IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC765-23/24GP

In the matter between

SADTU obo GXAGXAMA, NOMAWETHU Applicant

and

THE DEPARTMENT OF EDUCATION: GAUTENG PROVINCE 1st Respondent

MATODZI PORTIA MBULAENI 2nd Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 15 October 2024

SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice in terms of section 186(2)(a) – unfair conduct relating to promotion.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a)(v) of the Labour Relations Act 66, 1995, (the LRA). The arbitration was heard on 14 June 2024, 27-28 August 2024 and finalised on 25 September 2024, virtually through Ms-Teams. The Applicant, Ms Nomawethu Gxagxama, was represented by Mr TI Mukuswani, an official of SADTU, the First Respondent, the Gauteng Department of Education, was represented by Mr Danvour Manas, The Director: Labour Relations and the Second Respondent, Ms Matodzi Portia Mbualeni, represented herself.

2. The parties agreed to submit written closing arguments by no later than 2 October 2024 and both parties complied.

3. The proceedings were electronically recorded

BACKGROUND TO THE ISSUES

4. The Applicant applied for a position of a Departmental Head: Life Orientation and Creative Arts, for Blue Eagle High School in Johannesburg. The Applicant was shortlisted and invited for interviews. She was not successful in her application. The Applicant upon receiving the outcome after the interviews, referred a dispute to the ELRC of an unfair labour practice relating to promotion, in which she is challenging the following:
a. On procedure the dispute is:
b. The interview committee was not properly constituted in that it was selected by the District and not the SGB.
c. Substantively, the Applicant believes that the rationale for the recommendation of the 2nd Respondent is irregular;
d. The 2nd Respondent has no experience on the subjects required for the post, compared to the Applicant;
e. The 2nd Respondent was given an acting opportunity with no rotation;
f. The post was crafted for the 2nd Respondent and the decision to appoint was predetermined.
g. The Applicant believes she was the best candidate compared to all the interviewed candidates; and
h. Had it not been for the irregularities the Applicant would have been appointed; and her appointment would have been a promotion based on status and salary.

5. The Applicant prays for the appointment to be set aside and process to start afresh or that she be appointed to the position.

SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s Version

6. The version of the Applicant was led through the evidence of 3 witnesses and a bundle of documents;

7. The first witness, Ms Nomawethu Gxagxama (the Applicant) testified that she started as a Post Level 1 Educator during December 2011. She teaches Creative Arts, Life Orientation (LO) and helped with Economic Management Sciences (EMS) when there was a shortage. The school she worked at was Cosmo City 3 and was changed to Blue Eagle High School.

8. Before the post in question was advertised there was an Acting Deputy Principal. There was a post for Mrs Matobela. The Principal said there would be a growth post for Creative Arts. The Acting Deputy Principal was the Second Respondent, Ms Mbulaeni. When the post was advertised it clearly was for Ms Mbulaeni. The Applicant asked if she must apply as there was someone for the post. This is so because a certain Mr Khethwa who was a temporary Educator did not get a permanent post and was told by the Principal to wait for Ms Mbulaeni to get the Departmental Head post and that he would get her vacant post.

9. There was an Acting Departmental Head, under whom the Applicant worked, and the school was new. The Applicant had 42 periods. The Principal announced posts for IsiXhosa and IsiZulu, Creative Arts and LO and Mathematics. She stated that the Educators would rotate in acting until the posts were filled, for three months each. In isiXhosa and isiZulu, it was Mr Mazibuko and after three months it was Ms Ximba rotated. For Mathematics Mr Mbele and Mrs Mafiri also rotated. There was no rotation for Creative Arts and LO, only Ms Mbulaeni acted. The Principal said there was no competition and only Ms Mbulaeni would act. At the time Ms Mbulaeni taught History and Geography for Grades 10, 11 and 12. The Applicant and Ms Tladi helped each other in getting teaching material from other schools and did moderation.

10. Ms Mbulaeni played no role in leading the department and only gave copies of documents, as she was the only person allowed to make copies and never taught the subject. She did not know the content of Creative Arts and LO and used to tell the Applicant that she did not know the subjects. They (Applicant and other teachers) were the ones creating all the tasks, and if stuck, engage the Facilitator.

11. The position was advertised and the Applicant received a call from Mr Poyo for interviews. The Applicant told Mr Poyo that the post already had a person. The Applicant went for the interviews and believes she performed well. The Applicant went to the District and was told they were going to take time. After some time the Principal called a meeting and announced that Ms Mbulaeni, Ms Ximba and Ms Mafiri were the successful candidates for the positions of Departmental Head.

12. The Applicant lodged a grievance and was told she was late and advised to approach the ELRC. The Applicant believes the decision to appoint Ms Mbulaeni was unfair because she was teaching the subjects when the school started. She went to other schools to get information, her learners designed the school’s logo. Someone who taught other subjects got the position and she does not know the content. It was unfair for the Applicant not to act in the position and for Ms Mbulaeni to get the position having not done any work. The Applicant built the department and was awarded in 2015 as ‘Teacher of the Year’. Ms Mbulaeni taught History and they are struggling whilst she is there.

13. The recommendation stated that Ms Mbulaeni had sound knowledge of the subjects while she never taught Creative Arts and LO and clearly had no knowledge. It is not understandable why they would say she was teaching. It may be that the panel was misled as she is not teaching LO, has no knowledge of LO. Ms Mbulaeni cannot do a standard question paper. The Applicant cannot understand what informed the recommendation. The Applicant and Ms Tladi were the only teachers for LO, until recently there are new teachers for the subject. The Applicant believes she performed very well and correctly answered all questions posed to her. The time table presented shows nowhere that Ms Mbulaeni taught Creative Arts and LO, only History is on her time table. If the panel believed that she taught LO, they were given incorrect information.

14. Under cross-examination the Applicant confirmed that she would not know if Ms Mbulaeni answered all questions correctly as she was not present during her interview. She was unfairly prejudiced because she was teaching the subjects, she had experience on the subjects and they did not capture everything for her correctly. Her understanding of an HoD post is that one must have experience, knowledge of the subject, teach and help others, moderation of papers, helping new teachers and know how to do assessments.

15. The Applicant further emphasised the recommendation that indicates that Ms Mbulaeni was teaching the subject whilst she is not. The panel’s comment that the Applicant has ‘Acceptable Knowledge’ is understood by her that she had less knowledge and that such information is incorrect because she is fully knowledgeable as she is the one who helps all the teachers in the school. The panel scored Ms Mbulaeni 11 and the Applicant 9. The Applicant further said that they do not know the SGB members and they have never been at the school.

16. The unfairness in respect of acting is that Ms Mbulaeni acted alone with no rotation while she was not in their department. There was rotation in other subjects. She knows herself and that she was the best candidate. The Applicant further confirmed during cross-examination that she would not speak to the panel in terms of policy questions and whether Ms Mbulaleni may have scored higher in that aspect.

17. Mr Aron Motaung (Mr Motaung) testified that he was one of the teachers who started in 2011 at Blue Eagle High School until he resigned. He testified that the role of an Hod is to: –
a. Oversee and facilitate all amenities, arrange meetings;
b. Assess, approve question papers;
c. Guide and develop teachers;
d. Improve related work of other teachers;
e. Pre and post moderation;
f. Question paper deadlines; and
g. Map up time with the department.

18. The tasks that he outlines are not an easy feat, as one must know the subjects they apply for. Knowledge and teaching experience as one must give advice. Ms Tladi and the Applicant started teaching LO and Creative Arts, and Ms Tladi retired. Mr Motaung stated that acting in HoD posts was rotational, at three month intervals as was the case in his department (Languages). There was no rotation for LO and Creative Arts and in the department there was Ms Tladi, the Applicant and Ms Ndou. No reason was given.

19. Ms Mbulaeni was an FET phase teacher and taught History in Grades 11 and 12. Mr Motaung stated that if one is appointed as HoD, one must know the ins and outs of the subject, as other teachers look up to you, and one must meet the requirements as there is a responsibility of developing other Educators. Good performance must be in terms of knowledge of the subject. Ms Mbulaeni never taught LO and Creative Arts and according to the FET time table she taught History for Grades 11 and 12.

20. Mr Motaung believes that the Applicant should have been appointed as she is a good teacher, a confidante to learners, she is a hard worker and knows the content. A best candidate would be one demonstrating knowledge and being able to develop others.

21. Under cross-examination he confirmed that he was not a member of the panel and cannot respond on behalf of the panel. When he goes for an interview he never thinks he is the best as there will be other candidates whose strengths are unknown to him. He disputed that Ms Mbulaeni taught LO -Grade 12 in 2013 with Ms Mtshali and Ms Ndou and that she taught Grade 8 LO in 2023.

22. Ms Nthabeleng Cindy Mamabolo (Ms Mamabolo) testified that apart from being an Educator at Blue Eagle High School, she is also the Site Steward. She stated that to become HoD one has to be an expert on the subject, have experience as it is always a requirement in the advertisement, competent on the subject and advise teachers and SMT. She stated that she joined the school in 2010 and that since she started Ms Tladi and the Applicant taught LO and Creative Arts. Ms Tladi left the school and the Applicant continued to teach the subjects.

23. She acted as HoD in the Mathematics department, and Messrs Mazibuko, Lamola and Ximba also acted in the Languages department. Ms Mbulaeni acted in Creative Arts and LO. She asked why there was no rotation with the other subject teachers, Ms Gadi, Ndou and the Applicant. She was told Ms Ndou was regarded as incapable and only one person acted with no rotation. Ms Mbulaeni never taught LO and Creative Arts since Ms Mamabolo started LO and Creative Arts teachers had always been Ms Ndou, the Applicant and Mr Tladi.

24. Ms Mamabolo stated that Ms Mbulaeni is friends with the Principal. Ms Gxagxama is not favoured by the office and has been given OD letters. There has been a recent march by parents who were given permission to come and attack the Applicant verbally. She is not liked. She stated that in terms of policy for one to act 6 months they must be approached by the department. The policy emphasises that one must not expect or hope to get the post. Ms Mbulaeni acted with no rotation. There was a private panel so as to ensure the union does not observe.

25. Ms Mamabolo further stated that the panel was biased in favour of Ms Mbulaeni as the Applicant had a university diploma,M + 3 and that Ms Mbulaeni gave a misconception of having experience. The records were manipulated in respect of the REQV and she also confirmed that for a HoD post one must be able to develop subject policies for the department she is heading. She confirmed she does not know what was asked in the interviews and that Ms Mbulaeni had 12 years teaching experience not 13 as indicated in her application form.

Respondent’s Version

26. The 1st Respondent led the evidence of three witnesses and a bundle of documents. The evidence is summarised below:

27. Ms Patricia Ndlala (Ms Ndlala) testified that she has been the Principal of Blue Eagle High School since 2014. She confirmed that there were 3 posts at her school for Departmental Heads for Mathematics & Mathematics Literacy, isiXhosa & isiZulu and Creative Arts and LO. The Applicant applied for the position of Creative Arts and LO Departmental Head.

28. Ms Ndlala further mentioned that there were issues in the school since 2022 and the decision taken with the SGB was that they would not deal with the interviews and wrote a letter to the District, as the recruitment and selection in respect of two previous posts was also managed by the District. She stated that the Applicant teaches LO and Creative Arts in the Senior Phase and Ms Mbulaeni teaches History in the FET Phase. Ms Mbulaeni taught LO in 2013 – 2014. In 2023 she taught LO in Grade 8.

29. The Applicant did not get an opportunity to act in the Departmental Head position because she had an incident at home and was emotionally affected and booked off for the month of November. In January 2023 she was not okay emotionally and the issue was discussed by SMT and approached the department. During that process there was an incident involving a learner which also affected the Applicant. She was off work from 2 March until June 2023. There was a letter that indicated that she suffered major depression. The department and HoDs discussed who would be able to act. The Applicant was not available and not well, and as principal she took a decision to support her until she recovers. The diagnosis was that she needed some time as she was emotionally affected and as a leader decided to support her.

30. For 2023 the incident affected her performance. In terms of her report she does not have the Applicant’s preparation. The report is that she needs to be developed and needs administrative support. She is good in teaching but as Principal she does not have her preparation file for LO. She is not aware of any reference check being done on the Applicant. Ms Ndlala said that the Applicant gave her best before covid-19 and started to have issues about 2019,2020 when her performance changed. The Applicant is also in the clique that is against the Principal and part of the internal conflict. Absenteeism also affects the school.

31. Under cross-examination, Ms Ndlala confirmed that when she came to the school Ms Mbulaeni was teaching Technology and LO as at the time the school did not have History classes. She confirmed that she did not teach Creative Arts. She also stated that there were reasons for lack of rotation in the LO and Creative Arts department and that Ms Mbulaeni was not teaching any of the two subjects. She denied being friends with Ms Mbulaeni as she does not even know her family. She lastly confirmed that to apply for a HoD position, you do not have to teach the subject as one can do management and administration.

32. Ms Grace Mabalayo (Ms Mabalayo) testified that she is the Chief Education Specialist and was appointed as the Chairperson of the panel in the recruitment in question. The post was for a Departmental Head for Blue Eagle High School. When shortlisting the application forms are sent to HR where they are screened for compliance and completeness. HR would do the sifting and screen out those that are non-compliant. When they receive the forms they check the post and shortlist and in so doing apply the criteria as per the post requirements. The criteria applied is qualifications, experience and any other relevant information.

33. They consider all candidates as per subjects, and in the case of the Applicant she said she taught the subjects and they checked qualifications and the fact that she acted and that she had experience. The HR Specialist invites candidates and everyone who should be part of the interview. The responsible HR Specialist was Obakeng Mboya. Candidates came to the interviews. As a team they agree on questions to be asked and look at the specification, in this case to manage the subjects, after which they develop questions.

34. In the case of the Applicant her experience was tested with questions and she tried and there was another candidate who excelled. They had the same questions as the panel. One of the documents is to check if one is qualified for the post. A HoD post is about learner attainment and they made sure to test if one knows about assessment in learning and teaching. Other questions that were not subject related looked at conflict management and they wanted to test conflict management between parents and the Educator. They had Question 5 about insubordination and it was a key one about circulars to use when one prepares class for the learners. They could not have other questions and the questions were not given for candidates to do a presentation. The Applicant therefore had no other source of information.

35. The application form must contain the post number, name of person, ID number, and at the end of the form the Applicant would sign. Qualifications are looked at, experience, extra-curricular activities and references. They would not know based on the form if one has falsified information, HR would pick up discrepancies. The Applicant could not exceptionally demonstrate the required skills compared to Ms Mbulaeni. Ms Mabalayo stated that she does not understand what the Applicant compares herself to as she was not present when other candidates were interviewed.

36. The candidates were scored and a recommendation of Ms Mbulaeni was made. With regards to the requirement to teach the subject Ms Mabalayo stated that if one is a Specialist in LO, one does not necessarily need to have experience in Creative Arts. The department knows it’s rare to have Creative Arts and LO Specialists, and if one has knowledge they would see if a person can assist in moderating. The Applicant knew policies in terms of weighting and the other one knew we had to have a year mark and control mark. In essence one candidate had general knowledge and one had specifics.

37. Ms Mabalayo further stated that the REQV is the level of qualifications. The first candidate has 15 and REQV 15 is a 4-year qualification and Honours or a Diploma + ACE. REQV 13 is only a Diploma and REQV is a Diploma + Certificate. She explained that her duty as a Chief Education Specialist is to support the Specialists and LO and Creative Arts report to her. The Departmental Head reports to the subject Specialist and speak to the Head of Department and the Departmental Head manages the subjects. One cannot be a manager for all the subjects but if you manage Creative Arts and LO one will look at that subject specifics.

38. Under cross-examination she stated that the Gauteng Department of Education’s resolve is that for one to teach a subject, one must have studied that subject. She clarified that Creative Arts is a new subject and that long-serving Educators must re-skill to have that subject. One would have subjects s/he was inducted on or have ACE. For teaching one must understand the subject and for managing understanding the subject is not required.

39. Mr Obakeng Mboya (Mr Mboya) testified that in the recruitment in question he was the HR Representative as a Scriber since the panel was independent. He was tasked to manage the logistics from shortlisting onwards. He recalls there were five candidates and emphasises that he was not part of the interview committee but only performed HR functions.

40. He explained that shortlisting entails gathering of the panel, he invites the relevant people and invites all unions to observe. Formulation of criteria to be applied is done by the panel. In the interview the candidates were asked the same questions and in this case four candidates were interviewed as the fifth one declined. He is the one who invites candidates to the interviews. Three panel members attended the interviews and the fourth one was not available.

41. After the interviews he consolidated the scores and deliberations after the panel ranked candidates according to their performance on questions posed to them. He writes his own script and interview minutes to talk to whatever transpired in the interviews on the day. The panel makes the recommendations, the District Director approves before it goes to HR for him to send minutes to his supervisor then it moves to the Deputy Director. The final decision is made by the HoD. the District Director can change the decision. The successful candidate was Ms Mbulaeni, who was recommended for appointment. He wrote on the recommendation that LO and Creative Arts is the subject she teaches and that she complied with set criteria. He wrote the recommendation based on the advert and performance and everything that happened on the day in terms of the questions posed by the panel members.

42. In the case of the Applicant she performed but not better than the recommended candidate. He also testified that it is normal for schools to request the District to manage recruitment – there may be issues in the school. If the Principal and the SGB agree, then it is normal. He clarified that when they receive forms, they stamp and number the form and they pack the applications until the advert closes and thereafter start capturing information and sift according to the requirements of the post. HR Clerks are advised on post requirements and sifting requirements.

43. They check the correct post number (if incorrect they disqualify), the reference number, check if GD2R Form is signed, next check if one qualifies for the post where they sift according to the number of years’ experience. To meet HoD post requirements one must have 3 years as an Educator to meet the minimum requirements. The next level they package and print out the list. The panel goes through the list to see who was disqualified and the reasons. On the GD2R form qualifications are stated there and there is no need to attach qualifications. They only verify qualifications on the recommendation files. Verification is done by a service provider and they take first time entry qualification onTeaching, e.g. Diploma or Degree for appointment purposes. This was done on the Applicant and others. They do not disqualify applicants for minor errors as they focus on the number of years in teaching and the Principal is not part of the process.

44. Under cross-examination he explained that the process for selection of an independent panel must be preceded by a request from the school Principal and the SGB to the District Director, subject to approval. In this case the District Director approved the request. They, as HR, deal with shortlisting and if allowed by the District Director they (HR) come as administrative support. After appointment of the panel the Director requests HR to run the administration processes. He was therefore appointed by Ms Nelisiwe Moshani, his supervisor. He takes the sealed package of applications to the panel. They applied the department’s recruitment and selection policy.

45. Ms Mbulaeni decided on the last day of the arbitration not to lead any evidence, having indicated in the previous adjournment that she would lead evidence.

ANALYSIS OF EVIDENCE AND ARGUMENT

46. Section 185 of the LRA provides that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices. This section gives effect to section 23 of the Constitution of the Republic of South Africa. The dispute referred is an unfair labour practice relating to promotion and the employee bears the onus of proof.

47. In this matter it is common cause that the Open Post Bulletin JN43EC1029 was issued advertising Departmental Heads posts in Blue Eagle High School, the position of interest being the Departmental Head: Creative Arts and LO. It is further common cause that the Applicant applied for the post. It is further common cause that the Applicant was shortlisted and invited for an interview for the post, with 3 other candidates. It is further common cause that the Applicant was not successful in her application, hence the present dispute.

48. On procedure the Applicant argued that the first issue to be considered is the composition of the independent panel and the lack of approval by the HoD. In terms of the evidence led by the Applicant, she stated that following the interviews they were called by the Principal who made an announcement on which Educators were successful in the HoD posts. In the Creative Arts and LO department, Ms Mbulaeni was successful. There is further evidence by the Applicant that the process leading to the appointment of Ms Mbulaeni was not dealt with by the SGB, it was managed by the District. The minutes o f the SGB meeting/s were not provided by the 1st Respondent. She added that in their school they do not know the SGB members. Ms Mamabolo testified that the utilisation of the independent panel was for the union not to observe. Arguments in this regard were raised by the Applicant’s representative in terms of ELRC Collective Agreement 1/2021 (the Collective Agreement) regulating Recruitment and Placement Procedures for Educators at Schools in the Gauteng Provincial Chamber.

49. With regards to the provisions of the Collective Agreement, Clause 8, provides that:

● The HOD may appoint an independent interview committee after having followed due process in terms of ss22(1) and 25(1) of the South African Schools Act, 1996.
● The decision to appoint and approve an independent panel can only be made by the HOD. The outcome of the interview process will be communicated to the relevant SGB in a formal meeting.
● The SGB may request the HOD or Delegated authority to appoint an independent interview committee in writing with reasons. Minutes and attendance register must be part of the request letter. SGBs are at liberty to request observer status but limited to two (2) members only.

50. In terms of the above provisions the Principal, SGB Chairperson and SGB Secretary of Blue Eagle High School wrote a letter to the District Director annexed at Page 26 of the 1st Respondent’s bundle, the contents of which are a request by the school to have an independent interview panel dated 24 April 2023. Following that correspondence there is a submission for appointment of such independent panel to the District Director dated 29 June 2023 and is approved on 17 July 2023 by the Deputy Director: THRS. On page 20 of the Respondent’s bundle there is an invitation to Organised Labour – SADTU and NAPTOSA with proof of email to both unions.

51. On 14 September 2023 there are minutes of the shortlisting meeting with an attendance register attached, wherein the date for the interviews was set to be 28 September 2023. The interviews sat on the day and a pre-interview meeting was held, minutes and attendance register attached, followed by a motivation for appointment of candidates in order of preference. Once again there is an attendance register attached. A ratification meeting was held on 23 October 2023 and minutes and attendance register thereof, are attached. The recommendation was endorsed by the SGB of the school with the chairperson of the panel present.

52. I therefore find that the process outlined in the Collective Agreement was followed in that the request for an independent panel was made, in writing with reasons as required and the submission for approval of appointment of the independent panel was made to the delegated authority. I do not find any absurdity in the manner the process was handled and that the invitation to organised labour was also made, and the record in the minutes was that both unions were absent. The Collective Agreement provides that the absence will not invalidate the process. I find no fault on the part of the 1st Respondent in continuing in the absence of the labour representatives because they were invited to the process. I find no procedural irregularities in this regard.

53. Coming to the substantive aspect of the Applicant’s challenge, the Applicant in the main believed that she was the best candidate and should have been successful in that she was taught LO and Creative Arts which Ms Mbulaeni did not. It was presented by the Principal that Ms Mbulaeni taught LO in 2023 and also acted in the position of Departmental Head. Reasons were provided on why the acting was not rotated and such reasons related to the Applicant ill-health at the time the acting position became available. The Applicant did not dispute this evidence and therefore nothing turns on the fact that it was unfair to not allow her to act, under the circumstances, and therefore valid reasons were presented.

54. PAM document at B3.2 regulates the minimum requirements for appointment for institution-based and office-based educators. At B3.2.(b) the minimum requirements for a Departmental Head are:

a. A recognised three or four-year qualification, which includes professional teacher education;
b. Registration with SACE as a professional educator;
c. Advanced Knowledge of teaching as provided for in the professional qualification;
d. 3 years of actual teaching experience; and
e. Generic competencies.

55. With regards to all candidates, it is to be expected that they all met the minimum criteria for the Departmental Head post, hence they were shortlisted. The evidence as led by the 1st Respondent is that Ms Mbulaeni, compared to all the candidates, was the best in terms of performance in the interview. The Applicant was in no position to demonstrate how best did she perform in the interview compared to Ms Mbulaeni, without trivialising her contention that she was experienced compared to Ms Mbulaeni, she presented no evidence to show how best did she present such experience to the satisfaction of the panel. The fact that she taught the subject is not a requirement, but would have been an added advantage, hence that did not disqualify anyone who did not teach the subjects.

56. In terms of qualifications they both have an ACE Certificate in LO and Ms Mbulaeni taught the subject as of 2023 and acted as Departmental Head in the LO and Creative Arts department. Whether the decision for her to be afforded the opportunity to act isi unfair or not, is not the subject matter for purposes of this arbitration because circumstances surrounding the Applicant at the time the acting appointment was made were not disputed. There is further no requirement in the PAM document, the advert or post requirements that one must be teaching or must have taught the subjects (Creative Arts and LO), and I am unable to create a new requirement in that regard as it features nowhere in the requirements of the post in terms of legislation as well as the advert and having alluded to the fact that all candidates met the minimum criteria, and were afforded an opportunity to compete for the post.

57. PAM document at B5 outlines the following steps for recruitment and selection:
a. Vacancy identified
b. Advertisement
c. Sifting by the department
d. Shortlisting by Interview Committee
e. Interviews by Interview Committee
f. Ratification; and
g. Recommendation by SGB
h. Appointment by HoD

58. In this matter all the stages outlined above were followed. It therefore shows that the Applicant was afforded a fair opportunity, equally with the other candidates, not just Ms Mbulaeni, to compete for the post. The fact that she was not successful cannot be attributed to disregard of her experience as it is acknowledged in the 1st Respondent’s recommendations and commentary on each of the candidates. Further the issues around interpersonal relations in the school are subjective as the Applicant and Ms Mamabolo believe that the Applicant is not liked by the Principal and that the Principal is friends with Ms Mbulaeni. It is against this background that there was a request for the District to manage the recruitment and selection process so as to curb such perceptions. The Principal also testified that there is a clique against her, to which the Applicant belongs. This is an issue that can be remedied with the necessary intervention by the leadership of the school assisted with the relevant leadership of the District as such an environment cannot be allowed to thrive in an institution that is tasked to develop children.

59. The issues raised above on interpersonal relations are not determinant of the outcome of the interviews, as they were managed by the District, not the school, where such issues are alive. Substantive fairness requirements in the matter have therefore been met by the First Respondent, as employer.

60. In Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng, Case No 02/15349 [2006] JOL 17802 (W) it was held that:
“The question then arose whether the multitude of the applicable laws and regulations which prescribed the procedure to be followed in the appointment of new teachers were peremptory or merely directory. In either event, the first question arose whether exact compliance was required or whether substantial compliance was sufficient. Accepting for present purposes, that the prescribed procedure was peremptory, strict compliance was not necessary. All that was called for was substantial compliance.

Held, further, that the procedure that the school had followed fully achieved the purposes of the legislation of ensuring that there was a fair and transparent procedure in place for appointing teachers to fill vacancies.”

61. In this matter it was shown that there were aims to conduct the process fairly by ensuring that the school politics do not taint the process with issues of favouritism and related issues. In line with the sentiments in the Observatory Girls matter substantial compliance with PAM was achieved in the recruitment process leading to the appointment of the Second Respondent. There was further no prejudice on any of the candidates as the process substantially complied with the required procedures.

62. In Ndlovu v CCMA & others [2000] 12 BLLR 1462 (LC), the Court held at par 1462:
“It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.

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. That will almost invariably involve comparing qualities of the two candidates. Provided a decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise”.

63. From the case cited above there is no evidence that the decision to appoint the Second Respondent was not rational. The Second Respondent was already in the school, acting as Departmental Head for Creative Arts and LO. The contentions by the Applicant on her performance and knowledge would be a matter of performance which cannot be easily detected in a mere interview.

64. In Goliath v Medscheme (Pty) Ltd (1996) ILJ 760 (IC), it was held that it is quite possible that the assessment made of the candidates [by the employer] and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion.

65. In Noonan v SSSBC and others [2012] 56 ILJ (LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity to compete for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.

66. It is also trite that where an employee fails to prove that s/he was the best of all the candidates who applied for the job, then in order to the employee to prove an unfair labour practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest and misled the interview panel or employer.

67. It was alleged that the Second Respondent presented her work experience as 13 years instead of 12 and some error in her REQV, and according to Mr Mboya, they do not disqualify applicants for minor mistakes on the form. The qualifications presented also confirmed the correct REQV and that was not a major discrepancy according the the 1st Respondent, as confirmed by the HR department that was responsible for the sifting.

68. Section 28(2) of the Constitution requires consideration of children’s’ interests in matters involving children or only affecting them. In this matter the decision to appoint the Second Respondent can therefore not be interfered with, considering that the school is an institution for teaching and learning, with the interests of the children being paramount. Interference with the decision on the appointment would destabilise already established protocols, affecting the children ultimately.

69. I find, therefore, that the decision of the HoD to appoint the Second Respondent was rational, fair and reasonable and does not need to be interfered with. I therefore find that the Applicant failed to discharge the onus to prove that she is the best of all candidates that were interviewed for the position, and that the failure to promote her was unfair and that the process followed was unfair.

70. In the circumstances, I make the following award:

AWARD

71. The conduct of the First Respondent, Department of Education: Gauteng, in not promoting the Applicant, Ms Nomawethu Gxagxama, does not constitute an unfair labour practice.

72. The Applicant, Ms Nomawethu Gxagxama, is not entitled to any relief.

PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL