In the matter between

NATU obo C Makhaya Applicant

and

Department of Education: KZN 1st Respondent

SADTU obo TD Zwane 2nd Respondent

School Governing Body Thembalentsha High School 3rd Respondent

ARBITRATOR: AS Dorasamy

HEARD: 9 July 2015

DATE OF AWARD:

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – alleged unfair conduct relating to promotion

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1 This matter was set down for arbitration at 10H00 on 9 July 2015 at the Department of Education: KZN, District Office, Newcastle, under the auspices of the Education Labour Relations Council (ELRC). Mr J Msimango (NATU) represented Ms M Makhaya (applicant), Mr B Mdlalose represented the Department of Education KZN (1st respondent), Mr J Nxumalo of SADTU represented Ms T Zwane, the successful applicant to the post in issue and who has been joined as a party to this dispute (2nd respondent). There was no attendance by or on behalf of the School Governing Body (SGB) of the Thembalentsha High School (3rd respondent) who was not joined as a party to the dispute. The parties submitted written closing arguments by 16 July 2015.

THE ISSUE IN DISPUTE

2 I am required to determine whether the 1ST respondent committed any unfair labour practice relating to promotion in not promoting the applicant to the post in question (Post number 840, Head of department of languages, Thembalentsha High School), and dependent thereon appropriate relief

THE BACKGROUND TO THE DISPUTE
3.1 The applicant was interviewed for the post in question but was unsuccessful. The second respondent Ms T D Zwane was appointed to the post and as the applicant sought her displacement, therefore she had to be joined in the proceedings.
3.2. The matter was previously postponed for the appointee to be joined in the
proceedings.
3.3. Mr J J Msimango represented the applicant throughout the hearing but the
closing arguments were submitted by Mr Zungu who did not attend the proceedings.
3.4 All documents referred to had been made available to the parties at arbitration. The marking of the documents was standardised with the parties at the arbitration.
3.5. The process was completed and the applicant was interviewed and challenges the appointment of the second respondent.
3.6. The applicant seeks the following relief as recorded in her referral form:
The whole process to be redone by the District office as the SGB seems not competent or not willing to ensure that the process is carried out just, equitable and fair to all parties.
3.7. The 1st and 2nd respondents pray that the application be dismissed.

APPLICANT’S (EMPLOYEE) OPENING STATEMENT
3.8. The dispute is about the violations that were committed by the Interview Committee (IC) as well as the School Governing Body (SGB) from the
election of the chairperson and secretary right up to the short-listing and interview process. The applicant prays that the whole process be rendered null and void and for the process to be started afresh and taken over by the District office.

FIRST RESPONDENT’S OPENING STATEMENT
3.9. The respondent believes that the process was fair and without prejudice to the applicant. She was short-listed and interviewed. The first respondent prays for the case to be dismissed.

SECOND RESPONDENT’S OPENING STATEMENT
3.10. The appointee’s case is covered by the Department.

SUMMARY OF EVIDENCE AND ARGUMENT
Evidence on behalf of applicant
4 Nomakhosi Nonhlanhla Gladys Khumalo testified to the following effect:
4.1. On the day of the interviews she was the NATU observer. She attended late and the questions were already done. The clerk and SADTU observer were typing the questions. The Department nominee Mr Nkabinde introduced her to the panel. The candidates were called and four were present and they were told that the fifth candidate would attend late.
4.2. She noticed that when the scorers scored some of the scores were changed by the Department nominee and she saw this as interference by him. The observers did not intervene. The Departmental nominee said the scores were high and the members of the IC reacted positively and agreed to change the scores.
4.3. The chairperson of the IC sat right through the interviews and there were three scorers. All candidates were given 25 minutes, five minutes per question. She does not recall who the timekeeper was but there was a timekeeper. The scores of Ms Jele were changed but she does not know which union she belonged to. Nothing was changed for Ms Zwane.

4.4 Under cross-examination by the First Respondent she stated that Ms Jele’s score was increased. Ms Makhaya’s mark was not changed or interfered.
4.5 Under cross-examination by the Second Respondent she stated that the clerk was typing the questions.

5 Ms Caroline Duduzile Makhaya testified to the following effect:
5.1. She applied for the post and was given five minutes per question. She was not satisfied because she was stopped before the time expired. She checked her watch until the last question and thought the Departmental nominee was the timekeeper. She was stopped after each question and told time was over and did not query the short time. She was the fourth candidate.

5.2 Under cross-examination by the first respondent she stated that she didn’t check the start time of the interview and didn’t check with the timekeeper. She cannot say by how many minutes short her interview lasted but estimates that it was ten minutes less and she cannot dispute the time.

5.3 Under cross-examination by the second respondent she stated that she was stopped at the end after answering five questions.

6 Vusi Makepeace Nyamane testified to the following effect:
6.1 He was the NATU rep at the election of the chairperson and secretary of the IC. On the 9 October 2014 Mr Nkabinde the principal of the school chaired the meeting. He raised the issue and was told that he could raise a dispute. Ms Esther Mnguni was elected the chairperson of the IC and the secretary Ms Dolly Khubeka was telephoned and agreed to be the secretary. He was not present thereafter.
6.2 Under cross-examination by the first respondent he stated that he believed that the IC was incompetent.
6.3 Under cross-examination by the second respondent he stated that he attended the meeting of the IC.

Evidence on behalf of 1st respondent
7 Muzikayifani Dencky Nkabinde testified to the following effect:
7.1 He is the principal of the school and was the Departmental nominee/ resource person. He was present when the IC was elected and when the IC elected the chairperson and secretary.
7.2 He did not change any scores. The scores in one instance were changed by consensus. All scorers will shout their scores and moderate it and change if necessary. The chairperson was Ms Mnguni but before the interviews she sent a letter of apology because she had a personal problem at home. Ms N S Ndlela was then elected as the chairperson by the IC.
7.3 All candidates were allocated five minutes per question and no candidate was given less time. The applicant did not complain about being given short time.
7.4 Under cross-examination by the applicant he stated that the SGB elected the IC. He only intervened when the need arose and acted objectively and not subjectively. The same IC started and ended the process. After the election of the chairperson of the IC he left it to the chairperson of the IC to conduct the business. During the interview process Ms Thembi Matobeka was the time keeper and she and Ms Ndlela and Khubka were the scorers.
7.5 There were no complaints by the union reps about the scoring. The HER 11 schedule of recommended candidates and all forms were signed including the EKR 12 that is the ratification form was signed by the two unions. The results were accepted. The NATU rep signed the HER 11 and 12 forms

8 Evidence on behalf of 2nd respondent
The second respondent did not call any witnesses and did not testify.

9. CLOSING ARGUMENTS
10. The response to the applicant’s arguments are recorded below.
11. The presiding officer (Ananthan Sanjivi Dorasamy) did not afford an opportunity to have the issues that were in dispute at conciliation to be addressed and heard by the arbitration process. No attempt or whatsoever was made by the presiding officer to afford the parties to address him on the issues rose at the conciliation. The facts and merits of the cases were not listened to and heard at the arbitration process. Prior the sitting the presiding officer pronounced that the applicant’s argument was weak. In saying so he pre-emptied the outcome of the process having not heard the matter.
2. he presiding officer prior the hearing instructed the applicant to prepare the notice of joinder to be served to the affected parties. This was contrary to the ruling of the conciliation processes in which the commissioner (Ingrid Lewin) had ruled that the notices are to be prepared by the ELRC and served by the employer to the affected parties. In all material respect this was inconsistent to the rules of the same ELRC.
3.The commissioners at the conciliation had ruled that they must be an exchange of documents between the parties prior the arbitration sitting, the presiding officer at the arbitration process ruled that it was not necessary and not an obligatory requirement that the Department of Education must furnish the documents that were requested. Despite the fact that this is a common law position in our Anglo-Saxony Jurisprudence.
4. The presiding officer (Anathan Snjivi Dorasamy) allowed and mandated the party (SADTU) that was neither the applicant in the matter nor the respondent in the matter to sit and cross-Examine the applicant during the hearing.
5. The applicant was prohibited by the presiding officer from asking any questions from the respondent party. The hearing was more of a lecture by the commissioner, the employer and SADTU.
6. The commissioner was clearly not prepared to follow and adhere to the principles of natural justice. It is either the principles of audi alteram partam and nemo iudex in cuasa sua are not known to him or he deliberately conducted himself in any inappropriate manner, hence he expects us to give him the closing argument for a sitting that never existed in terms of the principles of the law. The presiding officer continuously ignored any questions imposed by the applicant during the so called arbitration process. In most instances the presiding officer answered the questions directed to the respondent.
7. WHEREFORE we pray that the commissioner declares to the ELRC that he was not a fit and a proper person to have dealt with the matter. FURTHERMORE we demand that the so called the arbitration sitting of the 9th of July 2015 to be declared null and void by the ELRC, as this arbitration process the commissioner seems to have deliberately misled himself.

12. FIRST RESPONDENT’S CLOSING ARGUMENTS
1. The applicant complained that the Dept. nominee acted as a chairperson during the processes, the SGB did not meet to elect the Interview Committee and that the dept. nominee dictated scores to I C members. She, during the hearing added that she was allocated less time during her interview.
2. She led evidence and failed to prove that prejudice that she claim to have suffered. During the hearing it transpired that the SGB met to elect the I C, the role of the Dept nominee was not that of the chairperson and no scores were dictated to I C members. She also failed to prove that time allocated to her was less than twenty five (25) minutes.
3. The first respondent prays that the matter be dismissed.

SECOND RESPONDENT’S CLOSING ARGUMENTS
The second respondent elected not to submit its closing arguments.

ANALYSIS OF THE EVIDENCE AND ARGUMENT
13.1.I have taken cognizance of the decision in Sweeney/ Transcash [2000] 6 BALR 712 (CCMA) where the commissioner held that arbitration hearings constitutes a rehearing de novo on the merits.
13.2. In this matter contrary to the submission of the applicant’s representative who was not present at the arbitration, the applicant called three witnesses and the first respondent one witness. The parties led evidence in chief, cross examined and re-examined the witnesses. The proceedings were conducted in terms of section 138 of the Labour Relations Act and was mechanically recorded. The applicant’s representative Mr Msimango agreed that at the completion of the evidence that the closing arguments be submitted in writing. The matter was postponed on the previous sitting because the appointee was not joined in the proceedings. The applicant’s relief affected the appointment of the second respondent.
13.3. The promotion process of the respondent the Department of Education is regulated by HRM documents and collective agreements.
The stakeholders in the education sector continuously appraise the procedure manuals and where necessary amendments are effected.
13.4. The following are of importance to direct parties in this sector that careful consideration must be given to the following principles that guide/ direct the promotion/ appointment process.
13.5. The following are recorded in the promotion manuals.

GENERAL PRINCIPLES
This procedure manual is developed in terms of the PAM of 1998, as amended, and replaces all other previous practices and procedure manuals.
“OBSERVERS
9.6 Role of Observers
9.6.1 The Union representative shall be observers to the process of Short-
listing, interviews and drawing up of the HER 11.
9.6.2 Observers shall not be directly involved in the processes of Short-listing and interviewing but will note that approved procedures and practices are adhered to in a fair, consistent and uniform manner.
9.6.3 An Observer has the right to intervene in terms of the procedures if he /she deems that there is an infringement on agreed upon procedures
9.6.4 In such an instance an observer must indicate to the Chairperson that he / she wishes to intervene. It is expected that the observer shall observe the following:
* Must not discuss any question(s) or comment(s) in the presence of the interviewee.
*Discussion concerning the intervention must take place after the interviewee has left the room.
9.6.5 Observers must sign the declaration of confidentiality (EHR 12) and uphold the code of secrecy (my emphasis)
9.6.6 An observer must first attempt to resolve any concerns with the interview
committee. Should consensus not be reached, he / she must inform the Interview Committee in writing that he / she is lodging a grievance. “
There is no provision in the grievance procedure for candidates to initiate a grievance before the outcome of the process is disclosed.
13.6. Turning to the dispute at hand the applicant was short listed and interviewed. The union observers were present and at the conclusion of the process appended their signature confirming that the process was undertaken fairly.
13.7. All candidates were asked the same questions and allocated the same time per question and were scored by the panelists who were all SGB members.
13.8. The department representative Mr Nkabinde only intervened when necessary and his role and conduct during the proceedings were not contested by the union observers.
13.9. The union observers thereafter ratified the process and the SGB then submitted their recommendation to the Head of Department.
13.10. There were no objections concerning the capacity of the Interview panel during the process.
13.10. I found Mr Nkabinde the departmental representative monitoring the interview process knowledgeable and was aware of his role and responsibility during the process.
13.11. In any event the SGB only makes recommendation to the Head of Department who has wide power in terms of the amendments to section 6 of the Employment of Educators Act, 1998 of which the following should be noted:
“Section 7 (1) Section 6 of the Employment of Educators Act, 1998 is hereby amended by the substitution for subsection (3) of the following subsection:
(3) (a) …………..
(c) The governing body or the council, as the case may be, must submit, in order of preference to the Head of Department (HOD), a list of-
(i) at least three names of recommended candidates; or
(f) Despite the order of preference in paragraph (c) and subject to paragraph (d) the Head of Department may appoint any suitable candidate on the list.
(g) (iii) … appoint a suitable candidate temporarily or re-advertise the
post.
(h) The governing body or the council, as the case may be, may appeal to the Member of the Executive Council against the decision of the HOD regarding the temporary appointment contemplated in paragraph (g).
(k) If no appeal is lodged within 14 days, the HOD may convert the temporary appointment into a permanent appointment in section 6 B. “
13.12. It is clear from the above that the prerogative in appointing personnel in promotion post is that of the employer.
13.13 The reason is simple that the responsible functionary eg HOD must direct
the department’s plans and targets within reasonable grounds failing which certain consequences would follow.
13.14 The process continued and the applicant was not the preferred/ recommended candidate. As a consequence thereof the HOD could and made the appointment of the 2nd respondent.
13.15 The vacancy had to be filled as soon as possible.
13.16 Turning to the matter at hand it is clear that the Interview Committee was engaged/ monitored by two unions NAPTOSA and SADTU and submitted its preferred candidate. They put their recommendations before the SGB who ratified the submission resulting in the 2nd respondent being recommended to the post. One must be mindful that the members of the SGB are elected by the school committee to look after the best interest of the school and the community and undertake their duties on a voluntary basis and without remuneration. They cannot be judged as an expert panel and perform their function under the guidance of the Department nominee in this case Mr Nkabinde. The recommendation was endorsed by the unions and the educator representatives on the SGB. Therefore one can conclude that the persons entrusted with seeing that the process was fair including the unions present did not share the concerns expressed by the applicant.
13.17. The fact that the applicant was short-listed and interviewed and all candidates were subjected to the same criteria leads one to believe that all the candidates were subjected to the same process and preference cannot be afforded to the applicant. In any event the union that was a party to the process approved it. The onus in an unfair labour practice dispute is on the applicant. She raised several issues in her opening statements amongst other the election of the IC, short lising , the role of the departmental nominee Mr Nkabinde but failed to properly substantiate them during the hearing alternatively did not address them at all and therefore did not discharge the onus of proving that the first respondent perpetrated an act of unfair labour practice against her. Therefore I conclude that the applicant was together with other candidates fairly assessed. Her application must fail.
13.18.As a consequence of the above I determine that the appointed of Ms T D
Zwane be confirmed.

COSTS
14. I have considered the issue of costs and determine that no party acted frivolously or vexatiously in the proceedings and do no order of costs against any party.

AWARD
In the premises I make the following order:

15.1. The application is dismissed
15.2. The appointment of Ms T D Zwane as Head of Languages at Thembalentsha High School is confirmed.
15.3. There is no order as to costs.

DATED AT DURBAN ON THIS 21 DAY OF JULY 2015.

Arbitrator/Panelist: ELRC