Commissioner: S Fourie
Case No.: PSES1015-19/20NW Date of Award: 29 October 2022
In the ARBITRATION between:
LENTIKILE WILLIAM TSHIPONYANE
(Union / Applicant)
and
DEPARTMENT OF EDUCATION (North West)
(First Respondent)
and
PETER LEEW
(Second Respondent)
Union/Applicant’s representative: Mr. W Scholtz for Scholtz Attorneys
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Telefax:
Email:
Respondent’s representative: Mrs. B Phuswane
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DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 191(5)(a)(iv) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on the 3 May, 4 June, 5 June, 1 September 2022 and finalized on the 5th of October 2022. The Applicant was present and represented by Mr. Scholtz from Scholtz Attorneys. Mrs. B Phuswane an ER official from the Department of Education represented the First Respondent and Mr. D Manonye from SADTU represented the Second Respondent.
2. The parties were afforded the opportunity to present written heads of argument to be submitted by the 17th of October 2022. The arbitration was held at the District Office of the North West Department of Education, Potchefstroom and the process was digitally recorded.
BACKGROUND
3. The Parties concluded a pre-arbitration minute in which they agreed the following to be common cause which serve to be a background as well. The Applicant has been in the 1st Respondent’s employ since 1988, currently employed as a Deputy Principal (PL3), at Vuyani Mawethu Secondary School within Dr Kenneth Kaunda District. The 2nd Respondent was the Head of Department (PL2) at the same school. The vacant Principal post at the above stated school, which the Applicant was appointed to act in since October 2018, was advertised per Departmental Circular No. 20 of 2019, dated 04 June 2019. The Applicant and four other candidates, which included the 2nd Respondent, were shortlisted and invited to attend a formal interview, which was held on 4 October 2019. The 2nd Respondent, Mr. Peter Leeuw, was recommended and approval was granted for his appointment as the Principal of the school.
ISSUE TO BE DECIDED
4. Whether the 1st Respondent committed an unfair labour practice by failing to promote the Applicant to the post of the Principal (PL4), alternatively whether the 1st Respondent committed an unfair labour practice in relation to the appointment procedure followed. Specific procedural issues in relation to Departmental Circular No. 20 of 2019 were raised being paragraphs: 6.2, 6.3, 6.4, 7.1, 7.2, 7.4, 7.6, 7.8, 7.15, 7.20, 8.5.1, 8.5.3 and 9.4.4
5. The Applicant sought a finding that the 1st Respondent’s failure to promote the Applicant constitutes an unfair labour practice and that the Applicant be appointed as Principal. Alternatively, that the Applicant be awarded a protected promotion. Finally, compensation in relation to the appointment procedure.
6. Whether the Applicant was the most suitable candidate, the following were disputed after the narrowing of issues:
6.1 The Applicant was better experienced and skilled than the 2nd Respondent in that he acted in the post for a period exceeding 12 months.
6.2 1st Respondent appointed the 2nd Respondent who was a Departmental Head (DH) [PL 2] over the Applicant who was the Deputy Principal (DP) [PL 3] and thus senior to the Applicant.
6.3 Irrational scoring by the member of the panel who had a bad relationship with the Applicant and a good one with the 2nd Respondent.
SURVEY OF EVIDENCE AND ARGUMENT
7. For purposes of this award, I do not intend, to record verbatim the evidence led, the submissions made and or the arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented. The Applicant led the testimony of three witnesses including his own testimony and the Respondent called two witness. The Applicant entered into evidence a bundle of documents, submitted Bundle A with pages 1 – 84 and the Respondent submitted a bundle of documents as Bundle R, with pages 1 – 78.
APPLICANT’S VERSION
8. Lentikile William Tshiponyane (Tshiponyane) testified under oath that he has been a Deputy Principal for more than 10 years and when he was transferred to Vuyani Mawethu Secondary School. The 2nd Respondent was an HOD (PL2) and all along he was more senior to the 2nd Respondent whom did not act as Deputy of Principal. When the Principal went on pension during 2018, he acted as Principal until the 2nd Respondent was appointed. During September – October 2019, Mr. Maseko was the chairperson of the SGB and consisted of more or less seven members after it was constituted during 2017. Referring to A16, he referred to Mr. Moremi, the circuit manager who reports to the district manager, who reports to Mr. Monale, the district director. The Applicant referred to Mogaki, the circuit manager from Potchefstroom, Moseko, the School Governing Body (“SGB”) chairperson, Khumalo, the SGB secretary, Mothai, the Principal at the neighboring school and Fourie, the Principal of another nearby school. Referring to R18 paragraph 9, is the procedure applicable for the appointment of Principals, Deputy Principals and Departmental Heads is contained in the Departmental Circular 24 of 2019 – School Based Promotional Posts.
9. Applicant was shortlisted and the interview took place on the 4th of September 2019. Referring to 6.2 of the Circular it directs that the School Governing Body (the SGB) must establish the short-listing Committee to shortlist applicants for interviews, if not possible a District official should assist the SGB. A16, the minutes of the shortlisting committee shows only two SGB members present being Khumalo and Maseko from a total of seven which means there could not have been a quorum. A80, the minutes of a SGB meeting held on 8 October 2019, was held by only two SGB members and shows the order of preference of the candidates. A78, the minutes of the Panel’s feedback with the scores do not relate to the order of preference on the minutes of the SGB. Referring to paragraph 1 on A16 the minutes of the shortlisting committee shows the SGB members were not present. It also states that the unions were not present. The SGB is required to establish the shortlisting panel which they could not do not being a quorum because only two of the seven members were present.
10. Referring to paragraph 6.3 of the Circular (A14) directs that the shortlisting committee must formulate additional criteria for short-listing in consultation with the relevant employee organizations who are present. This must have been done in consultation with the unions which were not present thus not part of the process. A17, bullet 6 of the shortlisting minutes is general statements and not additional criteria. The Circular under 6.4 directs that: a list of appropriately weighted indicators should be arrived at using information provided in the advertisement (as well as duties, skills and qualities that are relevant to the post as a basis). No such list is listed within the minutes.
11. R15, bullet 7.1 directs that the SGB must establish an Interviewing Committee which must include a departmental representative as a resource person whose role will be to advise them on Departmental policies. And also 7.2 that: the resource person must share the equity status with the panel before the interview may proceed. From the minutes on A23 to A26, the resource person (Mogaki) who attended did not advise the panel on the equity status of the department. The interview minutes A23, shows that only SADTU (Mr. Lentswe) attended with no absenteeism addressed. Referring to 7.6 that the union representatives shall be observers to the process of interviews and the drawing up of the preference list – no union attended the process in referring to A16 the opening statement of the shortlisting minutes where Moremi stated that unions were not represented as there was nobody standing for them. There was an indication form Moremi that even if unions were not represented, the meeting should proceed. Invitations were sent to all recognized unions.
12. R16, clause 7.8 directs that the SGB must receive, consider and ratify the recommendation of the interview committee. Referring to A78, the Minutes of the Panel Feedback paragraph 3 reads: only three members of the SGB were present. This included two panel members. The other members have not been attending SGB meetings since January while one teacher representative has been transferred to the other school has not been replaced and the other one has applied for a post during this round…The Applicant stated that when a SGB member failed to attend 3 meetings with no reason, the SGB replace them with other members. Only three were present which does not form a quorum and he do not know who the third person was. Referring to A80 a SGB meeting held on 8 October 2019, in relation to R16 clause 7.8 only two of the SGB attended the meeting, Maseko and Khumalo. The minutes of the panel feedback to the SGB on A78, gives the impression that it was three SGB members.
13. R16 clause 7.15 of the Circular states that the interviewing panel must rank the candidates in order of their preference giving a brief motivation for their choice. During this process the relevant employee organization can send observers to sit in. A24 of the interview minutes refer to five candidates under 6.1 with the order of preference of which only three candidates were motivated of the five. R17 clause 7.20 directs that: each and every committee member and observer should append his/her signature on the score sheet. The score sheets on A27 to A29
14. R17 clause 8.5.1 reads that the list of applicants with the final selection in order of preference for appointment, duly completed and signed by interviewing panel, Chairperson of SGB, the Area Manager, the Review Panel, the District Manager. There is no such document where all aforementioned signed. R17, clause 8.5.3 reads: the interview schedules (indicators determined by the SGB) with a brief motivation of their choice. Such indicators were absent. Clause 9.4 on R18 under the procedure for applying reads: certified copies of the following documentation are compulsory and must be submitted with each application: Matriculation Certificate, Professional Qualification, a copy of the identity document and SACE certificate. Referring to A33 to A43, the SACE certificate was not part of the required documentation submitted by the 2nd Respondent.
15. The Applicant stated that he was also more experienced that the 2nd Respondent. He was a deputy principal even before he came to Vuyani Mawethu Secondary School and was transferred as a deputy principal to the school. He has more than 10 years’ experience as deputy by then but now 17 years. He also acted as Principal when the previous Principal retired and was recommended by the SGB. Having such experience, he also gained more knowledge then the 2nd Respondent. He stated that he has the relevant work experience being in education since 1988. His performance was satisfactory at all times. The Applicant was a deputy Principal in relation to the 2nd Respondent who was a HOD who did not act as deputy Principal or Principal. The management roles of an HOD differ from that of a deputy Principal in that a HOD manage a department but a deputy manage all aspects of a school including the different departments of all HOD’s. The Applicant stated that he expected to be appointed after he acted as Principal being the deputy Principal.
16. In relation to the consolidated score sheet on A27, the 2nd Respondent scored 132 in relation to the other candidates who scored 119, 118, 117 and the Applicant 109. Comparing his score sheet (A32) with the 2nd Respondent’s score sheet (A28), Moseko had a drastic difference in scoring in relation to the other panel members scoring the Applicant a 24 and the 2nd Respondent a 48. The Applicant stated that before the post was advertised he had a good relationship with Maseko, the SGB chairperson, but after the post was advertised and before the interviews they were not in good standing with each other. The Applicant referred to a camp for learner at Vaal Reefs when Maseko visited with the 2nd Respondent with snacks for the learners and slept over. Their relationship grew apart although he has no evidence the scoring in relation to others shows it. Referring to the SGB minutes on A80, paragraph 2, the SGB accepted an order of preference presented by the panel but was swapped the 2nd and 3rd preferences. The Applicant stated he wanted to be promoted to this position or to be paced at another institution.
17. During cross examination he declared a dispute because he was the most appropriate candidate with more experience than the 2nd Respondent. After he acted as Principal, he thought he would be appointed. He was referred to the minimum requirements of the post on R14 clauses 4.1 to 4.22. He agreed that the 2nd Respondent complied with the requirements to be eligible for the post. He agreed to that there was nothing wrong to jump a level when appointed. He was referred to the SMT management team at the school being the Principal, the deputy Principal and HOD’s. He agreed that HOD, s has managerial experience but not the same tasks. Also that the 2nd Respondent was a HOD for 17 years being a member of the SMT. With the Applicant to be a deputy Principal for 15 years. For the Applicant he was entitled to be promoted because he acted as Principal. He thought he had better experience to be considered. He agreed that the unions were invited to the shortlisting but failed to attend and agreed that their absence could not stop the process.
18. Referring to R15 clause 6.7, the Applicant agreed that the union’s absence shall not negatively affect the process. Also referring to 6.4 that a list of appropriately weighed indicators should be arrived at using information for the advert. Referring to 7.2, the equity status from the resource person, the Applicant did not know if it was shared and if it was not, the process could be fair but it would not affect him. Referring to R16, 7.8 in relation to the SGB ratifying the recommendation, Applicant responded that the SGB was not correctly constituted with only two members present. From the seven SGB members, the teacher was transferred with six left with the Applicant leaving five of which three attended the interviews. Applicant denied the statement in that only two attended, Moseko and Khumalo although the minutes indicate three, only two signed. The members who were present needed to sign and not only the chairperson and the secretary. The Applicant was referred to clauses 7.8, 7.15, 7.16, 7.20, 8.5.1 and 8.5.3 on R16 and R17 to which he agreed the Respondent complied with although the SGB had no quorum. The Applicant agreed that if there was no quorum he would not have been appointed but if his score was higher he could have been in the top three.
19. Referring to the scoring comparing the score sheets on A28 and A32, he agreed that it was four panel members scoring with only one scoring the Applicant more than the 2nd Respondent. The rest scored the 2nd Respondent more than the Applicant. The Applicant denied that in general the 2nd Respondent scored better than him because the last score had a huge difference. Referring to R18, the Applicant agreed that SACE certificates has numbers. The application form of the 2nd Respondent on R33, it states the 2nd Respondent’s SACE number. Applicant responded referring to R15 clause 5.1, that it was a requirement for a certified copy of the SACE certificate to accompany the application.
20. Omphele Motang (Motang) testified under oath that he is the HR Director and responsible for the advertisement and processing posts for recruitment and selection. Referring to the Circular on R12 – R20, Motang stated that he is aware of it and that it was issued from his office. Referring to the circular on R14 paragraph 6.2 and 6.3, Motang stated that the SGB must establish a committee who will do the process. Also that 4.1 and 4.2 directs to the minimum requirements for the post but can be scaled down should there be too many applicants. He was referred to the shortlisting minutes on A17 under CRITERIA: SEE ATACHED GRID which reads minimum requirements is REQV 13 and 7 years + experience in teaching. Motang responded that it was conforming 6.3 of the circular.
21. Referring to R15 paragraph 6.7 with 6.3 Motang responded that employee organisations to be part of the selection process but their non-attendance cannot affect the process. Motang was also referred to 6.4 and 7.1 explaining his understanding that it is expected that the Respondent fully represent the process and communicate relevant policies. In relation to resource person not sharing the equity status (R15, 7.2), Motang agreed that such must be shared but for the previous two years there was no approved equity plan and could not be shared. In relation to the compilation of the SGB, Motang held the view that such is not prescriptive. R16, 7.15 – the SGB received a report from the interview panel with notes to each candidate. In relation to PAM on R22, B 5.4.13, normally three candidates for consideration.
22. R18 clause 9, refer to the documents to be attached when sifting takes place. HR would prepare two packs, the one for all the ones that complied and the other one for the ones which did not comply. Should an application go through which did not comply, the SGB must check it at the shortlisting phase and if not at the interview itself. After the interviews, the cluster will review to eliminate disputes that may have arrived from the process. There after the appointment will be confirmed but even Persal will also not accept an appointment should a relevant document such as a SACE certificate not be there. In relation to a candidate who acted in a position for more than 12 months, such person may automatically be shortlisted provided that the person complies with the minimum requirements for the post. Any such person must go through the process in determining the best candidate able to do the work.
23. During cross examination he confirmed that the Circular on R12 – R20 was prepared from his office and was part of the drafting thereof. The bulk of the draft was prepared in line with PAM. Referring to R14, 6.2, the SGB must convene with the Department to establish a quorum to which Motang reacted that the SGB can answer to that. He stated that the SGB is responsible for the recruitment and receive training on what is expected from the Circular. Referring to 6.3 of the Circular Motang agreed that additional criteria must be formulated and weighed (6.4). Motang agreed that from the shortlisting minutes (on A16) there is no weighed indicators. He agreed that the weighed indicators must be submitted to the Department (8.5.3) but denied that such would be included in the Respondent’s bundle if they existed.
24. Motang stated the process is not affected should the unions not be present and were invited to observe the process. In relation to 6.7 and 7.6 of the Circular that it was for different process (shortlisting and interview) involving the union, Motang responded that it was the same process inviting the unions for the first process in 7.6 and if not present, they can attend the second process. He stated that normally when the shortlisting is held the interviews are determined thereafter. Should the unions not be present at the shortlisting process, they are invited again to the interview process.
25. He agreed that the Respondent failed to comply with the equity status from the resource person but they never share plan but the status that derive from the plan. In this case the employment equity plan was not approved although they have the targets for each year to be considered at the interview. Motang stated that in order for them to comply, there must be an approved equity plan, if not then they use the unapproved plan but will not appoint outside the plan.
26. Sidney Sello Moremi (Moremi) testify under oath. He is the Circuit Manager and was the chairperson of the panel and that all processes were adhere to. Referring to R18 paragraph 9, the compulsory documentation to be submitted, should there have been a mistake during the sifting process, the School should ensure the submission of the compulsory documentation during the shortlisting phase. Referring to the 2nd Respondent’s SACE certificate on R78, Moremi stated that it was impossible to have shortlisted if the certificate was not attached. The certification dates on R35 and R78 are the same being 19 June 2019 which means it must have been submitted on the same day as the other documentations. In relation to the unions’ presence during the shortlisting process for the additional criteria to be formulated, unions must be invited and if not present, the process still continues. Unions were invited for Lentswe to have been present. Moremi was part of the shortlisting and referring to the shortlisting minutes on R16 – 17, additional criteria was done. In relation to the equity status, it was not shared because it was not available.
27. Referring to the feedback minutes (A78), the three SGB members present was the chairperson of the SGB, the Secretary and Ms. Thaniswa and received an apology from Mr. Thaniswa. Only the chair and the secretary signed the minutes. The minutes of A80, the SGB ratified the interview committee’s report to the SGB and Maseko and Khumalo of the SGB signed it. In relation to management experience, Moremi stated that a PL2 position do participate in management being part of the SMT. Should a Principal and a Deputy not be present at the school, a Departmental Head must run the School.
28. During cross-examination, Moremi stated that he was nominated by the SGB as chairman but not sure when the SGB convened. He was referred to clause 6.2 on R14, Moremi did not agree that the SGB must establish a shortlisting committee but that the chairman is nominated by the SGB. The 2nd Respondent with two other candidates were familiar to him. He denied that being on the panel and being the circuit manager was a conflict of interest. He was referred to the CV of the 2nd Respondent on R28 which the Respondent adduced after it was subpoenaed. Moremi conceded that on R78 and R32 the certified stamp is on different places but could not say whether the date was backdated on R78 for it to have been certified later. It was held that Moremi defended R78 after it was not included in the discovered documents and submitted later. Moremi could not say whether he saw R78 at shortlisting phase. Moremi agreed that the unions had a right to observe the shortlisting process (see 6.3) where the committee consult on additional criteria (6.7). Moremi responded that the SGB would have invited the unions but he has not seen such invitations.
29. Referring to R15, the equity status, Moremi stated that he requested it at the training session but such was not minute. He was referred to R16 clause 7.8 how many members constituted the SGB which he did not know. He responded that it must be fifteen to sixteen with the learner component. He agreed that a quorum would have been eight being 50% plus one. He agreed to the interview report on A18 that only three members of the SGB were present with the same three to constitute the SGB meeting. To the notion that the SGB must have been eight to be a quorum and not three, Moremi responded that the circular does not stipulate such requirement to the SGB and the Applicant must have indicated that the SGB was dysfunctional. Moremi denied that he was responsible for to ensure the SGB quorum. A78 the feedback minutes to the SGB do not have an attendance register but Moremi saw it. Then minutes of the meeting are submitted to Moremi and the Department but denied that there was a conflict of interest. Referring to R16 clause 7.15 and A23 –A24 the minutes of the interview panel, Moremi agreed that the minutes did not capture the brief motivation for all the candidates (R25) but only the three shortlisted ones.
30. Baebae Masooa (Masooa) testified under oath that he is the chief education specialist at the district office. He is responsible for enquiries in relation to the recruitment process. Also for the sifting report to the district and the unions. HR would then package it for the SGB who is supposed to establish the recruitment panel. He recognised the 2nd Respondent’s SACE certificate on R78. He stated that on the 4th of July 2022, he received a call from Phuswane (the representative for the Respondent) who enquired about the file when the 2nd Respondent was appointed. Masooa requested HR to search for the file which he followed up the day after as well but it could not be found. On the 6th of July 2022, he followed it up again. On the 7th he remembered Mr. Meje (who is deceased) handled the case for whom a file was made for. He made the file for Meje who elected certain document from the file. Linda Nelson found the file in his office with the three applicant’s SACE certificates in the file of which the 2nd Respondent’s was send to Phuswane on 7 July 2022 via WhatsApp.
31. During cross examination, he stated he himself made copies for Meje during 2019 from the recruitment file he took from HR. He copied the contents Meje needed in the printer but did not know the details of the documents he wanted copies of and merely place the pack through the printer. He remembers that Meje took the documents from the file but did not want the SACE certificate but other documents. When Phuswane looked for the file it was not with HR but with him in his office. The SACE certificate was on the file of which a picture was taken and sent via WhatsApp to Phuswane.
32. Boitumelo Phuswane (Phuswane) testified under oath that on the 4th of July 2022 the issue of the SACE certificate came about. Before the pre-arbitration minute, the issue about the SACE certificate was not included and added on the 4th of July 2022, where after she enquired from HR but they could not locate the file. She called Masooa but was out of office and enquired again on the 7th of July 2022. She received a call from Linda Nelson who stated that they found the file. Nelson wrote on her message ‘we found it’. She forwarded the WhatsApp to Scholtz the legal representative of the Applicant.
33. During cross examination, Phuswane responded that she needed to be thorough and looked for the SACE certificate and was sent from Masooa’s office. After Meje passed on, she took responsibility for the file being the Head of the department. She needed what was relevant from the pre-arbitration minute because the SACE certificate was not an issue at the beginning. She denied that the SACE certificate was part of all the documentation the Applicant subpoenaed and only raised on the 4th of July 2022.
SUBMISSIONS IN ARGUMENT
34. Both parties agreed to submit arguments in writing. The submissions of were carefully considered, but will not be repeated here, as the contents basically mirror what was put to parties during the leading of evidence and cross-examination in the arbitration hearing itself. Noteworthy is that both parties’ submissions included much jurisprudence. Heads of Argument win cases especially if they are properly cross referenced. Within labour law, Commissioners are consumers of law and the representatives are the sellers of law. If you want to sell the law, you must package it correctly, make it desirable and display its best qualities. As a salesman of the law, respect your consumer and give them what they want.
ANALYSIS OF EVIDENCE AND ARGUMENT
35. The Applicant testified in short and his demeanor reflected earnestness and only stated what he knew and willing to make concessions detrimental to his case. The Respondent’s witness Motang, conceded to statements presented to him. Moremi the Circuit Manager as well as the Chairman of the respective committees involved, was evasive and was not willing to make concessions that were detrimental to the case of the Respondent. Masooa and Phuswane merely testified in relation to the SACE certificate which in the Applicant closing statements did not receive much attention.
36. It is common cause the Applicant has been in the 1st Respondent’s employ since 1988, currently employed as a Deputy Principal (PL3), at Vuyani Mawethu Secondary School within Dr Kenneth Kaunda District. The 2nd Respondent was the Head of Department (PL2) at the same school. The vacant Principal post at the above stated school, which the Applicant was appointed to act in since October 2018, was advertised per Departmental Circular No. 20 of 2019, dated 04 June 2019. The Applicant and four other candidates, which included the 2nd Respondent, were shortlisted and invited to attend a formal interview, which was held on 4 October 2019. The 2nd Respondent, Mr Peter Leeuw, was recommended and approval was granted for his appointment as the Principal of the school. Both the Applicant and 2nd Respondent applied for the vacancy. The shortlisting of candidates was conducted on 25 September 2019. Both the Shortlisting and Interview Committees were chaired by Mr. S S Moremi, the relevant Circuit Manager. The Interview Committee consisted of the following members: Mr. S S Moremi, as Chairperson, Mr. B T. Mathai, a Principal of a neighboring school. Mrs. T Fourie, a Principal in a school in Stilfontein, and Mr. N Maseko, the Chairperson of the School Governing Body (“SGB”) of the Vuyani Mawethu Secondary School (“School”). The 2nd Respondent was appointed (promoted) to the position of Principal (vacancy), in terms of a letter issued by Mr. Monale, the District Director (Dr Kenneth Kaunda District), dated 5 November 2019.
Whether the 1st Respondent’s conduct, failed to comply with the applicable legislative provisions in appointing the 2nd Respondent – raised being clauses: 6.2, 6.3, 6.4, 7.1, 7.2, 7.4, 7.6, 7.8, 7.15, 7.20, 8.5.1, 8.5.3 and 9.4.4
37. It is submitted by the Applicant that the 1st Respondent’s conduct, in failing to comply with the applicable legislative provisions in appointing the 2nd Respondent, who was not the most suitable candidate, and its gross non-compliance with its own requirements, amount to conduct that denied the Applicant a fair opportunity to compete for the vacancy.
38. Paragraph 6.2 of the Circular directs that: The School Governing Body (the SGB) must establish the short-listing Committee to shortlist applicants for interviews, if not possible a District official should assist the SGB. In terms of Circular 24 of 2019, the SGB is required to establish a Shortlisting Committee (paragraph 6.2), an Interviewing Committee (paragraph 7.1). In terms of paragraph 7.8, receive, consider and ratify the recommendation. In terms of paragraph 7.13, responsible for the convening of the Interview Committee. In terms of paragraph 7.17, to ensure that accurate records/comprehensive minutes are kept and that those records are stored by the SGB for a period of three (3) years. It is the Applicant’s notion that all of the aforementioned, can only be achieved by way of a resolution by the SGB, which resolution can only be lawfully passed if a sufficient number of SGB members are present to form a quorum.
39. The first Respondent response to this allegation was that clause 7.1 requires the SGB to establish the interview panel but does not however dictate that all the SGB members must be present during the interview. The names of the SGB members identified by the applicant are those that were present during the interview process. He however averred that a resource person, Mogaki was also present during the interviews. This is evidence enough that the Respondent complied with this clause. On the other hand, the Applicant did not adduce any evidence on his allegation that the SGB did not establish the interview panel. The 1st Respondent also submitted through Moremi that three SGB members received, considered and ratified the recommendation of the interviews. He confirmed that Ms Tshoniswa was the third SGB present on that day. He also stated that a quorum may be a requirement during the SGB meetings, however it must be borne in mind that this process is not a meeting of the SGB, but the employer’s process which places some of the responsibilities on the SGB. It is against this background that the employer is the ultimate decision maker in this process. Both this circular and PAM makes no provision that all the members of the SGB must sign the minutes. I could not agree with the 1st Respondent’s view on the SGB requirement. The Applicant submitted that the appointment and promotion of an Educator is regulated by Chapter 3 of the Employment of Educators Act. Section 6(3)(c) and (d) directs that:
c) The governing body must submit, in order of preference to the Head of Department, a list of—
(i) at least three names of recommended candidates: or
(ii) fewer than three candidates in consultation with the Head of Department.
(d) When the Head of Department considers the recommendation contemplated in paragraph (c), he or she must, before making an appointment, ensure that the governing body has met the requirements in paragraph (b).:
40. The Applicant further held that the organisation, governance and funding of schools are regulated by the South African Schools Act (“Schools Act”). Section 16 thereof directs the SGB that governs the school: “(1) Subject to this Act, the governance of every public school is vested in its governing body and may perform only such functions and obligations and exercise only such rights as prescribed by the Act.” An SGB operates in accordance with a constitution, compliant with Section 18 of the Schools Act which directs: Constitution of governing body (1) Subject to this Act and any applicable provincial law, the governing body of a public school must function in terms of a constitution which complies with minimum requirements determined by the Member of the Executive Council by notice in the Provincial Gazette. Membership with the SGB must be in line with Section 23. In terms of subsection 8, it is only elected members who have voting rights and in terms of subsection 2, elected members comprise of members from four specific categories (parents of learners at the school, educators of the school, members of staff at the school who are not educators and learners in the eighth grade or higher in the school).
41. The minimum number of elected members to an SGB is prescribed by provincial legislation and depends on the amount of learners and the type of school. The Regulations Relating to the election of School Governing Bodies and Governance of Public Schools in the North West Province (North West Provincial Notice 38 of 2021), published on 14 April 2021, specifically Schedule A thereto, demands a minimum of fifteen (15) elected members for a secondary school that has one hundred and fifty (150) or more learners enrolled. The constitutional principle of democracy, by itself, demands a majority to be present at a meeting of a body of this nature in order to establish a quorum. Thus, purely premised on the aforementioned, a quorum would require the presence of a minimum of eight (8) SGB members. Ignoring the aforementioned minimum prescribed standard, it remains that the Applicant testified that the School’s SGB consisted of seven (7) voting members and even on his version, which remains unchallenged, the presence of four (4) members was required for any meeting to quorate and for a valid resolution to be passed. Besides the lack of any evidence to the extent that valid resolutions, or any resolutions for that matter, were passed by the SGB in relation to the matters mentioned in paragraph 38 above (In terms of Circular 24 of 2019, the SGB is required to establish a Shortlisting Committee -paragraph 6.2, an Interviewing Committee – paragraph 7.1), it follows that the so-called and required “recommendation” (which must be by way of resolution) could not be achieved. This is so because even on the 1st Respondent’s version, at best there were only three (3) SGB members involved in the meeting(s) of 8 October 2019. In Kimberley Junior School and Another v Head of the Northern Cape Education Department and Others (278/08) [2009] ZASCA 58; 2010 (1) SA 217 (SCA); [2009] 4 All SA 135 (SCA) (29 May 2009): [19] Apart from the principle of separation of powers, which dictates that a court should be hesitant to usurp executive functions, there was in this case not even a proper recommendation by the SGB as contemplated by s 6(3)(c). In the circumstances, both the SGB and the HoD should, in my view, be afforded the opportunity to perform their respective functions in terms of s 6(3) in a proper manner.” In my view, the 1st Respondent was unable to furnish evidence to the fact that the SGB was constituted to establish the Shortlisting Committee, as required by paragraph 6.2 and to have established an Interviewing Committee, as per paragraph 7.1, however Thandile v ELRC and others [2021] JOL 53304 (LC) determined otherwise as discussed below. Nowhere was there evidence that the Applicant complained about the constitution of the panel when he was interviewed.
42. In terms of paragraph 6.3, the Shortlisting Committee “must formulate additional criteria for shortlisting in consultation with the relevant employee organisations”. It was the 1st Respondent’s case that the Applicant relied on the “setting of criteria” (P.17, para 6) instead of the criteria itself from which he concluded that there were no additional criteria. Motang and Moremi stated that the criteria were set as captured in P.17 under “Criteria: See attached grid”. The Applicant agreed that he suffered no prejudice as there was compliance with this clause. The Applicant’s case directs to paragraph 6.4 directing that a list of appropriately weighted indicators should be arrived at using information provided in the advertisement (as well as duties, skills and qualities that are relevant to the post as a basis).” Although the minutes (Bundle “A”, p16-19) of the shortlisting meeting appear to contain additional criteria, the criteria became meaningless due to the absence of compliance with paragraph 6.4. I am of the view that the requirements, as per paragraph 6.10 and 6.11, which requires that this criterion must consider the “curricular needs of the school” and the “subject or post requirements”, were not achieved.
43. Paragraphs 6.3, 6.7 and 7.4 of Circular 24 of 2019, demand trade union participation, obviously as an inherent requirement insofar as transparency is concerned. It is the 1st Respondent’s case that the trade unions they were invited but did not attend. This is in line with the minutes on page 16(A). This paragraph is also supported by paragraph 6.7 P.15 (R) which indicates that “Relevant employee organisations must be granted an opportunity to observe this process to satisfy themselves that the above-mentioned criteria was were applied properly, provided that should any such employee organization be unable to utilize this opportunity, such inability shall not negatively affect this process”. This was supported by Motang, Moremi and the Applicant himself. Paragraph 6.3 demands (“must”) consultation with the relevant trade unions in respect of the formulation of additional criteria. Referring to paragraph 6.3 of the Circular (A14) directs that the shortlisting committee must formulate additional criteria for short-listing in consultation with the relevant employee organizations who are present. As none of the trade unions were present at the Shortlisting Committee meeting held on 15 September 2019 (see paragraph 1 of the minutes), the question remains whether such additional criteria could be formulated in the absence of any employee organization. I am of the view the clause in its ordinary meaning directs “who are present’”. Should no trade union be present it surely with the condition that the relevant trade unions must have been invited, such inability shall not negatively affect the process.
44. Paragraph 7.4 of the Circular relates to members of the Interview Committee, provides for one union representative per trade union who is a party to the ELRC and must be read with paragraph 7.6, which allows for these individuals to be observers in the process and the drawing up of a preference list. The minutes in respect of the interviews, held on 4 October 2019, reveal that only a representative (Lentswe) of one trade union was present. The absence of a representative from the other trade union(s) was not even addressed, which is evident from the minutes Bundle “A”, p23-25. The 1st Respondent could only respond to state that such inability could not negatively affect the process.
45. Paragraph 7.15 demands that: The interviewing panel must rank two candidates in order of their preference, giving a brief motivation or their choice. During this process the relevant employee organisation can send observers to sit in.” Read together with paragraph B.5.4.12 of PAM: At the conclusion of the interviews the Interview Committee must rank the candidates in order of preference, together with a brief motivation, and submit to the SGB for their recommendation to the relevant employing department.” The minutes, paragraph 6.1 thereof, contains a ranking of the five candidates but does not contain any motivation insofar as the ranking of candidates in order of the Interviewing Committee’s preference. The last page of the minutes, page 25 of Bundle “A”, however contains a short motivation for only three (3) of the candidates during the interviews. The 1st Respondent in my view missed this issue in that it referred to paragraph B.5.4.13 of PAM which stipulates that “The SGB must, after having ensured that the principles and processes stipulated in paragraph, B.5.4 have been adhered to, submit in order of preference to the HoD, a list of – B.5.4.13.1 – At least three names of recommended candidates;” I do however view this as not a major non-compliance on the part of the 1st Respondent and resulted in no unfairness towards the Applicant.
46. Paragraph 8.5 (including 8.5.1 to 8.5.3) requires the following documentation to be submitted to the 1st Respondent. A list of the applicants with a final selection and order of preference for appointment, duly completed and signed by the Interviewing Committee, Chairperson of the SGB, the Area Manager, the review panel and the District Manager. This list is found on pages 81 to 85 of Bundle “A”, but only contains two signatures contrary to what is required by 8.5.1 (a least five signatures if it is accepted that the Chairperson of the Interviewing Committee is entitled to append his signature on behalf of each and every member on the panel); The 1st Respondent responded to clauses 8.5.1 and 8.5.3 to state that it appear under the heading, “General Information” in the circular. It therefore follows that this information under that heading do not form part of the recruitment process that may amount to unfair labour practice as they are purely administrative issues with no bearing on the procedure for recruitment and selection. It is for this reason that this general information is also not captured anywhere in PAM and only serves as a guiding principle to those who are supposed to submit documents for appointment to the District Office. The Applicant testified in cross examination that he did not suffer any prejudice in relation to these two clauses. In my view the Applicant may not have been prejudiced but directs to signatories of the key role-players during the process tasked with a legislative responsibility to comply.
Whether the Applicant was the most suitable candidate –
47. Paragraph 4.2.2 of the Circular provides: Actual teaching experience as well as other appropriate
experience will be considered only if it is traceable and can be accounted for.” The Applicant presented a disparity insofar as the scoring of the candidates are concerned, particularly, the scoring by the SGB Chairperson (who had an alleged strained relationship with the Applicant) in respect of the Applicant and the 2nd Respondent. The Applicant and the 2nd Respondent were scored by the Interview Committee members as follows (A28 and A32 of Bundle “A”):
SELECTION COMMITTEE MEMBERS APPLICANT 2nd RESPONDENT
MOREMI, SS 29 29
MATHAI, B 28 30
FOURIE, T 28 25
MASEKO, N 24 48
TOTAL 109 132
48. Moremi scored both the Applicant and the 2nd Respondent the same (29 points). Mathai scored the 2nd Respondent 30 points and the Applicant 28. Fourie scored the 2nd Respondent 25 points and the Applicant 28. All of the above scores are very close in comparison. It is the Applicant’s case that a simple calculation reveals that the Applicant would have been the higher scoring candidate (by 1 point) if the SGB Chairperson, Maseko, was removed from the picture. Considering that Maseko afforded the 2nd Respondent a score of 48 points, eighteen (18) points more than the second highest score, whilst he afforded the Applicant a score of 24 points, twenty-four (24) points less than the 2nd Respondent and four (4) points less than the second lowest score afforded to the Applicant. The Applicant also argued that the only reasonable inference that can be drawn from the aforementioned is that Maseko, the SGB Chairperson, was bias toward the Applicant, which bias had a substantial influence in relation to the scoring of these two candidates and which eventually allowed the 2nd Respondent to be appointed, instead of the Applicant. This must be measured against the Applicant’s evidence insofar as the relationship between these parties.
49. The 1st Respondent argued that if the Applicant believed that the SGB Chairperson and the 2nd Respondent went to the children’s camp together and for him to have suspected they had a good relationship was merely part of their responsibilities. For the 1st Respondent, it could not be concluded because the Applicant also worked closely the SGB chairperson, he also had a good relationship with him. In relation to the scoring, the 1st Respondent argued that one gave him the same score as the 2nd Respondent whilst two of them scored him lower than the 2nd Respondent which on average, the 2nd Respondent generally performed better than the Applicant. The 48 score Maseko awarded the 2nd Respondent was completely out of the norm in relation to the scores of the other panelists towards the 2nd Respondent. Maseko also scored the Applicant relatively low in relation the scores of the other panelists towards the Applicant. I accept that Maseko’s scoring was out if the norm and unreasonable with no plausible explanation for the 1st Respondent.
50. It was also the Applicant’s case that he was the more suitable candidate, if compared against the 2nd Respondent, and had a reasonable expectation to be preferred for the vacant position, due to the fact that he had been acting in the vacancy at the same school for more than a year until the 2nd Respondent’s appointment. Also that the Applicant has occupied a more senior position, insofar Deputy Principal, whilst the 2nd Respondent was his subordinate as an HOD. The Applicant also held that he had more experience and expertise within management (relevant to the post requirement) exceeding that of the 2nd Respondent. Paragraph 4.2.2 of the Circular, which provides: Actual teaching experience as well as other appropriate experience will be considered only if it is traceable and can be accounted for.”
The 1st Respondent argued that the SMT comprises of all managerial posts which start from PL 2 to PL 4 and therefore managerial experience must be calculated as such. Also that the Applicant acknowledged that he has been a member of the School Management Team (SMT) for 14 or 15 years whilst the 2nd Respondent has been a member of the SMT for almost 17 years. Paragraph A.3.4.3 of PAM provides that – one of the co-duties of the Departmental Head is to act on behalf of the principal during her/his absence from school if the school does not qualify for a deputy principal or in the event both of them are absent. The 1st Respondent held that the mere fact that the person acted in a post does not give them an automatic right to promotion. Paragraph B.5.4.9 of the Personnel Administration Measures (PAM) states that, “An educator, who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted. According to PAM, the only advantage that is given to an educator who had acted in the advertised post is an automatic shortlist if that person has applied and meets the requirements of the post. PAM does not in any way intend to create a legitimate expectation to promotion. There is no automatic right to promotion, but for employees to be fairly considered for promotion when the opportunity arises (Du Toit et al, Labour Relations Law (5th ed) 486).
51. In Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT the Court emphasized that whilst in unfair labour practice disputes relating to promotion the onus is on the employee to demonstrate that the failure to promote was unfair, the employer, is in the same token, obliged to defend challenges on the substantive and procedural fairness, if it wishes to avoid a negative outcome. According to the Court, there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence it would be irrational and unreasonable to conclude that the employer acted fairly, regardless of where the onus lies. The facts of Thandile v ELRC and others [2021] JOL 53304 (LC) assist in this instance. During 2015, Education advertised the post of Head of Department at Egqili High School in Sterkspruit in Bulletin Volume 1 of 2015. Makibeni together with others applied for the post. About 10 candidates were shortlisted. Makibeni was one of those shortlisted. The shortlisted candidates were interviewed for the post, including Makibeni. The outcome of the interview process was that Makibeni was unsuccessful. One Ms Ntombomzi Nyamatana (Nyamatana) was the successful candidate. [7] Makibeni crystalized his grounds to the following summarised grounds: [7.1] The interview panel was not properly constituted; [7.2] Employees who were not part of the panel sat in the interview; [7.3] Some shortlisted candidates did not meet the minimum requirements; [7.4] The interview process itself was dogged by material irregularities; [7.5] Score sheets were not signed; [11] Turning to the complaint that the interview panel was not properly constituted, again this cannot be conduct that is unfair. Nowhere was there evidence that Makibeni complained about the constitution of the panel when he was interviewed. Surely if Makibeni knew that certain people were not supposed to be part of the interview sitting, he should have objected and actually sought for their removal. He cannot after having participated in a process and when the results do not favour him turn around and state that the panel was not properly constituted. This argument does not fly at this stage. [14] With regard to the interview process being dogged by material irregularities, the answer is a simple one. Makibeni freely participated in that interview process and acquired 110 points which was 2 points shy of 112 points acquired by Nyamatana. It was indeed a close race.
52. The Applicant freely participated in the interview process and did not complain about the constitution of the panel when he was interviewed. I am of the view that the Respondent did not place evidence to show that they acted in good faith during the promotion exercise and it would be unreasonable to conclude that the Respondent acted fairly towards the Applicant. The Applicant acquired 109 points which was 23 points shy of 132 points acquired by the 2nd Respondent. Maseko scored the 2nd Respondent a 48 which was unrealistic in relation to the Applicant. In comparing the total scores such scoring indeed placed the Applicant in the 5th and last position with the other candidates respectively 10, 9 and 8 points more than the Applicant. Would Maseko have scored the Applicant in relation to the general scores the other candidates, it would have indeed been a closer race but in my view not close enough for the Applicant. Even if Maseko scored the Applicant a higher score, the Applicant in relation to the other panelist scored lesser below 30.
53. It is noteworthy to state that no evidence was adduced to determine that the Applicant was the best of ALL the candidates who applied for the post. ELRC Collective Agreement Number 3 of 2016 determines that: Once the applicant has proved that he was the best of the candidates who applied for the post, the arbitrator is entitled to appoint him or her to the post. It is a gross irregularity for an arbitrator to appoint an applicant in a promotion dispute where the applicant has not proved that he was the best of all the candidates who applied for the post and that he would in fact have been appointed had it not been for the unfair conduct of the employer.
54. In Aries v CCMA and others (2006) 27 ILJ 2324 (LC) the Court held that there are limited grounds on which an arbitrator, or a Court may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The Court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner., Courts have held that strict compliance with the guidelines for appointments provided for in PAM and ELRC Collective Agreements is not necessary and substantial compliance is sufficient. The courts have further held that one does not go digging to find points to stymie the process of appointing suitable candidates to teaching positions (see Observatory Girls Primary School & another v Head of Dept; Dept of Education, Province of Gauteng, case no 02 / 15349, [2006] JOL 17802 (W); Douglas Hoêrskool & n ander v Premier Noord-Kaap & andere 1999 (4) SA 1131 (NC) at 11441 – 11451). In this instance the Applicant’s felt most aggrieved in relation to experience directing to the fact that he is a Deputy Principal and acted as Principal. The Applicant could not demonstrate that he has a realistic chance of being appointed should the process be repeated. In my view the 1st Respondent exercised its discretion properly.
AWARD
55. The Applicant could not establish that he was the most suitable candidate and the minor procedural errors do not amount to prejudice or non-patrimonial loss on the Applicant.
56. In the premises, the 1st Respondent did not commit an unfair labour practice in not to promote the Applicant to the post of the Principal (PL4),
S Fourie
ELRC ARBITRATOR
29 October 2022