Panelist: Ncumisa Bantwini

Date of Award: 12 August 2024

IN THE MATTER BETWEEN

SADTU obo Luxolo Mqulwa : Union/Applicant

AND

Department of Education – Eastern Cape : 1st Respondent

Mrs. Sandiswa Saunders : 2nd Respondent

DETAILS OF HEARING AND REPRESENTATIONS

1. This arbitration was part heard on 15 May 2024, 24 July 2024 and was finalized on 25 July 2024 in the respondent’s offices at Trinset College in Mthatha. The dispute came before the ELRC in terms of Section 191 (1) (5) (a) read with section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended, (the LRA).

2. Mr. Aaron Mhlontlo of NAPTOSA appeared for the 2nd respondent, Ms. Sandiswa Saunders. Ms. Andisiwe Xala appeared for the 1st respondent, the Department of Education-Eastern Cape while Mr. Ayanda Tyantsi of SADTU appeared for the applicant, Mr. Luxolo Mqulwa who was also in attendance. Parties agreed to submit written closing arguments on 01 August 2024. All arguments have been considered in the preparation of this award.

ISSUE TO BE DECIDED

3. The issues to be decided is whether the respondent’s conduct of not appointing the applicant to a position of a Deputy Principal at Zingisa Comprehensive High School in Mthatha was fair or not.

4. I have considered all the evidence and arguments, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons. I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and determination of the dispute.

BACKGROUND TO THE DISPUTE

5. The applicant referred a dispute to the ELRC regarding an alleged failure by the respondent to shortlist him to the position of a Deputy Principal at Zingisa Comprehensive High School. When the dispute could not be resolved at conciliation level, the applicant filed a request for arbitration through his union.

SURVEY OF EVIDENCE AND ARGUMENT

Applicant’s case
6. According to Mr. Tyantsi ‘s opening statement, the dispute relates to unfair labour practice based on promotion. The applicant applied for a position of a Principal at Zingisa Comprehensive High School and was not appointed. The process was unduly influenced and the incumbent does not meet the qualifications of the position. The remedy sought is the appointment of the incumbent to be set aside.

7. The applicant, Mr. Luxolo Mqulwa testified under oath as follows:

8. He works for the respondent and he applied for the position of Deputy principal at Zingisa High School which was advertised in 2023. The requirements are Natural Sciences and Agricultural Science. The incumbent does not qualify for the position as she has 2 subjects as per the requirement while he possesses 3 of the required subjects (page bundle A). His transcript appears from pages 11 and 12 of bundle B.

9. The position was profiled by the principal and not by the SGB. The principal ‘s utterances were that he would have preferred Ms. Saunders to take over after her. He assumes that maybe Ms. Saunders was appointed because of their denomination with the principal (Roman Catholics). The composition of the panel had 9 members, teaching and parent component. Father Majingolo was part of the panelists as the school is situated on the school grounds. The incumbent had 7 years teaching experience in December 2023 as she started teaching in 2016. She wrote 9 years in the application form and this is misrepresentation (page 52 bundle A). A letter written by Principal Matyumza co- opting her to SMT appears in 27 bundle B. This was an attempt to put Ms. Saunders in management issues.

10. Father Majingolo was not supposed to be part of the interview process hence he (the applicant) is not happy about the process. There was information which was shared with the incumbent but not shared with other candidates. The SGB should have recommended the incumbent’s appointment and not the panel of the interviews (page 54 bundle B). This showed that they favored Ms. Saunders.

11. Under cross-examination by Mr. Mhlontlo, the applicant testified as follows:

12. He arrived at Zingisa Comprehensive High School in 2016 and Ms. Saunders was already working as SGB Educator for 2 years when he arrived. He is not aware that such experience is recognized as teaching experience in terms of Section 21 of the SASA. He now understands that the 9 years indicated in the application form is not misrepresentation. He does not know what was contained in the piece of paper which Father Majingolo gave to the Incumbent on the day of the interview. He did not see the paper and he did not request for it.

13. The applicant did not respond when it was put to him that there was no exchange of a paper between the incumbent and any member of the panel and a witness will be called to testify on that. The applicant could not cite any policy specifying that the staff and SGB must be consulted before profiling of the position is conducted. The applicant conceded that in terms of pages 52 to 54 of the minutes of the interview, the recommendation of Ms Saunders was made by the SGB and that the District Director approved the recommendation. He does understand that the incumbent meets the required qualification as reflected in the transcript. According to the score sheet, the incumbent scored 50 and he (the applicant) scored 38 points (page 54 bundle B).

14. Under cross-examination by the 1st respondent, the applicant testified that he did not complete the Human Resource Administration form because he did not understand its purpose (page 39 bundle A). He would have taken it to his previous Principals if he understood it. He is not happy about the profiling of the position. When it was put to the applicant that Father Majingolo was an Observer and not scoring candidates, his response was, that does not mean that the process was fair.

15. Under re-examination, the applicant stated that the incumbent does not meet the requirements of the position as she could not have taught without being a member of SACE. There is no bad blood between himself, Nyengane and Mbiyo although they scored him down but he suspects that the principal was behind this.

16. The first witness for the applicant, Ms. Anelisa Mbekweni testified as follows:

17. In 2023 she was working for the first respondent as a Security Officer. On the day of the interview, she was posted in Science Lab. During the tea break, Ms. Saunders went to the bathroom followed by Father Majingolo carrying a piece of paper. When Father Majingolo came out of the bathroom, he was no longer carrying the piece of paper. Ms. Saunders came out carrying the paper.

18. Under cross-examination by Ms. Xala, the witness testified that the piece of paper was folded she did not see what was written. She does not know how the paper was exchanged. She assumed that there were answers contained in the paper. Mr. Mqulwa was in the car at the time.

19. Under cross-examination by Mr. Mhlontlo, the witness testified as follows:

20. He started working for Zingisa School on 06 January 2020 until he was suspended for allowing students to come in the hostel after 12 midnight. On 04 July 2023, she was instructed by the principal to guard the Science Lab. She saw Ms. Saunders and Father Majingolo at the bathroom. The paper was folded and she did not see them exchanging the paper although she noticed that it was with Ms. Saunders still folded.

21. She did not know that she had to report the incident to the principal or make an entry in the OB book although this was wrong. She also overheard people saying that other candidates are there to accompany Ms. Saunders.

22. The witness could not comment when it was put to her that there was no paper hence, she did not record or report the incident to the principal. The witness also did not comment when it was put to her that she is an unreliable witness.

23. The third witness, Mr. Bathandwa Mdali testified as follows:

24. He works at Zingisa Comprehensive School as a Teacher and a member of SGB representing the Teacher component. He was the panelist member during the interview of the Deputy Principal’s position. The requirements were Natural Sciences, Agricultural Science and EMS (page 1 of bundle A). The SGB was not involved in the profiling of the position and the requirements are based on the incumbent’s qualifications. No criteria were used in profiling the position. The principal said she prefers the incumbent as the Deputy Principal as she had faith in her. The incumbent does not have Natural Science and had 9 years working experience as a teacher while the applicant had 14 years’ experience.

25. The witness testified further that the incumbent was coopted as SMT and SGB member before she was appointed to the position. No criteria were used in coopting her. During the shortlisting and interview processes, observers from SADU and NAPTOSA were present as well as Father Majingolo from the Roman Catholic Church although he is not a member of SGB.

26. On the day of the interview, Ms.Saunders distributed pictures to the panelists which she could have attached to the application form. None of the Panelists objected to the material. He was part of the ratification and shortlisting processes. The cooption of the incumbent to the SGB and SMT was forced by the principal. The witness could not comment when it was put to him that the incumbent will dispute being coopted to SGB and that the co option to SMT was addressed during the staff and SMT meetings before the letter was issued by the principal. The witness could not dispute the minutes of the interview which indicated that the interview went well (pages 53 to 55 of bundle B).

27. Under re-examination, the witness stated the position was not profiled by the SGB and that teachers are employed by the DOE. He accepted Ms.Saunders as the Deputy Principal and he was going to accept the applicant if he was the Deputy Principal as well.

28. The 3rd witness, Mr. Lungile Fazi, testified as follows:

29. He was an Observer at the interview for the Deputy Principal’s position and he has observed a number of interviews. He has never seen a father of the church observing interviews before. After setting up of questions, the panel took a break and an anomaly occurred when the incumbent distributed a portfolio of evidence to the panelist members. This worked to her advantage as none of the scorers questioned or objected to it. Other candidates were disadvantaged as they did not present anything. The witness testified also that it was unusual to see a Roman Catholic Priest, Father Majingolo as an observer at the interview.

30. Under cross-examination by the 1st respondent’s representative, the witness testified that his role was to observe the entire process of the interview. The incumbent presented material which other candidates did not have. Panelists raised some comments afterwards and he (the witness) was not part of the ratification process.

31. Under cross-examination by the 2nd respondent’s representative, the witness testified as follows:

32. He was taking notes during the interview and did notice that everyone left their cell phones in a box that was provided by the Resource Person. Ms. Saunders submitted pictures to the panelist and he did not raise objections and did not explain why he kept quiet. At the end of the interview process, a declaration that was made was that the interviews were free and fair.

33. The witness could not comment when he was referred to the ratification meeting minutes where no objection was recorded regarding Father Majingolo’s presence and the alleged pictures/material submitted by the incumbent (page 54 bundle B).

34. Under re-examination by Mr. Tyantsi, the witness stated that he did not write ratification minutes.

35. The 4th witness, Ms. Bomikazi Jabavu testified that she was a member of the SGB when the position of Deputy Principal was advertised. The position was not profiled by the SGB. On the day of the interview while she was busy with catering for the panelist, she saw Father Majingolo going to the same bathrooms with Ms. Saunders. She could not see anything as she was too far from the toilets.

36. Under cross-examination by the 1st respondent, the witness stated that she is still a member of the current SGB and that the science lab has catering and bathroom spaces which are too far from each other.

37. Under cross-examination by the second respondent’s representative, the witness stated that she does not know what profiling of the position entails. She did not see what Father Majingolo was carrying as the bathrooms are too far from the catering space.

38. The 5th witness, Ms. Ncumisa Bavuma testified as follows:

39. She is currently teaching Natural Sciences and Mathematics and has been a teacher since 2002 to date. According to the transcript that appears from pages to 33 there are natural science subjects which appear on page 31. With regards to the applicant’s transcript, there are subjects that are classified under natural sciences as well (pages 10 to 11 bundle B.

40. Under cross-examination by the 1st respondent, the witness stated that she is the HOD at Upper Zimbane SSS specializing in Mathematics and Natural Science for the past 22 years. She does not know the applicant.

41. Under cross-examination by the 2nd respondent, the witness testified as follows:

42. The transcript for Ms. Saunders has 3 strands covered out of 4, meaning 80% of the qualifications are covered in terms of the requirements. With regards to the applicant, he partly meets the requirements of the position as there is no Economics and Marketing.

43. Under re-examination, the witness stated that EMS is part of what she is managing as HOD, giving guidance in Natural Sciences in terms of the strands.

44. In closing, Mr. Tyantsi argued as follows:

45. The panel who shortlisted, interviewed and ratified the process of selection was incorrectly constituted. This issue was not canvassed during the arbitration process. The principal as well as Father Majingolo had an undue influence on the SGB to appoint Ms. Saunders. The incumbent did not meet the requirements of the advertised position and was dishonest. The profiling of the position was done by the principal and not the SGB. The incumbent was favored as she was allowed to present certain material at the interview.

46. Mr. Tyantsi finally argued that the respondent had failed to prove its case and that the appointment must be set aside.
The 1st Respondent’s case

47. Ms. Xala, the 1st respondent’s representative stated in her opening statement that the process of appointment of the 2nd respondent was conducted fairly and all necessary procedures were followed.

48. Both unions (SADTU and NAPTOSA were present and they confirmed that the process was conducted fairly.

The 2nd respondent

49. According to Mr. Mhlontlo’s opening statement, Ms. Saunders deserves to be appointed to the position as advertised as she meets the requirements of the position. There was no undue influence in appointing her and witnesses will testify to that.

50. The 2nd respondent, Ms. Sandisiwe Saunders testified as follows:

51. After obtaining her Hons Degree in 2014, she worked as SGB Teacher at Zingisa Comprehensive School for 2 years teaching Agricultural Science and EMS to date. She has 9 years teaching experience from 2016/ 2017 financial year. When she saw the profile of the position of Deputy Principal she decided to apply as she can see that she does meet the requirements. She has never made contact with Father Majingolo before the interview, she is disputing the allegation.

52. All candidates were placed together in the same room. Mr. Mqulwa was the only candidate who was moving up and down. She was never co-opted to the SGB. Her relationship with the applicant is normal, they both teach Agricultural Science and work as a team.

53. The incumbent testified further that Zingisa is a public school on private property owned by Roman Catholic Church and the distinctive religious culture has been maintained by the school. She was approached by one of the SMT members as she (the incumbent) has been coordinating Religious Education Curriculum.

54. It was during the staff meeting when part of the agenda was for the principal to check anyone who would be interested in representing Religious Education. She agreed to be co-opted and there was no objection hence a letter was issued by the principal (page 27 bundle B). The incumbent disputed the allegation to the fact that the position was profiled in such a way that it suites her as they (herself and the applicant) currently teach 2 out of the 3 subjects that appear in the advertisement.

55. The Incumbent further disputed having distributed any material at the interview other than the Reference form which all the candidates were required to submit (page 12 bundle A).

56. Under cross-examination by Mr. Tyantsi, the incumbent testified as follows:

57. The reference letter is dated 30 April 2023 and she received an invitation letter a week before the scheduled date of the interview. She knows Father Majingolo as they belong to the same denomination, Roman Catholic Church. She qualifies for the advertised position although she does not have all the 4 components of Natural Sciences in full. The incumbent disputed having distributed material at the interview. Ever since she arrived at Zingisa high School she has been getting 93% pass in grade 12.

58. Under re-examination, the incumbent stated that she had 9 years’ experience when she applied for the position.

59. Ms. Nomonde Matyumza the witness for the 1st respondent testified as follows:

60. She works for the 1st respondent as a Principal at Zingisa Comprehensive School. Her responsibility when there is a vacancy in the school is to sit with the SMT to profile the position looking at the needs of the school and compile an application for the DOE to advertise the position. This was the procedure followed even with the position of Deputy Principal.

61. The criterion in shortlisting was to look at the profile of the position and there were 5 candidates who were shortlisted and interviewed based on their academic qualifications.

62. The interview was conducted in a secluded venue, Science Laboratory where all candidates were allocated a room and panelists were in another room separate from the candidates. A Security Guard (Anelisa) was tasked to show candidates and Panelists where to sit. The Security Guard never reported anything or anomaly about the candidates nor panelists.

63. Ratification of the interview was also conducted on the same day and the process was declared as free and fair as the process went exceptionally well. There were no objections raised. The panel was constituted of 3 scorers, the Resource Person as herself and 2 observers from NAPTOSA and SADTU.

64. The allegation about the submission of material by the incumbent is untrue, all candidates were given reference check forms which they were required to submit on the day of the interview. The incumbent did submit her form at the interview as required. The witness disputed having co-opted the incumbent to SGB as co-option is the SGB’s competency.

65. The witness disputed that she co-opted the incumbent to the SMT as the issue was deliberated at SMT meeting and a letter was issued later. With regards to Father Majingolo ‘s presence as an observer during the recruitment process of the Deputy Principal of the SGB, the witness stated that his presence was informed by the fact that Zingisa is situated on private property and the Deed of Agreement signed requires the representation of the owner of the property.

66. Ms. Matyumza stated further that she has faith in all of the Teachers hence the good results at Zingisa Comprehensive High School. Nothing was ever brought to her attention about anything by Anelisa, the Security Guard. The applicant did not complete the reference form (bundle A page 37 to 38). The process was declared free and fair after the ratification was done.

67. Under cross-examination, the witness testified as follows:

68. She has known Father Majingolo from when he was ordained as a Priest and they belong to the same denomination but different parishes. He was an observer during the interview as part of the SGB and this is in line with the Deed of Agreement as the owner of the property. The position is profiled according to the needs of the school and the interest of the learners. Profiling was done by the Principal and SMT. Panelists are allowed to set a criterion when shortlisting the candidates for the position.

69. After the interview, scores were collated and ratification meeting was held. This is when the process was declared as free and fair. She has cordial relationship with the applicant and the incumbent. She does not recall seeing pictures or portfolio of evidence submitted by any of the candidates.

70. Cooption to SMT was discussed with SMT and the incumbent is the only Educator with expertise which others did not have. She was approached by one of the HOD’s.

71. In closing, the 1st and the 2nd respondents argued as follows:
72. Both the 1st and 2nd respondents believe that correct and proper procedures were followed in appointing the 2nd respondent. There was no undue influence by the principal in profiling of the position, interview and ratification meeting as alleged by the applicant. The 2nd respondent was the best candidate for the position and she was scored 50 marks while the applicant was scored 38 marks (page 60 bundle A). The principal testified that the 2nd respondent is the best grade 12 Agricultural Science Educator than the applicant.

73. The applicant was never denied an opportunity to compete for the position and all points raised by the applicant were disputed by the 1st respondent’s witness and the 2nd respondent. Mr. Mhlontlo finally argued that the applicant failed to prove unfair labour practice against the 1st respondent and that his application must be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENTS
74. The issues of common cause that relates to this matter are as follows:
• That the applicant applied for an advertised position of Deputy Principal at Zingisa comprehensive High School in Mthatha.

• That the applicant was shortlisted and interviewed but was not appointed to the position.

• That Ms. Saunders was recommended by the SGB and appointed as the best and suitable candidate for the position.

• That the requirement for the Deputy Principal position is Natural Sciences, Agricultural Science and EMS (page 1 of bundle A).

• That the position was profiled by the SMT and was endorsed by the SGB before it was advertised.

• That the incumbent was scored 50 marks/points while the applicant was scored 38 marks /points during the interview process.

• That SADTU and NAPTOSA unions were observing the selection processes and no issues were raised until the incumbent was appointed.

75. Although it is the applicant’s case that profiling of the position should have been done by the SGB, he failed to cite the relevant prescript/policy to corroborate his version.

76. It must be noted that the respondent’s witness evidence to the fact that profiling of positions is a professional function of the SMT was not disputed.

77. It must be noted that the 1st respondent’s evidence regarding Father Majingolo ‘s presence as an observer during the recruitment process of the Deputy Principal, was informed by the fact that Zingisa Comprehensive High School is situated on private property and the Deed of Agreement signed requires the representation of the owner of the property was not disputed.

78. The applicant could not prove the allegation to the fact that Father Majingolo exchanged a piece of paper with the incumbent before the interview process. One should note that nothing was brought to the attention of the principal nor recorded in the occurrence book by the Security Officer, Anelisa.

79. It must be noted furthermore that the allegation about the submission of certain material by the incumbent was not proved by the applicant. The evidence by Ms. Matyumza to the fact that all candidates were given reference check forms which they were required to submit on the day of the interview, which the incumbent submitted was not disputed by the applicant.

80. It is the respondent’s case that the selection process was fairly conducted in terms of the prescripts of the respondent (PAM and ELRC CA 5 of 1998 as well as PELRC CA 2of 2002) as the qualifying candidate was appointed.

81. It is not disputed that during the ratification process no issues were raised and the selection process was declared as free and fair.

82. On the basis of the above evidence, it appears that the incumbent met the requirements of the position hence she was recommended unanimously by the SGB for appointment to the position.

83. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC (handed down on 18 November 2016) it was held that a finding that a failure to promote was unfair must be a rational one i.e. it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the Employee’s qualification and/ or suitability for the position in question, against that of other candidates. The court held that in promotion disputes it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for the Employee to show that the breach of the procedure had unfairly prejudiced him. This means that the Employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate”

84. See also in Buffalo City FET College v CCMA and others (P 372/12) [2016] ZALC CPE 18 handed down on 4 November 2016) it was held that in unfair labour practice disputes, particularly in those relating to promotion, the onus is on the Employee to prove that she/ he is a suitable and better candidate for the position in question”

85. It appears from the party’s evidence that the 1st respondent followed a fair procedure in appointing the best candidate for the position of Deputy Principal at Zingisa Comprehensive High School and as such did not exercise its prerogative in a biased, unfair, capricious and unjust manner in appointing Ms. Sandiswa Saunders to the position.

86. The applicant has failed to discharge the onus to prove the claim of unfair labour practice based on promotion on balance of probabilities by the respondent.

AWARD
87. I therefore make the following award:

88. The appointment of the incumbent, Ms. Sandiswa Saunders by the respondent, the Department of Education – Eastern Cape was both procedural and substantively fair.

89. The applicant, is therefore not entitled to any relief.

90. The application is dismissed.

91. There is no order as to costs

Signature
Ncumisa Bantwini
ELRC Panelist