Arbitrator: ADV L.CHAROUX
Case Reference: ELRC732-22/23WC
Date of Award: 14 July 2023

In the arbitration between

NAPTOSA OBO MS E JANTJIES APPLICANT

And

DEPARTMENT OF HIGHER EDUCATION WC 1ST RESPONDENT

MS G ABRAHAMS-MEYER 2ND RESPONDENT

On behalf of the Applicant: Mr F Tassiem of NAPTOSA

On behalf of the 1st Respondent: Ms V Mthwazi

On behalf of the 2nd Respondent: Mr J Fortuin of SADTU

INTRODUCTION

1. The matter was set down for an arbitration hearing on 17 February 2023, 22 and 23 March 2023, 25 and 26 May 2023, 13 June 2023. Mr F Tassiem from NAPTOSA appeared on behalf of the Applicant. Ms V Mthwazi appeared on behalf of the DOE. Mr T Fortuin from SADTU represented the Second Respondent.
2. The Applicant referred an alleged unfair labour practice dispute related to promotion to the ELRC on 23 September 2022. She is seeking to be appointed to the principal position currently occupied by the Second Respondent.
3. The parties concluded a pre-arb minute.
4. Both parties filed a bundle of documents, Bundles “A” and “B”.
5. The parties filed heads of argument on 23 June 2023.

COMMON CAUSE FACTS

6. The Applicant applied for a Post Level 4 Principal Post at Mount View High School.
7. The post was advertised in vacancy list 1/2022 post number 158.
8. Shortlisting was done on the 4th May 2022. Two candidates were shortlisted, namely Ms Jantjies (the Applicant) and Ms Abrahams Meyer (the 2nd Respondent)
9. Interviews were conducted on the 11th May 2022.
10. On 28 October 2022 the School Governing Body (“SGB”) nominated Ms Jantjies as their 1st choice and Ms Abrahams-Meyer as their 2nd choice.
11. On 15 November 2022, Mr B Walters, the Head of Education (“HOE”), exercised his discretion and approved the appointment of Ms Abrahams-Meyer, the SGB’s second choice for the Principal Post.

Scoring and CBA results

12. In the shortlisting Ms Abrahams-Meyer scored 57% and Ms Jantjies scored 51%.
13. In the interview Ms Meyer scored 498 which is 76% and Jantjies scored 474 which is 72%.
14. A Competency Based Assessment (“CBA”) feedback was received on 11 August 2022.
15. The CBA results showed a slight difference in respect of their strengths and weaknesses in relation to behavioural match and abilities.
16. Ms Meyer was above average in inductive reasoning and was seen as a reasonably strong match in respect of the behavioural match.
17. Ms Jantjies was well above average in inductive reasoning and was seen as an extremely strong match for the post.

CV’s of respective candidates:

18. Ms G Abrahams-Meyer

30 years teaching experience
Post Level 3 educator
Department head for 18 years from 2002 – 2020
Acting Deputy Principal of Mount View High School from 2020 – mid 2021
Currently principal at Mount View High School

19. Ms Jantjies

30 years teaching experience
Post level 1 educator.
Acting HOD for Grade 12 pupils for 2 years.
ISSUES TO BE DECIDED

20. Whether the decision not to appoint the first nominee Ms Jantjies was procedurally and substantively unfair.
21. Whether the Applicant is entitled to be appointed to the post of principal at Mount View High School.

APPLICANT’S EVIDENCE

Mr R Ahmed testified as follows:

22. He is a Senior Executive Officer of NAPTOSA.
23. He explained the process to follow for the appointment of an educator post at a public school and the role and purpose of the resource person. The Circuit Manager (“CM”) will be the resource person for the filling of a Principal post. There is no provision in the South African School’s Act, PAM, ELRC Resolution 5 of 1998, the Employment of Educators Act or the Common Understanding 1 of 2002 that entitles a CM to make a recommendation regarding who should be appointed to a post. The HOE can only make a decision based on the recommendation of the SGB.
24. Ahmed said it was never the intention of the CBA to be used as part of the selection criteria used by the SGB. It was supposed to be used as a developmental tool. However, the SGB could agree to use CBA as part of the selection criteria.

Mr P Sidinile testified as follows:

25. He is a Post Level 1 Educator at Mount View High School and the secretary of the SGB at the school.
26. He has been teaching at Mount View High School for 20 years.
27. Sidinile was one of the panellists of the SGB for the appointment of the Principal position at Mount View High School.
28. He said the CM advised the SGB to use CBA as one of the criteria to make a decision regarding the best candidate for the principal position.
29. Sidinile said that after scoring the candidates the SGB waited for the CBA results.
30. The CBA results indicated that Jantjies was “extremely suitable” and Abrahams-Meyer was “adequately suitable”.
31. When asked about the role that the CBA played in the evaluation of the candidates Sidinile said that the SGB’s personal views were involved when scoring the candidates. Both the candidates were internal and personal relationships could play a role when scoring candidates. The CBA was independent and impartial. Sidinile’s point of view is captured in the SGB minutes of 11 May 2023.

32. Page 20 Bundle A

“The CBA was discussed and proposed by Mr Sidinile as being the deciding factor. “

33. At the arbitration hearing Sidinile said the SGB considered shortlisting + interviews + CBA when considering who to appoint to the Principal position.
34. The SGB sent their recommendation to the HOD. Thereafter the CM asked them to provide further reasons why the Second Respondent was not recommended. The SGB gave the following reasons (page 50 bundle A)

“With regards to Mrs Abrahams-Meyer being placed as the second nomination, we have felt that although she has acted as the Principal till now, her leadership style is not suitable for the position. Her CBA scores show a lack of intelligence and poor leadership qualities for this tremendous job and because of that the SGB unanimously agreed that Mrs Jantjies is the most suitable candidate.” (my emphasis)

RESPONDENT’S EVIDENCE

The Circuit Manager (CM) for the selection of the Principal at Mount View High School was Ms N Pedro. Pedro testified as follows:

35. Pedro said that she wrote a motivation in accordance with the “Verification tool for Districts” (pages 18 – 21 of Bundle A). Her motivation reads as follows:

(pages 20 – 21 Bundle A)

“CM motivation: I support the nomination of Mrs Abrahams-Meyer for the principal position at Mount View Secondary School. She has the relevant experience, having been an HOD, an appointed Deputy Principal as well as Acting Principal since 1 May 2021. Under her leadership, Mount View Secondary achieved 79% in the 2021 NSC. The previous year the school had achieved 66%. Mrs Abrahams-Meyer is a dedicated individual who always prioritises the needs of the learners. She is hardworking and meticulous. She meets due dates effectively and challenges her staff to do the same. She is not afraid to address matters head-on; during her year as Acting Principal she has exercised progressive discipline and has referred matters to Employee Relations as well. All referees speak very highly of her, describing her as a competent individual who always aims to deliver her best. She is trustworthy and dependable. She has always worked to further the needs of the learners. She enjoys a collaborative leadership style and has used this to unify staff towards achieving a common goal. She displays good organisational skills and is always well prepared for all engagements. Mrs Abrahams-Meyer leads by example and is exemplary in her conduct and engagement with staff, learners and parents alike.

While she did not achieve the top rating in the CBA, she achieved this at shortlisting and then at the interview session. She answers all questions posed eloquently and was able to elaborate. She did not deviate from the task at hand. Mrs Abrahams-Meyer has ensured that there is stability at the school, especially at SMT level where several posts are vacant due to ill health and movement within the school. The SGB is preparing to process these posts as well.
Mrs Jantjies is a post level 1 educator. She has acting Departmental head experience as she has been acting in one of the vacant Departmental Head posts. She is also the grade 12 Head and SBST coordinator. She taught Geography and Life Orientation. Whilst she performed better at the CBA, my experience has been that she often arrives late at work. This has been addressed by the Acting Principal. She struggles to meet deadlines set by others. This is of concern as one must lead by example in all spheres of leadership. Mrs Jantjies is bombastic in nature, and his can impact collaboration at the school. Mrs Jantjies has not occupied a SMT post at a permanent level. She has acting experience which spans roughly two years. Even though my engagement with Mrs Jantjies has been limited to SMT meetings, she did not create an impression of one who is professional in dress and conduct.

This matter has been discussed at length with the director. She is supportive of this submissions.”

36. During cross-examination it was put to Pedro that she was not authorised by the relevant legislation to make a recommendation regarding the most appropriate candidate for the position.
37. Pedro said CBA may only be used for developmental purposes. She said the CBA was not a factor to consider for appointment and that she told the SGB so. She said she instructed the SGB to do a CBA , not to use the CBA as a criterion for appointment.

Ms D Scheffers, the Deputy Director (DD) Recruitment and Selection testified as follows:

38. Scheffers referred to Pages 68 – 74 Bundle B Submission for delegative authority. (referred to as the “route document”)
39. She said the route document is a business process developed by the WCED with the specific purpose of providing an advisory role to the HOD.
40. Purpose of CBA is developmental.

Ms H van Ster the Acting Chief Director of Districts testified as follows:

41. Van Ster explained the routes followed when the SGB had completed their process which is set out in the route document.
42. The documents are uploaded onto the system.
43. Colleagues within recruitment and selection (“RMS”) will check that the process was followed correctly.
44. The Director RMS will forward the documents to van Ster. Van Ster goes through the pack from where it goes to the Deputy Director General Institutional Development and Co-Ordination, thereafter to the Chief Director People Management Practices , then to the Deputy Director General of Corporate Services and finally to the HOE.
45. Van Ster said she also gave an input and recommended Abrahams-Meyer for the position.
46. Van Ster said the senior managers along the line of delegation made comments to the HOE who made the final decision taking into consideration the comments.

47. Each manager on route to the HOE has an area of expertise. The managers along the route are delegated to communicate a perspective to the HOE. The HOE takes all perspectives of his managers into consideration. She said that whilst it was not part of the enabling legislation applicable to appointments it enhanced the process. The delegation of senior managers is to ensure thoroughness of the process.
48. She said the CBA was for developmental needs, however it may also be used as a criteria for selection purposes. The HOE looks at all the factors, including the CBA results. She said she totally disagreed with the SGB’s conclusion that Abrahams-Meyer lacks intelligence. She referred to Bundle A pages 90-100. There was no indication in the report that Abrahams-Meyer lacks intelligence.

ARGUMENTS PRESENTED BY BOTH PARTIES

49. Mr Tassiem argued as follows:

 The comments made by Ms Pedro with regards to the motivation of the Applicant are procedurally and substantively unfair.
 Section 20(1)(i) of the South African Schools Act of 1996, authorizes the SGB to recommend to the HOE their preferred list of nominees for appointment.
 Mr Tassiem said that although he might not have a problem with the verification tool per say, he does have a problem with the comments of the resource person.
 The purpose of the resource person is to guide and train the SGB on the processes. The comments made by Pedro on page 20 of Bundle A sums up how she over played her role as resource person to which she admitted during cross examination.
 Mr Tassiem was of the view that the CM ‘s comments influenced the HOE and rendered the appointment of the Second Respondent procedurally and substantively unfair.

50. Ms Mthwazi argued as follows:

 The Second Respondent scored better in shortlisting and interviews.
 The CBA results of both candidates were good.
 Van Ster testified that Pedro’s irrelevant comments were not taken into consideration.
 The HOE’s decision to appoint the Second Respondent was rational and reasonable.

ANALYSIS OF EVIDENCE AND ARGUMENT

The CM’S (Pedro’s) motivation

51. The verification and route documents are part of the WCED’s business practice.
52. The reason for the verification process is formulated as follows: “The instrument is designed to gather information that will assist the Head of Education to discharge of his or her duties in terms of section 3 (b) and 6 (1) (b) of the Employment of Educators Act of 1998 as amended.”
53. Section 20 (1) (i) of South African Schools Act, 1996, authorises the SGB to recommend to the Head of Education, their preferred list of nominees for appointment.
54. Section 6 (3) (a) of the Employment of Educators Act, 76 of 1998 states as follows:

“(a) …..any appointment, promotion, or transfer to any post on the educator establishment of a public school or a further education and training institution, may only be made on the recommendation of the school governing body of the public school ……”

55. It is clear that it is the SGB who must make the recommendation, and nobody else.
56. None of the enabling legislation authorises a resource person or any other person to make recommendations to the HOE except for the SGB.
57. In his heads of argument Mr Tassiem stated that he did not have a problem with the verification process per se. He limited the alleged unfairness specifically to the comments made by Pedro. I am therefore not required to make a determination on whether the Verification Tool for Districts (pages 18 – 21 of Bundle A) which includes the Route form (pages 68 – 73 Bundle B) renders the proceedings unfair. All that is required of me is to determine whether the unfair comments made by Pedro influenced the decision of the HOE to appoint the Second Respondent and not the Applicant.
58. Clearly some of the comments made by Pedro were unfair towards the Applicant. In her evidence she admitted that she overstepped her role as resource person in certain comments she made in her motivation. The fact that certain comments were unfair towards the Applicant is however not the end of the matter. The question is whether the HOE was influenced by her unfair remarks which I will deal with below.

CBA policy
Bundle A Pages 56 – 58

59. The CBA policy, just like the verification and route document is exclusive to the Western Cape.
60. The witnesses were not ad idem about the role of the CBA in selection processes. It appears that everyone has a different interpretation of how the CBA operates. Some were of the view that it could only be used for developmental purposes and others were of the view that it could be used for both developmental purposes and for selection purposes.
61. The CBA policy however makes it clear that the CBA may be used for both selection purposes and developmental purposes.
62. Paragraph 11.3 of the CBA policy states as follows:

“11.3 In respect of competency assessments for selection and development purposes, the results of such assessments may not be utilised in isolation. Such results must always be augmented as follows:

11.3.1 For selection purposes: Competency assessment results must be augmented with other acceptable selection techniques, such as personal interviews as prescribed by the Western Cape Government’s Recruitment and Selection policy.

11.3.2 For developmental purposes. Competency results must be considered with the developmental requirements of employees as specifically prescribed by the Western Cape Government’s transversal policies related to perform management and human resource development.” (my emphasis)

63. Sidinile was the only SGB panellist who testified at the arbitration hearing. He said the SGB took into consideration the CBA results as one of the criteria for the selection of the proposed candidate.
64. Sidinile’s evidence that the SGB agreed that the CBA would be used as a criteria in the determination of the best candidate for the principal position is supported by the minutes of the meeting of 11 May 2022 (page 13 of Bundle A) where the following is noted.

“CBA

It was decided by the IC that the process to be followed will be the nomination process where the successful candidate’s will undergo the Competency Based Assessment (CBA) and on completion of this assessment those successful will be nominated for the principal post.”

65. The fact that the SGB waited for the CBA results before making a decision who to nominate illustrates that the CBA was used as a criteria to determine who the best candidate was for the position.
66. The HOE took the CBA results into consideration.
67. The question is whether the CBA was used as a primary criterion or as one of the criteria used to determine the most suitable candidate for the position.
68. In my view the CBA was used as a primary criterion. My reasons for coming to this conclusion are as follows:

 Up to the point that the CBA results were received by the SGB the 2nd Respondent was ahead both on the scores of the shortlisting and interview proceedings.
 Sidinile testified that the CBA results “changed the ball game”.
 In their second letter the SGB stated that because of the CBA results the SGB unanimously decided to choose Jantjies.

69. The SGB misinterpreted the CBA results and made their own conclusion that the CBA results indicated that the 2nd Respondents showed a lack of intelligence and poor leadership qualities. Their conclusion was clearly incorrect and an incorrect premise to make a decision not to appoint Abrahams-Meyer who performed better in the scoring.
70. I am of the view that if the SGB did not use the CBA as the primary criteria they would have recommended the Second Respondent and not the Applicant to the principal position.
71. Paragraph 11.3 of the CBA policy is clear, namely that CBA may not be used in isolation. It should be used as one of the criteria, not the primary criteria for selection purposes.

The reasonableness (or not) of the HOE’s decision to appoint the Second Respondent to the Principal position:

72. It is not in dispute that the HOE has a discretion to appoint who he/she believes is the best candidate for the post. The issue that Mr Tassiem has is that the HOE was influenced by Pedro to come to the decision he came to and that was unfair. In order to determine whether the HOE’s decision was unfair the reasons put forward by the HOE for his decision to choose Ms Abrahams-Meyer and not Ms Jantjies is determinative of whether his decision was fair or unfair.
73. The handwritten notes of the HOD states that he took into consideration the following factors:

“I have noted all comments
CBA of both candidates are acceptable
Scores of panel at interview that Abrahams Meyer first and E Jantjie second
CM has confirmed that Abrahams-Meyer is a suitable appointment and has been acting in the position, also that Jantjies is a PL1 Educator with limited management experience.

Conclusion

Abrahams-Meyer approved for appointment

E Jantjies approved for appointment if G Abrahams-Meyer declines the post.
Post to be re-advertised if E Jantjies declines.”

74. In my view the decision made by the HOE to appoint Abrahams-Meyer and not Jantjies was fair for the following reasons:

 The HOD did not take into consideration the personal views expressed by Pedro.
 He took into consideration the CBA results, the fact that Abrahams-Meyer scored better than Jantjies, the fact that the Second Respondent was acting in the principal position and that Jantjies was a PL1 Educator with limited managerial experience.
 I am of the view that it was not unreasonable to take into consideration managerial experience for a managerial job. On the contrary it would be unreasonable not to take into consideration the experience that a candidate had which is relevant to the post.
 The factors taken into consideration by the HOE were reasonable, rational and fair.

75. No unfair labour practice was committed against the Applicant.

AWARD

76. The Applicant’s application is dismissed.

ADVOCATE L CHAROUX
COMMISSIONER