Panellist: Asnath Sedibane
Date of Award: 16 May 2023

In the ARBITRATION between:

NATU obo Nyandeni-Madonsela S
(Union / Applicant)
and

Education Department of Mpumalanga
(1st Respondent)

MP Ndlovu
(2nd Respondent)

Union/Applicant’s representative: Mr N Mtolo (Union Representative)
Union/Applicant’s address:
1st Respondent’s representative: Mr S Khoza (1st Respondent’s Representative)
1st Respondent’s address:

2nd Respondent’s representative: Mr N Mkhwanazi (Union Representative)
2nd Respondent’s address:

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing between NATU obo Nyandeni-Madonsela S and the Education Department of Mpumalanga (first respondent) and MP Ndlovu (second respondent) was held under the auspices of the Education Labour Relation Council (“ELRC”), on 18th November 2022, 27th February 2023 and 26th April 2023, via Zoom Meetings on the first day and through physical sittings at Education Department of Mpumalanga’s offices in Mbombela and Ermelo on the two subsequent days. The matter was set down for arbitration in terms of section 186(2) (a) of the Labour Relations Act 66 of 1996 (“LRA’’).
2. The leading of oral evidence was finalized on the 26th of April 2023 and it was agreed between the parties and the Panellist that the parties would submit their closing arguments by no later than the 9th of May 2023. The proceedings were conducted in English and were both manually and digitally recorded. I have received closing arguments from the applicant and the first respondent. The second respondent did not submit any closing arguments. I have taken the closing arguments of into consideration when making this award.
3. The applicant was present throughout the arbitration and was represented by Mr N Mtolo, an official of NATU. The first respondent was represented by Mr S Khoza, an official of the Education Department of Mpumalanga. The second respondent was present and was represented by Mr N Mkhwanazi, an official of SADTU.
4. The parties submitted bundles of documents. The applicant’s bundle was marked as bundle “A” and the first respondent’s bundle was marked as bundle “R”.
5. The parties concluded and signed minutes of the pre-arbitration hearing, which were marked as bundle “B”.
ISSUES TO BE DECIDED
6. I was required to determine whether the first respondent committed an unfair labour practice relating to promotion against the applicant when conducting the recruitment process that resulted in the appointment of the second respondent as head of department: Maths and Science at Piet Retief Combined School.
7. After the narrowing of issues, it was decided that the following issues were common cause between the parties:
7.1 The position of departmental head: Maths and Science at Piet Retief Combined School- Gert Sibande District, was advertised in November 2021 Open Vacancy Lists.
7.2 The applicant is currently at Post level 1 Educator at Piet Retief Combined School, earning an annual salary of R328, 248-00.
7.3 The second respondent is currently the incumbent in the post that is the subject matter of the dispute. She was first appointed by the first respondent in 2010. The second respondent was appointed in the post of Head of Department on 01 July 2022 at the salary scale of R364 599-00 per annum.
7.4 The applicant and the second respondent were among the three recommended candidates. The applicant was the first, the second respondent the second and Ms Dube the third in the order of preference of the recommended candidates.
7.5 The procedure that was followed by the interviewing panel in recommending the candidates was fair.
7.6 The District Director, Mr Magagula appointed the second recommended candidate and not the first recommended candidate. The District Director based his recommendation on the basis of gender.
8. The parties agreed that the following was the issue in dispute:
8.1 Whether the first respondent in exercising the discretion conferred by the Employment of Educators Act 76 of 1998, in section 6(3)(f), thereby appointing the second respondent constituted an unfair labour practice in relation to promotion as envisaged in section 186(2)(a) of the Labour Relations Act 66 of 1995.
BACKGROUND TO THE DISPUTE
9. The applicant, Mr M Sanyamahwe applied for the promotional post of Head of Department: Maths and Science at Piet Retief Combined School that was advertised by the first respondent in November 2021. He was shortlisted, interviewed and was amongst the three recommended candidates for the post. The second respondent was appointed in the promotional post.
10. The first respondent based the decision to appoint the second respondent on the need to address the gender issue.
11. The applicant challenges the decision to appoint the second respondent in the promotional post. The first and second respondent on the other hand contend that the decision to appoint the second respondent is fair, rational and was compliant with applicable prescripts.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Mr. Maxwell Sanyamahwe, testified under oath as follows:
12. He is currently employed as an educator at Piet Retief Combined School. He applied for the position of departmental head: Maths and Science that was advertised in 2021.
13. He was interviewed and was recommended as the first preferred candidate for the post, the second respondent was the second preferred candidate and Ms HA Dube was the third preferred candidate. He was scored 115, Ms Ndlovu and Ms Dube were both scored 106 each.
14. REQV stands for relative education qualification value and if you have a high REQV, it means you have more years of experience or more qualifications. Of the three recommended candidates, he had the longest service or more experience.
15. He read clauses 6.6.1 and 6.6.2 on page 18 of bundle “A”. According to clause 6.6.1, provincially women made up 51% of the population and men 49%. Women make tow two thirds of the teaching workforce whereas men represented only one third of the teaching workforce. Regardless of this, women are underrepresented in Deputy Principal and Principal posts.
16. On page 17 of bundle “A” under clause 3.5 titled District Director’s decision, Ms Ndlovu was appointed and the reason provided for the appointment was to balance the issue of gender.
17. There are five Heads of Department at Piet Retief Combined School, four of them are females and one of them is male. There is an over representation of females. Both second and third preferred candidates were females and they were both scored 106. There is no explanation from the District Director as to why he preferred Ms Ndlovu over Ms Dube.
18. Clause 6.6 of the HRM Circular on page 18 of bundle “A” states that there is an underrepresentation of females in the Principal and Deputy Principal posts.
19. Under cross-examination, Mr Sanyamahwe testified that the ratio on page 11 of bundle “A” was school based. He confirmed that he was not familiar with the method used by the Department of Education to acquire stats of officials. He agreed that the stats used most of the time was that of the Provincial gender ratio.
20. He confirmed that clause 6.6.1 on page 18 of bundle “A” showed the Provincial ratio and that women were underrepresented in the Principal and Deputy Principal posts.
21. He is not familiar with the provisions of section 6 of the Employment of Educators Act.
22. It was not stated what the limit in percentage of representation in the department head post was.
The second witness for the applicant, Ms Sebenzile Ntombikayise Nyandeni- Madonsela testified under oath as follows:
23. She is a Post level 1 educator and handles professional matters in NATU. She was an observer in the recruitment process for the Head of Department and Deputy Principal’s posts at Piet Retief Combined School in 2021.
24. Mr Sanyamahwe was the first recommended candidate for the post of departmental head and Ms Ndlovu was the appointed candidate for the post. The reason provided for the appointment of Ms Ndlovu was to balance the issue of gender.
25. Ms Bhembe was recommended for the Deputy Principal post but she was not appointed. She does not think that the District Director acted in a consistent manner in the appointment of the Head of Department and Deputy Principal posts. Gender equity in Mpumalanga says men get more appointments in Deputy Principal posts than women.
26. Under cross-examination, Ms Nyandeni-Madonsela confirmed that incumbent in the Deputy Principal’s post at the time she observed the interviews was one.
27. She agreed that three candidates were recommended for the post of Head of Department, on page 17 of bundle “A” and the District Director could choose one of the candidates and that this was in line with the applicable Act.
28. She contended that the appointment of one of the candidates would constitute unfair labour practice because the panel recommended the applicant but the District Director appointed the second respondent whereas the second and third recommended candidates had a tied score.
29. NATU did not raise an objection on behalf of Ms Dube.
30. She agreed that as an observer in the process she had signed that the process was free and fair and that in signing she was giving the District Director the opportunity to appoint any three of the recommended candidates. She contended however that this was supposed to be done in the correct way.
31. She questioned why the District Director had appointed Ms Ndlovu over Ms Dube whilst their scores were equal.
32. She confirmed that Ms Dube was not an applicant in the current dispute.
The third witness for the applicant, Ms Hlalaphi Nester Bhembe testified under oath as follows:
33. She is employed as an educator at Piet Retief Combined School since 2016. She has been an educator since 1990. She is currently a departmental head.
34. She applied for the Deputy Principal’s post at Piet Retief Combined School in 2021 but was not appointed.
35. Under cross-examination, Ms Bhembe testified that she was not sure if she was amongst the three recommended candidates for the Deputy Principal post. She was acting Deputy Principal in 2021 and there was no permanent acting Deputy Principal at the school at the time.
36. She confirmed that the SGB and the Principal recommends a candidate for appointment and the District Director appoints. The Director had said that a females must be considered to balance equity.
THE FIRST RESPONDENT`S CASE:
The first respondent’s only witness, Mr Sipho Patrick Nkosi testified under oath as follows:
37. He is a Deputy Principal. He observed the interviews for the position of head of department: Maths and Science, as per page 53 of bundle on behalf of SADTU.
38. The process of the interviews in brief was that the panel members deliberated and made recommendations. In that process, the applicant was scored the highest as per the documents. The second respondent and Ms Dube’s scores tallied. During the deliberations amongst the panel members, some SGM members had their own preferences. The recommendation was that the District Director would make his own decision on appointment.
39. The three recommended candidates were Mr Sanyamahwe, Ms Ndlovu and Ms Dube. The District Director had the prerogative to appoint anyone of the three candidates. The panel could limit the candidates to less than three if they wanted to. The panel in this case felt that they needed to recommend three candidates.
40. The panel complied with the provisions of section (6) (3) (c) of the Employment of Educators Act, on page 63 of bundle “R”. The District Director was done in compliance with section (6) (3) (f) on page 64 of bundle “R”. The Head of Department has more powers than the SGB in the final recommendation as per section (6) (3) (g) on page 64 of bundle “R”.
41. Under cross-examination, Mr Nkosi confirmed that the District Director, Mr Magagula is employed by the Department of Education and that he exercised powers conferred to him by the Head of Department.
42. He confirmed that if the power of the District Director is going to affect anyone else then he must provide reasons. It would be far-fetched to say that if the District Director appointed only NATU members in ten consecutive appointments, that decision would be rational. He confirmed however that as a member of another Union, he would be disappointed if that happened.
43. If the District Director appointed only males, the members would be bitter but if that is accordance with the ration then the members would have to swallow the bitter pill.
44. He agrees that in terms of clause 6.6.1 of the HRM Circular in bundle “A”, there is an underrepresentation of females in Deputy Principal and Principal posts. The District Director can exercise his discretion in line with the Government Gazette.
45. He confirmed that the Department does an analysis and issues a report. If there is an instruction in the report the District Director can ignore it.
46. He confirmed that Unions participate in compiling vacancy lists.
47. The District Director did not refer to Ms Dube in his comments. He could not appoint two candidates.
48. He can’t say whether the decision of the District Director was reasonable or not as he was not in the office when the District Director was making the decision. The decision was however based on the Policy.
49. He agreed that the Constitution provides that the best interest of the child is paramount. The District Director acted in accordance with the Policy. He did not refer to children in his comment.
Closing Arguments
50. A summary of the applicant’s closing arguments is as follows:
50.1 The applicant led three witnesses, the applicant, Mr Sanyamahwe who testified that he is the most experienced, the most qualified and was scored the highest of the three candidates. Ms Nyandeni-Madonsela had observed the interview process on behalf of NATU and confirmed that the applicant was the first recommended candidate for appointment and that the issue of equity did not apply to him because he was not applying for the Deputy Principal or the Principal posts. Ms Bhembe testified that she had applied for the post of Deputy Principal at the school but was not appointed.
50.2 Section 6.6 of the HRM vacancy circular provides that the Governing Body must ensure that the principles of equity are taken into account to address under representation as identified in the Departmental Equity Plan. Section 6.6.1 provides that the Provincial gender ratio puts women at 51% of the population and men at 49%. The gender profile for teachers reveals that women make up two thirds of teachers in the Province whereas men represent only one third.
50.3 There are currently four female heads of department at Piet Retief Combined School and only one male head, meaning women account for 80% of all heads of department at the school. The decision by the District Director to appoint a female head of department, second respondent instead of the applicant in order to balance the gender ratio prima facie irrational. The HRM Circular provides that the gender ratio must be balanced in the Deputy Principal and Principal posts only. The District Director acted outside his powers when he interfered in the head of department post. He had the opportunity to do so when appointing the Deputy Principal for the school but did not do so. The District director further did not act in the best interest of the child to ensure that the best candidate was appointed in the post of head of department at the school. The applicant is the most qualified and most experienced candidate, he has taught Mathematics and Science at the school for the past 13 years with a pass rate of 70% in 2021.
50.4 The relief sought by the applicant is the setting aside of the appointment of the second respondent, the appointment of the applicant in the post and any other appropriate relief.

51. A summary of the first respondent’s closing arguments is as follows:
51.1 The District Director exercised his administrative action by appointing the second best candidate. The reason for appointing Ms Ndlovu was pronounced in writing. Section 6(3)(c) of the Employment of Educators Act 76 of 1988 as amended stipulates that the governing body must submit, in order of preference to the Head of Department, a list of at least three names of recommended candidates or fewer than three candidates in consultation with the Head of Department. Three names were accordingly submitted to the District Director.
51.2 Section 6(3)(d) of the EEA stipulates that 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 of equity, redress and representation respectively. Section 6(3)(f) of the same Act stipulates that 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. The appointed candidate Ms Ndlovu was appointed from the list that was provided by the governing body. There was justification for appointing a female. The decision by the District Director is not one that the Commissioner can interfere with as cautioned by the courts in numerous cases.
51.3 The November 2021 open vacancy list placed restrictions to the posts of Deputy Principal and Principal only and the post in dispute is not one of those posts. The Union representatives were present in the process and agreed in writing that the process was fair. The Department has complied with Section 6 of the Employment of Educators Act. The relief sought by the applicant must be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
52. I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
53. The applicant has declared a dispute relating to promotion, in terms of section 186(2) (a) of the Labour Relations Act 66 of 1995, which provides as follows:

186 Meaning of dismissal and unfair labour practice

(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an
employee involving-
(a) 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 provision of benefits to an employee;

54. The applicant has led evidence through three witnesses. The applicant, Mr Sanyamahwe has testified that he applied for the post of head of department: Maths and Science at Piet Retief Combined School. The post was advertised in the open vacancy list in November 2021. He is currently a PL1 educator at the same school, teaching Maths and Science. He is the longest service and is the most qualified of the three candidates that were recommended for appointment. Mr Sanyamahwe was scored the highest by the panel and he was the first on the list of recommended candidates. The applicant contends that the District Director committed an unfair labour practice in appointing the second respondent and not him, after he was the first recommended candidate.
55. Ms Nyendeni-Madonsela represented NATU in the interview process for the post of head of department: Maths and Science at Piet Retief Combined School. The applicant was the first recommended candidate, the second respondent was the second recommended candidate and the third recommended candidate was Ms Dube. She disputed that the decision by the District Director to appoint the second respondent was sound as the under representation of females was in the Deputy Principal and Principal posts not in the head of department post. Ms Bhembe testified that she had applied for the Deputy Principal post at Piet Retief Combined School and was not appointed, besides her acting in the position and being female in line with the applicable HRM Circular.
56. It is common cause that the District Director decided to appoint the second respondent, Ms Ndlovu in the position of head of department: Maths and Science at Piet Retief Combined School The appointment of the second respondent was with effect from 1 July 2022 at the annual salary of R364 599-00.
57. The first respondent disputes that the District Director committed an unfair labour practice by deciding to appoint the second respondent in the position of head of department at Piet Retied Combined School in 2022, after the interview panel had recommended three candidates for appointment, including the applicant and the second respondent. The respondent is content that the District Director’s decision was in line with the enabling prescripts. According to the first respondent, the District Director made the decision in line with Section 6 of the Employment of Educators Act 76 of 1998, as amended and also in line with the Provincial Equity Plan.
58. The first respondent led evidence through one witness, Mr Nkosi who had observed the interview process on behalf of SADTU. Mr Nkosi’s testimony was that the District director’s decision to appoint the second respondent was rational as the recommendation of three candidates meant that the District Director could choose one candidate to appoint.
59. The second respondent did not lead any evidence and confirmed that they supported the evidence led by the first respondent.
60. It is trite in unfair labour practice relating to promotion that the onus rests with the applicant employee to prove, on a balance of probabilities that the employer committed an unfair labour practice by not promoting him. It is incumbent upon the applicant to show through evidence that he is the best candidate for the position and that the decision to prefer another candidate over him was unfair. The employer is on the other hand also required, when challenged in promotion disputes, to prove that it acted fairly and in good faith when deciding not to promote the applicant. This was emphasised by the court in Pamplin v Western Cape Education Department (C1034/2015) [2018] ZALCCT.
61. It is common cause that the powers to appoint vests with the Head of Department in this case and that such powers have been delegated to the District Director. The District Director receives recommendation from the school governing body that interviews candidates. The District Director then makes an appointment. In this case, the governing body recommended three candidates in order of preference, the applicant being the first preferred candidate with a score of 115, the second respondent was the second preferred candidate with a score of 106. One Ms MA Dube was the third preferred candidate with a score of 106.
62. It has been established as common cause that the District Director decided to appoint the second respondent, citing the need to balance the issue of gender as the reason for the appointment. It is this decision that the applicant is challenging.

63. Section 6 of the Employment of Educators Act 76 of 1988 deals with appointments, promotions and transfers. Subsection 6(3)(c) provides that the governing body must submit in order of preference to the Head of Department, a list of at least three names of recommended candidates or fewer than three candidates in consultation with the Head of Department. Subsection 6(3)(d) provides that 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), which provides that the governing body, in considering the applications must ensure that the principles of equity, redress and representivity are complied with. Subsection 6(3)(f) provides that 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.
64. The first respondent avers that the District Director, when appointing the second respondent was empowered to do so by section 6 of the Employment of Educators Act. The first respondent is contend that the District Director acted in accordance with the provisions of section 6 and that he can therefore not be faulted for the decision.
65. The parties agree that clause 6 of the HRM Circular that accompanied the November 2021 Open Vacancy List was relevant for consideration in the appointment of the suitable candidate for the post in question. According to clause 6.6.1 of the Circular, women make up two thirds of the teaching workforce in the Province while men represent only one third. The clause also state that there is an under representation of women in the Principal and Deputy Principal posts.
66. The parties agree that according to the Circular, the under representation of women only needs to be addressed in the Principal and Deputy Principals posts and not in the departmental head posts. It has not been disputed that the school’s four out of five departmental heads in the school are women.
67. It is a fact that in terms of section 6 of the Employment of Educators Act, recommendation as first preferred candidate does not mean automatic appointment. The District Director has a choice of appointment amongst at least three preferred candidates as was the case in the current matter. This choice must however be exercised after ensuring that the governing body considered the principles of equity, redress and representivity when considering the applications.

68. The District Director appointed the second respondent, a female and provided the reason that her appointment was for purposes of addressing the issue of gender. This means that according to the District Director, a female was better suited for the position than a male in this case. This is however baffling when considering that based on the HRM Circular, women were already the majority in the teaching workforce of the Province. It is also common cause that at the particular school, four out of five departmental heads were females. The only posts recommended for preferential treatment to be given to women for purposes of equity were the Principal and Deputy Principal posts.
69. It has not been disputed that the Deputy Principal Post of the same school, which was advertised at the same time as the post for department head: Maths and Science was filled by a male candidate, even though a female who was acting in the position was also interviewed. It is however not clear if the female candidate for this position was the first recommended candidate or not. The issue of the deputy Principal post was not part of the dispute but was brought by the applicant to show the inconsistency of the District Director in making appointments.
70. The applicant led uncontested evidence that he was better qualified, more experienced and had longer service than the second respondent. It is further common cause that the applicant was scored highest in the interview and that the second respondent was scored the same as the third preferred candidate, Ms Dube. The District Director does not provide reasons why he preferred the second respondent over Ms Dube since they were both female and were scored the same in the interview.
71. The District Director does not elaborate on his reason for appointing the second respondent, despite the applicant being the first recommended candidate. Having already established that his reason that the appointment of the second respondent was to balance the issue of gender is not in line with the gender ratio of the school and that of the Province, it stands to reason that the decision is not fair and could not have been taken in good faith.
72. The courts have cautioned Commissioners against interfering with a decision that has been exercised by a party with the competence to exercise such decision, unless the decision was exercised capriciously or for insubstantial reasons or is based on a wrong principle or was exercised in a biased manner. This was emphasised in Aries v CCMA and others (2006) 27 ILJ 2324(LC) and also in City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC).
73. I am satisfied that the applicant has demonstrated that the decision of the District Director to appoint the second respondent in this case was not justifiable based on the reason provided. The applicant has been prejudiced in this regard in that he was denied a promotion for which he was duly qualified and was recommended as the first preferred candidate. As held in Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) [2016] ZALCJHB 433, it is not enough in promotion cases to merely show that there was a breach of protocol or procedure in the recruitment process. It is also necessary for a complainant to show that the breach of the procedure had unfairly prejudiced him. In National Commissioner of the SAPS v SSSBC and others [2005] 26 ILJ 903(LC) court held that the complainant must prove that there was a causal connection between the unfairness complained of and the prejudice suffered.
74. The relief sought by the applicant is that the appointment of the second respondent be set aside and the applicant be appointed in the position. The applicant also prays for any other appropriate relief. The LAC in Department of Rural Development & Agrarian Reform, Eastern Cape v GPSSBC and others (2020) 41 ILJ 1321(LAC) cautioned Commissioners to be reluctant to interfere with an employer’s decision to refuse promotion. The court held that only where the decision or reasoning is assailable because there is evidence that the employer acted on the basis of some unreasonable, irrelevant or invidious consideration; or the decision was arbitrary, capricious or unfair; or the employer failed to apply his/her mind to the promotion or acted in bad faith should there be interference.

75. In this case, the decision by the District Director not to promote is based on an unfounded reason and is unreasonable and unfair. The applicant has succeeded in proving, on a balance of probabilities that the decision by the first respondent not to promote him constituted an unfair labour practice. The applicant is therefore entitled to the relief that he seeks. Remedies for unfair labour practice are as enunciated in section 193(4) of the Labour Relations Act 66 of 1995.

76. The appointment of the second respondent is set aside and the applicant is appointed in the position with retrospective effect from 01 July 2022 at the salary notch of R364, 599-00 per annum.

Award
1. The first respondent has committed an unfair labour practice against the applicant by appointing the second respondent in the post of head of department: Maths and Science at Piet Retief Combined School with effect from 01 July 2022.
2. The appointment of the second respondent in the post of head of department: Maths and Science at Piet Retief Combined School is hereby set aside.
3. The first applicant is hereby ordered to appoint the applicant in the post of head of department: Maths and Science at Piet Retief Combined School with effect from 01 July 2022, at the salary notch of R364, 599-00 per annum. The promotion of the applicant must be on the same terms and conditions he would have enjoyed had he been promoted on 01 July 2022.

Asnath Sedibane
EL

Asnath Sedibane
ELRC Dispute Resolution Panellist