IN THE MATTER BETWEEN :-

SADTU O.B.O. N P MNGUNI APPLICANT

AND

KZN DOE FIRST RESPONDENT

N E MBAMBO SECOND RESPONDENT

________________________________________________________________

DATE : 26 FEBRUARY 2010

TIME : 09H00

VENUE : KZN DOE OFFICES – UMZINYATHI -DUNDEE

ARBITRATOR : A S DORASAMY

ATTENDANCE/S : APPLICANT

MR N B NYEMBE

MRS N P MNGUNI

FIRST RESPONDENT

MR M HLENGANI

SECOND RESPONDENT

MRS N E MBAMBO

2.

DETAILS OF HEARING AND REPRESENTATION

1. The matter was heard on 26 February 2010 at the D O E KZN Offices in Dundee. Mr Nyembe of SADTU represented the applicant and Mr M Hlengani represented the first respondent and the second respondent (appointee/ joinder party represented herself.

BACKGROUND TO THE DISPUTE

2. The applicant, Mrs Mnguni lodged a dispute in respect of her non-appointment to the post of Principal of Phumela Public Primary School. The internal remedies were exhausted and in terms of her employment rights referred the matter to the ELRC. The conciliation remained unresolved. As an appointment was made the incumbent, Mrs Mbambo was joined in the proceedings. The arbitration hearing was therefore set down for the 26 February 2010.

3. The parties produced bundles of documents (bundle) and after offering it to each other it was accepted.

APPLICANT’S OPENING ADDRESS

4. The applicant applied for the post of principal at the school where she acted for two years. Her immediate supervisor Mr H M Majola validated her documents and her application was forwarded to the Msinga District. Thereafter she received two letters firstly acknowledging her application and secondly that her application was incomplete because her CV was incomplete. She was surprised and approached the circuit office without success. She was initially told that the Z 83 form was missing and then that her CV was incomplete.

She did not lodge a dispute with the Cluster Grievance Committee (RGC) (CGC) as she was promises that the matter would be sorted out.

The process was not done by the School Governing Body (SGB). She prays for the process to be redone.

3.

FIRST RESPONDENT’S OPENING ADDRESS

5. The applicant’s documents were rejected because her CV form was incomplete. In her case page 23 was missing and it had to contain her signature. Her application could not be accepted even though the employer tried to accommodate her acting status but she did not follow the requirements laid down in this regard.

The only duty entrusted on the SEM is to validate the form and not the CV form.

The post was advertised a long time ago and the department took over the process. The closing date was the 14 March 2008 and the SGB was given two months and when they failed to do so the department took over the process on the 6 November 2008 and finalised the appointment. There was engagement between the Department and the SGB.

There was no unfair labour practice and the respondent prays for the appointments to be confirmed.

SECOND RESPONDENT’S OPENING STATEMENT (NOMANDLA ELSIE MBAMBO)

6. The second respondent prays that her appointment to be confirmed

.

ISSUE TO BE DECIDED

7. I am required to determine whether the respondent (employer) or its delegated agent had perpetrated an unfair conduct relating to the promotion application in respect of the post in dispute. Should I find in favour of the applicant, I am to determine what relief should be granted to her.

APPLICANT’S EVIDENCE

Ms NOZIPHO PEGGY MNGUNI

8. The salient points of her evidence and pertinent to the matter at hand are as follows:-

She was acting in the school when the post was advertised.

4.

Mr H M Majola validated her forms and she went to the box and put her application into it. She signed her form. Then she received an acknowledgement letter and thereafter a letter stating that her application was incomplete. She was shocked and went to her union and informed them that she was not short listed.

Then she went to Mr Majola who informed her that the Z 83 form was not received.

Her application was not sent to the school. The SGB did not undertake the process because they were told that if one acts for two years that person is automatically short listed.

The SGB wrote to the MEC but did not receive a positive response. She did not witness the investigation by the senior official.

She heard that the process was continued in the CMC and interviews were conducted and Mrs Mbambo reported to the school and she was told to work with her. Mrs Mbambo assumed duties in March and she was displaced in May and she contends that she did not disturb Mr Mbambo in her duties.

Under cross-examination by the First Respondent she stated:

She did not lodge a grievance in terms of clause 20.2 of the promotion document.

She indicated in her envelopment that she acted for two years.

The Second Respondent elected not to cross-examine the applicant.

The First Respondent and Second Respondent elected not to testify or call any witnesses.

5.

CLOSING ARGUMENTS

14. APPLICANT’S CLOSING ARGUMENTS

The applicant satisfied the requirements and it is strange that her form was sifted out because she did not sign. She acted for two years and put it in her application. She is known by the CMC and she should have been given the benefit of the doubt. She is a victim between the CMC and the union.

The composition of the interview panel was irregular because it acted outside of SASA which indicates the powers of the SGB and when its powers would be withdrawn. There was no communication between the Department and the SGB.

The post must be re-advertised.

FIRST RESPONDENT’S CLOSING ARGUMENTS

The applicant’s application was incomplete in that page 23 was not submitted. She did not follow the HRM document and did not read the relevant procedures. She did not lodge a grievance. Further she did not indicate that she acted for two years on the application.

She did not understand the procedures and her application was rejected because she was negligent. There is no evidence that her application was tampered with at the CMC.

There was no evidence that the process was illegal as no member of the SGB was called as a witness.

The application must be dismissed and the appointment upheld.

SECOND RESPONDENT’S CLOSING ARGUMENTS

She seeks that her appointment be confirmed.

6.

ANALYSIS OF EVIDENCE AND ARGUMENT

15. This matter was cited as an unfair labour practice dispute in terms of Section 186 (2)(a) of the LRA. I am to decide on the balance of probabilities, whether the respondent perpetrated / committed an unfair labour practice against the applicant and should I find in favour of the applicant I am authorised to make any award that I deem reasonable and fair including brief reasons for the relevant findings.

16. In order to deal with this matter expeditiously, only the critical aspects would be decided. Where the matter is about an alleged unfair conduct of the employer (respondent) relating to promotion, the employee (applicant) has the onus to prove that the conduct was unfair. The employer has to prove that it was fair.

17. The issues in dispute in this matter are fairly straightforward. The first respondent contends that the appointment of Ms Mbambo was fair and Mrs Mbambo seeks that he appointment be confirmed whilst the applicant contend that she was unfairly not short listed and seeks that the post be re-advertised.

18. In order not to protract this finding I will commence with guiding principles that have been decided in similar cases and relate them to the present case.

19. At the arbitration the parties tendered bundles of documents and the representatives referred to portions in their arguments. The material was properly before me and neither party had objected to it. In University of the North v Nobrega & Another (1999) 20 ILJ 2117 ( C ) it was held that if any party had had any objections to the material being admitted, it should have raised and dealt with it in the hearing. As there were no objections to the tendered documents, I am entitled to rely on it.

7.

20. In this matter it is clear from the evidence and documents submitted that the following may be reasonably inferred:

i. The applicant’s application was sifted out because page 23 was missing. The page in question is where her signature would appear.

Ii The applicant recorded that she acted for two years on the application envelope instead of her application form.

iii. The applicant did not lodge a grievance in the matter.

iv. The matter was taken over by the Department after it had engaged with the SGB.

vi. The Head of Department appointed Mrs Mbambo

21. As a consequence of above and in line with my duty to deal with the matter quickly and fairly with the minimum of legal technicalities I determine the following:

22. The promotion agreement between the unions and employer together with the applicable legislation was considered in arriving at my decision.

23. As the applicant did not attend the interviews I have to determine whether the applicant has made out a case to afford her the relief she seeks.

In terms of the promotion agreement the applicant or her union are entitled to lodge a grievance/dispute about the promotion process. The matter is then referred to the Cluster Grievance Committee (CGC) who would determine the matter.

24. Firstly there is no tangible evidence that there was any conspiracy to bar or prejudice the applicant. The sifting committee rejected her application because page 23 of her application was missing. In this regard the validation by Mr H M Majola is a separate process from that of the applicant filing her application.

8.

25. After Mr Majola had validated her documents the onus was on the applicant to collate her form and then submit it. There is no evidence to corroborate her contention that her application contained the signature page. No second copy verified b the receiving authority was put up in evidence. It may be assumed that an error may have occurred between the validation and submission.

26. Secondly the applicant had not endorsed that she acted for two years on her application form as required. She must bear the consequences of her act of omission.

27. Thirdly she did not lodge a grievance in terms of the promotion procedure thereby losing out on the internal dispute resolution process. The post that she applied for was that of principal and she ought to have understood her grievance stages.

28. Fourthly the Department as the employer has an obligation to attend to promotion posts in best interest of the public. It may take over the process if the SGB is dilatory. In this case there was engagement between the SGB and the Department.

29. In any event in terms of the Education Laws Amendment Act 24 of 2005 section 6 of the Employment of Educators Act, 1998 was amended by the substitution of subsection (3).

In terms of the amendments the Head of Department considers the recommendations and if he/she is satisfied then he would make the appointment. If he/she is not satisfied he may appoint any suitable candidate on the list. In this case he/she made an election in terms of his/her powers and as such it cannot be said the appointment was unfair.

30. As a consequence thereof the application is dismissed and the appointment of Mr Mbambo is hereby confirmed.

9.

31. Further I have considered the issue of cost and conclude that the applicant had a right to challenge her non- appointment and her conduct was not such that an order of costs should be awarded against her.

AWARD

32. The applicant has not discharged the onus of proving on the balance of probabilities that the respondent has committed an unfair labour practice against her by not short listing her for the post.

33. The application is dismissed and the applicant is not entitled to any relief.

34. The appointment of Mrs N E Mbambo is hereby confirmed.

35. There is no order as to costs.

SIGNED AND DATED AT DURBAN ON THIS DAY OF 2010.

_____________________

ARBITRATOR

A S DORASAMY (ARB DUN 26 FEB 3)