IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MTHATHA
IN THE ARBITRATION
BETWEEN
NAPTOSA OBO SONGWAXA NOKUTHULA APPLICANT
AND
DEPARTMENT OF EDUCATION – EASTERN CAPE 1ST RESPONDENT
SADTU OBO KEYA LOYISO 2ND RESPONDENT

ARBITRATION AWARD

DATE/S OF HEARING 16/10/2023, 24/11/2023 & 05/02/2024
DATE AWARD SUBMITTED 21/02/2024
NAME OF PANELIST SIZIWE GCAYI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) at the Department of Education offices in Mthatha on 16/10/2023, 24/11/2023 and 05/02/2024 at 09h00. Mr Aaron Mhlontlo an official from NAPTOSA represented the Applicant [ Ms Nokuthula Songwaxa ] Mr Liphapang Tsiu an official, represented the first Respondent, (Department of Education Eastern-Cape). Mr Bonginkosi Jikintetho an official from SADTU represented the second Respondent [ Mr Loyiso Keya].

2. The proceedings were electronically recorded and manually recorded. The parties handed in bundle of documents in support of their cases. Respondent No1’s bundle named bundle A. Respondent No 2’ s bundle named bundle B. The parties were given until 12 February 2024 to submit their closing arguments to the Council.

ISSUES TO BE DECIDED

3. I am required to determine whether the first respondent’s conduct constitutes an unfair labour practice relating to promotion. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE
4. This is a promotion dispute involving post no 52- volume 1 of 2023 being the principal post for Lower Goqwana Primary School.

5. After the post was advertised, the Applicant, the second Respondent and other candidates applied for the post. The second Respondent was appointed as the School principal at Lower Goqwana Primary School.

6. The Applicant alleged that she was the best candidate, she was scored high, she met all the requirements as per the advertisement. 1st Respondent was biased towards the 2nd Respondent. The relief sought by the Applicant is twelve [12] months compensation.

SURVEY OF EVIDENCE
Employee’s case
7. The Applicant testified herself and called no other witness in support of her case. In summary, the Applicant testified as follows: She commenced teaching in 2001 as an SGB educator. In the year 2006 she was employed indefinitely. She also testified about her qualifications which included Master’s in education management and policy. She obtained master’s degree in 2014. Currently she was holding a position of Head of department at Zimbane valley PS, teaching languages. She also testified that she applied for the principal post of Lower Goqwana PS and was shortlisted. She attended interviews and on the day of interviews, at the venue- remarks were passed that they all accompanied Mr Keya. They were six candidates. All the questions that were asked were in relation to management. She also mentioned that she performed very well. None of the panel members were known to her. Bundle A pg 19, 20, 22, 25 were all read out on record. As per the report of the interviews she performed well, however Mr Keya was the recommended candidate as per pg 25 [Bundle A]. Meeting of the SGB was held eleven days after the interviews.

8. She further mentioned that the reasons for her non-appointment were that the SGB wanted Mr Keya who was from Goqwana location. The relief sought was compensation.

Respondent’s Case
The first Respondent.
9. The first Respondent called three witnesses. Their evidence is summarised below: Ms Gloria Dyakopu [“Dyakopu”] testified as follows: She was a circuit manager. Part of her duties included training SGB on shortlisting, interview processes according to prescripts. SGB of Lower Goqwana PS was amongst the schools she trained. She also mentioned that during the interviews for Lower Goqwana PS, she was the resource person. The interview panel, developed the criteria that meet the needs of the school. Social partners were also part of the observers; it was NAPTOSA and SADTU. It was also her evidence that there were no queries raised by the social partners. The Applicant performed very well. Mr Keya was number two [2]. The SGB recommended Mr Keya because they needed someone with experience. Mr Keya was already a school principal. They also needed a maths teacher.

10. Mr Loyiso Keya [“Keya”] testified as follows: He applied for the post of the principal at Lower Goqwana PS. He was shortlisted and interviewed. During the interviews, amongst the panellist, he saw familiar faces. He was born in Goqwana. The questions that were asked during interviews were fair. The reason for him to apply for Lower Goqwana PS was that he had his community interest at heart, he also had a scarce skill mathematics. It was also time for him to give back to his community. His previous school Zanemvula PS, was in the same circuit management centre. He was also a school principal.

11. Ms Lungiswa Kilili-Nombanda testified as follows: She was part of profiling the principal post of Lower Goqwana PS. She saw the advertisement, and was shocked to realise it did not contain all they requested. It was her evidence that she participated in shortlisting and also a panellist on the interviews for Lower Goqwana PS on 08/06/2023. On the day of the interviews she did not know the other candidates except Mr Keya who was from the Goqwana location. In relation to the performance of candidates, Ms Songwaxa was the best candidate, followed by Mr Keya. On the day of the interviews, no report was given to the SGB, not all SGB members were present. A week later, SGB meeting was convene. Ms Songwaxa was not recommended due to curriculum needs of the school. Mr Keya was recommended as he was already a school principal in his previous school, had mathematics and also good in sport.

The Second Respondent

12. The second Respondent closed its case without calling any witness.

ANALYSIS OF EVIDENCE AND ARGUMENT
13. It is trite that the employee bears the onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act (LRA) . The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.

14. I have considered the departmental guidelines for sifting, shortlisting, interview procedures.

15. I have also considered the recruitment and selection policy for the department of Education-Eastern-Cape.

16. I have also considered the advertisement in question, ‘Open post bulletin for principals’ volume 1 of 2023. I have also considered the Employment of Educators Act 76 of 1998, Revised PAM document.

17. Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.

18. I have to decide whether the 1st Respondent acted fairly or not in not appointing the Applicant for the position of the school principal at Lower Goqwana PS.
19. It is common cause that the Applicant applied for the principal post of Lower Goqwana PS, she was shortlisted, she attended the interviews.

20. It is also common cause that she was the best candidate. She was scored 61. All other candidates were scored below 60.

21. It is also common cause that Lower Goqwana PS falls under OR Tambo inland district. It is also common cause that the Applicant is a female.

22. In JELE v PREMIER OF THE PROVINCE OF KZN & OTHERS [2003] ILJ 13 [LC] It was stated, in deciding whether the dispute involves the promotion, one has to compare the employees current job with the job or post applied for, to determine whether a promotion is involved. Some of the factors to be taken into account are: difference in remuneration, fringe benefits, status, levels of responsibilities, of authority and job security.

23. The Applicant testified that she was a head of department at Zimbane valley PS, post level 2 educator, teaching languages, the post in question of Lower Goqwana PS is a principal post, school grading- P2. Post name- Principal P4. For the Applicant there will be difference in remuneration, status, levels of authorities. The Applicant will be managing the school, something which she is not currently doing. Therefore, the dispute before the Council involves promotion.

24. It is important to note that there is no right to promotion however there is a right to be given a fair opportunity.

25. In NOONAN v SSSBC & OTHERS [2012] 33 ILJ 2597 [LAC], “the Court held that there was no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post, any conduct that denies an employee an opportunity to compete for a post constitute an unfair labour practice. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by unacceptable reason”.

26. In MONYAKENI v SSSBC & OTHERS [JA 64/13] [2015] ZALAC 17 , the Court stated that there are two components to a complaint regarding a failure to promote, an employee as an unfair labour practice. The one relates to the procedure followed by the employer, the other relates to the substantive merits and it concerns the suitability of the candidate for promotion to the post in question.” The conduct of the employer may be substantively and / or procedural unfair. Substantive unfairness relates to the reason for not promoting the employee, whereas procedural unfairness relates to an unfair process applied by an employer during the course of the recruitment and selection process. [ ELRC Collective Agreement 3 of 2016].

27. In the current matter before the Council, the Applicant as stated above was the best candidate, her version was confirmed by both witnesses of the 1st Respondent [Dyakopu and Nombanda].

28. The SGB of Lower Goqwana PS recommended 2nd Respondent to the HOD for appointment. According to Dyakopu, reasons for the recommendation of Keya by the SGB were: the school needed someone with experience, which the Applicant did not have, Keya had experience, he was a school principal at Zanemvula PS. Keya also had mathematics, school needed someone with Mathematics.

29. The question is, did the advertisement require candidates with experience- school principals and mathematics? The answer is No. The advertisement was very clear that the requirements were: management and administration for Lower Goqwana PS. Howerever for Gotyibeni PS, the requirements were: management, maths, social science & xhosa. Gotyibeni PS also falls under OR Tambo inland district, the post was also advertised on volume 1 of 2023. Therefore, the reasons provided by the SGB to recommend 2nd Respondent I reject them, the reasons they provided were not part of the advertisement. Also on the crafted questions, there was nothing to the candidates about the curriculum needs, all this was an afterthought. Where does it leave the shortlisted candidates? In Letsogo v The Department of Economy and Enterprise Development [JR350/16] handed down on 09 January 2018 the Court held that “the selection panel acted ultra vires when it changed the requirements that were set out in the advertisement in order to widen up the pool of candidates to accommodate those who did not meet the requirements that were set out in the advertisement.” If they were stipulated in the advertisement, as it was in Gotyibeni PS, it would be understood. What is clear is that the SGB of Lower Goqwana PS, had a made-up mind that they wanted 2nd Respondent. I am stating this because even the third candidate [Dukuza Magama Siyakhuleka] had mathematics and also the experience as acting principal as per bundle A pg 83. However nowhere was he recommended despite PAM document para B.5.4.13 making reference to three names of recommended candidates, failure to that, consultation be done with the HOD. Before me there is no evidence from 1st Respondent that there was consultation with the HOD for the submissions of two names instead of three names. If I were to entertain the reasons provided by the SGB of experience and mathematics, why was Dukuza not recommended because he also had mathematics and experience, again for Dukuza it would have been a promotion, whereas to the 2nd Respondent it is not a promotion. It is common cause that 2nd Respondent is from Goqwana. Therefore, the SGB had a made up-mind about 2nd Respondent. In doing so they chose to infringe the Applicant’s constitutional right to fair labour practices as enshrined in section 23 of the Constitution Act 108 of 1996.

30. This was not a promotion for the 2nd Respondent. At the previous school he was the P2- school principal, again at Lower Goqwana PS he is P2- school principal. It was the evidence of Keya, that nothing has changed for him except that he was giving back to his community, his salary, his status, his responsibilities, they are still the same. However, for the Applicant it would have been a promotion. As indicated above in paragraph 23.

31. It is very interesting to note that the OR Tambo inland district has prides itself for advocating for female principals, as per the evidence of Mr Mcinga in ELRC 755-22/23. What has since changed now? The post of Zwelodumo SSS was advertised in volume 1 of 2022. Within a short space of time, things have changed. The same district when presented with an opportunity to uplift females who performed extremely well, they chose to turn a blind eye. I am mindful that the decision to appoint lies with the employer, being the best candidate does automatically qualify someone to be appointed. When there are justifiable reasons candidate no 5 could still be appointed. In the present matter there are no justifiable reasons furnished by the 1st Respondent. In appointing the 2nd Respondent, the 1st Respondent relied on the fatally recommendations of the compromised subcommittee of the SGB. I must mention that Bundle A pg 25, recommendation was done on 08/06/2023 on the day of interviews. SGB meeting was held on 19/06/2023. There was no SGB meeting on the 08/06/2023 according to Kilili-Nombanda, However Dyakopu completed pg 25, and requested the panellists to sign. Page 25 is the recommendation of 2nd Respondent and the Applicant. Does the resource person have powers to recommend the candidates or it is the SGB that has the powers to recommend to the HOD? It was the very same resource person who instructed the shortlisting panel at the last hour to add candidate no 6. The initial interviews were postponed to accommodate the demands of the resource person. It was only on 08/06/2023 when interviews actually proceeded with six candidates instead of five candidates. As per PAM document, five shortlisted candidates are to be interviewed. Dyakopu did not deny this during cross-examination by Applicant’s representative. The conduct of the resource person was not acceptable during the shortlisting as well as during the interview process, for the reasons I have mentioned above.

32. When all evidence is considered, I find that the Applicant managed to discharge the onus placed on it on the balance of probabilities, that the conduct of the first Respondent amounted to unfair labour practice on both the procedure and substance.

33. In SUN INTERNATIONAL MANAGEMENT[PTY] v CCMA & OTHERS [JR 939/14] [2016] ZALCJHB 433. It was held that in promotion disputes in promotion disputes it is not enough to merely show that there is a breach of protocol/procedures in the recruitment process. It is also necessary for an employee to show that the breach of the procedure had unfairly prejudiced him. This means that the employee must not merely show that he was the suitable candidate for consideration but that he was the best candidate” In the present matter before me as highlighted above, the version of the Applicant that she was the best candidate was also confirmed by two witnesses of the 1st Respondent. I am convinced that the Applicant managed to discharge the onus placed on her in respect of substantive fairness for the reasons that I have highlighted above.

34. The relief sought by the Applicant was 12 months’ compensation. I am called upon to considerer the evidence holistic not in piece meal. In these proceedings as stated above the onus is on the Applicant.

35. In terms of section 193 [4] of the LRA an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering re-instatement, re-employment or compensation.

36. When all evidence is considered and taking into account ELRC Collective Agreement No 3 of 2016, for procedural unfairness, one moth compensation is justifiable. For substantive unfairness five months’ compensation is justifiable. The Applicant is currently earning R 36 457.13. In total its six months’ compensation. [R 36 457-13 X 6] = R 218 742-78. The Applicant is an employee of Respondent no 1, therefore Respondent no 1 is in possession of the bank details of the Applicant.

AWARD
37. The Applicant managed to discharge the onus placed on her, that the 1st Respondent committed unfair labour practice relating to promotion. The 1st Respondent is ordered to pay the Applicant R 218 742-78. [ Two hundred and eighteen thousand, seven hundred and forty-two rands and seventy-eight cents] within 21 days upon receiving this award, To be paid into the Applicants bank account, as per Respondent No 1’s records.

38. The appointment of 2nd Respondent is not set-aside.
Signature:

Commissioner: Siziwe Gcayi
Sector: Basic Education