Case Number: ELRC104-19/20 EC
Panelists: Malusi Mbuli
Date of Award: 10-05-2021

In the ARBITRATION between

SADTU obo J. MTHIYANE – SILETILE
(Applicant)

And

DEPARTMENT OF EDUCATION (EASTERN CAPE)
(1st Respondent)

MAKU SIKHUNJULWE
(2nd Respondent)

SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) – whether the appointment of the 2nd respondent and non – appointment of the applicant was unfair and constitutes an unfair labour practice as contemplated in section 186(2)(a) of the LRA.

The appointment of the 2nd respondent and the non – appointment of the applicant was substantively fair but procedurally unfair and constituted an unfair labour practice as contemplated by section 186 (2) (a) of the LRA.

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995. It was set down for arbitration hearing at the Umtata District offices in Umtata on the 01st & 02nd of February 2021, 10th & 11th of March 2021 and 22nd & 23rd of April 202 before Commissioner M. Mbuli.

2. The applicant Mrs. J. Mthiyane – Siletile attended the hearing and was represented by Mr. D.M. Hani a shop steward of the applicant’s trade union SADTU. The 1st respondent, the Department of Education (Eastern Cape) was also present at the hearing and was represented by Mr. T. V. Liphapang, an official of the respondent. The 2nd respondent Mr. Sikhunjulwe Maku was also present at the hearing and represented himself.

3. The matter was finalized on the 23rd of April 2021 and the parties agreed to file their closing arguments not later than the 30th of April 2021.

ISSUE TO BE DECIDED

4. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so the appropriate remedy.

BACKGROUND TO THE ISSUE

5. The applicant, Mrs. Jabu Mthiyane Siletile applied for the position of Principal – at Ntibane Service School in the Umtata District of the respondent. The applicant was first not shortlisted but later after negotiations with her Union SADTU was accommodated, shortlisted and interviewed.

6. She and Mrs. Qotoyi received the lowest marks / scores at the interviews at 135 and the 2nd respondent Mr. Sikhunjulwe Maku received the highest marks / scores at the interviews at 165 and was recommended as the no 1 candidate by the panel.

7. Five candidates were recommended for appointment by the interviewing panel in terms of section 6 of the Employment of Educators Act including the 2nd respondent who scored the highest marks at the interviews. The Department of Education – Eastern Cape appointed the 2nd respondent Mr. Sikhunjulwe Maku who is now occupying the position.

8. The applicant felt that the process that led to the appointment of the 2nd respondent and her non – appointment was unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the LRA.

9. It is not in dispute that both the applicant and the 2nd respondent qualified for the position but the issue in dispute is whether there was flouting of the process, fair short listing process, there was a ratification meeting; the scores were unfairly altered and undue influence by the department in changing the profiling of the position.

10. The applicant’s dispute is more premised on procedural fairness as opposed to substantive fairness and the applicant’s argument is that the Department of Education acted unfairly in appointing the 2nd respondent. The applicants seek compensation as a remedy to her unfair labour practice dispute.

11. It is also not in dispute that the 2nd respondent was recommended as the no 1 candidate by the interviewing panel but that it is disputed that such recommendation was approved and accepted by the School Governing Body. So the issue is whether the process that led to the appointment was fair.

12. The parties are in dispute on whether there was a ratification meeting by the governing body before the decision to appoint was made and whether that constitutes procedural fairness or unfairness. The parties agree that the decision or power to recommend a candidate to the department rests with the School Governing Body and that the decision to appoint rest with the Department of Education – EC.

13. The applicant also argues that the interview scores were changed and that this amounted to a procedural irregularity. The applicant then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 23th of April 2021.

SURVEY OF EVIDENCE

Applicant’s submissions.

14. Mrs. Jabu Mthiyane Siletile testified to the following effect.

 She applied for the position of Principal at Ntibane Full Service School in the Umtata District of the 1st respondent and was first not short listed but later accommodated shortlisted and interviewed. She is employed by the respondent as an educator / Deputy Principal for 6 years (does curriculum management) and she applied for the said post, of Principal, was first not shortlisted and was called after the negotiations with her union SADTU. She was then interviewed for the said position but was not appointed because the respondent appointed the 2nd respondent Mr. Sikhunjulwe Maku.

 She averred that Ntibane is a full service school and the principal position in the full service schools required a Principal with inclusive education, screening, support and is also a feeder school to closer schools. She stated that the profiling of the Principal post was wrong after it was changed by the Department of Education.

 She stated that the post in question was profiled on the 12th of December 2018 and the profile of the Principal post that was agreed upon was that the candidates should have inclusive education and management because the school is a full service school. She stated that the inclusive education is in the best interests of the learners.

 She stated that the post profile came back changed on the bulletin and it did not consider the needs of the school and she was not consulted as an acting principal of the school. She stated the change of the profile violated the constitution of the Republic of South Africa because the interests of the child were not prioritized.

 She averred that Mrs. Tontsi had a problem with her being appointed as Principal and she suggested that she must not contest the appointment because it is the respondent’s discretion to appoint the candidates they want. She stated that she knew the mischief that is played by her and also adjusted her scores.

 She averred that the profiling that was done by the school and submitted to Human Resources at Tsolo and she was not consulted when it was changed. She stated that she was not shortlisted after that profiling and she reported the matter to SADTU which met with Mr. Kondlo for Department of Education and agreed that she should be accommodated and shortlisted.

 She stated that she was not notified about the date of the interview by the Department of Education but was informed by SADTU and she confirmed that she attended the interview and she felt undermined and that there was a vendetta against her by the Department of Education. When she attended the interviews she was asked if she was happy with the panelists and she objected and told them that she was not comfortable with the panel.

 She stated that she was not happy with the panel because the panel that interviewed her was the same panel that did not shortlist her, also with Tontsi and felt that the panel was going to be biased and that the objection was noted but not attended.

 She testified that the minutes of the interviews are not a true reflection and confirmed that the interviews were conduct different date but the minutes were only dated the first day the 20th of March. The SADTU observer matched out when marks were awarded to questions not yet answered.

 The curriculum needs of the school were not considered and the 2nd respondent does not have inclusive education. She said the decision of the school was to leave the post as it is and after it was sent back it became management not inclusive education.

 She testified that many schools I the bulletin were full service schools and that Ntibane Full Service School was not the only one. She confirmed that Mr. Maku came as a number one from the interviews and that she came as one of the last candidates.

 She stated that the union was not invited in the 2nd interview but confirmed that Mr. Gwele attended the interviews when she was interviewed. She confirmed that Mr. Nocanda scored the first candidate until the last score even before the candidate could answer and he didn’t tell me that he left and also didn’t share the reason for leaving.

15. The 2nd witness of the applicant was Mr. Olwethu Zuko Mhaga who testified as follows:

 That he was an observer at Ntibane interviews for the Principal that were held on the 20th of March 2019 and he has observed promotion and appointments of candidates since he was elected in March 2018. He said the role of the observer role is to observe the proceedings and check if they are free and fair and this is what he did when he attended interviews on the 20th of March 2019 but didn’t attend the short listing because SADTU was not invited.

 He avers that the normal procedure for invitation is through a letter of invitation not communication of any other sort. Mr. Qotoyi was the candidate that was scored up to the end in the interview and he objected. They tried to resolve the matter and they could not agree and he left the interview.

 The resource person Mrs. Ngoma then consulted Mr. Khondlo – Circuit Manager (Tsolo CMS) that the union is objecting because Mr. Nocanda has scored the candidate before he could even finish answering the questions.

 Mrs. Ngoma reported to the interview that there is nothing that can be done and that the interviews should proceed and that the objection was just noted and it was not attended to then he left the meeting because he didn’t want to be part of the process that was flawed and he felt that he was undermined.

 He then informed SADTU his principal seeking guidance and they said he can leave. He confirmed that the 2nd respondent Mr. Maku was the 2nd candidate to be interviewed and that he has nothing against Mr Maku and he is also a member.

 He testified that the Department of Education is responsible for the training of the SGB and that the Ntibane SGB was trained in handling appointments and that he was also part of that training. He stated that the applicant was not invited to the interviews and were mealy told that the invitation will follow and the date was not announced.

 He confirmed that the profiling of the post in this dispute is also disputed and that Ntibane is a full service school because it also accommodates learners with bearers but there was no complaint about the profiling of the post at the interviews. He stated that the profiling of the post was changed by the Department of Education and that inclusive education was part of the profile and later changed by the Department of Education.

 He stated that the applicant has inclusive Education and that the 2nd respondent Mr Maki does not have inclusive Education. He averred that he is not sure if the matter was referred to the SGB for ratification.

 He testified that he worked out of the interviews when the second candidate was interviewed and confirmed that Mr. Nocanda was removed from scoring and was replaced by the secretary and Mrs. Somana took over Mr. Nocandas role as a scorer. He stated that he knew both the applicant and the 2nd respondent before the interviews and that it is SADTU that negotiated for Mrs. Siletile to be interviewed and the short listing issued was resolved.

 He also confirmed that SADTU went back to the interviews on the 2nd day because the matter of Nocanda was resolved. He also stated that Nocandas issue was not resolved and that he does not know what happed to the scores of Mr. Nocanda.

16. The 3rd witness of the applicant was Mr. Sinethemba Gwele who testified that:

– He represented SADTU in the interviews that took place on the 20th & 26th of March 2019. He stated that it was not the first time he observed interviews and that he has observed quite a number of posts interviews in the Qumbu District.

– He confirmed that on the 2nd day the interviews at Ntibane Full Service School were attended by him because he was the only available person on the day and that Mr. Mhaga was not available he was available and that is why he attended. There was no formal notice of interviews and therefore Mrs. Siletile was not formally invited but her union SADTU was informed that there she will be given a chance and interviewed on the 26th March 2019.

– He stated that Mrs. Siletile was called to the interview room and asked to say if she was happy with the process and she indicated that she was unhappy with the panel. She stated that she does not trust the panel as it is the same panel that did not shortlist her.

– He stated that this issue was not resolved and the interviews continued and there was no change in the panel or any process and he felt that it was a just by the way interview to pretend as if they have accommodated her when they have not.

– He stated that there was no ratification meeting of the SGB before the appointed candidate was appointed and seems that a decision had already been taken to appoint Mr. Maku. He averred that he was not aware about the scores that were altered but learnt about that later.

– In his view the applicant had been unfairly treated and the interviews and the interviews procedurally irregular in that scores were altered, objections not addressed, reasons for not short listing improper and there was no ratification meeting by the SGB.

Respondent’s submissions

17. The respondents 1st witness Mrs. Nolubabalo Ngoma testified that:

– She is the Circuit Manager – DCES in the Umtata District, was a resource person in the interviews and Ntibane Full Service School fall under her jurisdiction. She confirmed that Ntibane is a full service school which is inclusive because it also deals with learners with learning bearers.

– She averred that she was not part of the short listing for the post of the Principal at Ntibane Full Service School; no one complained to her about the short listing and was not aware that the advert or the profiling of the post was changed.

– She confirmed that the SGB was trained, unions were also present and the notice for short listing was issued on the 07th of March 2019 and the actual short listing happened on the 13th of March 2019. She confirmed that they usually issue notices but this one was conveyed verbally. She confirmed SADTU was represented by Mr. Mhaga from the side of labour as an observer.

– She confirmed that Mrs. Siletile was initially not shortlisted because her application form was not properly filled and that she heard that from Mr. Kondlo. She averred that the union complained about non short listing of Mrs. Siletile and there were discussions between SADTU and the respondent about failure to shortlist Mrs. Siletile and those discussions resulted in Mrs. Siletile being accommodated and included in the list of candidates to be short listed.

– She testified that on humanitarian grounds Mrs. Siletile was included in the interviews and was informed about the date of her interview through his union SADTU and was then interviewed on the 26th of March 2019. She stated that the issued was then resolved and the union was satisfied and the matter was resolved.

– She stated that the other candidates were interviewed on the 20th of March 2019 and the 1st candidate to be interviewed was Mrs. Qotoyi and when he was being interviewed they were alerted by the SADTU observer Mr. Mhaga that one of the panelists Mr. Nocanda scored Mr. Qotoyi up to the end when she had not finished answering questions.

– She then requested that Mr. Nocanda be removed as a scorer and he was indeed removed and replaced by Mrs. Somana who was the secretary in the interviews and was taking minutes because she was present throughout when the questions were asked and that Mr. Nocandas score sheet was destroyed.

– When the 2nd candidate Mr. Maku was called Mr. Mhaga stated that he thought that the interviews will be cancelled and walked out of the interviews when they continued with the interviews. When Mr. Mhaga said he was not going to participate they then called Mr. Kondlo from the department and Miss. Ngumbela from SADTU who is chairperson and they said that the interviews should continue.

– She averred that the interviews then continued and were also extended to the following week the 26th March 2019 when Mrs. Siletile was interviewed and that this was a continuation of the interviews of the 20th of March 2019. She confirmed that there were no separate minutes of the interviews of the 26th of March 2019.

– On the same day the 26th of March 2019 there was a meeting of the SGB where Mr. Gwele and other 6 SGB members were present and that meeting was for consideration of the panel recommendation and recommendation to the department.

– She confirmed that the score sheets of Mrs. Siletile were altered downwards and was not sure about the circumstances under which they were altered and confirmed that Mrs. Siletile did indicate in the interviews that she was not happy about the panel because it was the same panel that did not shortlist her. She confirmed that that objection or unhappiness was just noted and nothing was done about it and that the scores were altered by Mrs. Tontsi.

18. The respondent’s 2nd witness Mr. Mzunzima Kondlo testified that:

– He is CMC Manager of the respondent and he is aware of the interviews for the post of Principal at Ntibane Full Service School that were held on the 20th of March 2019. On that day he was told about what was observed and disputed by SADTU in the interviews and that the observer also walked out of the interviews.

– He was also told that the Mrs. Siletile was not shortlisted and they set with SADTU discussed the matter and Mrs. Siletile was short listed and interviewed. They were told the reasons why Mrs. Siletile was not short listed as her form was not properly filled and was sifted out but they decided to accommodate her and give her a chance.

– After the agreement was reached the matter was resolved to the satisfaction of the union and Mrs. Siletile was accommodated, shortlisted and interviewed. He further stated that the objection of Mr. Mhaga about one of the panelists Mr. Nocanda was also referred to him.

– He enquired whether this a capacity issue and when he confirmed could pick up that the scorer could not write and speak convincingly and he saw that it was a capacity problem. He called Miss. Ngumbela the chairperson of SADTU and they discussed the matter and agreed to change Mr. Nocanda and was replaced by Mrs. Somana who was there taking notes and the matter was then resolved.

– He testified that Mr. Mhaga still matched out even though the matter was resolved and when he contacted Miss. Ngumbela again she indicated that the interviews can continue and hey will sort out the issue as the union.

– He testified that Mrs. Siletile had acted in the post of the Principal for a period of about 3 months and was going to automatically qualify to be short listed if she had acted for a period of 12 months. He stated that he never received anything from the school indicating that the post was wrongly profiled and advertised.

– He confirmed that the SGB has the last say in the profiling of the post but the department plays an advisory role and was not entitled to change the profile of the post and the department did not change the profile of the post.

19. The respondents 3rd witness Mr. Wilfred Nocanda testified that:

– He was a panelist in the interviews for the post of the Principal at Ntibane Full Service School on the 20th of March 2019. He testified that he did not score the first candidate to the end because he was told that he had scored the candidate up to the end.

– He averred that he was removed and replaced by Mrs. Somana who was a scriber and present at the interviews and he did not sit until the end of the interviews. His role was changed as a panelist and he played a role of welcoming people at the interviews since he is the chairperson of the SGB.

– He stated that he was trained in conducting interviews and the issue was resolved by removing him as a panelist. He disputed that he scored the 2nd respondent Mr. Maku and stated that Mr. Maku was the 2nd candidate. He averred that his score sheet was destroyed, doesn’t know who destroyed it and that Mr. Mhaga left when he was removed.

– He stated that he doesn’t know about the scores that were changed and that when Mrs. Siletile was interviewed SADTU was represented by Mr. Sinethemba Gwele. When the interviews were finalized they reported to the SGB and went home. He stated that there was no SGB meeting that was held and no discussion to recommend the candidate to the department.

20. The 4th witness of the respondent was Mr. Sikhunjulwe Maku who testified:

– He testified that he is the Principal of Ntibane Full Service School and before he was appointed as a teacher at Ntibane Full Service School for 12 years and a Principal at that school for five years. He stated that he has better experience than Mrs. Siletile who has just acted as a Principal for a period of 3 months.

– He averred that Mrs. Siletile has no automatic right to short listing because she has only acted for 3 months and has not acted for a period of 12 months. He stated that the department and the SGB was fair to Mrs. Siletile because she was accommodated and short listed even though her application was not properly filled and only had 3 months acting experience.

– On the 20th of March 2019 he attended the interviews for the position in question and he together with the other candidates were sitting at the waiting room. Mrs. Qotoyi was called as a 1st candidate and he was the 2nd candidate to be called and when he was called Mr. Nocanda was not scoring and he was removed when the 1st candidate was interviewed.

– He averred that after Mr. Nocanda was removed he was replaced by Mrs. Somana and also Mrs. Tontsi and Yolwa were also scoring. He stated that whilst Inclusive Education was a priority all schools practice SIAS policy – Screening, Identification and Assessment policy. He averred that the responsibilities of the Deputy Principal and the Principal are not the same and that the applicant cannot compare with him in so far as experience is concerned.

– He re – iterated that Mr. Nocanda only scored the 1st candidate and he did not score him and also confirmed that the negotiations for the accommodation of Mrs. Siletile was between SADTU and the department and not the SGB and SADTU. When he was interviewed the place of Mr. Nocanda was taken by Mrs. Somana.

– He could not tell the hearing where Mr. Nocanda was seated when he was interviewed and that he did not know the SGB of that school before he was appointed and only knew them later. He stated that he did not know about the scores that were altered but that it is incorrect for the scorer to change the scores.

21. The respondents 5th witness was Mrs. F. Somana who stated that:

– She knows Mrs. Siletile and that she was one of the candidates who were interviewed for the position of Principal at Ntibane Full Service School. He confirmed that Mr. Nocanda was part of the panel in those interviews and that they were five in the interviews including the resource person. Nocanda, Tontsi. Myolwa were also present.

– When the 2nd candidate was interviewed the Mr. Nocanda had already been removed and he was given a role of welcoming the candidates since he is the chairperson of the SGB. She confirmed that Mr. Nocanda scored the 1st candidate Miss. Qotoyi to the end before he could finish answering the questions. She confirmed that Mr. Maku was called as the 2nd candidate.

– On the 1st day of the interviews which was the 20th of March 2021 and they did not finish the interviews because Mr. Kondlo told them that there was a candidate that was not short listed and they have agreed with SADTU that that candidate must be accommodated and short listed. When the objection was noted by Mr. Mhaga he was called by Circuit Manager, SADTU and the SGB and it was agreed that they must change Mr. Nocanda as an attempt to resolve the issue.

– He confirmed that Mrs. Siletile was interviewed on the 26th March 2019 and when they finished counting together with Nocanda they called the SGB which was waiting outside and were given the report by the panel. She confirmed that Mrs. Siletile objected to the interviewing panel on the basis that it was the same panel that did not shortlist her. She stated that she did not know Mr. Maku before the date of the interview and also confirmed that that the governing body was trained on conducting interviews.

– She testified that Mr. Nocandas scores were destroyed and that Mr. Nocanda only scores the first candidate Mrs. Qotoyi and he never scored the other candidates. She averred that when they finished interviewing Mrs. Siletile they thought that every issue about the short listing and interviews was resolved.

– She testified that she was aware of the change of scores by Mrs. Tontsi and she believed that it happened because she made an error but cannot say whether it was an error or not. She confirmed that the attendance register was not signed by the panelists on the 26th of March 2019. She confirmed that Mrs. Siletile did not qualify to be short listed because there was an error in her application form and it was disqualified.

22. The 6th respondents witness was Mrs. Nobuntu Nkohla and she testified that:

– She is a teacher and represents the teachers in the SGB and she knows Mrs. Siletile and that she applied for the post of the Principal and was not shortlisted for the said post because her form was not correctly filled. She took over from Somana as a scriber when Mrs. Somana replaced Mr. Nocanda as a panelist.

– She confirmed that Mrs. Siletile was not short listed initially but was later accommodated and short listed and her interview was arranged and done on the 26th of March 2019. On the first day of the interview the 1st candidate was Mrs. Qotoyi and she was interviewed by Mrs. Tontsi, Mrs. Myolwa and Mr. Nocanda but Mr. Nocanda was replaced after it was discovered that he scored Mrs. Qotoyi up to the end even before she had answered all the questions.

– Mr. Maku was interviewed after Mr. Nocanda had already left but is not sure if Mr. Mhaga was still present when Mr. Maku was interviewed and scored. She confirmed that Mr. Nocanda was replaced by Mrs. Somana and that Mrs. Siletile was interviewed on the 26th of March 2019 and the matter was resolved.

– She confirmed that Mrs. Siletile objected to the panel when she was interviewed but is not sure how the issue was resolved. She also confirmed that the members of the school governing body were present when the candidates were interviewed and were outside and were called after the interview and they also signed the attendance register. She was asked by Mrs. Mngoma to be a scriber and that there was a meeting of the SGB on the 26th March 2019 after the interviews.

– She averred that she is not aware about the scores that were altered by Mrs. Tontsi. She stated that the ratification meeting was chaired by the resource person and is not sure if Mr. Gwele was there at the meeting.

ANALYSIS OF EVIDENCE AND ARGUMENT

23. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.

24. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to appoint her.

25. The respondent appointed the 2nd respondent Mr, Maku who was recommended as no 1 by the interviewing panel and it is in my view based on evidence led not clear whether the recommendation was made by the SGB. Both candidates meet the minimum requirements of the position of Principal relation to all the attributes with the exception of inclusive education which the applicant has also placed in dispute alongside the procedural aspect.

26. As indicated above the applicant contests the procedural fairness of the appointment of the 2nd respondent and her non – appointment. On the procedural aspect the applicant raised the following procedural aspects:

– The applicant feels that the failure by the respondent to shortlist her was unfair.
– That one of the panelists by the name of Mr. Nocanda scored up to the end before a candidate could finish his interview and this issue was not resolved.
– That the respondent changed the profiling of the post and did away with inclusive education that was decided by the profiling team.
– That the applicant was not notified of the date of the interview of the 26th of March 2019 after she was now accommodated.
– That the applicant’s objection to the same panel that did not short list her was not properly resolved.
– That Mrs. Tontsi changed the score whilst she was scoring in the interviews.
– That there was no ratification meeting to agree on the recommendation of the 2nd respondent to the respondent.

27. The issue that this award has to deal with is whether there were procedural irregularities that can have effect of rendering the process procedurally unfair and most importantly whether the necessary recommendation was made by the appropriate body i.e. SGB before the appointment of the 2nd respondent by the department was made.

28. The substantive issue is not in dispute because both parties accept that the 2 candidates who are a subject of this dispute meet the minimum requirements for the said position and that both of them are or were eligible for appointment to the post of the principal. The issue of changing the profile is raised as a procedural issue and not a substantive issue.

29. The applicant’s representative led evidence of the applicant and 2 other witnesses whose evidence is summarized above in the topic dealing with survey of evidence. The essence of the evidence of these witnesses is that there were procedural irregularities in the appointment of the Principal at Ntibane Full Service School in relation to the issues raised above.

30. The respondent disputed that and called five witnesses whose evidence seeks to dispute was the applicant has placed in dispute. I then propose to deal with these issues individually so as to make the analysis clear and I must mention at this stage that I have read and considered the arguments of both the applicant and the respondent.

31. The applicant feels that the failure by the respondent to shortlist her was unfair.

– In this aspect the respondent states that the applicant was not shortlisted because the application was incomplete and this is not disputed by the applicant.
– The applicant also has acted in the position of the principal for a period of 3 months and not 12 months she has no automatic right to be shortlisted.
– It follows then that the failure of the respondent to short list the applicant was fair and the respondent has no committed any act of unfairness.

32. That one of the panelists by the name of Mr. Nocanda scored up to the end before a candidate could finish his interview and this issue was not resolved.

– This contention by the applicant is not disputed and the question is whether the issue was addressed in a fair manner. When this wrong doing by one of the scorers Mr. Nocanda was discovered evidence of the witnesses confirm that Mr. Nocanda was removed as a scorer and was replaced by Mrs. Somana who had been in the room as a scriber.
– The reality of the matter is that she was not a panelist when that candidate was interviewed and she just came in after the candidate had left. There is an element of unfairness on how the issue was addressed because Mrs. Qotoyi was scored by Mrs. Somana, a person who did not listen to the candidate when he was interviewed.

33. That the respondent changed the profiling of the post and did away with inclusive education that was decided by the profiling team.

– On this one there is no evidence that the respondent changed the profiling of the post. This is further confirmed by the fact that the SGB does not have a problem with the post as profiled and appointed Mr. Maku and are still happy with Mr. Maku appointed based on the profile that is contested by the applicant.
– There can’t be any unfairness in this regard because the SGB has the power to recommend a candidate that they think is suitable to run the school.

34. That the applicant was not notified of the date of the interview of the 26th of March 2019 after she was accommodated.

– Here it is not disputed that there were negotiations between SADTU and the department of education and an agreement to include Mrs. Siletile in the interviews was reached. Then the communication to her was through SADTU who negotiated with the employer. There is nothing that the communication was made in the spirit of negotiations that ensued between the respondent and SADTU.
– In fact the respondent acted out of the prescripts regulating employment of educators when they negotiated the short listing of a candidate as if the candidate has a right to be short listed. The applicant has no right to be short listed.

35. That the applicant’s objection to the same panel that did not short list her was not properly resolved.

– The applicant raised an objection when she appeared before the panel that did not shortlist her and there is no evidence that this concern was addressed. The applicants concern was legitimate and the panel and the SGB should have found a way of addressing this concern.
– Even though this arose out of an unlawful act of negotiating the short listing of the candidate once she was accommodated she had a right to be treated fairly and there is no evidence that she was treated fairly.

36. That Mrs. Tontsi changed the scores when she was scoring in the interviews.

– It is common cause that Mrs. Tontsi altered or changed her scores and no one could adequately help the hearing to understand why the scores were altered by Mrs. Tontsi and even Mrs. Tontsi was not called to explain why she altered the scores.
– Both representatives know that the evidence of all relevant witnesses is important for disposing off of this matter but decided not to call all the relevant witness.
– This I am mentioning because corroborative evidence is very much important especially when confronted with word against word types of evidence.
– I shall therefore deal with and evaluate the evidence on the versions of the parties in consideration of this background because in Tshishonga v/s Ministry of Justice and Constitutional Development & other (2007) 28 ILJ 195 (LC) the court said that an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavorable to him or even damage his case.
– The alteration of the scores by Mrs. Tontsi without proper explanation constitutes unfairness.

37. That there was no ratification meeting to agree on the recommendation of the 2nd respondent to the respondent.

– This is the most important meeting in the recruitment of the candidates but it is not clear even from the chairperson of the SGB if there was this meeting to agree on the recommendation of the appointed candidate. I am not satisfied that the ratification meeting was held to properly do its work and this alone renders the process unfair.

38. All the witnesses who were present at the interviews cannot confirm clearly that the process was credible, free and fair and without irregularities. All what happened confirm that there were procedural irregularities in the recruitment and appointment of the Principal at Ntibane Full Service School?

39. It is not disputed that the applicant and the 2nd respondent met the requirements of the post as envisaged in Regulation 11 of the Employment of Educators Act 76 of 1998. From the argument above it then follows that the decision by the respondent to appoint the 2nd respondent and not to appoint the applicant was procedurally unfair based on the evidence and argument advanced in this matter.

40. Just on these points the process of appointment of the 2nd respondent cannot be said to be procedurally fair. The respondent has authority to appoint but has a responsibility to exercise such discretion reasonable and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion exercised by a party competent to exercise that discretion.

41. The reason for this is that is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The applicant in this matter has managed to demonstrate that the employer has not applied discretion fairly.

42. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a bias manner.

43. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to the Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.

– Whether the employer’s decision was arbitrary, or capricious, or unfair.
– Whether the employer failed to apply its mind to the promotion of the employee.
– Whether the employer’s decision not to promote was motivated by bad faith.
– Whether there were insubstantial reasons for the employer’s decision not to promote.
– Whether the employer’s decision not to promote was based upon a wrong principle.

44. If one looks at how the discretion was applied by the respondent in this case it is clear that the SGB did not play its part adequately. The power to recommend resides with the SGB and not the department and there is no clear evidence that this meeting was held.

45. This does not mean that the SGB does not like Mr. Maku but there must be clear evidence that can even convince a person who was not there that in deed the was a ratification meeting and that the SGB and in fact the stakeholders own that decision. There are a number of procedural irregularities in this appointment as discussed above and that justifies interference with the decision to appoint.

46. In Nutese v/s Technikon Northern Transvaal (1997) 4 BLLR 467 (CCMA) it was said that the employees have no right to promotion and as long the employer can provide rationale basis for its decision, appointment or promotion stand to be set aside. Similarly the applicant has no right to protective promotion.

47. Whilst I agree with this principle it must be noted that the applicants contention of this appointment is on procedural grounds and not substantive in nature and whilst the 2nd respondent maybe the best candidate for the position if she is, the procedural irregularities should not be of such a nature that other candidates are prejudiced.

48. I know of no authority and none has been cited for the proposition that the courts would not interfere at all with the exercise of discretionary power when they are unfair, arbitrary and unreasonable. The appointment of the 2nd respondent stands to be set aside because it was effected procedurally unfairly and unreasonable.

49. The appointment of the 2nd respondent and the non – appointment of the applicant was procedurally and substantively unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended. The applicant has indicated that she would like the appointment to be compensated since Mr. Maku is already occupying the position.

50. The applicant obviously cannot be granted protective promotion on procedural grounds and I also don’t believe that compensation would be appropriate in the circumstances as that protective promotion and compensation would then be due to the other candidates as well.

51. In the circumstances I make the following award.

AWARD

52. The appointment of the 2nd respondent Mr. Sikhunjulwe Maku is hereby set aside with effect from the 31st of May 2021.

53. The respondent Department of Education is ordered to re – advertise the position of the Principal at Ntibane Full Service School (the position in question) not later than the 30th of June 2021 and advise the applicant and 2nd respondent specifically to apply for that position.

54. Nothing stops the respondent to appoint anyone including the applicant and the 2nd respondent to act in the said position from the 01st of June 2021 until the position is filled.

55. There is no order as to costs.

Signature:

Commissioner: Malusi Mbuli