CASE NUMBER: ELRC 897-24/25 EC
IN THE ARBITRATION
Between
BULELWA CYNTHIA XULABA APPLICANT
AND
DEPARTMENT OF EDUCATION – EASTERN CAPE 1ST RESPONDENT
MANDISA MOMOZA 2ND RESPONDENT

ARBITRATION AWARD

DATE/S OF HEARING 14 FEBRUARY 2025, 1 and 2 APRIL 2025
DATE AWARD SUBMITTED 14 APRIL 2025
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 Trinset Mthatha on 14 February and 1-2 April 2025 at 09h00. Mr Lungile Fazi from SADTU represented the Applicant, Bulelwa Cynthia Xulaba. Ms A Xhala and Ms S Mkhosana from the Department of Education alternatingly represented First Respondent being the Department of Education Eastern Cape. Mr L Fazi from SADTU represented Second Respondent, Mrs Bulelwa Cynthia Xulaba.

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 bulletin volume 2 of 2024 in the Eastern Cape being post of departmental head for Manyosini Senior Primary School (SPS).
4. Applicant was teaching at Manyosini Senior Primary School since 1994 as post level one educator and Second Respondent was also post level one educator teaching at Manyosini Senior Primary School.
5. The Second Respondent’s appointment was approved by the Department of Education on 03 September 2024 to assume duties as departmental head of Manyosini Senior Primary school.
6. The Applicant initiated her dispute by first lodging a grievance which was set down for hearing and her claim was not resolved.
7. Applicant alleged that she was not appointed despite meeting all the requirements of the post advertised due to disruption made by the resource person when she was being interviewed resulted to her disturbance in the process of interviews.

SURVEY OF EVIDENCE AND ARRGUMENT

Employee’s case
Witness: Bulelwa Cynthia Xulaba

8. She testified under oath that she was teaching at Manyosini SPS as post level one educator since 1993 with qualification of Primary Teachers Diploma, Ace in Remedial Education and Bachelor of Education in Special Needs and her honours degree was not included, which she viewed unfair.
9. She submitted that before she was interviewed she was asked to present her finger print and she continued with her interviews.
10. She stated that when she was about to be asked third question and also fourth question the resource person phoned a person in the interviewing room and also received a call from her phone, which disturbed her as she was panicking for the process, so felt interrupted by the resource person to such that her performance was affected as was repeatedly asked same questions.
11. She submitted that the resource person was cautioned by SADTU representative as disturbing the candidate interviewed and resource person shouted indicating that she was compelled to call the first interviewed candidate to bring her finger prints before being far from the interviewing venue and was the responsibility of all interviewing committee to remind the first candidate to submit her finger prints. She further stated that SADTU observer advised resource person to have waited until the candidate interviewed to finish. She further submitted that panel chairperson was silent about the conduct of the resource person.
12. She testified that phones were prohibited to be used during interviews as resource person was the one who raised such rule, but contravened the same rule.
13. She submitted during cross examination that she understood that the post they advertised required management, in which the incumbent qualified as she had management, but based on the post profiling at school she viewed herself qualified for the post although she had no management in her qualifications.
14. She confirmed during cross examination that the panel had all her qualifications and not depending on the master list that omitted her honours degree.
15. She stated during cross examination that she was disturbed as she lost sense of hearing although she scored totals to question 3 and 4 where disruption was occurring.
16. She further stated that the resource person being the principal of the school did not want her to get the post of departmental head.
17. She further submitted that the process was free and fair as further confirmed by both unions attended interviews being NAPTOSA and SADTU declaring recruitment process free and fair.
18. She further stated during cross examination that she knew SGB members not trained as she heard the panel talking in their meeting outside about some members not trained as she was absent during training.
19. She referred to the attendance register during re-examination in the bundle that showed SGB members that attended training for the recruitment process at Manyosini SPS.

Witness 2: Bongiwe Beku

20. She testified under oath that she was working at Manyosini SPS and was the panellist in the recruitment process of the post in question.
21. She submitted that they prepared for the interviews and started the process by calling the first candidate, which they interviewed to finality and candidate left the room.
22. She submitted that during the second candidate’s interview she heard a phone call from the resource person inquiring about finger prints and further heard resource person answering her phone in the interviewing room when the candidate was still interviewed, which she felt that the candidate being applicant was disturbed and not treated similarly with the first candidate.
23. She stated that the resource person was cautioned by SADTU representative informing her that she should have waited for the candidate to finish her turn of interviews as the candidate was disturbed by the phone calls in the interviewing room.
24. She testified that panel members were trained for the process, but Mrs Silo who was chairperson was not trained.
25. She submitted that she did not agree that the interviews were free and fair as the applicant was disturbed by the phone calls of the resource person and dispute union’s declarations that interviews were free and fair.
26. She submitted that scores obtained by the applicant were scores awarded in favour of the applicant due to the disruption.
27. She submitted during cross examination that she scored the applicant based on her performance although disturbed during interviews as applicant performed well in her score sheet and further submitted that they had recommended the incumbent as they viewed the recruitment process to be free and fair.
    She further stated during cross examination that she disputed their recommendation of the incumbent as applicant was disturbed during interviews.
28. She further disputed scores of the panel as she stated that they were not the ones that were written in the board for consolidation as there were no five scores.
29. She further disputed that there was retraining conducted at school as per the agenda and minutes of the panel meeting held at school by the panel, stating that it was an ordinary meeting of reporting about the training.
    Witness 3: Ndimphiwe Luphondwana
30. He testified under oath that he was an observer of SADTU during interviews at Manyosini SPS.
31. He stated that the panel prepared all its work to start the interviews and first candidate was interviewed to finish and second candidate was also called to be interviewed.
32. He submitted that during second candidate’s interviewing time, the resource person’s phone rang and answered it twice which he found that the candidate was disturbed and he cautioned the resource person’s conduct and she apologised indicating that she did not want the interviewed candidate to go far not submitted her finger prints as was their duty to remind one another about submission of finger prints by candidates. He submitted that the second candidate was not treated similarly with the first candidate, which he viewed wrong.
33. He submitted that after the disruption, interviews proceeded to finality and consolidated the scores where they recommended the incumbent.
34. He stated that he declared interviews free and fair as he observed them.
35. He stated during cross examination that he requested that the disruption to be noted down in the minutes, but surprisingly this did not appear in the minutes as he was not writing the minutes.
36. He further emphasised that the interviews were free and fair, but made a mistake by not raising disruption in the ratification meeting.
    RESPONDENT’S CASE
    Witness 1: Noluthando Mzantsi
37. She testified that she was an observer for NAPTOSA in the recruitment process at Manyosini SPS and knew the applicant and the incumbent.
38. She submitted that both candidates were interviewed to finality and had submitted their finger prints to the panel. She stated that the resource person was requested by the panel to phone the interviewed candidate to submit her finger prints after the interview process finalised and not during interviews, which she did so.
39. She confirmed that as unions have declared interviews free and fair to such that the applicant made a joke to the panel to say she should be considered for the post as she was old.
40. She testified during cross examination that she attended interviews with no interest in the process and knew the resource person as they both teach foundation phase and principals of their schools.
41. She further submitted that she could not confirm or dispute that Ms Silo did not attend training as she did not know the panel of Manyosini SPS and further some members fail to sign attendance register as Ms Silo was not appearing in the attendance register for SGB members attending training at Mbuqe JSS for recruitment process at Manyosini SPS.

ANALYSIS OF EVIDENCE AND ARGUMENTS

42. 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 (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.
43. I have considered the relevant legislations, regulations, departmental guidelines for sifting, shortlisting, interview procedures, post requirements, as well relevant case law.
44. Section 186(2) of the LRA reads as follows: “unfair labour practice as any unfair act or 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.
45. I have to decide whether the First Respondent acted fairly or not in not appointing the Applicant in the position of departmental head at Manyosini SPS based on procedural unfairness with allegations that the resource person interrupted the process by phoning and receiving calls in the interviewing room which resulted to the applicant being disturbed in her interviews and panel was not properly constituted.
    Considering interruption in the interviewing room by resource person making calls and receiving calls, l find that the resource person breached the rule of the interviews as testified by the applicant corroborated by witnesse Luphondwana and Beku, which l view that resource person should have been subjected to the action of the department for her conduct in the interview process. I further find that disturbance occurred to the applicant, but there was no effect to her performance to question 3 and question 4 as she scored total marks to the questions interrupted by calls, so l view as not a reason not to be recommended to the post. I further find that the panel and union observers declared recruitment process free and fair as testified by witnesses Mzantsi, Luphondwana and Beku.
46. I also consider witness Beku’s testimonies that were contradictions in scores awarded to the applicant as this was not true reflection, but her high scores scored to the applicant were based on the applicant’s performance and on the other hand declared interviews free and fair as panelist and later disputing their declaration as panel and unions, which l viewed Beku as unreliable and not credible witness.
47. I reject evidence that phoning was made by resource person post interviews as testified by witness Mzantsi and not corroborated, so find the phoning was made during the interviews of the applicant as testified by applicant and corroborated by witnesses Beku and Luphondwana.
48. Considering training of the panel, l find that the panel was trained at Mbuqe JSS and retrained at Manyosini SPS based on the agenda and minutes of the panel at Manyosini SPS post main training at Mbuqe JSS, so l conclude that all panel members were trained before short listing and interviews. I reject evidence that Ms Silo being chairperson of the panel was not trained.
49. .” 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 appointment of the Second Respondent was both procedurally and substantively fair as her application complied with the minimum requirement of post and further performed well in the interviews by scoring a higher scores than the applicant, recommended and appointed as the departmental head Manyosini Primary School as scores were not challenged in this dispute.
50. Based on the evidence before me, I find that the Applicant failed to prove onus on a balance of probabilities that she was procedurally unfairly not appointed as departmental head at Manyosini SPS and further she not best candidate to set aside the appointment of the Second Respondent.
    AWARD
51. I find that the First Respondent did not committed fair labour practice relating to promotion as intended in section 186 (2) (a) of the LRA in that the Applicant failed to prove that the appointment of the incumbent as HOD at Manyosi Primary School was unfair.
52. Signature:

Commissioner: Bongani Mtati
Sector: Basic Education