In the ARBITRATION between

NAPTOSA obo Vuntu Edward Nkosinathi
(Union/Applicant)
And

Department of Education – Eastern Cape
(1st Respondent)

Nocawe Gloria Ndidi
(2nd Respondent)

Union/Employee’s representative:
AdUnion/Applicant’s address: Adv GD Saayman
Telephone: 082 519 1005
Telefax:
Email: duncans@naptosa.org.za

Employer’s representative: Mr Thobelani Mlahleni
Respondent’s address:

Telephone: 072 582 4145
Telefax:
E-mail: thobelani.mlahleni@ecdoe.gov.za

Details of the hearing and representation

1. The arbitration of the alleged unfair labour practice dispute between the Applicant (Vuntu Edward Nkosinathi) and the Respondents (First Respondent – Department of Education-Eastern Cape, Second Respondent – Nocawe Gloria Ndidi) was held at the First Respondent’s office in Komani on 7 October 2019 and concluded on 28 January 2019.

2. The Applicant was present and represented by Aaron Mhlontlo a union official from NAPTOSA. The first Respondent was represented by Thobelani Mlahleni (First Respondent’s Labour Relations Officer}. The Second Respondent was represented by Monde Sobekethe, a union official from SADTU.

3. The proceedings were manually and electronically recorded.

4. Both the Applicant and the First Respondent submitted bundles of documents and were admitted on record and marked Annexure A and Annexure B respectively. The Second Respondent submitted no documents in support of its case.
Issues to be decided

5. I have to decide whether or the first Respondent’s conduct amounted to unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (“the LRA”).
Background to the issues in dispute

6. The Applicant is employed by the Respondent as a School Principal at Mnikina JSS. He applied for the position of EDO, post reference code: Cacadu CHW29/12/2018 which was advertised in circular 23 of 2018. He was allegedly not shortlisted and was denied a fair opportunity to compete fairly with the other candidates. The Applicant alleged that the Second Respondent who was shortlisted and appointed to the post with effect from 1 July 2019 did not meet the requirements of the post in dispute. He lodged a grievance he was however, unsuccessful and the dispute remained unresolved. He sought for compensation as relief.
The Applicant’s case

7. Edward Nkosinathi Vuntu, the Applicant was the only witness who testified for his case. He gave evidence under oath and stated that he was employed by the Respondent for the past 31 years having started as a level 1 teacher in Ntabelanga Primary School. He was appointed as HOD at Bowden JSS before he was appointed as a School Principal at Mnikina JSS for the past 13 (thirteen) years. He was employed on level 4 (four) post. The post he applied for was a level 6 (six) post.

8. He had a Primary Teacher’s Diploma which he obtained in 1987. He also had a Further Diploma in Education: Law and Management, a Computer Diploma, Diploma in Outcome Based Education, Bachelor of Education Honours Degree, Post Grad. Diploma in Education and was currently studying a master’s degree.

9. He met the minimum criteria for the position in dispute which was a four-year education qualification and five years’ experience as a school principal. The Second Respondent did not meet the said requirement as she, at the time she was appointed to the disputed post, had four years’ experience as a school principal.

10. The reason provided by the First Respondent for him not to be shortlisted, as per page 12 (twelve) of Annexure A was that his school was not a top performing school. He disputed that his school was not performing. The First Respondent could not explain how performance was measured as there was no standardised performance measurement instrument. He could also not comment on whether or not his school was performing below other schools as performance could not be measured. He however knew that his school, compared to other schools was performing on top in extramural activities as the results were clearly observable. He was commended by Ms Ngetu, their supervisor, in the presence of other school principals, at the time they had a workshop, that he was an example of the top performing schools.

11. He referred to a schedule of marks showing that in 2016 he performed on top. He denied that he did not perform in other years albeit, he did not have documentary evidence for other years other than that of 2016 to show that he was a top performer.

The First Respondent’s case

12. Nicolas Riaan Du Bryn was the Respondent’s only witness. He testified under oath and stated that he was employed by the Respondent for almost 30 (thirty) years. He was employed as a school principal before he was appointed as Chief Education Specialist in 2009. He acted for some years in the position of District Director before he got appointed to that position permanently, in December 2018.

13. He had experience in conducting recruitment interviews, being a panelist and chairing the interview panels. He was one of the four interview panelists (including the Chief Director who was the chairperson) for the post that was in dispute. They had a lot of applicants who all qualified in terms of the ‘generic’ requirements for the post. To downsize the numbers, they had to scale up the requirements. They added computer literacy as a requirement, and considered the candidates who were principals from schools that had bigger numbers. (which was however, not an overarching determining factor).

14. They agreed to give preference to the top performing schools in the last three years in succession, using Data Driven Dashboard (“DDD”) which was used as confirmation. He acknowledged that the DDD was probably first introduced in 2018 and could therefore not cover the latest three years that they wanted to use. They also used mark schedules to measure the performances of the schools. All the unions present, were satisfied with the interview process.

15. The Applicant was not shortlisted because he competed with other candidates who qualified better than he did in terms of the set requirements. He became aware that the Second Respondent did not meet the minimum requirements of five years as a school principal when the Applicant lodged a grievance. He stated that he could not explain how it happened.

16. He testified that his evidence was based on what he observed on the day of the interviews. He did not have proof, recorded in the minutes that the other schools, including that of the Second Respondent, performed better than that of the Applicant. He did not think that the interview scribe captured everything that happened during the interview.

The Second Respondent’s case

17. The Second Respondent submitted through her representative. Monde Sobekethe that she was concerned that she was not served with the notice to attend the previous sitting of the arbitration which was on 7 October 2019. She however had nothing to say in regard to the dispute as she did not appoint herself. The First Respondent was the one who knew what criterion it used in appointing her and whether or not her appointment was legitimate. All that she knew was that she applied for the post, and was appointed. It was her submission that even if she was present in the previous arbitration sitting, she would have maintained that she had nothing to say.

Analysis of evidence and argument
18. The onus lies with the Applicant to prove that the Respondent’s conduct amounted to unfair labour practice.

19. The Applicant submitted evidence is that the Respondent failed to shortlist him while he met the requirements for the position he applied for. The First Respondent shortlisted and appointed the Second Respondent who did not meet the post requirements. He denied that his school was not top performing and provided proof that in 2016 his school was one of the top performing schools. The First Respondent could not provide proof that the Applicant’s school did not perform on top, three years in succession for the years 2015 to 2017 which they considered.

20. The First Respondent admitted that the Second Respondent did not meet the four-year experience requirement and only became aware of that when the complaint was raised. I find this an indication of gross negligence or probable impropriety on the part of interview panelists as I cannot understand, from the evidence lead, how they could have missed that the Second Respondent did not qualify.

21. The First Respondent could not provide proof that there were additional requirements upon which the interview panelist agreed and how were they used. The mark schedules which were allegedly used to gage top performing school were not provided to substantiate the First Respondent’s case. No proof was provided to substantiate that the Second Respondent’s school was one of top performing schools. The First Respondent’s evidence that the interview scribe did not record everything and that such minutes were not available leaves much to be questioned in regard to the appointment of the Second Respondent.

22. I have considered the Second Respondent’s submission that she had nothing to say in regard to her appointment to the disputed post and that the First Respondent was the one in a better position to explain how she got appointed.

23. In the light of the evidence before me I am satisfied that the Applicant has proved, on the balance of probability that the First Respondent’s conduct, as alleged, was unfair

24. I have considered that the Applicant could not prove that he was the best candidate. He however, demonstrated that he met the set requirements and that the Respondent’s conduct, which was arbitrary or motivated by an unfair reason, denied him a fair opportunity to compete for the post.

25. I have considered that the Applicant has not proved the causal connection between the unfairness and the failure to promote, particularly that he would have been promoted to the post if it was not for the First Respondent’s unfairness. Therefore, I cannot conclude that substantive unfairness is established.

26. I have also considered that the Applicant has not demonstrated that he had a realistic chance of being appointed should the process be repeated, I therefore do not find a reason to direct that the process be repeated but to consider compensation as the appropriate relief under these circumstances.

27. In calculating the amount of compensation, I have considered that compensation in Applicant’s circumstances is in the solatium form aimed at compensating for the non-patrimonial loss. I regard the infringement as of a serious nature and find a reason to order the maximum compensation.

Award

28. I find that the conduct of the Respondent (Department of Education- Eastern Cape) amounted to unfair labour practice in terms of section 186 (2) (a) of the LRA in relation to promotion.

29. I order that the Respondent (Department of Education- Eastern Cape) compensates the Applicant (Edward Nkosinathi Vuntu) with R20 000.00 (twenty thousand rand) which is a maximum compensation amount for serious infringement. The Respondent (Department of Education- Eastern Cape) is to pay the said amount in the Applicant’s bank on or before 31 March 2020.

Dated and signed at Port Elizabeth this day 17……. of
…… February………………………………2020

Signature:
Panelist: Solomzi Mpiko