IN THE ARBITRATION BETWEEN

SADTU obo Matsinya B.K. : Union/Applicant

AND

Department of Education – EC : First Respondent

Ms S. S. Mhlakotshana: Second Respondent

DETAILS OF HEARING AND REPRESENTATIONS

1. This arbitration was part heard on 16 March 2016,12 July 2016, 14 September 2016, 15 September 2016, 02 December 2016,16 February 2017,and was finalized on 05 December 2017. It was heard in the offices of the respondent in East London and it came before the ELRC in terms of Section 191 (1) (5) (a) read with section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended, (the LRA).

2. Parties agreed to submit written closing arguments on 22 December 2017. No arguments were received from the applicant or his representative. All arguments have been considered in the preparation of this award.

3. Ms Nolitha Mboniswa, an official from SADTU appeared for the applicant. Mr Thandabantu Hena appeared for the first respondent, the Department of Education, while Ms Faith Maposa an attorney from Maphosa Incorporated, who was later substituted by Mr Ben Washington represented the applicant.
ISSUE TO BE DECIDED

The issues to be decided is whether the first respondent’s conduct of failing to appoint the applicant to the position of Deputy Principal at Nkangeleko hhh School SSS was fair or not.
Whether the appointment of the second respondent (Ms Mhlakotshana) to the position of a Deputy Principal was lawful or not.

BACKGROUND TO THE DISPUTE

4. The applicant referred a dispute to the ELRC through his union, SADTU regarding an alleged failure by the first respondent to appoint him to the position of Deputy Principal at Nkangeleko Intermediate School. When the dispute could not be resolved at conciliation level, the applicant filed a request for arbitration.

SURVEY OF EVIDENCE AND ARGUMENT

Applicant’s case
5. According to Ms Mboniswa‘s opening statement, the dispute relates to unfair labour practice based on promotion and it arose from volume 11 of 2015, Post 283. The applicant contends that the decision of the first respondent not to appoint him to the position of Deputy Principal was unfair. The applicant was the highest scorer during the first interview and was vebarly told by the Principal that he had won the interview.

6. The applicant did not get a letter appointing him to the position until he was invited to the second interview. The applicant seeks the appointment to the position of Deputy Principal as confirmed by the score sheet.

7. The applicant, Mr. Bongani Keneth Matsinya testified under oath as follows:

8. He works for the respondent and is based at Nkangeleko Intermediate School. He has 20 years teaching experience and he applied for the position because he could see that he qualifies for it. On 05 May 2015, he received a letter from Mrs Swarts advising him that the SGB could not endorse his appointment because of the pending assault case he had with a SGB member.

9. On 23 June 2015, he was invited to a meeting by the Deputy District Director,Mr Mnguni who first checked as to what happened on 29 April 2015. Both new and old SGB members were present in the meeting and scores were verified. Mrs Swart also indicated that she has seen the scores and noticed that only 1 person correctly calculated the scores.

10. He thought that an independent panel would be appointed to deal with his case but the respondent failed to do so.

11. He did not re-apply for the position for the second time but he was invited to the interview for the second time which were held at Rubusana School. He can recall during the second interview that Ms Majangaza was the EDO, Ms Masebeni was the chairperson, Ms, Malgas, Xabanisa and Mr Gabha were in attendance. This was not an independent panel. He (the applicant) indicated to the panel that he was not happy with them as he requested an independent panel from the first respondent.

12. The first interview process was fair except that he saw numerous letters written by the panel members within the fourth day. The second interview was unfair. The panelists’ of the first interview refused to recommend him for the position. Mr Gabha and SGB wrote a letter to the first respondent indicating that they have a problem in recommending his name for the position as there was an assault case case against him. There were old and new SGB members. The old SGB conducted the interviews. Mr Gabha did not apply for the position in question.

13. Before the finalistion of the interview, scores are verified by the panel and all documents are submitted to the district office. Nobody is allowed to open the box after it has been closed by the panel.

14. On 04 May 2015, the Principal, Mr Ngcawuzele told him that he had won the interview and he was the Resource person. He broke the confidentiality clause and he wrote a letter that appears on page 26 explaining that the scores were incorrectly calculated by the panel.

15. The scribe for both interviews was Ms. Nyameka. The first interview was on 29 April 2015 but he never received an appointment letter.

16. Under cross-examination, the applicant testified as follows;

17. The Principal as well the SGB members verbally told him that he has won the first interview process. His relationship with the Principal is normal. He believed Mr Ngcawuzele as the Pricipal when he disclosed that he had won the interview.

18. He decided to refer the case to his union when he noticed that Ms Mhlakotshana has been appointed. He also became suspicious when he received a letter from the Principal indicating that he verified scores as he (the Principal) was not supposed to verifiy scores alone.

19. The applicant testified further that he was invited to attend the second interview although he challenged the first interview. He was told that his concern is premature.

20. Under re-examination, the applicant stated that his suspicions were based on the letter written by Mrs Swarts. Ms Mhlakotshana did not win the first interview.

21. The first witness for the applicant, Ms. Nombulelo Mqalo testified as follows;

22. She was one of the panelist members at Nkangelelko School on 29 April 2015. No concensus was reached as to which candidate to recommend for appointment at the end of the interview process. The ratification of scores was to be done on 05 May 2015. When she left, scores had been recorded and the Principal and 3 other panelists were left behind.

23. On 04 May 2015 there was a meeting with SGB and only 1 item being interview results was discussed as the meeting started at about 16h00. Mr Gabha said the applicant cannot lead the school having an assault case against him. The SGB parent component also did not want to endorse the applicant as the best candidate.

24. The SGB Chairperson wrote the letter to the District Office (page 25). During the SMT meeting,the Principal told them that the applicant won the interview but when he verified the scores, the applicant was not the highest scorer. She was shocked to notice that the scores were still with the Principal by 04 May 2015. The new SGB was always attending meetings with the first respondent.

25. After the scores were submitted by the first respondent, Ms Qalo was recalled and she testified as follows ;

26. The unions verified the score sheets on 24 April 2015 and the Principal kept them for 5 days. She disputed having written 36 score mark under the applicant’s score sheet. The teacher SGB component was not called to verify scores. The scores were tampered with and the hand writing is different.

27. Under cross-examination, the witness testified as follows;

28. She does not recall the actual figure she allocated to Mr Matsinya. She does not know who fiddled with the scores as they were kept by the Principal. She has been involved in the interview process four times. It was correct for the observers to participate as they were mandated by the panel to check if the scores were added correctly.

29. The Principal, Mrs Swart and SGB chairperson found that there was 24 marks which was unaccounted for. Verification of scores was supposed to be done by the panelists after the interview process.

30. She is aware that there was a second interview for the same position. She was the panelist for the first interview. She heard that the scores were incorrectly added during the first interview process but she is not aware of any discrepancies.

31. The witness also stated that she is aware that the panel does not decide on the appointment of the candidate and that a Principal does not have executive authority to appoint a candidate. A recommendation has to be sent to the District office by the SGB. A letter would be issued by the first respondent/DOE.

32. Under cross-examination by Mr Washington, the witness stated that scoring is based on the performance of the candidate. She was expecting the Principal to submit the documents on the day of the interview.

33. Under re-examination the witness stated that the Principal said the applicant won the first interview process in 2 separate meetings.

34. She knows nothing about the unaccounted 29 marks and nothing was mentioned about it during the interview process.

35. The second witness Ms Nosimphiwe Dlani testified as follows;

36. During the interview process, she was a member of SGB, teacher component. She was scoring candidates and the score sheets were taken by the Principal. There was no consensus as to which candidate to recommend. The decision was made based on scores. The applicant got 201 while the second respondent got 172. Verification of scores was not done during the interview. The Principal announced that the applicant won the interview. Verification of scores was not done at the end of the interview.

37. SGB meeting was held on the following week to report on the interview process.In all the meetings she attended, nothing was raised regarding the 29 marks awarded to the applicant.

38. Under cross-examination, the witness testified as follows;

39. She did not write the totals in the score sheet and it looks like the page has been cut and pasted. She awarded highest marks to the applicant because of his performance. She disputed that she was biased. The witness stated further that she knows nothing about the 29 marks awarded to the applicant.

40. Under cross-examination by Mr Washington, the witness testified as follows;

41. She is a Teacher by profession. Scoring is done based on the performance of the candidate. The applicant got 201 and the second respondent got a total of 172 marks. The panel agreed that a decision will be be made based on marks awarded to the candidates.

42. Under re-examination the witness stated the score sheets are not originals and they have been tampered with. The Principal submitted the documents with the first respondent 5 days after the interview was conducted.

Respondent’s case
43. According to Mr Hena’s opening statement, the second respondent was appointed based on the second interview process.
44. Ms Estelle Maragretha Swart, the first witness for the first respondent testified as follows;
45. She verified the scores and found that they were wrong. The score sheets are originals which were submitted by the Principal to her in a pack. She was not present at the interview and it is ridiculous for anyone to suggest its cut and pasted as the document came from the school as they are.
46. She used a red pen when verifying the scores and discovered that the totals do not tally together. After the verification was done, the second respondent was the highest scorer as there was 29 marks which was unaccounted for awarded to the applicant.

47. The office received a complaint regarding the first interview process. The SGB was unhappy citing discrepancies in scores. She requested them to write a letter. The District Director convened a meeting with the SGB to discuss issues which they raised. The new SGB was about to be elected but the old SGB conducted the interview process. When scores were verified, it transpired that they were added incorrectly (pages 172 to 174).

48. The District Director decided that the process must be redone and no one was appointed. The interview panel was retrained and the new process took place.

49. Under cross-examination the witness testified as follows;

50. When a bulletin is issued,training of the SGB is done. The interview committee made a recommendation to the SGB who could not accept it because of the discrepancies. The new SGB was elected on 29 April 2015. She recommended that a new panel be appointed but she is not sure if her recommendation was implemented.

51. She was instructed by the District Director to verify the score sheets. The panel of the interview and unions were present at the meeting which was called by the District Director. The letter written by the SGB parent’s component was given to the Principal. She also copied the letter to the applicant when he visited her office.

52. During the second interview, there were people who were part of the first interview process. The EDO was the Resource person, not the Principal during the second interview.

53. The unions were invited to the meetings (page 21 bundle B). The first respondent cannot override the SGB’s decision as to who must be in the panel of the interview. The minutes of the interview were never submitted to the district office. The applicant was not recommended for appointment on both interviews.

54. The second witness for the respondent, Mr Nceba Ngcawuzele testified as follows;

55. He works for the first respondent as a Principal at Nkangeleko School and has 30 years teaching experience. The panel decided to have a meeting on 05 April 2015 as it was a long weekend.

56. When he verified the scores, he discovered 5 discrepancies. The 29 marks from the applicant (page 25 bundle B) was the major one. The old SGB did not make a recommendation for appointment. He thought that the first interview process must be declared as null and void.

57. The witness disputed having announced the applicant as the candidate who won the interview process. He does not issue appointment letters and knows nothing about the fiddling of the scores. He did the verification of scores together with the chairperson of the interview and both picked up the 29 marks discrepancy in the applicant’s marks.

58. Under cross-examination by Ms Mboniswa, the witness testified as follows;

59. He was the Resource person and he issued letters inviting unions to the process. He also collected all the necessary tools and was trained on how to run the interviews. He has been involved in about 10 to 15 interview processes in the past.

60. During the meeting at the District office wherein Mrs Swarts, District Director and the SGB were present the instruction given was to start the interview process afresh. The correct total scores for the applicant was 171 instead of 201 and 174 instead of 172 for the second respondent.

61. The witness disputed having tempered with the scores except to verify them and report the matter to the District Office. scores. He was not part of the second interview but he was assisting Mr Majangaza who was the Resourse person. The new panel was trained and was elected by the District office.

62. Under re-examination, the witness stated that the first respondent cannot be bound by the first interview process as the second interview process was conducted. The instruction about the second interview was made by the District office. No recommendation nor appointment was made in respect of the first interview process.The appointment of the second respondent emanated from the second interview.

63. Ms Daniswa Masebeni, the third witness testified as follows;

64. She knows the applicant and she is the SGB chairperson at Nkangeleko School. She is part of the new SGB and was also part of the old SGB as well. The first interviews were conducted on 29 April 2015. They started 2 hours late due to the late arrival of SADTU observer and there was another interview for a HOD position on the same day which was conducted by the same panelists. She is aware of the discrepancies with the scores.

65. The SGB meeting whose aim was to endorse the outcome and selection of the candidate was only scheduled for 04 May 2015 due to the fact that there was a long weekend. On 04 May 2015, she verified the scores with the resource person and they discovered that they do not tally. The final decision was that a letter seeking for the intervention of the District Office be written.

66. It transpired that the process was not properly conducted eg minutes of the shortlisting were not summarised, no checklist/criteria was set by the panel and the scores were incorrect. As a result, no candidate was appointed from the first interview process hence the position was re-advertised.

67. The applicant re-applied and was interviewed but the second respondent was the successful candidate who was appointed to the position of the Deputy Principal. The second respondent cannot be bound by the decision of the first interview as nobody was appointed as a result of the first interview.

68. Under cross-examination by Ms Mboniswa, the witness testified as follows;

69. She was part of the old SGB and she is still part of the new SGB at Nkangeleko School. She was trained on how to conduct interviews, starting from the shortlisting process. The checklist was not written down by the scribe, it was verbal and the district office also advised them that the shortlisting minutes were summarized. The unions were adding scores which the SGB later realized were incorrect although they were minuted. The panelist did not have time to go through the score sheets because of time constraints and load shedding. These were some of the reasons that led to the first process being declared as null and void.

70. The witness stated further that there was never a consensus as to which candidate to recommend between the applicant and the second respondent.

71. After the re- calculation of the scores, the applicant had 172 and the second respondent had 174 marks. The witness disputed having re- written the minutes of the interview.

72. The witness stated further that both the applicant and the second respondent applied for the position when it was re-advertised.

73. Under cross-examination by the second respondent, the witness stated that the first interview was fair but there was a discrepancy with the scores. Based on the fact that there was 29 scores added to the applicant’s scores which was un accounted for, the process was started afresh.

74. Under re-examination, the witness stated that the second respondent was appointed as a result of the second interview. The fisrt respondent instructed the school to repeat the process because of the discrepancies. No recommendation was made by the panelists during the first interview.

75. In closing, Mr Hena argued as follows;

76. The second process of interviews was conducted and Mr Matsinya was interviewed after the district observed discrepancies relating to the first round of interviews. It is the view of the first respondent that Mr Matsinya waived his rights to challenge the first round of interviews by subjecting himself to the second round of interviews.

77. Mrs Swart, the first respondent’s witness testified that she discovered that scores were added incorrectly of the first interviews. Mrs Swart testified that Ms Mhlakotshana scored 174 scores and she had highest scores. Mrs Swart explained that new SGB had no mandate to conduct interviews and the Acting District Director, Mr Mnguni issued an instruction that interviews be re-done and that the SGB and Interview panel be trained. It should be noted no recommendation was made by the SGB for the appointment of Mr Matsinya after the first interviews and second interviews.

78. All the first respondent’s witnesses disputed the fact that scores were tampered with. During cross-examination, the witness of the applicant, Ms. Mqalo testified that the scores were not supposed to have been given to union observers for adding up and checking their correctness because they are not panelists but observers.

79. Mr Hena argued further that it is incorrect to suggest that Principal kept scores for five days and not submitted to Mrs Swart because there was long weekend in between from 29 April 2015 and 04 May 2015. The Principal denied that he announced that Mr Matsinya is the Deputy Principal. The witnesses of the first respondent rejected the idea of copy and paste in relation to scores or circling of scores. Mrs Swart rejected the idea that scores were tampered with. Both Mrs Swart and Mr Ngcawuzele testified that after their verification of scores, Mr Matsinya obtained 172 scores and Ms Mhlakotshana obtained 174 scores.

80. Principal denied that he informed Mr Matsinya that he is a Deputy Principal of the school because he does not issue appointment letters and there was no fiddling at any stage with the scores. Principal was not in a position to append signature without checking he documents.

81. Ms Daniso testified that Mr Matsinya have no right to challenge the first process because he subjected himself to the second round of interviews. Ms Daniso was not the scibe of the minutes for the first round of interviews and therefore she cannot be blamed for minor errors committed by the scriber. It should be noted Ms Mhlakotshana was appointed after the second round of interviews because no appointment was done after the first round of interviews. The first respondent’s representative finally prayed that the applicant’s application be dismissed as no decision was made to appoint after the first round of interviews.

82. Mr Washington, in closing argued as follows;

83. It is clear that the applicant put reliance of his case on the scores. When it transpired after the scores were verified that the applicant obtained 172 while the second respondent obtained 174, with 29 marks which was un accounted for from the applicant’s original scores. The second interview was the remedy for the applicant’s allegations that the first interview was not conducted fairly. The second respondent argued that had the applicant challenged the first process if the process was not redone, the reasonable finding would be that the the process must be redone.

84. It is trite that an appointment in promotion of an educator, recommendation is subject to the endorsement of the SGB. The evidence of the applicant and his witnesses was highly improbable and without merit. Mr Washington finally state that the applicant’s application must be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENTS
85. The issues of common cause that relates to this matter are as follows:

 That the applicant applied for an advertised position of Deputy Principal at Nkangeleko Intermediate School in East London.

That the applicant was shortlisted and interviewed during the first interview process.

That no candicate was recommended for appointment during the first round of the interview due to discrepancies spotted in the candidate’s scores.
That the District Director, Mr Mnguni instructed the SGB to redo the interview process, meaning the first process of the interview was declared null and void.

That the applicant was invited for the second round of the interview but was not selected as the best candidate.

That the second respondent, Ms Mhlakotshana was appointed as a consequence of the second interview process.

That the applicant challenged the first process of interview.

86. It is the applicant’s case that the Principal announced that he won the interview and that according to the score sheet he got 201 while the second respondent got 174 marks.
87. Mr Ngcawuzele, the Principal disputed emphatically that he ever announced the applicant as the Deputy Principal citing the confidentiality clause and the fact that it is the first respondent who has authority to appoint candidates.

88. It must be noted that after the verification of the scores was conducted it transpired that the applicant got 172 marks while the second respondent got 174 marks. The 29 marks which was unaccounted for was discovered from the applicant’s marks.

89. It was the evidence of all the witnesses that the unions were mandated by the panel to add scores. This in my view and according to the policy/rules of recruitment and selection process was improper as they (unions) only have an observer status during the interview processes.

90. I concur with the second respondent’s argument to the effect that the second interview process was the applicant’s remedy to the allegation that the first interview process was unfair.

91. It appears from the party’s evidence that the first respondent ‘s instruction for the interview process to be redone was fair and reasonable.

92. It is therefore my view that the first respondent’s prerogative to appoint the second respondent, Ms Saliswa Signoria Mhlakotshana to the position of Deputy Principal at Nkangeleko Intermediste School was exercised in a just and fair manner.

AWARD
93. I therefore make the following award:

94. The first respondent, the the Department of Education-Eastern Cape cannot be compelled to appoint the applicant, Mr Bongani Kenneth Matsinya to the position of Deputy Principal at Nkangeleko Intermediate School.

95. The application is dismissed.

96. There is no order as to costs

Signature …………………………………
Ncumisa Bantwini
ELRC Panelist