IN THE ELRC ARBITRATION
BETWEEN:
Elvis Khoza Applicant
and
DEPARTMENT OF EDUCATION – Gauteng Province Respondent
Matyila M (2nd Respondent)
ARBITRATION AWARD
ARBITRATION DATES: 25 January 2024, 28 February 2024,17 March 2024, 18 March 2024, 30 April 2024, 4 and 5 July 2024 and 26 July 2024
Date of Award: 20 August 2024
Pitsi Maitsha
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. On 25 January 2024, 28 February 2024,17 March 2024, 18 March 2024, 30 April 2024, 4 July 2024, and 5 July 2024 this dispute came before me at the arbitration hearing. A final arbitration was held on 26 July 2024. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 (as amended) “the Act”. The award is issued in terms of section 138(7) of “The LRA”.
2. The Applicant is Elvis Khoza and NATU official, Mr. Sithembile Sikhulumi initially represented him before Luvuyo Buthelezi, the union official from NATU took over and represented the Applicant.
3. The first Respondent is The Department of Education: Gauteng Province, as defined by section 1 of the Employment of Educators Act, 76 of 1998 (as amended) (EEA) and is a provincial department responsible for education in a province and includes all public schools, further education and training institutions, departmental offices and basic adult education centers in such province, and was represented by Mr. Vusimuzi Ndlovu, Labour Relations Officer. The second Respondent is Mr. Mncedisi William Matyila, who also attended and was represented by Ms Pinkie Qenebe, the SADTU Vorslorus branch Gender Convenor.
4. The parties gave evidence under oath. The proceedings were held at the Ekurhuleni South District Office. The proceedings were digitally recorded, and all the recordings were submitted to the Council.
ISSUE TO BE DECIDED
5. I am required to determine whether the conduct of the Respondent in not promoting the Applicant constituted an unfair labour practice. If so, I must make an appropriate order.
BACKGROUND DETAILS
6. On 22 February 2024 the parties held a pre-arbitration meeting and in the pre-arbitration minutes they agreed on the following:
7. In terms of common cause facts:
6.1 the Applicant was employed by the Respondent as an Educator PL1 on 25 October 2004 at Vorslorus Phineas Xulu Secondary School until to date.
6.2 The first Respondent advertised a Departmental Head post (PL2) with the reference ES43ED1151 in the departmental Circular NO 4 of 2023 April 2023.
6.3 Both the Applicant and the second Respondent applied for the post, they were shortlisted and interviewed.
6.4 The interview committee ranked the candidates and submitted their ranking order to the SGB for ratification.
6.5 The second Respondent was ranked number one, and the Applicant was ranked number 5.
6.6 The first Respondent proceeded to appoint the second Respondent as per the recommendation of the SGB and he assumed duty on 1 October 2023.
6.7 He is earning a basic salary of R41 174,00 per month.
8. In terms of the facts that are in dispute:
7.1 The legitimacy of the SGB.
7.2 Whether the Applicant was most suitably qualified to be appointed to the position of Departmental Head.
9. Aggrieved by the failure to appoint him, the Applicant referred an alleged unfair labour practice dispute relating to promotion to the ELRC. He is seeking the appointment of the second Respondent to be set aside. The first Respondent seeks the dispute to be dismissed.
THE APPLICANT’S CASE
THE EVIDENCE OF LUVUYO BUTHELEZI
10. He testified that the SGB composition and the legitimacy of the teacher component were not present at the SGB, one was dismissed by the Principal, Mrs. Maleke, and the chairperson, Ms Sophie Ndlovu was also not there. There is evidence as to how the SGB members were elected and the replacement of the teacher component was never done. The SGB functioned without a teacher component for two or more years.
11. He testified that these interviews were conducted without the component of the teachers.
12. He testified that in terms of bad history between the principal and the Applicant, the Applicant was put on precautionary transfer for a very long time from 15 August 2022 until 5 February 2023, almost five months. On 7 November 2023, the Gauteng Head of Department lifted the suspension, but the district did not action the instruction from the Head of the Department. The letter was kept in Mrs. Ndlovu’s office. They did not want to give it to him. The district handed the letter to the Applicant to return to work when the date of hearing of the dispute at the ELRC approached.
13. He further testified that on his arrival at work, the Applicant found Mr. Matyila occupying his office. The Applicant has been using the office for more than ten years, properly from 2007.
14. He also testified that the relationship between the principal and the successful candidate is that the person is always driving the principal sometimes to work, transporting the SGB chairperson from time to time. Mr. Matyila assaulted one of the colleagues; the principal defended Mr. Matyila instead of suspending him. Both the Principal and Mr. Matyila were driving in the same car to get to the hearing. There is no outcome of the grievance he lodged.
15. He also testified that the Applicant acted for more than five years in the HOD Social Sciences department, and sometimes he was not paid the acting allowance by the principal. The incumbent was transferred by the Principal from Religious Studies to the social science department, he was given one lower grade to teach, maybe Grade 9, he thinks they were paving the way.
16. He testified that the Applicant raised his concern during the interview that he could not be interviewed by people who dislike him, especially by the principal who alleged that led to his precautionary transfer, but his request was declined.
17. He testified that there is a list of about ten disqualified candidates and Matyila’s name appears on the list, he was disqualified. He would expect that it could have been picked up at sifting at the district. Even the panel could have picked it up. The four union observers did not pick it up.
18. He testified that in the successful candidate form, there are defects in that he did not indicate gender, he did not put a cross on the question of disability, he wrote nothing under the question of whether he is a South African, he wrote nothing under the question of whether he needs a work permit, he did not indicate if he is registered with SACE, on the issue of additional qualifications achieved he wrote one certificate at UCT, but they could not identify the certificate of management; he did not indicate under the area of learning he has written history on 1 June 2021, he was not teaching history as history starts from Grade 9. Before he was teaching social science.
19. He testified that under previous employment in teaching, he indicated that he taught in the Western Cape, but he did not indicate the grades because the form demands grades. He testified that the incumbent was not honest, and the form was defective. He did not understand where the panel got the grades because in the form there are no grades.
20. He further testified that the Applicant in this matter could have gotten the post based on his experience. He has five years as the HOD in the Social Sciences department. He is a senior marker. He testified that the Applicant’s case is that the race was already won before it could even begin. The appointment was not done through merit.
21. He testified under cross-examination that it is very highly unlikely that the second Respondent submitted the second application which made him qualified. He testified that the date of the advert is 5 May 2023. He testified that he was unsure that the form was disqualified because it did not have the number 11 and no signature. After all, the form could have been completed the previous day. He testified that it was Mr. Matyila’s duty to ensure that the form was fully completed and had all the pages. He also testified that he was able to demonstrate that he was the best candidate. He talked about the certificates, the Applicant acted as the Departmental Head, and he was the only person who qualified. He agreed that the Applicant was one of the educators who were appointed as a teacher component on the SGB. He confirmed that he was also appointed as an SGB member teacher component.
22. He agreed with Mr. Ndlovu that when the grievance arose was three months. He disagreed with the statement that the Applicant’s conduct during the interviews was unbecoming and irrational.
THE EVIDENCE OF THE APPLICANT
23. The Applicant testified that there are no records and evidence showing how and when the SGB was elected. Some of the SGB members do not have children at the school e.g. Mr. Mahlangu. The chairperson has been in the position for more than five years. There is no teacher component in the SGB. Some of the teachers were expelled by the chairperson and the principal. The teacher component was not there when the interview process started with the shortlisting.
24. He testified that when he was suspended, he was acting in the HOD position. Instead of taking someone in the SS department, the principal took someone who was not even in the department, who was in the religion. He has a close relationship with the principal. The principal lied so that they could be suspended. The post will be created for a friend. She even refused to pay his acing allowance. Upon his return to school, the principal expressed disappointment for their return.
25. He testified that Mr. W Matyila was on the list of disqualified candidates and the reason given for disqualification was an incorrect application signed on 2 June 2023. The scores of the shortlisted candidates signed on 6 June 2023 read as follows: “17.5 of the Collective Agreement E Khoza with the score of 28, Nxumalo N with a score of 27, Mr. Matyila MW with the score of 27, Mr. Molokwane MV with a score of 27, Mrs. Booysen SC with the score of 26, Mrs. Malaka TG 26, Miss Molapo 26”.
26. He testified that in the application form for a promotion for Mncedisi William Matyila, he did not indicate if he has a disability if he is a South African citizen, if he is professionally registered, contact details, no grades under subjects, no grades under learning levels history. He was the one who was teaching history in 2021 in all grades. He has been with the school for 20 years and they never had rugby. The candidate misled the panel and further testified that Matyila has no experience or supervisory experience. Matyila did not have SACE. For one to teach, one must register with SACE.
27. He testified under cross-examination that Mr. Buthelezi’s version that the second Respondent should not have been shortlisted is correct. He testified that Item 9 reads as follows: “Sifting will be done by the advertising district the Human Resource Recruitment and Selection, and Human Provisioning Unit. Applications that do not meet the following criteria will be disqualified: Correct application form which is revised GDE2R; The form must have 11 headings excluding the declaration, signed GDE2R, original signature, correct post number (10 characters e.g., GDE43ED1001), minimum years of experience and late submission.
28. He testified that he was the best candidate over the successful candidate.
THE APPLICANT’S CLOSING ARGUMENTS
29. Mr. LV Buthelezi argued that he was reasonably expected to have been conflicted during the interviews given the chequered history between and/or amongst them and the Applicant. He indicated that the conflicted individuals should recuse themselves as the common practice before a contentious process like this one has turned out to be. He argued that the variance of the scores between the Applicant and the second Respondent is too high and inconsistent with reasonable reality considering that the Applicant is more qualified in terms of area of specialty, years of teaching social sciences, results and accolades achieved, and years acting in the position as opposed to the second Respondent. He stated that the panel was biased in that they neglected to follow through with the signed declaration and disqualified the second Respondent when it was found that he willfully misled it when he stated that he taught history in 2021 when he has done so in fact in 2022; he coached rugby for one year when there is no rugby offered at P.T Xulu Secondary.
30. He indicated that the Applicant acted in this position between 2017 and 2022 and produced results averaging between 90% and 100% pass rate, but they were satisfied with appointing the second Respondent who acted in this position for three months while the Applicant was transferred. He argued that supplying a spiritual leader and spiritual friend who is the current principal, as references in his application form, rendered the second Respondent’s claimed experience to remain alleged and unverified as he supplied references that cannot corroborate his claim of past working experience. He stated that the first Respondent lacked the requisite curiosity to verify information provided on the application form that an appointing authority must have before making such an appointment. He indicated that the record of proceedings will show that to her admission, the SGB chairperson requested an interpreter in these proceedings claiming her lack of proficiency in English. He further argued that the chairperson’s scoring was null and void on the basis that she did not understand what she was scoring as the interviews were conducted in English. He submitted that the Applicant therefore prays for relief in terms of the ELRC Form.
THE EVIDENCE OF THE RESPONDENT
THE EVIDENCE OF DUMISANI RADEBE: THE CHIEF PERSONNEL OFFICER:
31. He testified that he had been allocated to the THRS sub-directorate. Their responsibility is to check if there is a promotional post at the school. If there is, they check if the Applicant signed, if the post number is correct, to the minimum requirements, and if the application is submitted on time.
32. He testified that in terms of Item 9, sifting will be done by the advertising District. The HR Provisioning does the sifting. The SGB does shortlisting. In terms of the sifting process, they should not do the sifting. They set their requirements.
33. He testified that there were two applications of Mr. Matyila, namely, the disqualified and the qualified. There are handwritten notes under item 6 on the disqualified form of Mr. Matyila which reads as follows: “What is the employment? Who should complete this form? Only suitable candidates. This form requires basic information. Bullet 1. This is unacceptable. Headings must not be changed.”
34. He testified that only qualified applications would be packaged and go to the school. Mr. Matyila’s application was disqualified because it did not have eleven (11) headings. His qualified application does have eleven (11) headings.
35. He testified that it is not correct that Mr. Matyila does not have SACE. The Department does not hire any person without SACE. Mr. Matyila was previously employed at Kulani School. It is not possible that in Gauteng an educator can teach without a SACE certificate. It is a false accusation. Once they are done with sifting, they send the applications to the school. The application must meet the requirements, the application is not defective because the Applicant did not choose disability.
36. He testified under cross-examination that if a candidate leaves his ID, and name out, he will qualify. It is common for a candidate to submit more than one application form. He testified that no form would go to the school if it did not qualify. in this case, there are two dynamics, one is that either the application forms were submitted on two different days or consecutive days or different occasions thus why the receipts are not on the same stamps or, submitted at the same time but the Applicant was assisted by two different people.
THE EVIDENCE OF THEMBA MOKOENA: THE CLUSTER LEADER
37. He testified that since 2016 he joined as the Cluster Leader, he has been assigned to Xulu School. They are always referred to as generalists. They oversee the operations of the school. The district has five circuits, and they are in number three. Every circuit has a person responsible for the governance. He is responsible for the governance of the circuit.
38. He testified that there were two posts linked to Phineas Xulu Secondary School, one was for social sciences and the second one was for mathematics.
39. He testified that the Applicant’s grievance reads as follows: “My name is Elvis Khoza. Hence, I am in dispute. There are no records of when the SGB members were elected. The chairperson has been there for more than five years. There is no teacher component. The appointment has been made without a teacher component. 3. Relationship between the incumbent and the principal in that he drives the Principal and SGB chairperson to and from school very often. The principal defended him during the assault hearing where the teacher assaulted one of my colleagues. She influenced the outcome of the case”.
40. He testified that in response from Labour Relations, the following was stated: “Dear Mr. Khoza, Your letter dated 29 September 2023 is a reference. FINDING: In terms of ELRC Collective Agreement 21, grievances may be lodged in terms of procedural fairness. The aggrieved Applicant may appeal regarding procedural fairness within five days. You registered your grievance on 29 September after the interviews, 73 days after the interviews. No grievance may be considered after five days. However, you did not indicate what prejudice you suffered”.
41. He testified that the process of electing the school governing body is that the Principal and Deputy will automatically be members. It is not correct to say that the Phineas Xulu SGB was not legitimate. Clause 8.1“THE CONSTITUTION OF INTERVIEW COMPONENT” of Collective Agreement states that the number of parents must constitute one more member of the SGB who members of the SGB are. The union observers will be observers at the interviews. The same members ought to be in the shortlisting and interview.
42. He testified that the Applicant’s resignation letter from SGB reads as follows: “This letter serves to inform you of my resignation from the SGB as teacher component due to personal reasons.
43. He further testified that the effect of the Applicant and Mr. Buthelezi no longer being SGB members is that it was incumbent on the SGB to hold a by-election. The status of the SGB at the time was that they could still work if you were elected. One can still leave.
44. He testified that in terms of the Collective Agreement, the SGB is responsible for shortlisting and interviewing the panel. In his view, when all these components are elected in the SGB, they are all members of the SGB. All components should be represented. The absence of a teacher component does not invalidate the SGB.
45. He testified that if it is true that there was bad blood between the SGB, the Principal, and the Applicant, it must be dealt with by the principal for it to be dealt with by the cluster.
46. He testified that the Applicant could not be part of the shortlisting panel.
47. He testified that if the candidate acted on the position, it does not guarantee the appointment. He could not comment on the possibility of acting in a position for five years but said the longest period one can act for is one or two years.
48. He testified under cross-examination that the SGB should hold or conduct a by-election within 90 days to replace a teacher who resigned from the SGB. There was no co-option.
THE EVIDENCE OF MASERAME MOLEFE: THE SADTU SITE MEMBER AT VILALIZA SECONDARY SCHOOL
49. She testified that she played the role of observer at the interviews. It was her first experience hearing the Applicant come in and asked to say something and he said: A lot of things happened, and they are still happening. He applied because he forgave. He calls a spade a spade. He mentioned that Mam Seema is also a disciplinarian, he does not ask what meetings can do for him but what he can do for the meetings. He has a vision. He attended the school. He mentioned the mentor, Mr. Mahlangu, who used to produce good results. He does not have extra classes because he has been demoralized.
50. She testified that it was the first time she saw the candidate venting his frustrations at the interview. He was told that each candidate had been allocated 20 minutes. Even when he answered the questions that day, he did not display the same energy.
51. She testified that Mr. Matyila was the best candidate that day. He got the score of 78%. The Applicant got 51%. The criteria used at the interview was the best candidate by score and deliberations. The Applicant attained the position of 5 in terms of the score.
52. She testified under cross-examination that before the interviews she had a meeting with the Applicant, but she did not know why he came to her.
THE RESPONDENT’S CLOSING ARGUMENTS
53. Mr. Vusi Ndlovu argued that the Council lacks jurisdiction to rule on the constitutionality of the SGB. He indicated that Mr. Buthelezi and Mr. Khoza were the SGB members. Mr. Buthelezi ceased attending the meetings, whilst Mr. Khoza resigned for personal reasons. He indicated that even if Mr. Buthelezi and Mr. Khoza remained members, they would not have been eligible to serve on the shortlisting and interviewing panel as both were Applicants for the departmental head posts in the same vacancy list contested by Mr. Khoza. He argued that the fact that the Applicant was shortlisted undermines the claim of bias against him. He submitted that the Applicant did not lead evidence of being fatigued, nor rebutted this piece of evidence by Ms Molefe. He further argued that the Applicant had failed to prove how the chairperson of the shortlisting and interviewing panel had demonstrated any bias against himself during the interviews.
54. He argued that the allegation of a grudge and unfair treatment lacked substantiation. He stated that the testimonies of Mr. Mokoena and Ms Molefe should be regarded as the most reliable accounts of the events in question. He indicated that the Applicant’s concerns regarding alleged defects in the second Respondent’s application form are unrelated to the post requirements and shortlisting criteria. He further indicated that the Applicant failed to prove on the balance of probabilities that the first Respondent was corrupt in sifting through the second Respondent’s application form. He indicated that the evidence showed that the second Respondent met the necessary criteria for the post. He also stated that the Applicant did not perform well during the interview spending considerable time addressing issues unrelated to the interview questions. He argued that the Applicant had not demonstrated that the appointment of the second Respondent was irrational or unfair.
55. He referred to the Labour Court matter of POPCRU obo Nkoko v GPSBC and Others (291/2018). He argued that the Applicant had failed to prove improper motives or bad faith by the Respondent. He submitted that the Applicant has failed to prove that the Gauteng Department of Education engaged in unfair labour practices by not promoting him. He indicated that the allegations of a grudge by the chairperson and the principal, regarding the SGB, defective application form, and the claim of being a better candidate were unsubstantiated.
56. Section 3(2)(p) of the EEA provides that applications are sifted to eliminate Applicants who do not meet the minimum requirements for the advertised post.
57. in terms of section 3(3) (d) of the EEA, all applications that meet the requirements and provisions shall be handed to the school governing body responsible for that specific public school.
58. He submitted that the Respondent prayed for the case to be dismissed.
59. He indicated that in terms of section 4 (b) B.5.4.8.1 of the EEA, the Interview Committee must also consider the curricula needs of the institution. He argued that since the Department of Education is mandated to ensure that all learners are taught in the schools, the Department advertised the posts solely to address the needs of the school for the school to be in a better position to serve the best interest of the children. He further argued that there is nowhere where clause 4(12) of the Collective Agreement, 1 of 2019 made mention of the fact that the ranking determines appointment as the relief the Applicant sought. He argued that the rule of law is that the Interview Committee must rank the candidates in order of preference subject to SGB making its recommendations. He indicated that in terms of the South African Schools Act, 84 of 1996, the Superintendent-General has delegated powers to the District Directors and appoints or does not appoint after exploring whether the procedure and substantiveness were adhered to.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
60. This matter concerns an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the LRA. For this award, it is generally trite law that in a promotion dispute, the Applicant bears the onus to establish that the decision not to promote him constitutes an unfair labour practice. The Applicant had called two witnesses to support its case and submitted a bundle of documents hereinafter referred to as bundle A. The Respondent has also called three witnesses and has submitted a bundle of documents hereinafter referred to as bundles R1, R2, and R3.
DEFINITION OF PROMOTION
61. The word [promotion] has been defined in several Labour Court, Labour Appeal Court, Supreme Court of Appeal, and Constitutional Court judgements.
62. In this matter, it is common cause that the position of the Departmental Head at Phineas Xulu Secondary School became vacant and was advertised. It is further common cause that both the Applicant and the second Respondent, Mr. Matyila submitted their applications for the post. It appears that Mr. Matyila had submitted two applications for the position in question. It is evident from Mr. Dumisani Radebe’s version that each application form had been allocated a sifting receipt number. The sifting number assigned to the first application form is 70001112, whilst the sifting number for the second application form is 7002326.
63. Furthermore, the first Respondent has in terms of B3.3.1 of PAM an obligation to acknowledge the receipt of all the applications by informing all the Applicants in writing of receipt, indicating clearly whether the application was complete or not, indicating whether the Applicant meets the minimum requirements for the post and whether such applications have been referred to the schools.
64. It is worth stating in this regard that there is no version before me that the above provision was complied with by the first Respondent. Two application forms from Mr. Matyila were indeed received by the first Respondent. The first application form with sifting slip receipt number 70001112, was sifted and was disqualified because it does not have eleven (11) headings.
65. I wish to record that it is Mr. Radebe’s version that disqualified application forms are packaged and stored in the HRP unit, and they do not go to the school. The first Respondent’s conduct in this regard is assailable because the disqualified application of Mr. Matyila had found itself back to the school. The conduct of the first Respondent will always be called into question because it allows one candidate to submit more than one application form for the same post. At this point, I must state that there is no version by the Respondent to indicate when the qualified application form of Mr. Matyila was received by the district.
66. Generally, it is advisable and prohibited for the Applicants in the posts to submit two applications for the same post or one post to avoid unnecessary disputes. I wish to state in this regard that it is evident now that Mr. Matyila’s two application forms have caused a dispute. I am of the view that the issue of two application forms ought to have been resolved through a grievance hearing. On 29 September 2023, the Applicant lodged a grievance after the first Respondent decided to appoint Mr. Matyila to the Departmental Head post, but the first Respondent declined to determine the Applicant’s grievance citing the reason that it was filed outside the prescribed five-day period. I disagree with the approach because, in my view, the first Respondent misinterpreted the provision about the period to file a grievance regarding the interviews and misconceived it. It unreasonably denied the Applicant an opportunity to have his grievance resolved internally.
67. To ensure that this issue of two application forms was not properly investigated, Mr. Radebe failed to even demonstrate the time when the two applications were submitted to the district and the reason for different stamps. Before sifting took place, the first Respondent had a duty to inform Mr. Matyila in writing that his application form with sifting slip NO 70001112 which has been disqualified was incomplete. This, however, did not happen, hence there is no reference made to such communication.
68. Having regard to the above, I am of the view that a logical or reasonable person would have known that acknowledging Mr. Matyila’s two application forms would have a significant impact on an appointment for the post.
69. The second issue to consider is the composition of the SGB. It is common cause that the Applicant and his representative Mr. Buthelezi were both members of the school governing body (SGB). It is also a common cause that he resigned from the SGB. It is not disputed that Mr. Buthelezi was dismissed by the principal and the SGB chairperson from the SGB. The version of the Applicant is that there is no proof as to when the elections were held to replace the teachers who were no longer SGB members. He said there was no teacher component when the interviews were conducted. This version was corroborated by Mr. Buthelezi.
70. Mr. Mokoena said the SGB should have held a by-election within 90 days. I wish to record in this regard that there is no evidence before me to suggest that the SGB did hold a by-election. However, I am of the view that Mr. Mokoena contradicted himself at some stage and appeared to not be sure about his facts. For instance, he was asked about the impact of not having a teacher component in terms of the shortlisting panel, he responded that all components should be represented.
71. On the other hand, he confirmed that the absence of a teacher component does not invalidate the SGB. This is a clear contradiction. Having regard to the above, I am of the view that Mr. Mokoena is not a reliable and credible witness.
DID THE BAD RELATIONSHIP BETWEEN THE APPLICANT AND THE PRINCIPAL HAVE AN IMPACT ON THE ULTIMATE APPOINTMENT?
72. It is a common cause that the Applicant was placed on precautionary transfer in 2022. However, such precautionary transfer was lifted on 2 November 2022. It is further common cause that the Applicant returned to work in February 2023. It is also a common cause that the Departmental Head post was advertised on about 5 May 2023. I am not sure of the relevance of the precautionary suspension of the Applicant to the dispute before me. The post was advertised on 5 May 2023.
73. The version of the Applicant in this regard is that the principal during his precautionary transfer took Mr. Matyila from religious studies to oversee the social sciences department. According to the Applicant, this was to pave the way for Mr. Matyila. It is plausible. Considering the version of the Applicant and witness which corroborated each other, the fact that it remained undisputed by the Respondent, and the fact that Mr. Matyila was seen giving the principal and the SGB chairperson transport to the school, a balance of probabilities dictates that this relationship influenced the decision of the SGB to recommend Mr. Matyila to the Departmental Head post and ultimately to being appointed to the post.
74. In terms of section 6 (3) (b) (v) of EEA, the governing body ought to ensure that in considering the applications the principles of equity, redress, and representativity are complied with and the governing body or the council adhere to procedures that will ensure the recommendation is not obtained through undue influence on the members of the SGB.
75. Moreover, 8.2 wrong Decisions are (I) pointed out to allow the interviewing committee an opportunity to rectify their mistakes and/or (II) report such incorrect decisions to the relevant authority if not corrected. The Departmental representative as a resource person and member of the panel is to ensure that (a) candidates are treated fairly both in terms of substance and procedure. (b) compliance with the applicable policy, guidelines, collective agreements, and legislation. (c) there is no bias, corruption, or fraud involved in the process.
76. Given the above, I am of the view that the decision to include Mr. Matyila in the shortlisting without any justification is sufficient to conclude that the interview committee had failed to demonstrate that the process of shortlisting was in the absence of due influence on any of the members.
77. Having regard to the above, I am of the view that the Respondent’s decision to include Mr. Matyila in the shortlisting is substantively unfair.
78. It is trite law that the decision to promote or not to promote is the discretion of or falls within the prerogative of the employer. The Respondent could have chosen to readvertise. I agree with Mr. Khoza’s version that the role of the observers at the interview is to protect the integrity of the process.
79. For an employee to succeed in a dispute of promotion, such an employee must demonstrate that the employer had exercised its discretion capriciously, for insubstantial reasons, based upon any wrong principle, or biased manner, whether the employer did not comply with applicable procedural requirements relating to promotion.
80. The evidence before me is sufficient to conclude that the Respondent’s decision to include Mr. Matyila’s application in the shortlisting of the Departmental Head post failed to comply with applicable procedural requirements relating to promotions. Also, the decision was taken in a biased manner.
81. Having regard to the above, I am satisfied that the Applicant has succeeded in discharging the onus to establish that the conduct by the Respondent to include Mr. Matyila in the shortlisting constituted an unfair labour practice.
82. Turning to an appropriate remedy, I wish to state that the Applicant has indicated that he is seeking the appointment of Mr. Matyila to be set aside. I agree. I can consider two remedies, namely: an order to readvertise the post or appoint the Applicant. In the present case, the Applicant did not claim to be the second best during the interview. The dispute is only considered based on the failure by the Respondent to comply with the applicable procedural requirements relating to promotion. I therefore consider re-advertising the post to be the most appropriate remedy.
83. In the premises, I find the following award to be competent.
AWARD
84. I find that the Applicant, Elvis Khoza, has succeeded in establishing the existence of unfair labour practices.
85. As a result of the above, I hereby set aside the appointment of Mr. Mncedisi William Matyila to the post of Departmental Head by the Respondent, Gauteng Department of Education, with effect from 01 September 2024.
86. Therefore, I direct the Department of Education: Gauteng Province, to re-advertise the post of Departmental Head within 60 days.
P. Maitsha
ELRC Panelist