IN THE ARBITRATION BETWEEN
SADTU obo Nonkoliso Cordelia Maqwelane Union /Applicant

AND

Department of Education – EC Employer / 1st Respondent

Nomakhaya Ngangalizwe: 2nd Respondent

DETAILS OF HEARING AND REPRESENTATIONS

1. This arbitration was heard on 15 July 2019 in the respondent’s offices in King Williams Town. The dispute came before the ELRC in terms of Section 191 (1) (5) (a) read with section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended, (the LRA).

2. Parties agreed to submit written closing arguments on 23 July 2019. All arguments have been considered in the preparation of this award.

3. Ms Lungiswa Royi of SADTU appeared for the applicant while Mr. Thembalethu Ngalwana appeared for the first respondent, the Department of Education. Ms. Tandeka Maliti of SADTU appeared for the second respondent Mrs Nomakhaya Ngangelizwe.

ISSUE TO BE DECIDED

4. The issue to be decided is whether the respondent’s conduct of not appointing the applicant to a position of HOD at Sosebenza Primary school was fair or not.

5. I have considered all the evidence and arguments, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons. I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and determination of the dispute.

BACKGROUND TO THE DISPUTE

6. The applicant referred a dispute to the ELRC through her union, SADTU regarding an alleged failure by the respondent to appoint her to the position of an HOD at Sosebenza Primary School. When the dispute could not be resolved at conciliation level, the applicant filed a request for arbitration.

SURVEY OF EVIDENCE AND ARGUMENT

Applicant’s case
7. According to Ms Royi‘s opening statement, the dispute relates to unfair labour practice based on promotion. The applicant applied for an HOD position at Sosebenza Primary School and was not appointed. The ratification and recommendation processes were not done correctly. The remedy sought is that the appointment of the second respondent be set aside.

8. The applicant, Mrs. Cordelia Nonkoliso Maqwelane testified under oath as follows:

9. She works for the respondent at Sosebenza Primary School as a Teacher. She is in SMT and has been working in the same school for 12 years, teaching in foundation and intermediate phases.

10. On the day of the interview, she was the fourth candidate to be interviewed. She is contesting the scores which were awarded by the panel of the interview. The reason for her challenge is that one of the Teachers, Ms Ntonjane was scoring the candidates while at the same time doing the secretarial function of taking minutes. Another concern which caused her to file a dispute with the ELRC and Mrs Swarts is that the appointment of Mrs Ngangelizwe was disclosed during a parent’s meeting.

11. Under cross-examination by the first respondent’s representative, the applicant testified as follows;

12. She submitted documents, which were relevant for the intermediate phase, meaning, all her qualifications including the PTC certificate. When a comment to the fact that the panel made a big favour by shortlisting her, the applicant’s response was that she could not confirm that because she acted as HOD and as a Principal on several occasions and has managerial experience.

13. Under re-examination, the applicant stated that she acted as HOD for the whole school for 12 months.

14. In closing, Ms Royi argued as follows;
15. The first respondent appointed Mrs Ngangelizwe although the SGB recommendation through the processes of ratification was not done correctly. The Circuit Manager, Miss Komani called the panel to her office to do ratification and recommendation although it was supposed to be done by the entire SGB (page 8). The minutes of the ratification process which appear on page 8 bundle A were written by different people with different hand writings, and that it was not regarded as a genuine and acceptable document to be submitted to the Department. The process was messed up by the Circuit Manager.

16. The scores show that minutes of the SGB ratification had flaws and they rendered the process flawed. The scores of Miss Ntonjane and Mrs Matiki show that there was a conflict of interest because they both scored level 2 for Mrs Maqwelane and level 5 for Mrs Ngangelizwe unlike other panelist scores. The remedy sought by the applicant is for the process of appointment of the second respondent to be nullified.

Respondent’s case
17. Mr Ngalwana stated in his opening statement that the minutes of the interview process reflect that ratification was done by the panel to the SGB. The panel called the entire SGB and made a recommendation of the successful candidate.

18. first respondent’s witness Mrs. Liziwe Primrose Tede testified as follows;

19. She is the SGB member and she formed part of the interview panel. After calculation of the scores, Mrs Ngangelizwe was the highest scorer and the applicant was number 2.

20. Ms Ntonjane was the scriber and the EDO, Ms Komani requested everyone to sign the recommendation form. Although there were disagreements initially about which candidate to recommend, the entire SGB met again and a recommendation was made to appoint Mrs Ngangelizwe. Mrs Komani, the EDO was chairing the process.

21. Under cross-examination, the witness testified as follows;

22. She is a member of SGB and is holding a position of a Secretary. She was one of the interview panelists and she was also trained together with other members by Mr Ngalwana. Mrs Ntonjane was the panelist and was also taking minutes. There were 3 members from the parents’ component and 2 members from the teacher’s component. Only 4 panelist members were asking questions as Ms Ntonjane was a scriber.

23. Mrs Ngangelizwe scored highest marks. Ratification and recommendation was done in Ms Komani’s office by the entire SGB (page 8 to page 9).

24. Under re-examination, the witness stated that the language used was Xhosa. The total number of the entire SGB was 7 but they did not agree on the day of the interview about the candidate to choose. The panelists were trained before the selection process was conducted.

25. The second witness, Mrs Ntombekhaya Mjakuja testified as follows;

26. Ratification and recommendation could not be done successfully on the first day as there were disagreements amongst them. No candidate was suggested on the day of the interview as there were disagreements as to which candidate to recommend.

27. The entire SGB convened in Mrs Komani’s office wherein finally Mrs Ngangelizwe was recommended as the best candidate for the position.

28. Under cross-examination, the witness testified as follows;

29. Although the panel of the interview was trained, ratification process was not done correctly as it was done in the office of the EDO, Mrs Komani. Ms Ntonjane was scoring candidates although she was not asking questions. Recommendation was finally done although the entire SGB had disagreements. Mrs Ngangelizwe was recommended as the best candidate and that she was the top scorer.

30. In closing Mr Ngalwana argued as follows;

31. There is no rational basis for the Commissioner to find that the first respondent perpetrated unfair labour practice against the applicant.

32. The respondent’s representative disputed that the SGB failed to comply with recruitment and selection procedures and that no one was prejudiced when ratification and recommendation were conducted in Ms Komani’s office. Ms Ngangelizwe was the top scorer hence she was appointed to the position.

33. Mr Ngalwana finally submitted that the applicant failed to prove her case on a balance of probabilities that the first respondent did not comply with the prescripts and that her case must be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
34. The issues of common cause that relates to this matter are as follows:
 That the applicant applied for an advertised position of HOD in bulletin 326 volume 14 of 2017 at Sosebenza Primary School in King Williams Town.

 That the applicant was shortlisted and interviewed but was not appointed to the position.
 That the applicant and the incumbent meet the requirements of the position as per the advertisement.
 That the second respondent was recommended by the SGB as the best candidate for the position and she scored the highest marks.
 That the interview panel was trained to conduct the selection process in respect of the position in question.

35. While it is the applicant’s case that the process of ratification and recommendation of a suitable candidate was not conducted correctly, the first respondent disputes the allegation.

36. It is the first respondent’s case that the selection process was fairly conducted in terms of the prescripts of the respondent (PAM and ELRC CA 5 of 1998 as well as PELRC CA 2of 2002).

37. It is not disputed that the minutes of ratification was written by 3 members of the panel and it is also not in dispute that the entire SGB was involved in both ratification and recommendation of the best candidate for the position.

38. I concur with the respondent’s representative’s contention to the fact that none of the candidates were prejudiced as a result of ratification and recommendation being conducted in the Circuit Manager’s office after the interview was finalized.

39. It is also my view that the difference in scores by the panelists indicates that they (scores) were awarded by different individuals who were also evaluating performance of different candidates.

40. It appears from the parties’ evidence that the first respondent followed a fair procedure in conducting ratification and recommendation of the best candidate for the HOD position at Sosebenza Primary School and as such exercised its prerogative in a manner that is fair when appointing Mrs Nomakhaya Ngangelizwe to the position.

AWARD
41. I therefore make the following award:

42. The appointment of the incumbent, Mrs Nomakhaya Ngangelizwe by the first respondent, the Department of Education – Eastern Cape was both procedural and substantively fair.

43. The first respondent, the Department of Education –Eastern Cape, did not act procedurally or substantively unfairly against the applicant, Mrs Nonkoliso Maqwelane, in not appointing her to the post of HOD, advertised in bulletin volume 14 of 2017, at Sosebenza Primary School, King William’s Town.

44. The first respondent, the Department of Education –Eastern Cape cannot be compelled to nullify the appointment of Mrs Nomakhaya Ngangelizwe and cannot be compelled to compensate the applicant, Mrs Nonkoliso Maqwelane, the applicant.

45. The applicant is therefore not entitled to any remedy.

46. The application is dismissed.

47. There is no order as to costs

Signature
Ncumisa Bantwini
ELRC Panelist