IN THE ELRC ARBITRATION
BETWEEN: ELRC 217-24-25GP

Dr NTLANTLA SEBELE “the Applicant”
and

DEPARTMENT OF EDUCATION – GAUTENG “the Respondent”
BANGO P “the 2nd Respondent”

ARBITRATION AWARD

Case Number: 217-24/25GP
Date of award: 14 October 2024
Gcina Mafani
ELRC Arbitrator

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

1. DETAILS OF HEARING AND REPRESENTATION

1.1. The arbitration was scheduled for the 7th of August 2024 and proceeded as such. Both parties were present, the applicant, Dr. Ntlantla Sebele represented himself and the First Respondent, Department of Education: Gauteng was represented by Mr. Joseph Munengwane the Employee of the Respondent and the Second Respondent Mr. Phumile Bango represented himself.
1.2. The parties agreed to a face-to-face hearing to mitigate against postponements due to network and load shedding issues .

1.3. The arbitration was finally concluded on the 13th of September 2024

1.4. Before the start of the arbitration process, the Applicant submitted here bundle of documents which was later marked Exhibit “B”, ‘C”,” D”, “E” and “R”, the Respondents also submitted their bundle of documents which was later marked Exhibit “A”. Further documents were submitted and marked accordingly.

1.5. The parties agreed to file their closing arguments by close of business on the 30th of September 2024. Respondents 1 and 2 agreed to submit one closing document.

1.6. The submissions of both parties were carefully considered, but will not be repeated herein as contents basically mirror what was put to the parties during the leading of evidence and cross examination in the arbitration.

2. BACKGROUND
2.1. The Applicant Dr Ntlantla Sebele is an employee of the Respondent, employed as an Educator PL1 at Northview High School since 2008.
2.2. The Applicant responded to an advertisement for a vacant Principal position.
2.3. She qualified for the position but not shortlisted for the interviews, he lodged a grievance which was not conducted satisfactorily.
2.4. The Second Respondent was the preferred candidate.
2.5. Dissatisfied with how his concerns were dealt with, the Applicant referred a dispute to the ELRC for unfair labour practice.
2.6. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186(2)(a) of the Labor Relations Act 66 of 1995 (LRA.)
2.7. Given the above, the Commissioner is required to determine whether the first Respondent committed an unfair labour practice relating to promotion in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 when it failed to shortlist the Applicant for interview for a Principal post at Northview High School: Post Number JE12ED1003 at PL 4

3. APPLICANT’S EVIDENCE AND ARGUMENTS
3.1. During his evidence in chief, the Applicant testified that he is the best suitable candidate and has the ability to perform the functions of a school principal. The Applicant presented Bundle “S” as evidence of his credentials and BUNDLE “E” as evidence of his experience. The Applicant juxtaposed both BUNDLE “S” and BUNDLE “E” with BUNDLE “A” pp. 23 – 94. The Applicant demonstrated that he possesses higher credentials and experience as compared with the 4 shortlisted candidates, including 2nd Respondent. In addition, the Applicant demonstrated that the 2nd Respondent was the least qualified and possesses the least experience.
3.2. The applicant stated that he was employed and is currently employed as Section 2 of Employment of Educators Act, 76 of 1998. This Act states that the provisions of this Act shall apply in respect of the employment of educators at:
(a) public schools.
(b) further education and training institutions.
(c) departmental offices; and
(d) adult basic education centres.

3.3. The Applicant presented Bundle “E” to confirm that he was employed as section 2(a), s(b) & 2(c) of the Employment of Educators Act, 76 of 1998. The actual teaching experience in terms of section 2(a) equals 6 years and 7 months. Section 2(b) and 2(c) represents other appropriate experience of exactly 6 years. This experience viz., actual teaching and other appropriate experience are indicated in Bundle “E”, page 2 & 3.

3.4. In addition, the Applicant provided evidence of his appointments as a manager at different institutions as captured in BUNDLE “E”, pp. 4,6,7 & 8. The Applicants argues that this experience as a manager both at provincial and national levels in the public sector gives him an advantage. The Applicant was first appointed as an Assessment Manager by uMalusi, the Council for Quality Assurance in the General and Further Education and Training band, a Council responsible for quality assuring the Senior Certificate as well all the vocational education and training colleges in South Africa; secondly he was appointed as a Deputy Chief Education Specialist (DCES) by the Gauteng Department of Education, responsible for Monitoring, Evaluation and Research; thirdly he was appointed by the South African Qualifications Authority (SAQA) as Deputy Director: Research, and he was responsible for the implementation of the National Qualification Framework and fourthly, the Applicant was appointed as Senior Project Manager (Deputy Director) by Matthew Goniwe School of Leadership and Governance, and he was responsible for Teacher Development in the public education sector.

3.5. The Applicant testified that the position of DCES, which he occupied in the Gauteng Department of Education, elevates him above the 5 shortlisted candidates as this is a management position at Post Level 5 and none of the 5 candidates has occupied an educator position higher than this level. All 5 candidates occupied Post Level 3 as their highest educator position ever held.

3.6. The Applicant also presented his educational qualifications. These qualifications are PhD with specialization in Education Management, Law and Policy; Master’s in Education, specializing in Technology; National Higher Diploma, specializing in Post School Education (with Distinctions in Practical Teaching – Mathematics and Language Proficiency: English); and Secondary Teachers Diploma (with Distinction in Teaching Science). All the qualifications mentioned in the preceding sentence are professional qualification in Education and thereby indicating the in-depth knowledge of the Applicant in education. The Applicant argued that his qualification PhD: Education Management, Law and Policy is the highest qualification in education management. This qualification signifies advanced professional expertise in education management and none of the 5 shortlisted candidates possesses any qualification on the same level or higher.
3.7. The Applicant also testified during his evidence in chief that he is an internationally recognized scholar in the field of education management. He presented evidence of 99+ citations of his work plus book chapters of his work in education management. He also produced evidence that indicates that the Applicant was employed by the University of the Free State as a Lecturer in the Faculty of Education where he lectured final year undergraduate and postgraduate students, up to the PhD level in Education Management and Leadership. Lastly, the Applicant stated that he was the Head of the School of Education at IIE Rosebank College.

3.8. The post requirements stated that a three- or four- year qualification. According to PAM, 2022, B.3.1.1(b) an advanced knowledge of teaching as provided for in the professional qualification is a requirement and the Applicant’s is the best qualification to provide the bearer with this “advanced knowledge”.

3.9. The Applicant further stated that his PhD: Education Management qualification together with his experience as a DCES make him the most suitable of all 5 candidates and that if he was given a fair opportunity to compete for the post of principal at Northview High School, he could have been promoted as the best candidate.

3.10. The Applicant argued that he possesses educational qualifications that do not only meet the minimum three- four- years requirement but surpasses this requirement.
3.11. During cross examination, the 1st Respondent challenged the Applicant’s management experience at school level. The Applicant submitted that page 13 of BUNDLE “S” is evidence that he is a competent Departmental Head (Formerly known as Head of Department). The Applicant challenged the 1st Respondent to direct the arbitration to any paragraph in the Vacancy Circular 11 of 2022 that states “management at a public ordinary school level” is a requirement for the advertised post.

3.12. The Applicant argued that the Minutes of the Shortlisting Committee, together with Collective Agreement no.1 of 2021 dictate that the requirements as captured in the GDE-2R Form should be “the line of march”. However, the shortlisting committee members of the 1st Respondent failed to collectively apply their mind to their own Minutes (i.e., Bundle “A” page 12) when disregarding the accumulative experience of the Applicant as indicated in 9(a) & 9(b) of the Employment Profile (GDE -2R Form). The minutes (Bundle “A”, page 12, bullet 3 indicates that the Employment Profile (GDE-2R Form), is “the line of march” along with the Minimum Requirements outlined in Vacancy Circular 11 of 2022, for the shortlisting process.’

3.13. He stated that the score sheet (page 14 of Bundle “A”) failed to establish the extent to which candidates meet the minimum requirements as required in 9(a) & 9(b) of the Employment Profile (GDE-2R Form) in line with paragraph 5.3 of Vacancy Circular 11 of 2022. This is despite the Minutes of the shortlisting committee of the 1st Respondent (Bundle “A”, page 12) indicating that GDE-2R is “the line of march”. He argued that this is an inconsistency in conducting the shortlisting process and violation of its own minutes and Collective Agreement no.1 of 2021 and Vacancy Circular 11 of 2022. The minutes ‘preaches’ compliance with policy and post requirements, however, the application of recruitment and selection policies contradicts the minutes.

3.14. When giving his evidence in chief, the Applicant testified that he complied with all the requirements to be shortlisted, interviewed, and promoted. He provided evidence in the form of Bundle “E” pages 1; 2 & 3 as captured in paragraph 9(a) & 9(b) of GDE-2R Form. The total experience as per Bundle “E” equals to 12 years and 4 months. In Bundle “A” page 88, item 9(a) & 9(b) only 10 years 3 months experience of the Applicant is captured. Therefore, the total experience of the Applicant is 6 years 7 months of actual experience plus 5 years 9 months of other appropriate experience as stated in Vacancy Circular 11 of 2022. The total years of experience (actual + appropriate) equals 12 years 4 months. This indicates that the Applicant has superior experience than the 7 years minimum experience required for the post.

3.15. Under 9(b) the Applicant indicated that he has been a Deputy Chief Education Specialist (DCES) Post Level 5, which is a management position in the public education sector as recognized by the Employment of Educators Act, 76 of 1998, section 2 (c). The Applicant further presented Bundle “E”, pp.4,6,7 & 8 which reflects letters of appointment in management positions which falls under “other relevant/appropriate experience” accumulated outside section 2(a) – (d) but within the South African education system. The Applicant stated that his “other appropriate” experience as a manager as a DCES, Manager of Assessment at uMalusi and Senior Project Manager at Matthew Goniwe School of Leadership and Governance indicates that he does not only comply but is able to perform the functions of a manager in the education sector.

3.16. In addition, the advertisement required one to be in possession of a recognized three- or four-year qualification, which includes professional teacher education. During his evidence in chief, the Applicant presented Bundle “S”, pages 1, 3, 4, 5, & 6 which are documentary evidence of his qualifications. All 5 of these pages are professional qualifications of the Applicant. Page 1 shows the Applicant’s highest qualification, a PhD: Education Management, Law and Policy. The Applicant argued that his qualifications are higher than the qualifications of the 5 shortlisted candidates. In view of this, the Applicant argued that he complied with the inherent requirements for the post.

3.17. Under cross examination, the Applicant also presented PAM, 2022, B.8.4.3 to illustrate that there is a difference between “actual experience” and “appropriate experience.” The Applicant further challenged the 1st Respondent to prove that the post required only actual experience in a public ordinary school.
3.18. The Applicant testified that the 1st Respondent promoted an applicant who should not have been shortlisted in the first place because he was disqualified at the sifting stage by the THRS: HRP Unit of the Johannesburg East District.
3.19. Shortlisting and promoting a disqualified 2nd Respondent are in contravention of Collective Agreement no.1 of 2021. The THRS: HRP Unit at the District level conducted the sifting and disqualified the 2nd Respondent and the reason for disqualification is indicated on the Master List, page 9 of Bundle “A” as “Original Signature”. This is in line with section 8 of Vacancy Circular 11 of 2022 that states that GDE-2R applications forms with no original signature will be disqualified.

3.20. In contrast, page 10 of Bundle “A” does not put a disclaimer indicating that the Applicant does not meet the minimum requirements as stipulated in the Vacancy Circular 11 of 2022 and is therefore disqualified. The 1st Respondent reversed the decision of the Sifting process conducted by the THRS: HRP Unit that indicated that the Applicant meets the minimum requirements as per the advertised post. The Applicant argued that reversing the decision of the THRS: HRP by the 1st Respondent is in contravention of Collective agreement no.1 of 2021 and therefore arbitrary.

3.21. In his evidence in chief, the Applicant compared the above {i.e., PAM, B.3.2.1.1(b)} with page 14 of BUNDLE “A” to establish the extent to which the scoring sheet relates to PAM, B.3.2.1.1(b). The Applicant argued that the scoring sheet on page 14 represents items that are far below the criteria in PAM, B.3.2.1.1 (b). None of the items of page 14 attempts to determine “how good” an applicant is in the following skills:
(i) management skills,
(II) leadership skills,
(iii) co-curricular skills
(iv) people management skills
(v) communication skills
(v) knowledge of applicable legislation, regulations, and policies
The Applicant argued that the criteria used by the 1st Respondent shortlisting committee was lowered to favour the 2nd Respondent. He singled out the following items from page 14 of Bundle “A” that correspond with the 2nd Respondent application:
(vi) “Management course” (as key to the position of principal).

4. RESPONDENTS EVIDENCE AND ARGUMENTS
1st Witness for the Respondent
SHIRLEY MOLOBI District Director Johannesburg East
4.1. The witness dispelled the notion that she decided before the actual grievance presentation of the 7th of September 2023. She testified that her turnaround time for the signing of documents in her office is 3 days. The fact that the document was signed on the 20th of September 2023, means that she received it the previous day. She continued to state that the 6th of September 2023 as it appears on page 6 of Annexure “C” is a typo by the compiler.
4.2. This witness testified under oath and stated that the DGC was held on the 7th of September 2023.
4.3. Under cross examination Ms Molobi conceded that the post of a principal is a management post and requires both the actual educator’s experience as well as management experience. This concession by the witness contradicted the 1st Respondent argument that the advertisement required only actual teaching experience in a public ordinary school.
4.4. The Respondent conceded that indeed as per his qualification it is common course that he holds PHD degree, and the incumbent has BED degree (REQV 14).
4.5. From his evidence from the PAM document extract page B-53, both the applicant and the incumbent meet the required education qualification to be considered.
4.6. Based on his evidence submitted, the Respondent submitted that PHD degree was not the only criteria for shortlisting applicants as demonstrated through cross examination on page 14 of the respondent bundle, therefore the applicant’s submission should be rejected.
4.7. The Respondent submitted that the applicant on his evidence in chief submitted that there was over reliance to additional requirements as opposed to the minimum requirements as per the advert on Bundle R page 4 item 5.2.
4.8. They argued that the applicant dismally failed to demonstrate that indeed he met the threshold of the minimum requirement experience to be considered for principalship post as an applicant, in that through his evidence and under cross examination when referred to page B-53 of PAM extract which he submitted to prove his claim and the actual experience he has in teaching which he testified the is 6 years and 7 months on page 1 of his Bundle E.
4.9. In its closing arguments, the Respondent argued that they demonstrated that the criteria used by the panel related to the applicant was referred to page 14 of respondent which was the criteria and only refuted it that it does not relate to the post, but under cross examination when referred to his document page B-53 PAM extract on Competencies and Skills, it became evident clear that the criteria complied with the prescripts of the PAM and relate to the post.
4.10. The Respondent submitted that the applicant was taken through pages 15 and 16 of the Respondent’s bundle, and it was proven that his application was considered during shortlisting unfortunately he could not make it to the five candidates shortlisted based on his scores which resulted from the criteria set out by the panel on page 14 of the Respondent’s bundle.

5. ANALYSIS OF EVIDENCE

5.1. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour relations Act (the LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the respondent amounted to an unfair labour practice as defined and distilled from the applicable jurisprudence and as envisaged in the law.

5.2. Section 186(2)(a) of the LRA reads as follows: Unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissal for reasons relating to probation) or training of an employee or relating to the provision of benefits to an employee.

5.3. I am required to determine whether the First Respondent acted fairly or not in failing to shortlist the Applicant for the interviews and whether it acted fairly or not during the grievance procedure and whether it acted fairly or not in appointing the second respondent into the Principal position.

5.4. In SADTU obo Govender and The Head of DOE KwaZulu Natal [Case Number: ELRC452-23/24KZN], it was held that an employee who lodges a dispute alleging an unfair labour practice by the employer as contemplated by Section 186(2)(a) of the Labour Relations Act, need to also prove that he complied with all the requirements to be shortlisted in the first place as per the advertisement.

5.5. The Applicant led evidence to demonstrate that he was the highest qualified of all 5 candidates shortlisted for interviews. the Applicant provided evidence of his appointments as a manager at different institutions as captured in BUNDLE “E”, pp. 4,6,7 & 8. The Applicants argues that this experience as a manager both at provincial and national levels in the public sector gives him an advantage. The Applicant was first appointed as an Assessment Manager by uMalusi, the Council for Quality Assurance in the General and Further Education and Training band, a Council responsible for quality assuring the Senior Certificate as well all the vocational education and training colleges in South Africa; secondly he was appointed as a Deputy Chief Education Specialist (DCES) by the Gauteng Department of Education, responsible for Monitoring, Evaluation and Research; thirdly he was appointed by the South African Qualifications Authority (SAQA) as Deputy Director: Research, and he was responsible for the implementation of the National Qualification Framework and fourthly, the Applicant was appointed as Senior Project Manager (Deputy Director) by Matthew Goniwe School of Leadership and Governance, and he was responsible for Teacher Development in the public education sector.

5.6. In particular, The Applicant argued that the position of DCES, which he occupied in the Gauteng Department of Education, elevates him above the 5 shortlisted candidates as this is a management position at Post Level 5 and none of the 5 candidates has occupied an educator position higher than this level. All 5 candidates occupied Post Level 3 as their highest educator position ever held. This was never disputed by the Respondents.

5.7. The Applicant also presented his educational qualifications. These qualifications are PhD with specialization in Education Management, Law and Policy; Masters in Education, specializing in Technology; National Higher Diploma, specializing in Post School Education (with Distinctions in Practical Teaching – Mathematics and Language Proficiency: English); and Secondary Teachers Diploma (with Distinction in Teaching Science). All the qualifications mentioned in the preceding sentence are professional qualification in Education and thereby indicating the in-depth knowledge of the Applicant in education. The Applicant argues that his qualification PhD: Education Management, Law and Policy is the highest qualification in education management. This qualification signifies advanced professional expertise in education management and none of the 5 shortlisted candidates possesses any qualification on the same level or higher.
5.8. The Applicant also argued that he is an internationally recognized scholar in the field of education management. He presented evidence of 99+ citations of his work plus book chapters of his work in education management. He also produced evidence that indicates that the Applicant was employed by the University of the Free State as a Lecturer in the Faculty of Education where he lectured final year undergraduate and postgraduate students, up to the PhD level in Education Management and Leadership. Lastly, the Applicant argued that he was the Head of the School of Education at IIE Rosebank College.
5.9. The post requirements stated that a three- or four- year qualification. According to PAM, 2022, B.3.1.1(b) an advanced knowledge of teaching as pro

vided for in the professional qualification is a requirement and the Applicant’s is the best qualification to provide the bearer with this “advanced knowledge”.
5.10. The Applicant further contends that his PhD: Education Management qualification together with his experience as a DCES make him the most suitable of all 5 candidates and that if he was given a fair opportunity to compete for the post of principal at Northview High School, he could have been promoted as the best candidate.
5.11. The Applicant argued that he possesses educational qualifications that do not only meet the minimum three- four- years requirement, but surpasses this requirement.
5.12. There was no evidence presented to prove contrary.
5.13. The Applicant further demonstrated in evidence that he possessed the required experience.
5.14. The 1st Respondent excluded the Applicant on the belief that he has 3 years 10 months years of experience in public ordinary schools. This decision is contained in Bundle “C”, page 5, no. 16. However, during arbitration, that 1st Respondent conceded that this number of 3 years 10 months was not correct. He also conceded that the Applicant has 6 years 7 months of actual teaching experience, excluding Office-Base experience, with 1 year 7 months as a manager at the Provincial Head Office employed at Post Level 5. This evidence is in Bundle “E”, pages 1, 2 & 3. The Respondent failed to justify the reasons why the Applicant’s 5 years 9 months experience indicated in paragraph 9(b) of the Employment Profile (Bundle “A”, p. 88) was disregarded.
5.15. It was the assertion of the 1st Respondent that experience in public ordinary school is the inherent requirement of Post Level 4. Vacancy Circular 11 of 2022, paragraph 5.3 states that “The actual educator’s experience, as well as other appropriate experience, is considered for the purpose of appointment on post level 4”. Collective Agreement no. 1 of 2021, 11.11 states that the applicant’s professional qualifications, prior certificates, relevant experience and the capacity to acquire within a reasonable time and the ability to do the job are key consideration when determining whether a person is suitably qualified. In addition,

5.16. Under cross examination, the Applicant also presented PAM, 2022, B.8.4.3 to illustrate to the Commissioner that there is a difference between “actual experience” and “appropriate experience” to dispel the notion advanced by the 1st Respondent that the 2 terms mean the same thing and are used interchangeably. The Applicant further challenged the 1st Respondent to prove that the post required only actual experience in a public ordinary school. The 2nd Respondent failed in this regard.
5.17. The score sheet (page 14 of Bundle “A”) failed to establish the extent to which candidates meet the minimum requirements as required in 9(a) & 9(b) of the Employment Profile (GDE-2R Form) in line with paragraph 5.3 of Vacancy Circular 11 of 2022.
5.18. In PSA obo Jeffrey Moses Pillay v Department of Social Development – Northern Cape [case number PSHS911-18/19] [2021] it was held that deviation from policy is itself irregular and which is without justifications. In the same matter, it was further held that the failure by the Respondent to adhere to its policies proved bias and that its conduct amounted to unfair labour practice.
5.19. The 1st Respondent failed to justify why the experience of the Applicant as captured in GDE-2R Form, item 9(b) was disregarded. Secondly, the 1st Respondent failed to explain the deviation from Collective Agreement no.1 of 2021 and Vacancy Circular 11 of 2022. This conduct is biased and unfair.
5.20. In Noonan v Safety and Security Sectoral Bargaining Council and others [2012] 33 ILJ 2597 (LAC), the court held that there is no right to promotion, but only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee such an opportunity constitutes an unfair labour practice.

5.21. Whether an employee also needs to prove that she was the best candidate in order for an arbitrator to order that the process must be repeated its unclear. In KwaDukuza Municipality vs. SALGBC where a post was filled without following the collectively agreed procedures for advertising, the Court did not order the process to be repeated but merely ordered R5000 compensation. The possibility of repeating the process was however never raised.
5.22. In the absence of any direct Labour Court authority on the point, I am however prepared to accept that in the event of a serious procedural irregularity, it is indeed possible for the arbitrator to order that the process must be repeated without it being necessary for the Applicant to show that she is indeed the best candidate or that she would necessarily have been appointed had it not been for the irregularity. This however does not mean that such orders should be made indiscriminately simply because there was some form of procedural irregularity.
5.23. The Applicant was able to demonstrate that he was the best candidate and stood a realistic chance of being appointed had he been shortlisted.
5.24. Ordering that the process must be repeated is a drastic remedy that disrupts the lives of the learners and educators. It is therefore my view that in an unfair labour practice dispute relating to promotion, an arbitrator must order that the process must be repeated unless persuaded that the Applicant stood a realistic chance of being appointed. This is a sensible approach because it not only protects the rights and interests of the aggrieved educator, but also the educators who have gone through the selection process and have a realistic chance of being appointed.

5.25. I accordingly make the following award

6. AWARD

6.1. In the premise I make the following order

6.2. There was unfair conduct by the first Respondent in respect of the decision to appoint the second Respondent to the post for Principal at Northview High was advertised in Vacancy Circular 11 of 2022 with Post Number: JE12ED1003 at PL 4.

6.3. The decision of the First Respondent to appoint the Second Respondent into the above-mentioned position is hereby set-aside.

6.4. The respondent is ordered to repeat the process from shortlisting.

GCINA MAFANI
Arbitrator 14 October 2024
ELRC217-24/25GP