Arbitrator: Clint Enslin
Date of Award: 10 November 2023

In the matter between

Busisiwe Khumalo
(Applicant)

And

Department of Education – Gauteng First Respondent

Sydney Mpotulo Second Respondent
(Respondents)

Union/Applicant’s representative:

Mr Z Khan

Telephone: 083 255 3816
Telefax:
E-mail: zksprings@gmail.com

Respondent’s representative: First Respondent – Mr M Zathu / Second Respondent – Self
Respondent’s address:

Telephone: 067 184 5204 / 082 052 8167
Telefax:
E-mail: Mvandaba.Zathu@gauteng.gov / Saliwa.Mpotulo@gmail.com

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), was held via zoom online platform, on 9 May, 13 June, 31 July, 21 August, 18 September and 16 October 2023. (Some of the days were affected by connection and/or load shedding issues.)

2. The Applicant, Ms Busisiwe Khumalo was present. On the first day, she represented herself and from the second day onwards, she was represented by Mr Zaf Khan, an attorney from Zaf Kahn Attorneys. The First Respondent, Department of Education – Gauteng, was represented by Mr Mvandaba Zathu, a Labour Relations Officer of the First Respondent. The Second Respondent, Mr Sydney Mpotulo represented himself.

3. The arbitration was digitally recorded.

4. Written Heads of Argument were received on 26 October 2023.

Issue to be decided

5. The issue to be decided is whether or not the non-appointment of the Applicant to a Deputy Principal post she applied for, was subject to an unfair labour practice, and if so, to determine the appropriate relief.

Background to the matter

6. The Applicant referred an alleged unfair labour practice dispute pertaining to promotion.

7. The Applicant sought that the successful candidate’s appointment be set aside and that she be appointed in the said position.

8. The following facts were common cause:

8.1 The Applicant is a PL 1 Educator.

8.2 The post applied for was that of Deputy Principal at Davey Secondary School, which is a PL3 post.

8.3 The Applicant’s salary at the time of the appointment was R32 11,87 per month.

8.4 The Salary scale of the position applied for was R519 270,00 per annum.

8.5 The post was filled on 1 April 2022, with the Second Respondent.

8.6 The Applicant went through the shortlisting and interview process, but was not appointed.

9. The following facts were in dispute:

9.1 Whether or not the Applicant was the best candidate for the position.

9.2 Whether or not Employment Equity was applied and/or correctly applied.

10. The Respondent submitted a bundle of documents consisting of four parts. The documents were accepted to be what they purport to be, except for the scoring list.

Survey of evidence

11. This is a summary and does not reflect all of the evidence and arguments heard and considered in reaching a decision.

Applicant’s evidence

Ms Khumalo

12. Ms Khumalo, the Applicant, testified that she applied for the position of Deputy Principal at Davey Secondary School. She was interviewed by three panellists, namely: Ms Madihlaba, Mr Dunjana and Mr Mhlongo. She believed her interview went well. She did not have difficulty with any of the questions. After the interview she felt happy and expected to be appointed. P18 of the document marked “Davey interview document” (“DID”) showed the names of ten candidates, the names of the three panellists as well as the total scores. Her name was first on the list as she had been interviewed first. According to the list, Mr Mhlongo had given her 13, Dunjana had given her 19 and Madihlaba had given her 22 for a total of 54 points. The lowest scoring candidate received a total of 38 points. According to the list, she was the second lowest scored. She did not believe the score reflected was correct and further believed she should have got a higher score and been recommended.

13. Page 19 of the same document contained the names of the three persons that were recommended. They were: Mr Mpotulo with 132 points, Ms Mothapo with 118 points and Mr Mkalipi with 100 points. Mr Mpotulo, the Second Respondent, was appointed. She then laid a grievance. She believed that she should have been appointed because firstly, she had done very well in the interview and felt excited. Secondly, she had a Bcom and Bcom Honours in Accounting. Thirdly she had ten (10) years’ service. Fourthly she worked hard and was diligent. She did not believe any of the three candidates recommended would best fit the position.

14. She had higher qualifications than the Second Respondent, but was not sure who had the longest service. He had never acted as Deputy Principal, whilst she had acted for six months when she was still in the Free State. She was not sure of Mr. Mkalipi’s qualification or service compared with hers or if he had previously acted. She believed Ms Mothapho had a degree, but not Honours and that she had less service than the Applicant. She was not sure if she had previously acted. The post was previously filled by a female and as such it should have been filled by a female. The two males should not have been recommended. Out of the three recommended, only the Second Respondent was from Davey Secondary School.

15. She was disappointed when she was not appointed. After seeing the minutes and scores, she enquired from Ms Mbele, an SGB member, as well as Mr Mhlongo (panellist). Mr Mhlongo was surprised and made it clear the score he was shown by her was not correct. It was not the score he had given her. He said the score he gave was higher. He also said the she was among the three candidates to be recommended. Mr Mhlongo was the chairman of the SGB. When she followed up with him, he said he did not know of the score, but on his knowledge she was one of the three recommended. According to page 18 of DID Mr Mhlongo had given her 13 points, Ms Mathapo 43 points, Mr Mkalipi 37 points and Mr Mpotulo 38 points. Mr Mhlongo had told her that the score he gave her was almost equal to the others. The minutes were signed on page 19 by Mr Mhlongo and Mr Nyawo. She agreed that the minutes were an official school document and had the school stamp on. She agreed that, according to the record, Mr Mpotulo received 78 points more than her. She could not dispute that the Second Respondent had previously been a HOD at BB Mnyataza High School, prior to being at Davey, as she was not aware of this. She, however, agreed that if he was an HOD he would have management and leadership experience.

16. The school she had acted at was a farm school and she was not interviewed before acting. The principal was sick and she took over after a staff meeting. She agreed that equity target and plan allowed for the appointment of the Second Respondent. She also did not dispute that according to Circular 9 of 2020, which dealt with Employment Equity, at page 9 table 5, it confirmed that African and Indian males were under-represented at Deputy Principal level in Gauteng. She, however, stated that her case was based on the specific school where they worked, where there was a high number of males in top management. She was not present when the other candidates were interviewed. Ms Mbele had told her that the results were tampered with.

Ms Mbele

17. Ms Rose Mbele testified that she was a member of the SGB at Davey Secondary School. She was present at the interviews for a Deputy Principal, which were held on 3 September 2021. She was not a member of the interview panel, but was present as a marshal. She was responsible for calling the candidates into the room. Mr Mhlongo was the chairperson of the panel. The Applicant had done well in the interview and was in the top three. She was part of the three names put forward. The principal had mentioned that the person to be appointed was female and from within. The Applicant was the only female from within in the three names put forward. She was surprised when the Applicant was not appointed. She investigated to find out the reason for same and was told by the principal that the Applicant was not qualified to be a teacher or Deputy Principal.

18. She agreed that SGB members first underwent training before posts were filled. She had not attended training prior to the filling of this post and as such, although she was initially elected to be on the interview panel. She was therefore not aware of Circular 9 of 2020, dealing with equity. She disagreed with the top three as reflected on page 19 of DID. According to her the top three were: the Applicant in position 1, Ms Mothapo in position 2 and Mr Mpotulo in position 3. Mr Mkalipi was not in the top three. She had gathered this information from observing in the interview room. She was not sure what the Applicant’s or person she said was second’s scores were. The principal, Mr Mhlongo and Ms Madihlaba did the scoring. They consolidated the ranking by taking a question and comparing scores. She did not know if Mr Mpotulo was the best candidate. After the interviews, the SGB was not called for ratification Despite this ratification meeting not being held, the Applicant had won as they were supposed to appoint a female South African citizen and not a foreign national. She had also seen that the Applicant was at the top of the score sheet. She could not recall the Applicant’s score but knew she was on top. She also believed the Applicant should be on top based on what she heard and saw in the interviews. She trusted Mr Nyawo. She was present during ratification when the recommendation was made.

Mr Mhlongo

19. Mr Tiyana Mhlongo testified that he was an SGB member and the chairperson of the short listing and interview panel. The Applicant, Mr Mpotula and another lady had been recommended. Mr Mpotula was appointed by the First Respondent. He could not recall the criteria used by the panel for short listing, but knew that female gender was referred to. As such two females and one male were recommended. He believed the Applicant should have been appointed because they were told a female should be appointed as the previous incumbent was female and she had also done well in the interview. The three names recommended on page 19 of DID were not correct and they should have been as he had stated above. The Applicant was not one of the three recommended on page 19 of DID. Although his name was one that appeared at the bottom of the page, he was not sure who signed there. He was not sure if it was his signature. He had not said the Applicant was the best, but that she had done well. He could not remember who the best candidate was, but he believed the competition was between the Applicant and Ms Mothapo. The Second Respondent also did well.

20. The score reflected for the Applicant was not the score he gave her, but he could not recall the score he gave her. After the interviews they sat and compiled scores and added them so that they could record who to recommend. He agreed that he was not aware of equity requirements. The competition was between the two ladies, due to the picture painted that a female should be appointed. The Applicant was first, Ms Mothapo second and the Second Respondent third. Some of the signatures in the documents did not look like his. He believed pages 18 and 19 as well as other the documents had been tampered with. He did not see the minutes after the interview. Mr Nyawo had prepared the minutes at home after the interview. They were not brought to him to sign.

Respondent’s evidence

Mr Dunjana

21. Mr Zithulele Dunjana, the principal of Davey Secondary School, testified that it was his third year at the school. The current process was his first involvement with recruitment of a Deputy Principal, but he had been involved in a number of recruitment processes for PL1 educators. The position was advertised and the SGB were called for training. HR also explained Circular 9 of 2020. The SGB was later called to establish the selection panel. The Chairman of the SGB stated that anyone who applied should excuse themselves. The Applicant, who was on the SGB as a teacher, excused herself. The panel was selected. It was Ms Mbele, Mr Mhlongo (chair), Ms Madihlaba (deputy chair), Mr Nyawo (secretary) and himself. The panel and union representative did the shortlisting. They signed the confidentiality form and went through Circular 9 of 2020.

22. There were approximately ten candidates shortlisted for interview. The candidates were called and the interviews were held on 13 September 2021. Before the interviews they set the rules and it was confirmed that Chairperson and Deputy Chairperson of the SGB as well as himself would score. They set questions. The questions were typed and they each received a copy and a score sheet. The Applicant was the first applicant interviewed. There were nine interviews in total as one candidate did not arrive. The interviews lasted until approximately 21h00, after which they summarised scores and recommended three candidates. They signed and gave same to the secretary to type for ratification by the entire SGB. On 15 September 2021 they sat for ratification. All panel members and the rest of the SGB were present, excluding the Applicant. The chairperson let the secretary read the minutes and recommendation. All agreed on the three and there were no changes. The chairperson and the secretary then signed the minutes of short listing, interviews and ratification. The file was submitted to the district on 16 September 2021. On 1 April 2022 the Second Respondent was appointed and introduced to them.

23. The top three were: Mr Mpotulo (first), Ms Motapho (second) and Mr Mkalipi (third). The table on page 18 was a true reflection of scores given. Mr Mhlongo’s signature had never been consistent in all the time he had worked with him, but he could confirm that it was his signature on page 19 as he was present when it was signed. Mr Mhlongo signed as chairperson and Mr Nyawo signed as secretary. The Applicant was very nervous in her interview. They must have assumed that a female should be appointed due to the fact that the previous incumbent was female. They were in fact guided by Circular 9 of 2020, which confirmed that in Gauteng they were short of males at the said level. There was no preference for males specified in the advertisement. During the training they were not told a male was preferred, but were told to consider gender equity. Circular 9 of 2020 was not part of the bundle. It referred to the plan, but did not say a male must be appointed. The district had done the training and as such the attendance register was done by them. It was also not part of the bundle. Before the interview there was a discussion where it was confirmed that males are targeted in Gauteng. If, however, the best candidate was a female they would appoint same. The minutes of the ratification had been submitted to the district. If they were not part of the documents submitted, the district would not accept it.

24. He and Mr Nyawo had submitted the file to the district. It was done in line with the check list and if all was not there, they would not have accepted it. He disputed Mr Mhlongo’s claim that he did not know of the ratification. He was sure that Mr Mhlongo had attended the training. All registers etc. had been handed in to the district. Qualifications were looked at in the short listing. All short listed candidates met the requirements and as such they looked performance in the interview stage. Although the Applicant’s signature looked different on various documents, it was his signature as he had signed the documents in front of them. It was the recommendations as per page 19 that were approved by the SGB. The typed version of the minutes was before the SGB on 15 September 2021. The handwritten and typed minutes were handed in to the district. If they were not, it would have been rejected.

25. The Second Respondent had a Secondary Teacher’s Diploma and a BA degree. He also had more than 30 years’ experience as a teacher. The Applicant and the First Respondent were scored similar for qualifications. The post in question also required leadership, management and administrative skills, not just subject teaching skills per qualifications. Qualifications were looked at during short listing, however, the Applicant did not satisfy the panel during the interview, as reflected in the scoring. Mr Mhlongo was not truthful when he said that he had recommended the Applicant. He agreed that the Second Respondent was part of the panel that had interviewed and recommended him for the position of Principal, he, however, denied that it was now pay back time. He denied that he had stated that a female needed to be appointed. He disagreed that the Applicant had done well in her interview.

Mr Nyawo

26. Mr Ayanda Nyawo, SGB member and secretary of the panel, testified that his role in the process was to write and then type the minutes. He had compiled the documents in the DID bundle. He and Mr Mhlongo (as chairperson) had signed the documents. Pages 8, 9 and 16 were signed by them at the school. Prior to page 16 being signed, the interviews had run late on 13 September 2021 and as such he requested to type them at home. On 15 September 2021 the chairperson signed them. They had deliberated after each candidate’s interview. As per his minutes, the top three candidates were: Mr Mpotula with 132 points, Ms Mothapo with 118 points and Mr Mkalipi with 100 points. Page 18 was correctly captured. He had read the minutes at the ratification and then Mr Mhlongo had signed same. At the end of the interviews the three panellists had recommended the three candidates and the SGB had agreed with same. The score sheets were given to him to capture and he had filed same afterwards. Mr Mhlongo had been present in all processes and had signed. He had also signed in front of him at the ratification.

27. Both his handwritten and typed minutes were attached to the documents sent in, as per the checklist. Page 2 to 8 was the shortlisting minutes that he had typed on the same day, 3 September 2021. He was not certain if Mr Mhlongo had signed them on the same day. The meeting per pages 10 and 11, of 25 August 2021, was the panel selection. He agreed that Mr Mhlongo’s signature looked slightly different on various documents. He had written each candidate’s answers down on a separate sheet which was not attached to the minute. All documents were, however, submitted to the district. The scores were based on the candidate’s answers. He agreed that the scores accuracy could not be determined without the answers. He denied that he had tampered with the minutes and again stated that the minutes were read prior to their adoption. He disagreed that the Applicant had scored higher than the points reflected on page 18. He further disputed that the Applicant was one of the three candidates recommended.

Analysis

28. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.

29. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provisions of benefits to an employee”. (Own underlining)

30. The Applicant challenged the alleged unfairness of her non-appointment to the post of Deputy Principal at Davey Secondary School based on two grounds. Firstly, that she was the best candidate for the position and secondly, that she should have been appointed in the position had Employment Equity been applied correctly.

Did the Applicant prove that she was the best candidate?

31. According to the score rankings provided, the Applicant was ranked 8th out of nine candidates and was accordingly not one of the top three who were recommended. The Applicant herself testified that she had not been present in any of the other interviews, but believed she was the best candidate as she believed her interview went well. She did not have difficulty with any of the questions. After the interview she felt happy and expected to be appointed. Given that the Applicant was not present in any of the other interviews, it is needless to say that her view as expressed is entirely subjective. The fact that she felt she did well does not mean that she actually did and even if she did do well, there is no basis for her to compare herself to others, where she was not present, and conclude that she was the best. She elaborated further as to why she believed she was the best candidate by testifying that she believed that she should have been appointed because firstly, she had done very well in the interview and felt excited. Secondly, she had a Bcom and Bcom Honours in Accounting. Thirdly she had ten (10) years’ service. Fourthly she worked hard and was diligent and she did not believe any of the three candidates recommended would best fit the position. This elaborated reasoning is again subjective as she was not aware of other candidate’s position regarding these issues. During evidence of other witnesses it was for example stated that the Second Respondent has thirty (30) years’ experience and that his qualifications were scored similar to hers.

32. The Applicant also claimed that, in addition to the above, she believed the scores given to her were incorrect and she should have been recommended. She fails to say what she believes her scores should have been and why. She simply makes a general statement that she believes she did better than what she was scored at and should have been recommended. She did, however, say that Mr Mhlongo had told her that the score he gave her was almost equal to the others. Even if this was the case she would not have been in the top three, given the vast difference between her score and theirs. There were nine candidates interviewed. As stated she was not in any of the other interviews. Even if she was given an undetermined higher mark, how does she conclude that this would have placed her in the top three or better still, in first position? On her evidence there is, in my view, no basis for her claim that she was the best candidate.

33. She also added that she had queried the outcome/scoring with Ms Mbele, an SGB member, as well as Mr Mhlongo (panellist). Mr Mhlongo had confirmed that he had scored her higher and that she was one of the three recommended. Ms Mbele, despite being present, was not a scorer at the interviews and as such I do not believe she was in a position to determine who the best candidate was. She nevertheless stated who she believed the top three were, from her observations, and submitted that they were: the Applicant in position 1, Ms Mothapo in position 2 and Mr Mpotulo in position 3. Strangely, Ms Mbele had earlier in her testimony claimed that the Applicant was the only female recommended. She further stated that Mr Mkalipi was not in the top three. She confirmed that she was not sure what the Applicant’s or person she said was second’s scores were. She also confirmed that she was not sure if Mr Mpotulo was the best candidate. I also find it puzzling that she initially claimed that no ratification meeting was held, but later claimed to be present in such meeting. She also claimed to have seen the Applicant’s name at the top of the list. This could simply have been because the Applicant was interviewed first as per page 18 of DID. In short, I do not believe her evidence takes the Applicant’s case much further.

34. As for Mr Mhlongo, his testimony was essentially that he had given the Applicant a higher score that reflected on page 18 of DID, that she was in the top three candidates recommended, that he was not present at a ratification meeting and there was an issue with his signature on certain documents. He could not say what score he had in fact given the Applicant, if not the one reflected. He testified that he believed the Applicant should have been appointed because they were told a female should be appointed as the previous incumbent was female and she had also done well in the interview. Done well does not mean that she was the best. He in fact confirmed this when he said he had not said the Applicant was the best, but that she had done well. The claim that the Applicant was in the top three is not supported by the documents, which were signed, and is further contradicted by Mr Dunjana, who was also on the scoring panel as well as Mr Nyawo the secretary. On the issue of his signature, the Applicant’s testimony was that he was not sure if it was his signature on page 19 of DID.

35. Much was made of the fact that “his” signature on various documents was not the same. Whilst I am not and do not pretend to be a handwriting expert, I am satisfied that on face value the signatures are at least similar. This is with view of various signatures on inter alia pages 1, 8, 9, 14, 15 and 19 of DID. I believe that the probability is that a person’s signature would not always be identical. Even if I am wrong in the aforementioned conclusion, the Applicant himself was not certain that it was not his signature on page 19, hence him stating that he was not sure if it was his signature on page 19 of DID. Both Mr Ndunjwa as well as Mr Nyawo testified that he had signed the documents in their presence. He also testified that he was not called to or part of a ratification meeting. I find this claim to be improbable. I say this because he was the chairperson of the interview panel and an SGB member. Surely he would know that ratification is part of the process before the recommendations and documentation can be submitted to the department. Did he then just sit by, with no ratification meeting and not query same, only to wake up when the appointment was made? Surely not? Given the above, I believe it is more probable that he in fact signed the recommendations on page 19 of DID.

36. Before I move to the issue of equity, I need to deal with the other issue of which much was also made. The claim that certain documents were not provided as part of the bundle. It should, in my view, be remembered that it is the Respondent’s bundle that was referred to and as correctly stated, by Mr Nyawo, he was not party to preparing the bundle. Furthermore, the Applicant could have used the allowable process to obtain such documents if she believed it supported her case. She did not do so. I do not believe it is sufficient to allege that those “missing” documents may have supported her case. Mr Nyawo’s testimony was that he had attached all documents to the submission and both he and Mr Dunjana confirmed that if all that was required was not attached, the district would reject the submission.

Should the Applicant have been appointed in terms of Employment Equity?

37. This issue can, in my view, be dispersed with quite quickly. The basis of the Applicant’s claim as well as the support she received from her witness was based on the claim that the previous incumbent was female. Also on the alleged information given to them in this regard. On this issue the Applicant’s testimony was that she agreed that equity target and plan allowed for the appointment of the Second Respondent. She also did not dispute that According to Circular 9 of 2020, which dealt with Employment Equity, at page 9 table 5, it confirmed that African and Indian males were under represented at Deputy Principal level in Gauteng. She, however, stated that her case was based on the specific school where they worked, where there was a high number of males in top management. I will not go into detail on her claim that she was referring to the demographics of the school where they worked, suffice to say that it is trite that equity targets are not determined on an individual school basis. Her conclusion, in this regard, was therefore incorrect.

38. Ms Mbele testified that she was not aware of Circular 9 of 2020, dealing with equity. Also that the Applicant had won as they were supposed to appoint a female South African citizen. No basis was laid for this claim. Mr Mhlongo confirmed that he was not aware of equity requirements and was drawing his conclusion on what he was allegedly told.

39. In light of the above, I am of the view that the Applicant has failed to prove, on a balance of probabilities, that she was the best candidate or that employment equity was applied incorrectly.

Award

40. The Applicant, Ms Busisiwe Khumalo, was not subjected to any unfair labour practice by the Respondent, the Department of Education – Gauteng.

41. The Applicant, Ms Busisiwe Khumalo, is not entitled to any relief.

Signature:

ELRC Arbitrator: Clint Enslin