In the ARBITRATION between

NAPTOSA OBO JACOB, GM
(Applicant)

And

HEAD OF DEPARTMENT: DEPARTMENT OF EDUCATION: EASTERN CAPE
(1st Respondent)

MR LUNGILE NYUKWANA (2ND Respondent)

Employee’s representative:

Mr. Kwezi Dalasile
Applicant’s address: 68 Recreation Road
Southernwood
East London
5201
Telephone: 043 722 4104
Telefax: 043 722 4089
E-mail:

Employer’s representative: Mr. BMG Kwepile
Respondent’s address: Private Bag X1152
Lady Frere
5410

Telephone: 047 878 0086
Telefax: 086 272 6677
E-mail:

DETAILS OF HEARING AND REPRESENTATION

1. This case was arbitrated on 21 and 22 November 2016 at the district offices of the Department of Education in Lady Frere. It involves a dispute relating to an alleged unfair labour practice in terms of section 186 2 (a) of the Labour Relations Amendment Act 6 of 2014 (“the Act”). After the conclusion of the matter, parties were allowed seven (7) days to submit written closing arguments and they duly obliged.

2. The Applicant, Mr. Gideon Mthunzi Jacob, was present and was represented by Mr. Kwezi Dalasile, an official from the union NAPTOSA, of which the Applicant is also a member.

3. The Respondent, The Head of Department: Department of Education: Eastern Cape was represented by Mr. Buzani Kwepile, its Chief Education Specialist: Labour Relations.

4. The second Respondent, Mr. Lungile Nyukwana, was present and represented himself.

5. The proceedings were digitally recorded.

BACKGROUND FACTS

6. The post of principal of Nzimankulu Senior Secondary School was advertised per Bulletin Volume 4/2015 and the Applicant applied, was shortlisted and interviewed by a panel of the School Governing Body (“the SGB”). After the conclusion of said interviews, he was recommended as the preferred candidate.

7. A grievance was however lodged by another union, SADTU, prior to the appointment of the Applicant by the Respondent, and the District Director called representatives of the respective unions as well as the SGB to the District Office in response to the grievance. Permission were sought from the Head of Department to appoint an independent panel to conduct the interviews with the shortlisted candidates afresh. This time around, although invited, the Applicant did not participate. The 2nd Respondent was recommended and appointed to the post.

8. At the heart of the Applicant’s dispute is the failure of the first Respondent to appoint him to the post once he was recommended by the SGB. He is seeking relief to the effect that he be appointed to the post as advertised and that the appointment of the 2nd Respondent thus be set aside.

ISSUES TO BE DECIDED

9. I am required to determine whether the 1st Respondent committed an unfair labour practice in respect of the Applicant due to its failure to appoint the Applicant to the post of principal at the said school.

SUMMARY OF EVIDENCE

10. The Applicant submitted a bundle of documents and called two witnesses, including himself, to testify. The 1st Respondent also submitted a bundle and called three witnesses to testify.

Applicant’s case

11. Mr. Edward Nkosinathi Vuntu testified that he was present at the first interview process as an observer representing NAPTOSA. The outcome of the interviews were that the Applicant was placed as the number one candidate, whilst a Mr. Pongola was second with the 2nd Respondent third.

12. After the interviews, the unions had an opportunity to express their views and the SADTU observer, Mr. Ntshanga, showed some dissatisfaction, especially with regards to how the Applicant responded to Question 4 of the questions posed to all the candidates. Question 4 dealt with the legislative framework and the Applicant did not answer the question satisfactorily. Mr. Ntshanga however signed the recommendation by the SGB.

13. According to Mr. Vuntu, he also made a remark that the Applicant answered the question in the “form of content”. He was therefore happy with the outcome and also signed the recommendation. It was pointed out to Mr. Vuntu that the minutes of the interviews reflected that he was also dissatisfied, to which he responded that the scribe did not relate exactly what he said after the interviews. He was simply saying that the Applicant did not provide a chronological answer to Question 4, but the Applicant answered the question in the form of the content that he provided in answer to the question.

14. Mr. Vuntu testified further that the Chairperson of the interview panel also raised some issues which he was not happy with at the interviews, but he later relented and signed the recommendation. Mr. Vuntu stated that he attended the meeting called by the District Director. He stated that as NAPTOSA, he did not agree to the appointment of an independent panel to do the interviews afresh. As far as he was concerned, the Applicant was correctly scored the highest of the candidates.

15. Mr. Vuntu then came under intense cross-examination regarding his so-called dissatisfaction with the outcome of the interview process, but he maintained that he did not write the minutes of the process and that he further was not dissatisfied with the interview process but merely commented on the manner in which the Applicant responded to question 4.

16. The Applicant testified that he is currently employed as an HOD at the school in question. He has 29 years of service in the Department. Mr. Nyukwana, he testified, is the Deputy Principal of the school where he is also teaching. He mentioned further his qualifications, namely matric, a secondary teacher diploma as well as a BA from UNISA.

17. He stated during cross-examination that the requirements of the post was a minimum of seven years in the teaching profession. He also mentioned that another requirement was leadership and management skills and he was in management. He stated that not much was said regarding academic qualifications.

18. According to him, he was also invited telephonically to the second interviews, but he did not participate because he was awaiting the outcome of the first interviews. According to him, the second interviews was not supposed to happen.

Respondent’s case

19. Mr. Siyamthemba Ntshanga testified that he was a union observer in the interview process. He stated that the interview panel decided on the questions to be asked to the candidates as well as the expected answers to those questions. After the interviews, he was of the view that the outcome of the scoring did not reflect what transpired during the interviews. When the time came for him to comment, he raised his dissatisfaction. He was however informed that he should sign the recommendation and raise a dispute thereafter, which he did.

20. He testified further that it was also requested from Mr. Vuntu to comment and Mr. Vuntu also raised some problems but he (Mr. Vuntu) stated that he would not have a problem if the SGB wanted to recommend the Applicant. According to Mr. Ntshanga, the chairperson of the panel also had problems with the process, but he was told that he should also sign the recommendation because it would otherwise delay the process.

21. Mr. Ntshanga stated further that the Department, in response to dispute raised by SADTU, called a meeting with the unions to do an investigation. A second meeting was called and the District Director was also present. At that meeting, it was decided, although NAPTOSA did not agree, that an independent panel had to be appointed to conduct the interviews afresh.

22. Mr. Ntshanga conceded under cross-examination that it was not his union’s role to allocate scores to the interviewees. He further acknowledged that it is not for the unions to be either happy or unhappy with the responses of the candidates.

23. Mr. Mvuso Stanford Ngemntu testified that he played the role of chairperson of the interview panel and he also raised his dissatisfaction with the results of the interviews, which according to him “did not go well’. Although he and other members of the SGB had a problem with the manner in which the number one candidate was chosen, they decided that they should continue with the recommendation, because it would otherwise have stalled the process.

24. Mr. Ngemntu conceded under cross-examination that he was happy with the manner in which he scored the candidates. He further acknowledged that he had no business in how the other members of the panel were allocating their scores.

25. Mr. Atwell Stofile, the Education Development Officer, testified that the scores were not a true reflection of the performance of the candidates in the interviews, with specific reference to the candidate that was scored number one. When he asked the panel what went wrong, one panel member, one Rhumba, said that they were choosing the one that they want. He got the idea that they were saying that they were choosing the Applicant regardless of his performance in the interviews.

26. He also stated that he thought that he would sign the recommendation and just bring his dissatisfaction to the attention of the District Director in order for him to exercise his discretion. In his view SADTU was correct in lodging a dispute against the outcome of the interviews.

27. Mr. Stofile denied under cross-examination that the Applicant performed well. He mentioned that Mr. Vuntu also express reservations with the manner in which the Applicant responded to certain questions. According to him, Mr. Vuntu said the process had flaws but that the process must continue.

28. He stated that he signed the recommendation despite the irregularities. He was then requested to calculate the scores and compare it to the other scores, specifically on question 4, but he stated that the overall score was what was important.

ANALYSIS OF EVIDENCE AND ARGUMENT

29. The Applicant’s dispute is founded in Section 186 (2) (a) of the Act which is termed as follows:

“’Unfair Labour Practice’ means any unfair act or omission that arises
between and employer and an employee involving …unfair conduct by the
employer relating to the promotion… of an employee”

30. The Applicant in this dispute bears the onus to prove that the Respondent has committed an unfair labour practice relating to promotion in relation to him. He needs to prove that the dispute he referred is indeed related to a promotion, that there was some form of unfair conduct on the part of the Respondent during the promotion process and that such unfair conduct constituted an unfair labour practice and that he is entitled to the relief sought. I will deal with the question of whether the dispute indeed constitutes a dispute regarding a promotion first.

31. A promotion occurs when an employee is “elevated to a position that carries greater authority and status than the current position that the employee is in”.

32. It is common cause that the Applicant was an HOD at the time the post of principal at Nzimankulu Senior Secondary School was advertised. The post he applied for was thus a post on a higher level as his current post and it carries greater authority and status. I am thus satisfied that the issue before me relates to a promotion and that the Council has jurisdiction to arbitrate the dispute.

33. The professional management of a public school must be undertaken by the school principal under the authority of the Head of the Provincial Department of Education. The governance of every public school is vested in its SGB as prescribed in the South African Schools Act 84 of 1996, as amended (“the Schools Act”). SGB’s are a vital part of the democratic governance envisioned by the Schools Act, which places the effective power to run schools in the hands of the parents and guardians of learners through the SGB.

34. In terms of the Schools Act, the SGB of a school must recommend to the Head of Department the appointment of educators, subject to the Employment of Educators Act 76 of 1998. The procedure to be followed when appointing an educator is clearly indicated in the personnel regulations to the Employment of Educators Act (also known as the Personnel Administration Measures, 1999 (“PAM”). Further clarification is contained in Resolutions of the Education Labour Relations Council and Provincial Circulars.

35. Thus, the powers to shortlist, interview and recommend candidates for appointment to the Department of Education was vested in the SGB of Nzimankulu Senior Secondary School. It is common cause that it did fulfill that statutory function albeit with reservations from certain individuals who formed part of the process.

36. The dispute referred by the trade union SADTU at the conclusion of the interview process, caused the District Director to launch an investigation into the complaints received. It was then decided that an independent panel be appointed. The Respondent thus did not make any appointment following the recommendation by the SGB. This action by the Respondent not to appoint him forms the basis of the Applicant’s challenge to the fairness of the process. The Applicant is therefore effectively saying that the Respondent was obliged to appoint him following the SGB’s recommendation despite protestations by other parties to the process.

37. It is clear from the applicable legislation that the union representatives acting as observers may question the process and bring any irregularities under the attention of the HOD. In that regard, the Applicant was not treated unfairly since his own union had the exact same right in the event that it was dissatisfied with the process.

38. In terms of section 3.4 of the PAM document, the HOD must make a final appointment when inter alia it is satisfied that all agreed procedures were followed. The investigation launched by the District Director and the subsequent appointment of an independent panel made it clear that the Respondent was not satisfied that the procedures were followed. At that point therefore, no final decision to appoint had been made by the Respondent.

39. The HOD did not act unlawful when he failed to make an appointment and ordered that the interview process be started afresh with an independent panel. If the Applicant was able to demonstrate that he had a clear right to be appointed after the recommendation, that would have been the end of the matter and he would have proved that an unfair labour practice occurred which was unfair. The documents submitted by the parties reveal that the SGB was divided along constituting components, namely that the teacher component was happy and the parent component, which I dare say, given the objectives of the Schools Act, is the more important component, was not happy. Again therefore, the Applicant cannot complain that the Respondent acted unfairly towards him.

40. The problem facing the Applicant is his attempt to sever the first interview from the second one. He misses the point that the appointment of the principal constitutes the entire process. The post was not re-advertised after the first interviews. The interview process with the same shortlisted candidates was simply repeated, but he rendered himself out of contention by abstaining from the second interview. That was unfortunately his death-knell.

41. At the time the second round of interviews were ordered, the Applicant could still have been appointed. But he is saying that he should have been appointed at a particular time in the process and as I say, he had no clear right to be so appointed. Put differently, the Applicant had to show that the failure to actually appoint him was an imperative to ensure fairness and that any subsequent process was not good enough to ensure that fairness still existed.

42. What the Applicant wants me to find is that there is no substantive merit in the dispute raised by SADTU, that the recommendation from the SGB should stand and that the Respondent should thus have appointed him. He bases this proposition purely on the strength of the scoring of the interview panel. In other words, he is saying that no one had the right to interfere with the way in which the panel scored the candidates and to question the fact that he came up trumps. What he forgets is that the union observers may dispute the process and that the Respondent may investigate to get to the bottom of the complaints. So the Respondent, through the District Director, was better placed to identify the issues at play and it found a divided SGB. And as I said already, the Respondent was not obliged to accept the recommendation.

43. I doubt that the Applicant would have stood any less chance of appointment than the other candidates, especially in the light of the fact that the panel was now supposedly free of any external influence. I thus fail to grasp that the appointment of such a panel constituted an unfair act by the Respondent.

44. In the end, my assessment of the evidence led in this arbitration is that the Applicant failed to prove on a balance of probabilities any unfair conduct on the part of the Respondent that constituted an unfair labour practice. His challenge must thus fail.

45. I therefore make the following award:

AWARD

46. The Respondent did not commit an unfair labour practice in relation to the Applicant in the promotion process.

47. The application is dismissed and the Applicant is not entitled to any relieve.

Signature:

Cmmissioner: Samuel Baron
Sector: