NAPTOSA obo Eraman V Applicant
And

DEPARTMENT OF EDUCATION – KZN 1st Respondent
D. PILLAY (APPOINTEE) 2nd Respondent

ARBITRATION AWARD

Case Number: PSES251-18/19KZN

Last date of arbitration: 29th April 2019

Closing argument submitted on 6th May 2019

Date of award: 15th May 2019

ELRC Arbitrator: Humphrey Ndaba

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

DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing took place on the 3rd September 2018, 14th February 2019, 2nd April 2019 and finally on the 29th April 2019 at the Durban Teachers Centre, College Road, Durban.
2. Applicant testified on her own and called Dlamini, Gounden and Thool as witnesses and respondent called Singh and Naidoo as witnesses.
3. The second respondent testified on his own.
4. Applicant was initially represented by a NAPTOSA official and thereafter by T. Moodley an attorney and ultimately by K. Naidoo and respondent was represented by Itumeleng Makhooe an official of the Department of Education.
BACKGROUND TO THE DISPUTE
5. Applicant applied for post number 221 an HOD post at Parkgate Primary School. She was shortlisted. She had acted in this post for 18 months consecutively before the advertisement. She attended interviews on the 20th February 2018. She was unsuccessful and she referred an unfair labour practice dispute pertaining to failure to be promoted.
6. The successful candidate was Pillay who is second respondent in this matter.
COMMON CAUSE ISSUES
7. Applicant undertook to call Mhlongo and Mbembe to attest to the fact that applicant scored the highest at the interview. The rough scores were tempered with to give the appointee a higher score than applicant. Applicant could not get Mhlongo and Mbembe to testify on her behalf.
8. The rough scores were kept by the department and could not be found. Parties agreed that the main issue was whether applicant scored the highest at the interview. When the applicant could not get witnesses he reverted to her original position where she challenged the short listing and procedural irregularities. She stated that Singh should have recused herself.
ISSUE TO BE DECIDED
9. The issue to be decided is whether respondent committed an unfair labour practice by not promoting applicant

RELIEF SOUGHT
10. Applicant ask for the interviews process to begin de novo or alternatively given protected promotion or compensation.
APPLICANT’S EVIDENCE
VIJAYLUTCHMEE ERAMAN (Applicant)
11. Applicant stated that there were two vacant posts at Parkgate Primary School in 2017. It was the HOD and Principal post.
12. She applied for the HOD post and her interview occurred on the 20th February 2018.
13. She did not know that Singh was the chair until the day of the interview being the 20th February 2018. As a consequence of this she completed the interview, but when she left the room she called her ex-principal (as there was an acting principal at the time) as he was well versed with the procedures.
14. Her ex-principal advised that he was of the view that Singh could not chair and advised that he would seek clarity on the issue. He subsequently called Chetty, the SEM, who was also unsure and called Naidoo. Naidoo was surprised as he did know the chair was a teacher and a member of staff.
15. The irregularity in relation to the interview process was that Singh was a teacher at the school and a member of staff, she was a colleague of the applicant, herself and close friend of the appointee. The applicant stated that Singh should have recused herself..
16. On or about the 6th March 2018 she heard that she did not get the post and she was told by the chairperson of the SGB at the time, Mhlongo, that she must ask for the raw scores as they were influenced by Singh.
17. She further stated in her evidence that Mhlongo would not be giving evidence as Mhlongo’s husband was of the view that it was a sensitive issue relating to the community .
18. In relation to ratification the applicant stated that ratification was not properly adhered to as SGB members at the ratification meeting raised queries that the chairperson did not properly canvas.
19. She further stated that the resource person, was a High School Principal instead of a Primary School Principal. A Primary School Principal would have been more familiar with the curricular needs of a primary school. He also allowed Singh to chair the IC. . Naidoo knew that Singh and Pillay should have known that as colleagues there could have been a suggestion of bias. He further did not provide guidelines and model answers to the IC in relation to the interview. He further never looked into why Pillay was appointed as compared to the applicant as per the ratification minutes and he never retained the raw scores but sent it to the Department, which is not proper procedure.
20. The applicant stated that she lodged a grievance with the department, which was dismissed, and the appointee was appointed in July 2018. She further stated that the interview committee was appointed to oversee both the HOD and the Principal posts.
21. The applicant further stated that someone else chaired the IC for the subsequent Principal post on 06th March 2018, after she complained about Singh chairing the IC for the HOD post on 20th February 2018. The applicant was of the view that this change only happened because she brought it to the attention of the department who wanted to avoid comebacks. The SGB minutes state that the IC was chosen for both processes at the time.
22. After comparing herself to the appointee in terms of qualifications and experience it was clear that she was a better candidate for the post.
23. When asked why Pillay was appointed despite this, she advised that Pillay’s promotion was preconceived. She further advised that she never had sight of the raw scores or the model answers and in terms of the relief she sought she wanted the entire process to begin de novo.
DLAMINI (Applicant 1st witness)
24. Dlamini stated that she is employed at Parkgate Primary School and knows the applicant and appointee as colleagues.
25. She further stated that she knew Singh as a colleague and that a member of the IC, Mbembe telephoned her and advised that the SGB members wanted Pillay appointed as the IC wanted a male.
26. Mbembe was part of the parent component of the SGB. Due to what appeared to be a predetermination of appointment in relation to the post, she did not apply for the HOD post, although she is more experienced and eligible than Pillay.
27. She further stated that Mhlongo advised applicant to take the matter further in relation to appointment and that she must look at the raw scores.
GOUDEN (Applicant’s 2nd witness)
28. She is currently employed at Parkgate Primary School and she knew both applicant and the appointee.
29. She was further a teacher representative of the SGB from 2015 to 2017.
30. She recused herself from any committee set up for the interviews themselves as she knew the applicant. Singh should have recused herself as the chairperson of the IC as she knew both the applicant and the appointee. Under cross-examination when it was put to her that clause 12.1.7. of the HRM said nothing about recusal, she referred to clause 17 of the HRM “which says that one must recuse himself if there is a personal interest”.
31. She referred to ratification and explained that ratification is the process of ensuring that the interview process was done fairly. For tvalidity, a ranking system is used. Ranking use`s a point system and the scores are the points. However, scores are not the only thing looked at in ranking the candidates. Other factors like experience and curriculum needs must be considered as well. Ranking can therefore change depending on other factors and supersession is allowed meaning that the highest scoring person does not have to be first on the list.
32. In order for ranking to change, a motivation should be done by the resource person and he should hand this to the department with a majority vote. This was in terms of clause 16.5 of the HRM.
33. She stated that the resource officer , left by the time ratification occurred.
34. She further advised that as per the minutes, she questioned whether the interview committee could not look at experience and not the interview only. She was confident that experience should play a role in the case of the applicant.
35. She raised this with Singh and wanted to see the scoring and the questions to look at how applicant and the appointee answered.
36. She stated that both herself and Thool advised Singh of their objection and that Singh then called Naidoo who advised that their queries must not be entertained. Naidoo told Singh that the information requested was confidential and that discussions should be closed as everything was above board. The questions, answers and raw scores were therefore never provided to anyone to check.
37. Others at the ratification also objected to the ranking. She stated that Naidoo’s response to Singh’s phone call ended the objections at the ratification. This is why a vote was never taken to change ranking. Ratification was therefore flawed.
38. She signed the minute purely because she was told that the process could not move forward without her signature. Her signature in no way meant that she supported the appointment.
THOOL (Applicant’s 3rd witness)
39. Thool testified that she is currently employed as the Acting Principal at Rustic Manor Primary School.
40. She was employed at Parkgate Primary School in 2012.
41. She knew both the applicant and the appointee as colleagues in 2018. In 2018 she applied for the post of Principal that was concurrently advertised with the HOD post in dispute.
42. She was part of the meeting in relation to the election of the interview committee for the post of Principal and HOD.
43. She stated that ratification was about whether procedure had been followed in the interview process and was there to ensure that best person for the post is elected.
44. She asked to see the raw scores, but they were taken away by Naidoo by the time ratification occurred.
45. She was shocked at the ranking due to the applicant’s expertise. Being at the school from 2012 and as the acting Principal at the time, in terms of the needs of the school’s curriculum, the school needed a Maths and English HOD in terms of clause 8.1.2 of the HRM. The appointee taught a bit of Maths, EMS and Technology, but no English experience. He was more of a sports teacher. The applicant taught English and Maths for many more years than the appointee and was good at it.
46. She was shocked at the ranking as the applicant met the minimum requirements, had the qualifications and years of experience. In addition, she was very good at what she did.
47. She stated that at the ratification meeting in addition to herself and Gounden objecting to the appointment of Pillay in the post of HOD, questioning the experience aspect between him and applicant, there were various other members of the SGB who were also shocked by the findings of the interview committee of wanting to appoint Pillay in the post of HOD as compared to the applicant.
48. She further stated that if Singh had not called Naidoo and had Naidoo not told Singh to close the discussion on the matter, that there was a possibility that other members would also have objected to the appointment.
49. She raised such objections with the chair as she wanted a supersession, however the chair was inexperienced.
50. Due to Naidoo stopping the objections, despite him having no authority to do so, Singh flawed the process of ratification. The process must therefore be redone.
51. There were three SGB members and three scoring members of the IC present at ratification. All three SGB members objected. The three on the SGB were not happy about the ranking by the IC and were discussing their objections however the telephone call to Naidoo by Singh closed this discussion and made them accept the decision and scores.
1ST RESPONDENT’S EVIDENCE
SINGH (Respondent’s 1st witness)
52. Singh stated that she had no reason to recuse herself as the chairperson as even though she knew the applicant and the appointee, she was confident that she would be fair and objective in the appointment process.
53. She stated that the interview committee (IC) did not check whether the CV’s sent form the Department met the minimum requirements as she took their check of the CV’s for granted. Naidoo did however read out the CV’s. when put to her that the appointee did not meet the minimum requirements for the post in terms of clause 4.2.2.1 she stated that she was unaware of this.
54. She was not aware that he never gained the relevant experience in the intermediate phase. She further did not expect anyone to apply if they did not meet the minimum requirements.
55. There were five questions asked to each applicant. While she could not remember the exact questions their broad categories were, curriculum, community involvement, professional development, leadership and involvement at school.
56. There were no model answers provided by the resource person.
57. Three members were scoring from the IC. Each person asked a question and scored individually. The scores were then averaged by the secretary after each candidate completed the interview.
58. She conceded that neither herself nor any other IC member checked the secretary’s calculation of averages. Since the scores were so close between the applicant and the appointee, she would need to look at the raw scores to confirm the averages.
59. While she didn’t check the averages, she trusted the secretary and stated that the resource person should have checked it.
60. She conceded that since she did not physically check the raw scores that gave an average of the scores that appear on the ratification minute, that there was a possibility that there could be an error in this regard, as the scores were so close, particularly between the applicant and the appointee.
61. She confirmed that Naidoo left with the documents from the interviews before ratification.
62. According to her ratification was merely to inform the SGB of the appointment and ensure that they were satisfied that the process was completed.
63. In terms of ratification, she confirmed that Gounden and Thool objected to the ranking and that they were not satisfied with the outcome.
64. While she stated that she read the HRM, she conceded that she was not aware that ranking could be changed in terms of clause 16.
65. She confirmed that she was asked for the questions, answers and raw scores at ratification but that they were taken by Naidoo as those documents were his responsibility.
66. She called Naidoo due to the objections raised. She advised him that SGB members at the ratification meeting were unhappy with the ranking of the candidates and wanted to change it. He advised her that everything was fair and therefore the order of ranking was not to be changed.
67. In terms of the documents requested, he advised her that it was confidential. Singh in her own evidence admitted that she didn’t know that ratification required full disclosure of data for the SGB to either endorse or reject criteria that was used to arrive at the final scores.
68. When put to her that the questions, answers and raw scores could not be confidential to the full SGB who was ratifying the appointment, she could not answer.
69. When the respondent advised her that the SGB did not need the resource person present at the ratification, she stated that she felt she needed his advice at the point in time that objections were raised and that is why she called him.
70. When put to her that the ratification was flawed due to the fact that the submissions made by Thool and Gounden were not adhered to by Naidoo’s stating that discussions must be closed, she conceded that she did not know that these discussions should have been entertained and that there was therefore a possibility that ratification had been flawed.
NAIDOO (Respondent`s second witness)
71. Naidoo testified that he is the Principal of Solvista Secondary since 1997.
72. He was the resource person for the HOD post that was advertised. He has been a resource person several times in the past.
73. He was appointed as the resource person as Parkgate Primary had an acting Principal at the time. There was nothing unusual about a Secondary School Principal being the resource person for a Primary School according to him.
74. Screening of CV’s were done by the department and given to the SGB. All shortlisted candidates should have met the minimum requirements due to this.
75. Singh was to oversee the interview process as the SGB elected her. He did not appoint her as the chair of the IC.
76. Even though Singh was a member of staff where the posts were advertised and knew applicants, the HRM does not prohibit her acting as the IC.
77. There was no collusion in the interview process according to him.
78. There was consensus in scoring.
79. He stated that he averaged the scores himself but did not have his rough paper in this regard. On this point, he conceded that the scores between the applicant and appointee were very close.
80. He left before ratification as he has no obligation as the resource person to be present at ratification. His duties ended before ratification.
81. He further conceded that it would be proper practice for the school/circuit manager to keep the questions, answers and raw scores in terms of the interviews in a file for two school calendar years as per the HRM. In this instance, he took all of these documents with him before ratification on the instruction of the SEM.
82. He confirmed that he received a call from the ratification meeting. Singh advised him that the members of the SGB raised objections and wanted to change the ranking of the candidates. She further informed him that they wanted to see the questions, answers and raw scores.
83. He stated that he advised Singh that if they wanted to change ranking there was no need for the interview process. He further advised Singh that the information requested was confidential. When put to him that such information could not be confidential to the SGB, he could not answer.
84. When asked why he provided advice to Singh if he had no role in ratification, he stated that he felt the need to help.
85. When put to him that his advice stopped further objections at ratification and that ratification was therefore flawed, he could not answer.
86. When put to him that he did not fulfil his role as a resource person in terms of clause 12 of the HRM and specifically clause 12.1.5 which refers to a transparent process that is in keeping with the constitution, he could not answer.
2ND RESPONDENT’S EVIDENCE
PILLAY
87. He was a teacher since 2006 as an unprotected temporary educator.
88. He qualified as an educator in 2014.
89. He began teaching at Parkgate Primary in 2016.
90. At the time of his application for the HOD post on 14th November 2017 he had three years and eleven months’ experience as a qualified teacher.
91. When put to him that the table under clause 4 of the HRM must be read as a whole, meaning that only those with relevant experience as a qualified teacher could apply, he stated that he was of the view that his experience as protected educator was included.
92. He was then referred to clause 4.2.2. It was put to him that an applicant for the HOD post needed to have at least 2 years teaching experience in the relevant phase as a qualified teacher.
93. This was an intermediate and senior phase post. That meant that he needed to have 2 years’ experience in the intermediate phase and 2 years’ experience in the senior phase as a qualified teacher. Clause 4.2.2.1 did not mean ‘or’ between the relevant phases but ‘and’.
94. He conceded that he had no experience in the foundation phase. At the time of his application in November 2017, he had 1 year and 11 months’ experience in the intermediate phase meaning he was 1 month short of 2 years. He further conceded that he was short of the minimum 2 years’ experience in the intermediate phase.
95. It was then put to him that he did not meet the minimum requirements of the job and therefore should not have applied for the post due to short service. He stated that he counted his experience from 2006
ANALYSIS OF EVIDENCE AND ARGUMENT
WHETHER THE APPLICANT SHOULD HAVE BEEN SHORTLISED?
96. The appointee conceded that he had no experience in the foundation phase. At the time of his application in November 2017 he had 1 year and 11 months experience in the intermediate phase meaning he was 1 month short of 2 years. The appointee stated that his experience as an unprotected temporary educator since 2006 was taken into consideration.
97. In this matter, no evidence was given by any of those who shortlisted the appointee. Only versions of those who did not do the short listing were placed before me. No one from the circuit management who did the screening , sifting shortlisting was called to testify. This would have assisted to clarify the issue. In the circumstances, I am unable to determine the issue either way. This means that the party who bear the onus to show that irregular and incorrect short listing had happened has not succeeded to show unfairness of the shortlisting on a balance of probabilities.
98. WHETHER APPLICANT WAS THE BEST CANDIDATE?
99. In Sun International Management (Pty) Ltd v CCMA and Others (JR 939 / 14) LC (handed down on 18th November 2016 it was held that the 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 be made after a holistic assessment of evidence relating to the suitability for the position in question. It is not enough to show that there is a breach of protocol in the recruitment process. The applicant must show that he was the best candidate.
100. In this matter applicant asserted that the rough scores were interfered with, if they were not interfered with she would have been the best candidate. She contended that Mhlongo and Mbembe will attest to this. Mhlongo and Mbembe did not come to testify. There was no evidence placed before me to show that applicant was the best candidate ,whilst the failure by the Department to keep rough scores no doubt contributed in disabling the applicant to prove its case and should be deplored. Obviously consequent management should take place to retain the image and integrity of the department. However, it does not mean that evidence was placed before me showing that the applicant was the best candidate. A possibility exist that applicant could have been the candidate with the highest score.
101. In IMATU obo Visagie v Mogale City Municipality (JR 86 / 15) 2017) 2 ALC JHB 432 (handed down on 20 November 2017) it was held that the law requires the employee to show the existence of the conduct or decision complained of. If the decision complained of is not established that would be the end of the matter.
102. In this matter parties narrowed the issue to be whether the applicant got the highest scores. In the circumstance the applicant did not succeed to show on a balance of probabilities that she was the best candidate due to lack of witnesses and possibly the misplaced scores.
103. In the circumstances I therefore find that respondent did not commit an unfair labour practice relating to promotion.
AWARD
104. Respondent did not commit an unfair labour practice relating to the promotion of applicant.
105. The application for relief by applicant is dismissed.
106. There is no order made in relation to costs.