels that the appointment of the second Respondent was substantially unfair and that her appointment was abirary.
13. The Respondent aubmitted the opposite.
General.
14. The first Respondent submitted a bundle of documents marked “R” while the Applicant submitted no bundle of documents.
15. There were no points in limine that were raised by the parties.
ISSUE TO BE DECIDED.
16. I must decide whether the first Respondent committed an unfair labout practice by appointing the second Respondent and not the Applicant.
17. Should I find that the first Respondent committed same, I will then have to determine the appropriate relief in line with the Applicant’s prayer for his retrospective appointment.
SURVEY OF EVIDENCE AND SUBMISSIONS.
The parties’ witnesses testified under oath and their evidence is briefly as follows: –
Applicant.
Matome Job Bopape.
18. He relayed his employment history with the first Respondent until the time when the first Respondent advertised the post in question, including the various Deputy Principal positions that he held at different Schools since 2009 until he was appointed to act as a Principal in the post in question. He was transferred from one School to another due to the rationalization and redeployment “R & R” process.
19. When the Principal position for Makgofe Secondary school was advertised, he applied and he was not surprised when he was not appointed as he attended a worksop where it was indicated that everybody who attended the interviews was appointable. Even if you are Candidate No. 1, you could be overlooked.
20. The SGB wanted to know why their preferred candidate was not appointed hence he lodged a dispute based on the trends in appointment of the second Respondent. The SGB was complaining regarding the deviation that was done without their (SGB) involvement for endorsement.
21. It was said that the HOD decided to apply affirmative action to appoint the second Respondent as the ladies in that they were short numbers. A meeting was held at Moletji Moshate on 13 March 2022 where in the presence of the District Director, Circuilt manager. The SGB and the parents resolved to accepted the appointed Principal.
22. In terms of R11 Itm 3.1 Principals, there were 1921 male Principals and 1331 female Principals. The second Respondent was already a Principal at another School. Her appointment would not address the issue of equiy as you still have the same numbers. Avertised posts must be filled with candidates under-represented groups.
23. The Second Respondent’s appointment was in line with the HOD’s directive, however she did not come from the disadvantaged groups. Her movement from one School to another did not impact the number of Principals.
24. There were male Principals that were appointed at Molautsi High School , Mohlapetsi Hing School and Peter Nchbelong High School in Seshego Circuit and at April Makgakga Primary and Good Hope in Polokwane.
25. His School has four female Educators and two male Educators in the School Management Team (“SMT”). To address equity in the staff, a male should have been appointed to make 3 males as opposed to 4 females priot to the appointment.
26. Exhibit R33 Item 4 is the recommendation by the interview panel which was not implemented when appointment was made. The SGB was aggrieved with the decision as they were not given reasons for the deviation. Normally if there is deviation, the SGB is consulted while the appointment is held back. Per Exhibit R34, the HOD decided to appoint the second Respondent based on employment equity while the SGB recommended him for appointment.
27. Under cross-examination, he indicated that Exhibit R11 is Circular No. 150/2021 which is titled the Empolyment Equity Profiles of Principals. The first Respondent should have appointed him as a male Principal at his School to balance the gender as there were 3 females and 2 males in the SMT.
28. He denied that the first Respondent complied with the employment equity plan by appointing the second Respondent as the Principal, as outlined in paragraph 4 to Exhibit R13. The first Respondent should have increased the number of female Principals in order to comply with the employment equity plan. The appointed candidate was a female, from the under-represented group.
29. Exhibit R18 Item B8 the employer must consider the best candidate for appointment. He moved from one School to another as a Deputy Principal due to RNR coupled with reduction in the learner enrollment. If a manager is an asset, the School will experience an increase in learner enrollment, and if not an asset, the School will attract less learners. The Department of Education expected learners to attend Schools closest to their homes. All the Schools at which he was Deputy Principal experienced a decline in the learner enrolment except for Makgofe.
30. The second Respondent has been in charge of a School as Principal since 2010 an she is far ahead of him with managerial skills. The second Respondent is better qualified than him and she is the best candidate in terms of academic qualifications. His challenge is related to consistency but he was not negatively affected by his non-appointment. If the first Respondent would have appointed a person who was not a Principal, he would not have challenged the appointment.
31. Makgofe is a Level 4 Secondary and the second Respondent moved from one post level to another. She is more experienced and more qualified than him and when the first Respondent make an appointment, the best interests of the child are considered per Exhibit R18 paragraph 10. You can the best qualified yet remain the worst performer. He was the best candidate based on the scores allocated per Exhibit R25.
32. In terms of Exhibit R25 Item 42 provides that – “The mere fact that the candidate who was eventually promoted did not score the highest marks or is not better qualified does not necessarily justify a conclusion that the decision not to promote was wrong”. Having scored the highest marks did not mean that you are the best candidate.
33. Item 44 provides that – “The Head of Department as employer must place significant weight on the recommendations of the school governing body who has interviewed the candidates. the employer is not bound by the recommendations of the SGB and may deviate from their recommendations where there are sound reasons for doing so”.
34. As per Exhibit R33 Item 6, he was recommened by the SGB as candidate number 1, second Respondent candidate number 2 and Machaka SS as candidate number 3. All the recommended candidates and the first Respondent did not appoint a candidate who was not recommended. He is not certain if Circular No. 154/2020 says that the HOD must consult the SGB in case of deviation or implementation of the employment equity.
35. Exhibit R24 Item 37 provides that – “There is no right to promotion. What an employee does have, is a right to be fairly considered for promotion when a vacancy arises”. The employer must appoint the best candidate. He did not know if the appointed people at the 3 Schools that he mentioned were the best candidates or not.
36. The reason for the drop in the number of learners at the Schools where he was the Deputy Principal was due to urban migration. In 2021 he was appointed as acting Principal at Makgofe
Respondent.
Malediwe Gennett Ntsoane (“Ms Ntsoane”).
37. She is the Deputy Director : Corporate Services responsible for 15 sections. Recruitment fell under human resource management (“HRM”). Posts are contested in terms of the advertisement. They wait for the circuit office to submit the percentages after the school selected and interviewed the candidates. Quality assessment is done on the process that was done and employment equity plan is considered as a guide. Ms Nwetjana was the best candidate for the post based on her academic qualifications. She also had 11 years working as a Principal and she is the most experienced in Principalship.
38. Exhibit R11 is Circular 150/2021 which has the employment equity profiles pf Principals, Deputy Principals and Heads of Departments. There were 1921 male Principals and 1331 female Principals.
39. The SGB recommended the Applicant as candidate number 1 however the second Respondent was recommended based on gender equity. In appointing Ms Ngwetjana, the first Respondent did not only consider employment equity, instead experience and qualifications were also considered. The post level was also considered as Ms Nwetjana was already a Principal. The Applicant was not the best candidate as he was not a Principal instead he acted as a Principal for less than a year.
40. The SGB was happy with the panel and they were happy about the candidates, and indicated that anybody was appointable. This is different from the 3 Schools that the Applicant referred to where there were no other candidates than those indicated.
41. Exhibit R18 Item 10 provides that – “… the best interests of the child are of paramount importance in every matter concerning the child”. It meant that the best quality in teaching and learning must be sourced.
42. Under cross-examination, she indicated that the incumbent was the best in terms of qualifications but that was one of the considerations. The appointment could not be concluded without interviews. The minimum requirements for the Principal post are contained in the circular of the day.
43. She is the author of the statement which recommended the appointment of a female instead of a male person as a Principal based on gender equality. Experience and qualifications are also relevant considerations. Circular No. 150/2021 is on Exhibi R11 paragraph 3.1 and the appointment of the second Respondent was based on the post level. She was at a lower level post to a higher level which is a promotion post.
44. The circular did not give figures of salary level but they used persal hence they knew the salary levels. Circular No. 150/2021 was followed. The SGB at Makgofe did not motivate for candidante number 1 hence what happened in another Schools was not followed, instead the best interests of the learner were considered. The HOD will then consider the best interests of the child. The SGB do not recommend intead they give preferences.
45. The first Respondent did not consider preferences when making the appointment, instead he considered the advertisement, qualifications and experience. Interviews are based on preferences.
ANALYSIS OF EVIDENCE AND FINDINGS.
46. The parties led evidence by one witness a side and then they requested to submit written closing arguments. They were allowed to submit their written closing arguments by 28 June 2022 and they complied. I familiarized myself with their closing argumnts and I will not repeat the contents thereof for purposes of brevity.
47. The burden of proof is on the Applicant to prove on a balance of probabilities that the first Respondent committed an unfair labour practice.
48. Collective Agreement No. 3 of 2016, Item 33 on Exhibit R23 provides that – “Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then in order for the employee to prove an unfair labour practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him or 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 employer”. None of the above exceptions was established by the Applicant.
49. The first Respondent has to appoint the best candidate for the post and for the Applicant to challenge that, he should establish that he had the necessary skills while the apointed candidate did not posess the same skills or same level of skills. That was not the case with the Applicant. The Applicant conceded that the incumbent is better qualified academically, experiencewise and that the best interest of the child are paramount in the promotion dispute. It was the first Respondent’s version that employment equity was concidered in appointing the incumbent.
50. The submission by the Applicant regarding his School’s employment equity in the SMT could not address the employment equity in the appointment of Principals. The Respondent’s employment equit revealed that there were more African male Principals than female African Principals, hence the need to balance the scale. His submission that the SGB was not consulted regarding the diviation from its recommendation was not substantiated by facts or policies which required same to be done. Instead, the Respondent demonstrated why there was a need for deviation.
51. From the evidence tendered, it is common cause that the parties are in agreement in almost everything except that the Applicant feels that he should have been appointed as the preferred candidate by the SGB with the highest score of 75.1% as opposed to the incumbent with 57%.
52. The Applicant made several concessions, amongst others that the incumbent was better qualified than him academically. That she also had better managerial experience than him as she was a Principal for 11 years while he had never been appointed as a Principal before, except that he acted as a Principal for less than a year. The Applicant also conceded that the best interest of the child is of paramount importance in the appointment of Principals.
53. The Applicant further indicated that he had no problem with the incumbent’s appointment, however his problem was that the first Respondent was not consistent in its appointment system, in that there are at least 3 other Schools in the Seshego Circuit wherein male Pricipals were appointed.
54. The first Respondent argued that the Applicant was not appointed based on the Respondent’s employment equity and that the incumbent was the best suitable candidate. Ms Ntsoane indicated that there was no motivation made by the SGB from the Applicant’s School for the appointment of a male Principal as opposed to the employment equity, and that the circumstances at the Applicant’s School differed from those at the other School.
55. The Applicant was not in a position to relay the circumstances under which male Principals were appointed at the other Schools. He went further to indivate that his concern arose from the fact that the HOD deviated from the ‘recommendations’ or preference by the SGB, to the extent that a Community meeting was called at the Tribal Council. It is my understanding that had the SGB not complained about the deviation, the Applicant would not have lodged a dispute related to the appointment of the incumbent.
56. The Applicnt argued in closing that the first Respondent appointed the incumbent without the recommendations by the SGB. This cannot be reasonably and probably true as same was received, considered and same was overruled or the HOD decided to deviate therefore with reasons being provided.
57. The Aplicant conceded further that the incumbent’s appointment was a promotion and same was in line with the first Respondent’s submission that the post level was also considered as she was promoted from a lower level Principal position to a highrer level. It can therefore not be in dispute that her appointment was at another level not limited to the employment equity. It is my understading that if the Applicant was so appointed, the employment equity figures would have increased in favour of the male Principals as opposed to female Principals. That the Applicant was not appointed, meant that the scale of male as opposed to female Principals was not affecte by the appointment of the incumbent.
58. The first Respondent’s witness, Ms Ntsoane was not shaken in her version, Instead she stood the test. She maintained her position throughtout her testimony and even during cross-xamination.
59. The Applicant could not establish or prove that he was the best suitable candidate for the post. He however conceded that there was no right to appointment, instead he had a right to compete fairly for the position. He furthermore conceded that the first Respondent was not bound by the recommendations by the SGB instead the first Respondent may deviate therefrom.
60. It was held in SAPS v SSSBC [201] 8 BLLR 892 (LC) that where in the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, an arbitrator should not readily interfere with the exercise of thee discretion.
61. I find that there was no unreasonableness, bad faith and the decision to promote was not seriously flawed, hence I will not interfere with the first Respondent’s decision to appont the incumbent.

AWARD.

62. I find that the Applicant failed to establish that the first Respondent committed an unfair labour practice by not appointing him as a Principal at Makgofe Secondary School.
63. The Applicant’s case is herby dismissed.

DATED AT MAKHADO ON THIS THE 12TH DAY OF JULY 2022.

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