IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD (VIRTUALLY)

In the matter between

SADTU obo SIBUSISO VILAKAZI Applicant

and

DEPARTMENT OF EDUCATION: GAUTENG 1st Respondent

LINDIWE ZULU-NXUMALO 2nd Respondent

ARBITRATOR: Monde Boyce

HEARD: 23 March 2023 and 24 April 2023

CLOSING ARGUMENTS: 10 May 2023

DATE OF AWARD: 19 May 2023

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This Council set the matter down for arbitration on 23 March 2023 and 24 April 2023 and scheduled it to proceed virtually. Both parties made an appearance and Mr Pat Maahlo, a tarde union official from the PSA appeared for the applicant while Miss Emily Magadla appeared for the respondent.

[2] There was no need for an interpreter as both parties were conversant in English and had no issue leading evidence in English. The proceedings were digitally recorded and typed minutes were taken. Two sets of bundles of documents were submitted by both parties. In the hearing of 23 March 2023, I established that the incumbent in the position that is the subject of the present dispute had not been joined. A need arose for the adjournment of the process in order for the successful candidate, Miss Lindiwe Nxumalo, to be joined as the 2nd respondent.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the respondent’s decision not to appoint the applicant to a position of Principal at Mdelwa Hlongwane Primary School was unfair and thus constituted unfair labour practice in terms of Section 186 (2) (a) of the Labour Relations Act 66, 1995 as amended (LRA). I am further called upon to grant the appropriate relief should I find the respondent’s decision to be unfair and to constitute unfair conduct as alleged.

THE BACKGROUND TO THE DISPUTE:

[4] Applicant is currently a principal at Bafikile Primary School. He applied for a position of principal at Mdelwa Hlongwane Primary School which had been advertised in June 2021. The applicant, along with the2nd respondent, Miss Nxumalo, and a Mr Sithembele Lucas Khumalo were amongst the candidates who were shortlisted and subsequently invited to an interview by the interviewing panel. The applicant, Miss Nxumalo and Mr Khumalo were all recommended for appointment and their names were subsequently sent to the district by the School Governing Body (SGB). It is common cause that the SGB, following the interview conducted, had ranked the applicant first on the list sent to the district, with Miss Nxumalo ranked second while Mr Khumalo was ranked third. Miss Nxumalo was however appointed to the position. Unhappy with this decision, the applicant referred an unfair labour practice dispute to the ELRC challenging his non-appointment to the position. When the dispute could not be resolved at conciliation, the applicant referred the dispute for arbitration. He Seeks appointment to the position of principal at Mdelwa Hlongwane Primary School as relief.

SURVEY OF EVIDENCE AND ARGUMENT:

The Applicant’s Evidence

[5] The applicant, Mr Sibusiso Vilakazi, testified that he is currently employed by the department as a Principal at the Bafikile Primary School in Senaoane in Soweto. A position was advertised in June 2021 for a Principal at Mdelwa Hlongwane Primary School. He applied for the position and was shortlisted. He subsequently received an invite to attend the interview which was in July 2021. He attended the interview and he had waited for the outcome of the interview. It took almost a year for the outcome to be communicated. Parents had started complaining about non-appointment of the principal at the school. The Chief Director in the department, Mr Denis Magwagwa, had addressed a meeting with the parents where he assured the parents that he would appoint whoever the parents wanted appointed. The Chief Director had then assured the parents that he would bring a highly qualified female candidate as the principal, and he later brought the 2nd respondent, Miss Lindiwe Zulu Nxumalo and introduced her as the principal of the school.

[6] It later transpired that he had been ranked first on the list of preferred candidates for appointment to the position. He took an initiative to investigate the reasons for his non-appointment. He had established that he had ranked first in the interview and was scored higher by the panel. He further discovered that there was a meeting held with a Miss Cindi on why there was a delay with the appointment. Minutes indicate that the meeting with parents was attended by the acting District Director at the time and other officials of the school. It is in that meeting that Mr Magwagwa raised the issue that the 2nd respondent would be considered for appointment because she was a female and that she was highly qualified for the position. He felt agreed because where the District Director is to go against or deviate from the decision of the SGB, the trade unions should be involved. And the trade unions were never part of that decision and were never consulted. The District Director is further required to take about 21 days to go against the decision of the SGB. Parents closed the school demanding that a principal be appointed. The Chief Director should not have asked parents who they wanted as a principal. Parents had stated in the meeting that they wanted a female candidate to be appointed as a principal. He believed that the District Director had an influence on the appointment of the 2nd respondent.

[8] It is not true that the 2nd respondent ranked highest. It is Mr Khumalo who was ranked third who actually is highly qualified. Also, around the time of the advertisement of the position and the appointment of the 2nd respondent, the department had appointed three male candidates to positions in the same district, something that contradicted the department’s assertion that it (department) had not met its equity targets on appointment of female principals. He believed that the District Director had influence on the appointment of the 2nd respondent.

[9] The applicant’s witness, Mr Mantu Vilana, testified that on 29 June 2021 he attended an interview where he was a trade union observer. There were five candidates who were interviewed for the post. Of the five candidates who were interviewed, the applicant was ranked first, the 2nd respondent was ranked second and Mr Khumalo was ranked third. The panel agreed on scores but also said the scores will lead them in terms of deliberations and that deliberations will not supersede the scores.

The Respondent’s Evidence

[10] The respondent called Miss Nelisiwe Tholakele Mashazi as its first witness. She testified that she is employed by the respondent as the Assistant Director in the Human Resources Provisioning Unit. The unit deals with recruitment of educators. In April 2021, she dealt with the recommendations submitted by the SGB for Mdelwa Hlongwane Primary School. She was at some point requested to be a scribe in a meeting the District Director had called. There were parents’ representatives from the school in that meeting. The District Director needed to talk to the SGB about the Head of Department’s (HOD) memorandum requesting that the SGB consider female representation since females were under-represented in terms of equity targets in the Gauteng Department of Education. Other than the memorandum from the HOD requesting that SGBs’ put forward female candidates, the District Director had no influence on the appointment of the candidates.

[11 The second witness, Miss Vuyelwa Cindi, testified that she is employed by the respondent as the District Director in the Johannesburg North District and has held this position from 01 February 2023. Before her appointment to this position, she had acted in the position when the former District Director took ill. She was the acting District Director at the time the post of principal at Mdelwa Hlongwane Primary School was advertised. The recommendations were brought to her office so she could process them. The recommended candidates were the applicant, Mr Vilakazi, Mr Khumalo and Miss Nxumalo. She first needed to check whether the SGB complied with legislation before signing off the recommendation. She then looked at the motivation for appointment.

[12] After having looked at the recommendations, she also looked at the district equity targets and realized that the Johannesburg North district had not achieved the 50% female representativity. She realized that the three candidates recommended were recommended as suitable for appointment, but there was a candidate that was more suitable than the others. She then invited the SGB for an interview because she needed to discuss their motivation. When they arrived, she indicated to them that there was a lot of noise about the post. She gave the equity policy to the SGB and proceeded to inform the SGB that she was going to make an appointment on the basis of the recommendations and the equity targets.

[13] It is not true that she influenced the appointment of the 2nd respondent. In terms of the equity plan of the province, the district was expected to be at 50% on female representation at the time of the appointment. She gave the SGB the Equity Plan and explained to them that their motivation supported the legislation and equity plans in that they (SGB) also stated that the 2nd respondent had leadership experience and would take the school to higher levels. The suitability and capability of a candidate, in terms of legislation, must be taken into account.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[14] I need mention from the onset that it is trite that an employee who claims unfair labour practice bears the onus to prove that the conduct complained of does constitute unfair labour practice, and courts have, on numerous occasions, asserted this principle as was the case in Pamplin v Western Cape Education Department when the court stated that:

“The onus to establish that conduct complained of constitutes an unfair labour practice within the meaning of section 186(2) of the LRA rests on the employee. The employee must therefore be able to lay the evidentiary foundation for his or her claim of an unfair labour practice. Mere dissatisfaction with the outcome of a recruitment or selection process is not sufficient to sustain that claim.”

[15] In the present case, the applicant challenges his non appointment on three grounds. Firstly, the applicant contends that he should have been appointed because he was ranked first by the SGB on the recommendations sent to the district and that where the department disagreed with the recommendations by the SGB, same should have happened with the unions involved or consulted, something he claimed the department did not do. Secondly, his challenge is premised on the claim that the District Director had an influence on the appointment of the 2nd respondent given the alleged utterances she (District Director), made in a meeting with the parents and also that, according to the applicant, the placement of the 2nd respondent at the school happened immediately after the meeting where the District Director had told the parents in the meeting that the school would have a female principal. Thirdly, that the claim by the department that by appointing the 2nd respondent, it sought to meet its equity targets on female representation is not true because it had appointed three male candidates around the time of the appointment of the 2nd respondent, and the equity targets the department referred to were not a consideration.

[16] The question now becomes that of whether the decision by the respondent not to appoint the applicant was unfair in view of the claims he made as outlined above. In answering this question, regard has to be had as to what unfairness in the circumstances would entail. The starting point is the test on what, according to the courts, constitute unfairness especially in the present case. The case involves an alleged unfair conduct and this being the case, it is the applicant that bore the onus. In other words, he needed to prove that the conduct he complains of was unfair and constituted unfair labour practice. As held by the courts the test to be applied overall is that of fairness . This principle was set in an earlier judgment of Aries v CCMA and others.

[17] Having heard evidence, I am not persuaded that the applicant has discharged the onus. A position was advertised and all the candidates who applied and got shortlisted were all given a fair opportunity to compete for the position. After completion of the process, three candidates were identified as being appointable, and these three candidates included the applicant. The applicant does not appear to take issue with the interview process itself and subsequently his being recommended for appointment along with the 2nd respondent and Mr Khumalo. What he appears to take issue with is the alleged conduct of the respondent after the recommendations to the district were made. I perhaps should deal with each of the challenges raised by the applicant.

[18] Regarding his claim that he was first on the list of candidates recommended for appointment and that the district should have gone by the recommendations of the SGB, this point falls to be outrightly rejected. The SGB, as it is now generally known and accepted, does not appoint educators but merely make recommendations to the district. Three candidates, as was the case in the present appointment process, are recommended, and all three of those candidates, irrespective of how they are ranked or scored on the list submitted to the district, are appointable candidates. What this means is that the respondent is at liberty to decide who to appoint and may appoint any of the candidates, dependent on considerations at the time the appointment are to be made. In this case, while the SGB ranked the applicant first on the list of the three candidates sent to the district, the 2nd respondent appears to have been preferred if one has regards to the comments by the SGB in their motivation for each of the three candidates.

[19] In their motivation for the possibly appointment of the 2nd respondent, the SGB in its motivation states as follows:

“Ms. Nxumalo displayed confidence when answering questions. She has experience in a leadership position. Ms. Nxumalo is suitably qualified. She was aware of all the systems that exist as the school. Ms Nxumalo will definitely move the school to greater heights. Moreso as a female leader she will positively influence the Primary school environment.”

[20] The SGB does not speak this glowingly of the applicant and Mr Khumalo. It then becomes clear that even the SGB would have preferred a female appointee to the position. Furthermore, the SGB does not make any reference to leader experience when in the applicant and Mr Khumalo’s motivation. In this regard, Miss Cindi, when meeting the SGB, appears to have held the SGB to its own recommendations when she presented the SGB with the department’s Equity Plan. She (Miss Cindi) cannot be said to have influenced the appointment of the 2nd respondent when it was the very SGB that spoke that glowingly of her and hinted at her leadership qualities as a female. But even if the SGB did not speak that glowingly of the 2nd respondent, and even if she was preferred over the other two candidates, there would have been nothing untoward or unfair about such a decision because she (2nd respondent), was recommended for appointment.
[21] I now deal with the other claim made by the applicant that three male candidates were appointed at the time the respondent raised the issue of the district needing to meet its equity targets. I need point out that while the applicant made this claim, he presented no evidence as to the circumstances that led to their appointment and what was considered by the department in appointing them. As such, I cannot find the appointment of the three male principals to have any bearing on the case before me or, put differently, the applicant presented no evidence on what the department considered in making the appointments and the circumstances that these candidates were appointed.

[22] Regarding the other claim made by the applicant as to the HOD having had to consult with or involve the trade unions when deviating from the recommendations of the SGB, I cannot find this claim to have been substantiated. I should perhaps mention that the claim that the HOD deviated from the recommendations of the SGB is unfounded or misplaced. The respondent made the appointment in keeping with the very recommendations made by the SGB. The HOD did not reject or deviate from the recommendations made by the SGB. The HOD in fact abide by the recommendations of the SGB by appointing of the appointable candidates recommended by the SGB. What the HOD however, was to apply his mind on the department’s equity plans and made the appointment in keeping with the department’s own equity targets on female representation. The applicant in any event did not dispute that the department had shortfall of 8.1% of female representation in the province that it still needed to meet around the time the appointment was made.

[23] The conduct of the respondent during the time of the appointment of the 2nd respondent, viewed in its totality, was not unfair. Candidates were shortlisted and interviewed. Three candidates were recommended for appointment, and the respondent, in keeping with the recommendations by the SGB, appointed a candidate it preferred for the reasons it outlined at the time it made the appointment. Its decision can thus not be said to be mala fide or grossly unfair or unreasonably. The applicant’s claim as to unfairness of the decision to appoint the 2nd respondent is accordingly without merit and falls to be rejected.

[24] Arbitrators deciding the question of alleged unfairness in decisions taken by the employer are required to consider the test applied by the Labour Appeal Court in Apollo Tyres SA (Pty) Ltd v CCMA & Others when it held that:

“[53] … unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.

[25] I therefore deem it reasonably to make make the following award:

AWARD

[26] The respondent’s decision to appoint the 2nd respondent, Miss Nxumalo and its decision not to appoint the applicant, Mr Vilakazi, to the position of Principal at Mdelwa Hlongwane Primary was not unfair and did not constitute unfair labour practice as alleged.

[27] The application is therefore dismissed, and the Council is directed to close the file.

Monde Boyce
Panelist: ELRC