In the matter between
NAPTOSA OBO BLIGNAUT, Y F APPLICANT
AND
DEPARTMENT OF EDUCATION: FIRST RESPONDENT
EASTERN CAPE
SCHOOL GOVERNING BODY: SECOND RESPONDENT
SETLAAR PRIMARY SCHOOL
D RUDDY THIRD RESPONDENT
DETAILS OF PARTIES AND REPRESENTATION
1. The is the award in the arbitration between Ms Yolanda Blignaut, the applicant and Department of Education, Eastern Cape, the Respondent.
2. The arbitration was held under the auspices of the Education Labour Relations Council in terms of section 191(5)(a) of the LRA and the award is issued in terms of section 138 (7) of the LRA.
3. The arbitration hearing took place on 22 April 2022 through zoom.
4. The applicant was in attendance and was represented by Mr. Anton Adams, an official of Naptosa, while the first respondent was represented by Mr. Stucki Hendriena, its industrial relations practitioner. The second respondent was represented by Ms. Vanity Van Wyk. The third respondent was in attendance and appeared in person.
5. The applicant submitted a bundle of documents which was marked as Bundle A and used as a common bundle of documents in the proceedings. The proceedings were digitally recorded, and handwritten notes were also taken. Interpretation services were not required.
BACKGROUND TO THE DISPUTE
6. The parties are Naptosa Eastern Cape obo Blignaut Y.F (the applicant party) and the Department of Education, Eastern Cape (the first respondent), Ms. Samantha Olifant (second respondent) and Mr. Desmond Ruddy (third respondent).
7. The applicant had referred an alleged unfair labour practice relating to promotion. She contended that the first respondent had perpetrated an unfair labour practice against her when it refused or failed to appoint her into the position of Principal as advertised but instead appointed the third respondent, Mr. Desmond Ruddy. She claimed that one of the interviewing panelists was influenced while the other panelist from the School Governing Body (SGB) did not have voting rights. The first respondent denied that it had perpetrated any unfair labour practice against the applicant.
8. The applicant sought relief in the form of being appointed into the principal position.
ISSUE/S TO BE DECIDED
9. The issue to be decided is whether or not the first respondent had perpetrated an unfair labour practice when it did not appoint the applicant into the position of Principal.
SURVEY OF PARTIES’ EVIDENCE AND ARGUMENTS
The Applicant’s Case
Yolanda Blignaut (Yolanda)’s evidence under oath:
10. Yolanda testified that she is occupying the position of Deputy Principal and has taught for 25 years. She acted in the Principal position between 01 May and 11 November 2021. Machando was co-opted into the SGB subsequent to the passing of one parent representative and no by-election was held within 90 days after co-opting to formalise the elected representative into the vacant SGB position as per the rules. Machando was part of the interviewing panel.
11. She further testified that A33 was the summary of the score sheet. Van Heerden scored her 20 and gave 28 score to Ruddy. She was told by Olifant prior to the interview that it was said she was not going to be appointed because she had burnt bridges, was bossy and was not consultative. Olifant did not tell her who had described her as such but she had concluded that it was Van Heerden when she heard the latter echoing the same sentiments.
12. During her acting tenure, she discovered discrepancies such as the SGB composition and has asked the Security Manager to keep check on the correct process to appoint SGB. The SGB teacher component was correctly appointed. McPherson was the finance officer and there were also discrepancies in finance. Van Heerden was the SGB treasurer. McPherson and Van Heerden are life partners. She, Van Heerden and Olifant had decided to obtain services of an audit company to audit the Finance Department. This was because there were no monthly financial statements issued to parents and the excuse was that printing out same would consume much paper. Obtaining three quotations prior to appointing service providers was not done.
13. When she was appointed into the Deputy Principal position, Van Heerden and McPherson had called her to a meeting at Mug n Bean. At that meeting, she was told she was placed as number one for Deputy Principal position, that the then current principal was retiring soon and that she was to take over from the retiring principal. She was also told to stay away from certain people at the school. Van Heerden told her that he was the reason behind her appointment. As she looked at the scores, it was clear that Van Heerden was instrumental in the appointment of Ruddy. She did not doubt when one of the teachers told her that McPherson and Van Heerden had a meeting before Ruddy was appointed since the same happened when she was appointed. She felt that dealing with racism incidents had worked against her.
14. Under cross-examination, Yolanda testified that she had received enough time to answer questions during the interview and the interviewing panel was fair. McPherson was not part of the interviewing panel, but Van Heerden was. She did not see panel members influencing one another and she did not raise any objection about any undue influence. However, she did not know that she was allowed to raise such an objection and wanted to raise it after the conclusion of the interviews.
15. A reliable source told her that Ruddy had coffee with McPherson and Van Heerden after the interview prior to him bring appointed. She knew that the SGB makes recommendations while the Department appoints. Any of the other candidates, as per the scores as per A35, stood a better chance of appointment than her.
16. She reported all the discrepancies to the SGB chairperson and not the Department. She did not object to the presence of Machando in the interviews. Her trade union was part of a meeting where the issue of by-election was raised, but the trade union did not object as it had only an observer status. The trade union raised an objection after the interview and it was recorded in the minutes. She felt that she should have been successful for appointment. the SGB did not have a problem with its composition. It was newly-elected in the previous year and only one parent had passed away.
17. Under cross-examination by the second respondent, the applicant testified that Van Heerden said that she was arrogant, too strict and that she had burnt her own bridges. The discussion with Olifant did not include names, but the fact that the discussion included her as being too strict and that she was arrogant, she believed that those words were said by Van Heerden.
18. She further testified that she informed the electoral office that there was a vacancy in the SGB and it had responded that there was not going to be a by-election but a co-option.
The Respondents Case
Pamela Mbusi (Pamela)’e evidence under oath:
19. Pamela testified that she was the first respondent’s circuit manager since 2007. She was the resource person for the disputed position and had to ensure that there was a regular process. Her role also entailed training and guiding the SGB. The Schools Act provides for co-option of a parent with voting rights. It takes time to have a by-election and one parent was co-opted when the other passed on. Machando was eligible for co-option as a parent with a child at the school. She was co-opted for 90 days and had voting rights.
20. Nobody brought it to her attention that there was undue influence during the interview. The applicant never brought it to her attention that Van Heerden was biased. At the end of the interview, she asked the unions to comment and SADTU had said that there was a gap between candidates one and two. It indicated that despite the gap, it was satisfied with the scores. It raised no undue influence issues.
21. Under cross-examination, Pamela testified that the SGB vacancy arose on 23 March 2021 and co-option was done in June 2021. The interview was conducted in August 2021. This is because it was difficult to have gatherings at that time because of the Covid-19 regulations, and more so because the staff worked from home. The union that took issue with the gap between candidates one and two accepted the explanation from the department made no further query on the gap. Both unions said that they did not want to influence the panel.
22. The SGB was properly constituted. Van Heerden represented the teachers as a non-teaching staff. He and McPherson were in a cohabitating relationship and McPherson is the finance officer. McPherson had no role in this dispute and it was based on assumptions that Van Heerden did not want the applicant to be appointed.
23. Upon cross-examination by the second respondent, Pamela testified that she was not sure when the vacancy in the SGB arose, but the co-option was done in June 2021.
24. Upon re-examination, she testified that McPherson was not part of the interviews. There were no irregularities relating to Van Heerden considering his relationship with McPherson.
The Applicant’s Closing Arguments
25. Section 23 subsection 9,10 and 11 of the South African Schools Act 84 of 1996 (as amended) reads as follows:
Wording of Sections
(9) The number of parent members must comprise one more than the combined total of other members of a governing body who have voting rights.
(10) If the number of parents at any stage is not more than the combined total of other members with
voting rights, the governing body must temporarily co-opt parents with voting rights. [Sub-s. (10) added by s. 11 (b) of Act No. 48 of 1999.]
(11) If a parent is co-opted with voting rights as contemplated in subsection (10), the co-option ceases when the vacancy has been filled through a by-election which must be held according to a procedure determined in terms of section 28 (d) within 90 days after the vacancy has occurred. [Sub-s. (11) added by s. 11 (b) of Act No. 48 of 1999.]
26. The position on the SGB became vacant on the 28th of March 2021. The interviews were held on the 28th of August 2021. This is 5 months after the position became vacant. It is clear from the dates and the requirements of SASA section 23(11) that a by – election must be held within 90 days after the elections have occurred. We agree that Covid – 19 disrupted schooling, but this was in 2020 and not 2021 as the respondent wishes to rely on as the reason no by – election could be held.
27. Section 26 of the SASA reads as follows:
“Recusal of members of governing bodies
26. A member from a governing body must withdraw from a meeting of the governing body for the duration of the discussion and decision – making on any issue in which the member has a personal interest.”
28. We argue that the involvement of Mr. Van Heerden in the interview process cast doubt in terms of his neutrality in the matter. The legislation directs that a member of the SGB must (my emphasis) withdraw from participation in a process in which the member has a personal interest. The election must be made by the member, and he failed to do this. From the scores and his reaction to a question posed by a fellow panel member, the reasonable perception created was that he has a personal interest. The scores and his reaction indicate there is sufficient grounds to declare that he had a personal interest in the matter and his remarks. It is in the best interest of the school to cast doubts on his neutrality and personal involvement in the interview.
29. We believe the evidence of bias or male fides on the part of Mr. Van Heerden cannot be ignored. We further argue that on based on reasonable grounds, Mr. Van Heerden acted biasedly towards the applicant. The facts that substantiate the biasness towards the applicant was clearly established by the applicant. These are:
• His life partner war moved from the SGB after investigation by Ms. Blignaut.
• The huge scores difference between Mr. Ruddy and the applicant, even though all the other panelist scored the applicant better than Mr. Ruddy.
• Animosity existed between Mr. Van Heerden and Mrs. Blignaut.
• The unchallenged fact that Mr. Van Heerden had lunch with Mr. Ruddy before an official appointment was made.
The Respondent’s Closing Arguments
30. The respondent submitted that on the point of undue influence the applicant failed to proof her case. All the evidence she led was about her time during being the Deputy Principal of the school and during the period she was acting as the principal of Setlaars Park Primary School.
31. It was her perception and her conclusions that Mr. Van Heerden had an influence on the interview panel because of her and Mr. van Heerden’s interactions during her time as deputy principal and acting principal.
32. Most of the evidence was hearsay evidence because it was told to her by a reliable source or somebody else. She believed that because she wanted to rectify issues which in her view was not done correctly at the school some of the educators Mr. van Heerden and Ms. MacPherson did not like it and they then started to work against her. She also believed the fact that the two of them had a relationship was also part of the problem and that they influenced other educators.
33. The Respondents witness Ms. Mbusi testified that she as the EDO of the school has never received any complaints from the applicant during her time as Deputy Principal or as Acting Principal of the school. Ms. Mbusi, Circuit Manager of the school testified that she visited the school on numerous occasions and never was anything told to her. She confirmed that there was a problem with the members who sat on the SGB. She assisted the SGB to rectify it. All of this happened long before the post of the principal was even advertised. The previous principal was still at the school. She further confirms that she was the resource person during the interview process. She confirmed that the applicant was treated fairly and that she had the opportunity to compete for the post fairly. She did not have any objections during her interview or after, she was happy with the process. The applicant herself during cross examination confirmed that she was treated fairly.
34. The issue that was raised about the 10 points difference between the applicant and the third respondent, Mr. Ruddy, was also dealt with as testified by Ms. Mbusi on (page 35 and 36 of evidence bundle). The mere fact that there was this difference in the scoring does not mean that the process was flawed or that the applicant was treated unfairly. The third respondent was an applicant for the post just as the applicant was. Ms. Mbusi testified that the fact that there was a 10-point difference between number 1 and number 2 was raised by the SADTU representative and the issue was given back to the panel to deal with it. They made it clear that the scores that was given was based on the answers the applicants gave. They will not temper with the marks because that will be an unfair process then.
35. The applicant under cross-examination admit that she did not complaint about the issues because she did not know that she can during the interview process place on record that she had issues with the panelist Mr. van Heerden. She also did not lodge a formal grievance to the Department to make them aware of the issue.
36. The Respondent wish to state that the whole issue with regards to undue influence was not proved by the applicant. This is a matter of mere unhappiness by the applicant and because she was not successful there is a perception of unfairness which does not establish unfair conduct on the side of the Employer.
The following case law talks about undue influence:
37. The principle of undue influence is taken from contract law. In Ferrari v Gunner (1063/2013)[2015]ZASCA 5 (9 March 2015) the Supreme Court of Appeal had described it as follows:
38. “The party claiming to have been unduly influenced must show not only that the other had an influence over him or her, but also that it rendered his or her will weak and pliable and induced him or her to enter a transaction, to his or her prejudice, that would not otherwise have been entered into. (See Preller v Jordaan 1956 (1) SA 483(A) and Patel v Grobbelaar 1974 (1) SA 532 (A).)”
39. The specific elements of undue influence were set out in the High Court in Gunner supra :“The elements of Undue Influence
[25] …… It is worth noting that in deciding whether the Respondents have been unduly influenced by the applicant the court has to decide on the evidence presented by the parties. The doctrine of undue influence occurs where: “contracts were concluded in response to threats and pressure below the level of metus as traditionally understood by courts”
40. The Respondent must prove all the essentialia of undue influence. They must prove that:
40.1 the applicant had obtained an influence, over them,
40.2 the applicant’s influence weakened their powers of resistance and rendered them compliant, and
40.3 that the applicant used the influence in an unscrupulous manner to persuade them to conclude the contract which is prejudicial and which they would not have concluded but for the influence.”
PROCEDURAL FLAWS
41. The second part of the applicant’s dispute is procedural unfairness. She claims that the co-opted member of the SGB Ms. Machando did not have voting rights.
42. Section 23 subsection 9,10 and 11 of the South African Schools Act 84 of 1996 (as amended) reads as follows:
Wording of Sections (9) The number of parent members must comprise one more than the combined total of other members of a governing body who have voting rights. (10) If the number of parents at any stage is not more than the combined total of other members with voting rights, the governing body must temporarily co-opt parents with voting rights. [Sub-s. (10) added by s. 11 (b) of Act No. 48 of 1999.] (11) If a parent is co-opted with voting rights as contemplated in subsection (10), the co-option ceases when the vacancy has been filled through a by-election which must be held according to a procedure determined in terms of section 28 (d) within 90 days after the vacancy has occurred. [Sub-s. (11) added by s. 11 (b) of Act No. 48 of 1999.] (12) If a person elected as a member of a governing body as contemplated in subsection (2) ceases to fall within the category referred to in that subsection in respect of which he or she was elected as a member, he or she ceases to be a member of the governing body.
ANALYSIS OF PARTIES EVIDENCE AND ARGUMENTS
43. The issue I am to decide is whether the respondent had perpetrated an unfair labour practice when it did not appoint the applicant. In Baffalo City Public FET College v CCMA and others (P 372/12) [2016] ZALCPE 18 it was held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the employee to prove that he /she is a suitable and better candidate for the position in question.
44. In this matter the applicant contended that the respondent was unfair in that process of appointment as one of the panel members was influenced and also that a member of the interviewing panel had no voting rights as a by-election for his appointment had not taken place. Therefore, the onus to prove the existence of the conduct complained of lies with the applicant. The respondent denied that there was any unfair labour practice perpetrated against the applicant.
45. Section 186 (2) of the Labour Relations Act 66 of 1995 (as amended) (the LRA) provides that unfair labour practice means any unfair act or omission that arises between an employer and an employee involving an unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
46. In City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held, with reference to the Aries v CCMA and others (2006) 27 ILJ 2324 (LC), that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following:
a) whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer; or
b) whether the employer’s decision was arbitrary, or capricious, or unfair; or
c) whether the employer failed to apply its mind to the promotion of the employee; or
d) whether the employer’s decision not to promote was motivated by bad faith;
e) whether the employer’s decision not to promote was discriminatory;
f) whether there were insubstantial reasons for the employer’s decision not to promote;
g) whether the employer’s decision not to promote was based upon a wrong principle;
h) whether the employer’s decision not to promote was taken in a biased manner.
47. The applicant’s claim to an unfair labour practice is premised on two grounds. The first ground was that Van Heerden was influenced and secondly that one member of the interviewing panel had no voting rights as a by-election for her appointment had not taken place. The applicant had summed up her entire case when he conceded in the first two questions posed to her in cross-examination. She testified that she had received enough time to answer questions and that the interviewing panel was fair. It baffles my mind as to why she could claim unfairness when in her own words she stated that the interviewing penal was fair. They or neither of them could have been said to have been influenced and thus biased when she admitted that the interviewing panel was fair.
48. The applicant’s evidence that Van Heerden was influenced is far-fetched and unsubstantiated. Except that Van Heerden is in a relationship with McPherson, there is nothing that points out to the fact that McPherson had influenced Van Heerden. It is also not testified to as to what could have reasonably led to McPherson influencing Van Heerden not to recommend the applicant. The applicant did not adduce any piece of evidence to led one to believe that Van Heerden was influenced and for what reason McPherson would have influenced Van Heerden against the applicant. Nothing, in terms of the substance of the questions linked to the inherent requirements of the job, was pointed out in evidence as to why the applicant played second fiddle to Ruddy who was appointed in the position. In fact, the applicant did not question the scores but strangely came to the conclusion that given the scores it was clear that Van Heerden was instrumental in leading to the appointment of Ruddy. The score that was given to her is uncontested.
49. The applicant’s testimony is riddled with improbabilities. When one does not contest the substance of the decision and essentially agrees with it, there cannot be a sustained claim to prove an unfair labour practice. The applicant did not make it her duty to adduce evidence to point out how she should have been appointed and not Ruddy. All she sought to do was to lead evidence far-removed from the issues essential to proving an unfair labour practice. Her evidence of what she thought of Van Heerden was essentially hearsay that Olifant had told her of what Van Heerden thought of her. Even if that had been said about her, she made no effort to prove that unlike what may have been said about her, she was not bossy, arrogant or non-consultative. It may as well have been that the position required someone to the opposite of her description. On this ground of Van Heerden having been influenced, I find that there was no evidence sufficient to sustain such a claim.
50. The applicant had taken issue with Machando’status as a co-opted member in the SGB. The applicant submitted that the SGB position became vacant in March. While I accept that from March to August is a period in excess of 90 days. The first respondent submitted that Machando was appointed only in June, as such her appointment was within 90 days . The applicant did not dispute this contention. I therefore, accept the respondent’s version that when the interviews were held Machando had voting rights.
51. I do not see how the applicant was prejudiced by Machando’s presence and participation in the interviews, in any case. There was no evidence to suggest that had it not been for Machando’s vote, the applicant would have been appointed into the position in question. There was no evidence leading to the conclusion that the recommendation was preceded by voting by members of the SGB culminating in the appointment of Ruddy. I find, on this ground as well, that the applicant’s claim is unsustainable.
52. I accordingly hold that the applicant had failed to prove that the first respondent had committed an unfair labour practice when it did not appoint her into the position of Principal.
AWARD
53. The applicant has failed to prove that the first respondent had committed an unfair labour practice when it did not appoint her into the position of Principal.
54. The applicant’s claim for unfair labour practice is unsuccessful and the relief claimed is denied.
Mathabo Makwela
ELRC Panelist