IN THE EDUCATION LABOUR RELATIONS COUNCIL

IN THE ARBITRATION
Between
MCOSELI TEMBISA APPLICANT
AND
DEPARTMENT OF EDUCATION – EASTERN CAPE 1ST RESPONDENT
TULISA MOSS 2ND RESPONDENT

ARBITRATION AWARD
DATE/S OF HEARING 16 APRIL 2024- 22 JULY 2024
DATE AWARD SUBMITTED 16 AUGUST 2024
NAME OF PANELIST BONGANI MTATI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) at Cape College Education Centre offices in Fort Beaufort and later moved to Mandla Makhuphula Education Centre in East London on 16 April, 21May, 18 June and 22 July 2024 at 09h00. Mr A. Mzileni from Ronny Lesele Attorneys represented the Applicant. Ms T Gunguta an official from the department of education, represented First Respondent being the Department of Education Eastern Cape. Mr L Tapa from SADTU represented Second Respondent, Ms Tulisa Moss.

ISSUES TO BE DECIDED

2. I am required to determine whether an unfair labour practice relating to promotion was committed. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE
3. This is a promotion dispute involving post volume 2 of 2023 in the Eastern Cape being the head of department t(HOD) post for Ayliff Primary School.
4. Applicant was teaching at Ayliff Primary School since 2013 as post level one educator with 32 years teaching experience and Second Respondent being Ms T. Moss was post level 1 educator teaching at Rhurha Primary School during her appointment as head of department at Ayliff Primary School.
5. After the post was advertised, Applicant and Second Respondent were only candidates applied for the post and both were invited to the interviews.

6. The Second Respondent’s appointment was approved by the Department of Education on the 30 June 2023 to assume duties as head of department at Ayliff Primary school.
7. The Applicant initiated her dispute by first lodging a grievance which was set down for hearing and her claim was not resolved.

8. Applicant alleged that she was not appointed despite meeting all the requirements of the post advertised.

SURVEY OF EVIDENCE AND ARRGUMENT
Employee’s case
Witness: Tembisa Mcoseli
9. She testified under oath that she was an educator of the department of Education at Ayliff Primary School with 32 years teaching experience teaching foundation phase, challenging head of department post at Ayliff Primary school.
10. She testified that she is a qualified educator with teacher’s course, further diploma in education management, BED honours in education management in law and policy.
11. She stated that she had never been charged by the First Respondent and had never had work below the standards as per her appraisals.
12. She submitted that she applied in time and submitted all requirements being full completion of the form, submitted CV, ID copy, SACE and qualifications.
13. She stated that she submitted her application for the post on time before closing date 31 May 2023 at Peddie.
14. She testified that she submitted her application to Ms Kili who perused it and signed register confirming submission of her form.
15. She testified that she was phoned to attend interviews and bring police clearance certificate, which she brought it on the day of interviews.

16. She stated that during the day of interviews at waiting room noticed that the Second Respondent was carrying matric certificate which she entered interview room with it and never came back with certificate when exiting interview room.
17. She submitted that she was also called and interviewed by the panel where she was asked questions by four panellist.
18. She stated that after interviews which were on the 28 June 2023 lodged a grievance with the First Respondent on the 3 July 2023 for the Second Respondent submitting matric certificate during interviews, which she viewed unfair and not procedural.
19. She stated that the grievance was heard where her principal confirmed that it was matric certificate that was submitted on the day of interviews and her grievance was not successful, then approached her attorney to lodge dispute with ELRC.

20. She testified during cross examination that she submitted clearance certificate and another document she was given by principal to complete it and submitted them on the day of interviews.
21. She further testified during cross examination that she viewed herself as the best suitable candidate requiring justice to be placed as the HOD or notch equal to HOD notch,
22. She finally testified during re-examination that she performed well during the interviews and viewed herself suitable for the post as she had over thirty years teaching experience, submitted all the requirements of the post to the First Respondent.

RESPONDENT’S CASE
Witness Tulisa Moss
23. She testified under oath that she was working at Ayliff Primary School as HOD in the disputed post in question and knew the Applicant as her colleague.
24. She testified that she arrived at Ayliff Primary School on the 19 July 2023 as appointed HOD with three years’ experience, BED and currently doing honours degree.
25. She submitted that she was invited to attend interviews on the 28 June 2023 carrying matric certificate and police clearance certificate.
26. She stated that according to the post requirements she was required to bring qualifications and experience and not aware of matric certificate.
27. She submitted that on the day of interviews she gave principal all documents she was requested to bring along being matric certificate and police clearance.
28. She testified that she was called first by the panel and interviewed well and left the school.
29. She testified that she was phoned by the circuit manager to come and collect her appointment letter from the circuit office.
30. She testified during cross examination that she accumulated her three years’ experience as an educator at Rhurha School in January 2021, moved to Madleki School and in July 2023 moved to Ayliff School as HOD.

31. She further confirmed during cross examination that from January 2021 to July 2023 was not three years, but two years seven months experience as an educator, which was under as per the post requirements of three years’ experience as an educator.
32. She further confirmed during cross examination that even in her CV was written three years as she was not counting months.

33. She testified during cross examination that she submitted matric certificate as was requested to submit during interviews.

Witness: Bekiwe Ngcelwane
34. She testified under oath that she was the secretary of the panel from School Governing Body (SGB) and educator at the school who knew the Applicant as her colleague.
35. She testified that they received two application forms from the circuit manager being forms for the Applicant and Second Respondent.
36. She stated that on perusing application forms of the candidates found that the Applicant had not submitted police clearance and Second Respondent did not submit her matric certificate and police clearance.
37. She submitted that as they were looking at the documents found that both candidates generally complied with the necessary requirements of the post with the exception of police clearance and matric certificate to the Second Respondent and decided to phone candidates to attend interviews carrying their outstanding documents.
38. She stated that on the day of the interviews both candidates brought their outstanding documents, which they collected and interviews proceeded well on the day.
39. She testified during cross examination that she was not aware that when all documents not submitted, application form shall be discarded as a requirement and condition of employment process, but as panel decided to proceed with the interview and invited candidates to the interviews.
40. She testified during cross examination that as panel knew Second Respondent with three years’ experience according to her CV and form, and stated that had they knew Second Respondent not having three years’ experience, they would not have employed her as HOD based on not qualifying for the post which required three years teaching experience.

Witness: Mfundo Mali
41. He testified under oath that he was the principal of the school and resource person during employment process of the HOD of Ayliff Primary School.
42. He stated that his role as resource person was to guide panel, supply resource and advise panel where necessary.
43. He submitted that he started the process as from training of the SGB by the First Respondent, shortlisting, interviews up to the recommendation of the candidate.

44. He explained that there were two candidates applied for the post, shortlisted and invited candidates to the interviews.
45. He submitted that during day of the interviews he collected outstanding documents from both candidates as matric certificate and police clearance from the Second Respondent and police clearance from the Applicant which he submitted them to the panel.
46. He submitted that the process was properly done and no unfairness to both candidates who also declared employment process free and fair.
47. He stated during cross examination that the Second Respondent did not submit certified matric certificate and phoned her to submit it during interviews and further knew Second Respondent with three years’ experience as an educator.
48. He testified during cross examination that the Second Respondent had three years teaching experience according to her CV and application form, therefore disputed that she was two years seven months teaching experience.
49. He stated during cross examination that in terms of the conditions of candidates to proceed with interviews should comply with all the requirements and if failed forms shall be discarded, but as had two candidates, they decided to proceed as panel and advised candidates to bring their outstanding documents.
50. He further submitted during cross examination that he was not aware that the Second Respondent had two years seven months and did not answer on the remedy.

51. He testified during cross examination that he was aware that misrepresentation is a criminal offence to be prosecuted.
52. He further submitted that he became aware of submitting outstanding documents during their process when requested by the panel and inquired from the First Respondent.
53. He testified during re-examination that the panel decided to allow Second Respondent to bring her matric certificate on the day of interviews based on presence of post matric qualification that she had matric certificate and disputed that he was assisting Second Respondent to get the post of HOD.

Witness: Zonwabele Pakade
54. He testified under oath that he was the Deputy Director of the First Respondent responsible to receive applications and further forms brought back to his office to be signed for appointment being human resource section.
55. He testified that as human resource section receives educator employment recommendations from the SGB and process them for appointments by the First Respondent.

56. He testified that when bulletin closed they prepare master list of candidates which they submit to the SGB through circuit manager for shortlisting and interviewed by the panel.
57. He stated that it is allowed to submit outstanding documents during interviews to ascertain correct process before interviews and if candidate failed to comply shall not be interviewed.
58. He explained that the requirements of HOD post is three years’ experience without a break whether temporal or permanent, which shall be further confirmed by the persal system by not rejecting the application and if not complied with, persal shall discard the application.
59. He submitted that application forms have to be accompanied by police clearance certificate to be finalised for appointment, so both candidates were requested to submit them during interviews as permissible practise with the First Respondent.
60. He submitted during cross examination that candidate that failed to follow instruction as requirements are not shortlisted for interviews and if discovered such human resource would return application to the panel as not met requirements.

61. He further confirmed teaching experience for HOD posts as three years minimum requirement and candidate below that has not complied and should have been sifted out of the process.
62. He further unable to answer remedy on Second Respondent misrepresented herself as having three years teaching experience, whilst was two years seven months experience.
63. He further stated that both candidates’ police clearance certificates were correct as they were coming from SAPS.
64. The First Respondent in her argument argued that the Second Respondent has further two years as temporal teacher and reflected to the persal system, which she submitted that the Second Respondent met necessary requirement of three years teaching experience when adding two years seven months to the experience as temporal educator.

ANALYSIS OF EVIDENCE AND ARGUMENT
65. 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 66 of 1995(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 applicable jurisprudence and as envisaged in the law.
66. I have considered the departmental guidelines for sifting, shortlisting, interview procedures, post requirements, as well relevant case law.

67. Section 186(2) 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 dismissals for a reason relating to probation) or training of an employee relating to the provision of benefits to an employee”. In this case unfair labour practice involves promotion.
68. I have to decide whether the First Respondent acted fairly or not in not appointing the Applicant in the position of the head of department (HOD) at Ayliff Primary school.
69. I start by considering procedural fairness in the promotional employment process of the HOD at Ayliff Primary school.
70. As this is a HOD promotional post, in terms of the Employment of Educators Act PAM regulations the role of the departmental officials as resource persons is to assist the school governing body (SGB), towards the appointment of qualifying school management by giving control to manage appointment processes. The resource person will be responsible to ensure that capacity building sessions is conducted with the interview committee to enhance its understanding of the selection and interview processes.

71. In this case SGB members together with interview panel were trained by the First Respondent to conduct the employment process as per the prescripts of the employment policies of the First Respondent. The principal of the school was the resource person to assist and guide the panel on this employment process of the HOD at Ayliff Primary School.
72. On this aspect of training l find that the principal was not fully acquainted with the process as he testified during cross examination that he was at learning stage as this was his first time experience being resource person. The panel secretary testified that she was not aware of what is expected at interviews when she had asked about allowing matric certificate to be submitted on the day of the interviews.
73. Considering issue of submission of outstanding documents on the day of the interview, l find that it is common practise of the First Respondent to submit outstanding documents on the day of the interviews to candidates failed to submit, they would not be interviewed, as testified by the principal and corroborated by Mr Pakade, deputy director Human resources of the First Respondent. l view this as being fair as both candidates were allowed to bring their outstanding documents, being police clearance certificate of the Applicant and matric certificate and police clearance certificate of the Second Respondent.

74. Considering post requirements, l find that the Second Respondent was not qualified for the post of HOD as she had two years seven months teaching experience and the post required three years teaching experience, as per her testimony during cross examination. l view that the Second Respondent misled the panel as she wrote in her application form and CV that she had three years’ experience. In terms of PAM regulations the minimum requirements in respect of experience for post level two being HOD is three years, so the Second Respondent had two years seven months. Therefore I find that her appointment was obtained through misrepresentation and ought to be set aside.

75. I reject argument of the First Respondent that the Second Respondent had further two years’ experience as temporal educator, as there was no evidence led pertaining to that except as question or comment of the Second Respondent’s representative during questioning time. I further reject that the deputy director confirmed that the persal system allowed Second Respondent to be appointed as it was not rejected by the system. The deputy director testified during cross examination that he was unable to answer the question of two years seven months as testified to by the Second Respondent, and said that HR is confined to the application form and persal system only.

76. I therefore conclude that the Second Respondent was appointed arbitrarily base on misrepresentation and the Applicant was highly prejudiced by the conduct that is unfair to her to not to be appointed as HOD at Ayliff School. Therefore, l conclude that there is causal connection between the irregularity or unfairness and that the Applicant would have been appointed in the post of HOD at Ayliff Primary School.
77. Considering relief sought by the Applicant that the Second Respondent’s appointment be set aside and that she be appointed in the post of HOD or given notch equal to HOD post, l find that the Applicant ought to be appointed in the post of HOD at Ayliff Primary School. My finding is based on the following reasons, being fully qualified for the post with over thirty years teaching experience, has BED management, diploma in education, SACE, undisputed good performance during interviews, the prejudice Applicant suffered being emotional and financial loss, interest of the children at school to have their right to education served properly with enough personnel. No other candidate will suffer as they were two candidates who applied for the post being the Applicant and the Second Respondent. So based on the above reasons, l view that the Applicant be appointed as HOD in the place of the Second Respondent at Ayliff Primary School with effect from the 8 August 2024.

78. I further state that l am aware of the arbitrator’s role of being the last resort to order employment of the candidates as it is the duty of the employer to do so, but under these circumstances mentioned above, l view it proper and in the interest of justice to be done. I order therefore that the Applicant be appointed in the place of the Second Respondent.
79. ” To determine if the failure to promote the employee was unfair the court in Ndlovu v CCMA and others (2000) 21 ILJ 1653(LC) stated that: “it can never suffice in relation to any such question for the complainant to say that he/she is qualified by experience, ability and technical qualifications such as university degree and the like for the post, that is merely the hurdle. The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair”. In this case l view that the appointment of the Second Respondent was substantively unfair as her application did not comply with the minimum requirement of three years teaching experience as required by PAM regulation in the post of HOD. So I conclude that the Applicant proved the necessity for the remedy she sought, that the appointment of the incumbent to set aside and she be placed as the HOD at Ayliff Primary School.

80. Based on the evidence before me, I find that the Applicant proved on a balance of probabilities that she was the best candidate. I therefore set aside the appointment of the Second Respondent and order the Applicant be placed in the position of the promotional post of HOD at Ayliff Primary school.
81. Regarding the issue of costs, I am guided by clause 64 of Annexure B to the ELRC constitution .64.1 “subject to clause 62.6 the council will pay the costs of conciliation or arbitration proceedings including the costs of venue (if any) the fee of the panellist and expenses incurred by the panellist in terms of the Councils fee. 64.2 Each party to the dispute must pay its own costs with regard to travelling, meals, legal representation (if applicable) and other related expenses. 64.4 If any time during the proceedings, the panellist is satisfied that: 64.4.1 a party or person who represented that party in the proceedings acted in a manner seriously compromising the proceedings, the panellist may make an appropriate order of costs against the party or person compromising the proceedings. Such order may also relate to the costs of the Council referred to in clause 64.1”
82. Clause 64 is very clear that each party must pay his or her own legal costs, unless there are exceptions provided for in clause 64.4.
83. I am satisfied that the Applicant, the First and the Second Respondents did not compromise the proceedings. Each party to the dispute is to pay its own costs as provided by clause 64.2.

AWARD
84. I find that the First Respondent committed an unfair labour practice relating to promotion as is intended in section 186 (2) (a) of the LRA against the Applicant for appointing the unqualified Second Respondent as HOD instead of the Applicant.
85. The appointment of the Second Respondent being Tulisa Moss is set aside with effect from 31 August 2024.
86. The First Respondent is ordered to place the Applicant being Tembisa Mcoseli into the post of HOD at Ayliff Primary School with effect from 1st September 2024.
87. No order is made to costs.

Signature:

Commissioner: Bongani Mtati
Sector: Basic Education