Case Number: ELRC571-21/22EC
Commissioner: Henk Jacobs
Date of Ruling: 19 September 2022

In the matter between

SADTU obo Xolani Siqwepu
(Applicant)

And

1st Department of Education – Eastern Cape, 2nd Mr M. V Kologwana
(Respondent)

Union/Applicant’s representative:

Cordelia Royi

Telephone: 063 385 8970
Telefax:
E-mail: royicordelia@gmail.com

Respondent’s representative:
Respondent’s address: Toto Tsheko

Telephone: 082 461 8250
Telefax:
E-mail: Toto.tsheko@ecdoe.gov.za

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held on 16 February 2022, 21 April 2022, 27 July 2022 and 23 and 24 August 2022.

2 The applicant, Mr X. Siqwepu, was represented by Ms C. Royi, an official from the South African Democratic Teachers Union (SADTU), the 1st respondent, the Education Department – Eastern Cape, was represented by Mr T. Tsheko, a Senior Employment Relations Officer employed by the Respondent and the second Respondent, Mr M. V Kologwana, represented himself during the proceedings.

3 The hearing was held in English and was digitally recorded.

4 Parties further agree to file heads of argument by no later than 02 September 2022, an extension was granted to parties to file arguments by no later than 05 September 2022, however, parties filed arguments on 07 and 09 September 2022.

Issue to be decided

6. The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA, by not appointing the Applicant for the post of Principal at

Background to the matter

7. The Applicant referred an alleged unfair labour practice dispute pertaining promotion to the Education Labour Relations Council after he applied for the post of principal at Jim Mvabaza Senior Secondary School as advertised in Vol1/2021/87.

8. It was established as common cause that the post was advertised, the Applicant applied, he was shortlisted and was interviewed. The Applicant was the 1st recommended candidate by the School Governing Body (SGB) but was not appointed. It was common cause that the 2nd candidate, Mr Kologwana was appointed.

9. The Applicant place in dispute the procedural and substantive fairness of the Applicants appointment.

10. The Applicant sought for the appointment of the 2nd Respondent be set aside and to be appointed as principal.

Survey of submissions

11. This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.

Applicant’s evidence

12. The Applicant testified that he is employed by the 1st Respondent as deputy principal, he saw the advertisement for the post of principal that requires an educator that is qualified to teach mathematics and physical science.

13. The Applicant testified that he thought there was an error with the advert as the school never had physical science as a subject and decided to apply. He has gained management experience in his post as deputy principal in his current school, the school has 1698 pupils and 57 staff members with two deputy principals.

14. He is a curriculum leader and quire leader of note, the school is achieving very well throughout the curriculum. The Applicant also testified that he is the best candidate for the post as his experience prepared him for a principal post, the SGB noted this and hence he was the number one candidate that was recommended by the SGB.

15. The advertisement made reference to mathematics and science as a requirement, however, he attended school at that specific school, and they never had mathematics or science in that school. The Applicant testified that the school already had a maths teacher but was in need for a language teacher. The previous principal at the school was a language teacher.

16. The profiling of the post was for a mathematics and physical science teacher and the Applicant under those circumstances profiled the post based on his own qualifications. The questions asked during the interview process did not speak to mathematics or physical science, bur only focussed on managerial skills.

17. Under cross-examination, the Applicant confirmed that the advert made reference to mathematics and physical science, and he is not qualified to teach mathematics, nor have he ever taught mathematics.

18. Ms Ntsyndwani testified that she is the chairperson of the SGB, she was involved in the interview process for the post of principal, the interview panel have agreed and shortlisting criteria and selected who was to be shortlisted, the Applicant was shortlisted and interviewed, he performed well in the interview and scored the highest, he was recommended as the preferred candidate for the post by the SGB.

19. During the proceedings when they calculated the scores, the Resource person at the time, was not happy and expressed her dissatisfaction with the recommendation, she said that the Applicant does not meet the minimum requirements and that the District Director will question their decision. The Resource person then left with the recommendation angry after she insisted that the recommendation must stand.

20. The post was profiled by the pervious SGB and they were informed that there was a bulletin out for a principal post with the minimum requirements of mathematics and science. The school never had Physical Science before and that the post was a managerial post, not a teachers post.

21. An urgent meeting was called by the EDO who was the resource person at the time to inform the SGB that the recommendation made was incorrect and that the second candidate should be recommended as the preferred candidate. She did not agree and refused to sign the recommendation.

22. Under cross-examination, Ms Ntsyndwani confirmed that they did not shortlist for the post of principal with mathematics and science, and they used their own criteria. Later on, she confirmed that they also looked at mathematics and science.

23. She further confirmed that if one looks at the curriculum needs of the school, the second respondent meets the profile and not the Applicant. It was further stated that there is no authority that can instruct them what to do and the District Director cannot do so either.

Respondent’s evidence

24. Ms Dekeda testified that she is employed by the 1st Respondent as a Circuit Manager and is responsible for monitoring operations within schools. She was involved in the recruitment process from the profiling of the post till the interview process.

25. A post is profiled using the curriculum needs of that school. The school in question had a long history in not offering mathematics and science, the teachers together with the principal decide on the curriculum needs of the school as they are best placed to do so, in this instance, they have identified mathematics and science which was then taken to the SGB.

26. She requested an urgent meeting with the SGB on instruction form the District Director to inform them that their recommendation does not meet the minimum requirements for the post, the Chairperson of the SGB refuse to accept that and refuse to sign, the secretary then signed the amended document.

27. Ms Dekeda further testified that the school is a small school with only 6 teachers, the principal of that school would be required to teach and not only manage.

28. Under cross-examination, Ms Dekeda confirmed that the original recommendation from the SGB was not sent to the HOD. The HOD before appointing someone first need to establish whether the person meets the minimum requirements of the post, if not, the HOD will not appoint that person.

29. At the time of the interviews there was tension between herself and the Chairperson of the SGB, the environment was toxic at that time. The Chairperson was the only one who wanted to have the Applicant appointed as the rest of the panel stated they wanted a principal who teach mathematics and science.

Analysis

30. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.

31. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provisions of benefits to an employee”.

32. It is common cause that the Applicant was recommended for appointment by the SGB as their preferred candidate. It is further common cause that the 2nd Respondent was appointed. It was further common cause that the requirements for the post as advertised includes mathematics and physical science, and that the Applicant is a qualified English teacher holding a post of deputy principal in his current position.

33. The only issue in dispute is whether the department erred in submitting an amended recommendation signed by the secretary of the SGB to the HOD for appointment, instead of the original recommendation signed by the chairperson of the SGB. The Applicant challenge both procedural fairness as well as substantive fairness of the failure by the Education Department to appoint the Applicant.

34. The Applicant in terms of procedure relied on the amended recommendation. It is trite that the SGB is task to recommend a preferred candidate with reasons to the HoD for appointment. In the absence of such recommendation, the appointment of any candidate would be unlawful. In this instance, there was a recommendation, albeit not signed by the chairperson of the SGB.

35. It is common cause that the District Director through the Resource Person convened an urgent meeting with the SGB to inform them that their recommended candidate does not meet the minimum requirements for the post.

36. The PAM (Personnel Administrative Measures) is clause B.5.6.11, which applies to the appointment of all educator and principal posts states under the heading, “Appointment of office-based educators” that if it became apparent that the provisions and procedures were not adhered to, the recommendation must be sent back to the interview committee for rectification. However, the PAM is silent in terms of the appointment of school-based educators.

37. In this instance, the procedural and substantive challenge are interrelated, as the very reason the urgent meeting was convened relates to the reason the Applicant was not appointed. The Applicant would argue that, if the SGB recommendation was not amended, the HoD might have appointed him in the post. The Respondents argument would be, even if they did not amend the recommendation, the Hod would not have appointed the Applicant based on him not meeting the minimum requirements for the post.

38. What is required to be determined is whether the Applicant was prejudiced when the SGB recommendation was amended. The post was advertised with the minimum requirements of mathematics and physical science. The Applicant does not meet those requirements and is thus not appointable.

39. The Applicant argued that he meets some of those criteria and that he was denied a fair opportunity to compete for the post. That argument cannot stand, the Applicant was given an opportunity to compete and he did not meet the requirements.

40. The substantive fairness challenge rests in the reason provided why the Applicant was not appointed. The Applicants reason for applying was that he thought the Department made an error as the school never had mathematics and physical science. The Chairperson for the SGB made a comment during the arbitration that the school never had these subjects and they do not want them.

41. Evidence was led that the chairperson of the SGB dominated the interview process and one can almost allude that she has a vested interest in the appointment of the Applicant as he is a language teacher, and she does not want a mathematics and physical science to be taught at the school. I will not dwell on this issue as it is not relevant to the dispute, but merely background to this issue at hand.

42. In passing, the Respondent in argument states that the Chairperson of the SGB had an interest to have the Applicant shortlisted and he should not have been shortlisted as he did not meet the requirements. That was an error on the side of the SGB that cannot be condoned. It is trite that after an appointment was made, the Education Department takes full responsibility of the recruitment process, including the actions of the SGB. Where there was a blatant error such as this, it would be appropriate for the Department to correct the error.

43. The curriculum needs of the school was established and the requirement as advertised stands. On that basis, the reason provided by the Education Department for not recommending the Applicant cannot be said to be unfair. The Applicant does not meet those requirements and even if the original recommendation was submitted to the HoD for consideration, the Applicant would not have been appointed. On that basis, there was no prejudice to the Applicant.

44. It is fact that the Applicant has experience in management and there can be no doubt that he is a good choice for a leader if he meets the minimum requirements for the post. But in this instance, he did not meet those requirements and the reason for not recommending the Applicant was fair.

45. In light of the above, I find it appropriate to make the following award.

Award

46. The Applicant, Mr X Siqwepu, failed to establish that the Respondent, the Education Department -Eastern Cape committed an unfair labour practice in terms of section 186)2) of the LRA.

47. The Applicant is not entitled to any relief.

Signature:

Commissioner: Henk Jacobs