Panelist/s: Kuvonakala Chavalala
Case No.: ELRC293 23/24GP
Date of Award: 25 November 2024
In the ARBITRATION between:
Serame Johannes Seoposengwe
(Union / Applicant)
and
Department of Education (Gauteng)
(First Respondent)
Nthabiseng Masenya
(Second Respondent)
DETAILS OF HEARING AND REPRESENTATION
[1] This is the arbitration award between Serame Johannes Seoposengwe (hereinafter referred to as “the applicant”) and the Department of Education, Gauteng (hereinafter referred to as “the first respondent”) and Nthabiseng Masenya (hereinafter referred to as the “second respondent”). The hearing concerned an alleged unfair labour practice dispute relating to promotion. It was heard on several occasions and was finalised on 01 November 2024. The parties were to submit written closing arguments by 08 November 2024 and both did so. The arguments were considered in making this award.
[2] Mr. Skhosana from PEU ( Professional Educators Union) initially represented the applicant but he withdrew and Mr. Welcome from SADTU (South Africa Democratic Teacher’s Union) thereafter represented the applicant. The first respondent was represented by Mr. Ndlovu. The second respondent was initially represented by Mr. Monyatsi from SADTU who withdrew and she then represented herself.
[3] The applicant submitted a bundle of documents which was marked Bundle A. The respondents submitted a bundle which was marked Bundle R1 and R2.
[4] The hearing was held in English and it was digitally and manually recorded.
ISSUES TO BE DECIDED
[5] I am required to decide whether the respondent committed an unfair labour practice against the applicant in relation to promotion in terms of Section 186(2)(a)and if so, the appropriate remedy.
BACKGROUND TO THE ISSUES TO BE DECIDED
[6] The applicant is employed by the respondent and stationed at Mohaung Primary School. He was a Post Level 1 educator at the time he applied for a promotional post whilst he was acting on a Post level 2 position.
[7] A post was advertised at Setsing Primary School (ES72ED1016) for a deputy principal position (PL3).
[8] The parties held a pre-arb meeting and filed minutes. Most of the factual matrices were common cause. The following issues were recorded in the minutes (as amended on record) as issues that were common cause:
a) The applicant and the second respondent applied for the deputy principal post at Setsing Primary School.
b) Both the applicant and the second respondent were shortlisted and invited for interviews.
c) According to the interview minutes both the applicant and the second respondent were scored during the interviews.
d) The School Governing Body (SGB) of Setsing Primary School ranked the applicant number 1 (one) and the second respondent was ranked number 2 (two).
e) The second respondent was appointed as deputy principal of Setsing Primary School by the delegated authority.
f) The delegated authority communicated in writing to the SGB of Setsing Primary School explaining the decision to appoint the second respondent. The relevant parts of the letter read as follows:
● “10. It has come to the attention of the HOD/ delegated authority that Mr. Seoposengwe S.J is currently appointed at post level 1 at Mohaung Primary School and as such lacks the requisite managerial experience as required by the provisions of the Personnel Administrative Measures as stipulated above.
● 11. Whereas Ms. Masenya NB is currently appointed as the departmental head at Setsing Primary School for a considerable number of years and as such possesses the required managerial experience.
● 12. Is therefore the HOD/delegated authority’s considered view that Ms. Masenya NB is suitably qualified to be appointed as the deputy principal at Setsing Primary School.”
[9] The following were issues in dispute:-
a) The applicant does not possess the requisite managerial experience.
b) The delegated authority deliberately misrepresented the applicant’s managerial experience and qualifications.
c) The panellist had a vested interest in the process.
d) Procedural and substantive fairness of the appointment of the second respondent.
[10] The applicant prays for the appointment to be set aside and he be appointed instead.
SUMMARY OF EVIDENCE AND ARGUMENT
The testimony led by all the witnesses is fully captured in the record of proceedings and what appears in this award is only a summary of the evidence relevant to the issues in dispute and for determination
THE APPLICANT’S CASE
The applicant testified and called one witness
First witness: The applicant: Serame Johannes Seoposengwe
[11] He applied for two posts around the same time, one of them being for Deputy Principal at Setsing Primary and another being for the HOD at Mohaung Primary School. He was appointed in the HOD post but he declined it because he was waiting for the outcome of the Deputy Principal post at Setsing. In July 2023 he wrote to the SGB of Setsing Primary School to follow up on the status of the Deputy Principal post and outcome. The SGB responded to him as per page 75 -77 of the Bundle. In the letter, Mr. Phokoane PP, the SGB chairperson, confirmed that the applicant was ranked number 1 (one) but the second respondent had been appointed as the deputy principal. Mr. Phokoane also informed him that the SGB is challenging such an appointment and stated all other processes the SGB had followed thus far.
[12] His profile is clear as from page 9 -14 of Bundle A. He has been a PL1 educator from 1995-2001, then a PL2 Principal from 2001-2003, then a PL2 HOD from 2003-2015. He had acted as a PL3 in 2012 for 3 months. At the time of application for the post, he was acting on a PL2 HOD Post and had been acting for 1 year 6 months. The letter that the department wrote to the SGB reveals that the second respondent has been HOD at Setsing for a considerable number of years and as such she has the required managerial experience.
[13] In terms of the vacancy circular 07 of 2022, clause 5.3 any other appropriate experience ought to be considered, not just current experience. This is supported by the PAM document as well that the actual years of experience will be considered even if there has been a break in service.
[14] The ELRC Collective Agreement no 1 of 2021-Recruitment And Placement Procedures for Educators at Schools (ELRC Collective Agreement 1 of 2021) Clause 16, 16.2 provides that where the appointing authority declines the SGB’s recommendation, a full motivation must be provided in within 14 days or a meeting must be called. If no motivation is given or no meeting is convened, the SGB’s recommendation must stand. On the strength of this clause, the SGB recommendation recommending him as the first ranked candidate must stand.
[15] The relief he seeks is to be appointed in the position of Deputy Principal Setsing Primary School, as he was the first recommended candidate.
Cross examination
[16] He conceded that ELRC Collective Agreement no 1 of 2021 Clause 17.2 stipulates who may lodge a grievance and the SGB is not one of the listed persons. In fact, clause 17.3 specifically excludes the SGB from lodging a grievance. He conceded that he never lodged a grievance. He conceded that the collective agreement does not permit him to write to the SGB to seek clarity on the outcome of the post. He conceded that Clause 9.1.4 of the same collective agreement prohibits breach of confidentiality during or after the proceedings. He conceded that the letter from the SGB divulged more information than he had asked. He confirmed that Mr. Phokoane is his witness.
[17] He conceded that in terms of Section 6 of Chapter 3 of the Employment of Educators Act, the appointing authority may decline to appoint a person on ground of undue influence of the SGB members. He conceded that Mr. Phokwane and Ms. Dlamini (the SGB Admin lady) both gave the applicant the highest score and they both gave the second respondent the lowest score. Mr. Phokoane scored the applicant 32 and scored all other candidates less than 19.
[18] He conceded that to be ranked first did not automatically mean he must be appointed and the appointing authority can choose anyone from the three. At the time of the interviews, he was a PL1 educator. The second respondent was a PL2 educator acting in a PL3 position. In the shortlisting, the second respondent scored 200 points while he scored 165. He agreed that when the appointing authority appoints, they do not only look at the ranking. He agreed that the appointing authority who is the district director has no vendetta against him and they do not know each other personally.
Second witness: Phaswane Phokoane
[19] He was the SGB chairperson and the chairperson of the interview committee on the interviews for post number ES72ED1016
[20] When the interviews were done and while the secretary was busy reconciling the scores, the departmental representative, Mr. Madotyeni left as he had indicated that he would need to leave earlier for the Free State. He saw Mr. Madotyeni having a talk with the principal as he, Madotyeni was going to the car. Even the other members of the interview committee saw them talking. After Mr. Madotyeni left, the Principal of the school, Mr. Rikhotso approached the witness, and told him to alter the score so that it favours the internal candidate who is the second respondent. The principal called Mr. Madotyeni and Mr. Madotyeni also agreed that the scores be changed. The chairperson said he would go to the panel with this idea and hear what they say. He informed the panel of the principal’s request and they did not agree. Mr. Ngobese, the union representative decided to leave and said that he is excusing himself and the other panel members should decide on the request made by the principal.
[21] He does not support the appointment of the second respondent and he raised this with the office of the Chief Director. The District director then called him and told him that she had been misled because what she was told was that the SGB had agreed on the appointment of Ms. Masenya. The District director sent an SMS to him requesting to meet with him but the SGB members refused that he meets her alone and he ended up not going to the meeting with the district director. He no longer has the SMS on his phone. He rejects the appointment of the second respondent because she was not recommended by the SGB but appointed by the District Director. The District Director did so without complying with the ELRC Collective agreement 1 of 2021.
Cross examination
[22] He would go to the school once a week at most and he would sit with Ms. Dlamini in the SGB office.
[23] The scores will be different because all panellists go in as individuals and although the questions and expected answers are the same, people hear different things and he and Ms. Dlamini scored the second respondent based on what they heard.
[24] There was another deputy principal post that both the second respondent and applicant applied for. He scored the second respondent 18 points, scored the applicant 38 points and scored Mr. Manyokole 46 points. Mr. Manyokole ended up getting the post. The second respondent lodged a grievance in relation to that post against Mr. Phokoane for not adhering to non-disclosure requirements. Mr. Madotyeni was assigned to handle the grievance and Mr. Madotyeni invited him to a meeting. He did not attend the meeting as called by Mr. Madotyeni.
[25] He denied that he was unduly influenced to score the applicant the highest. He stated that any undue influence came from the department and he will take this matter even further. He stated that socialising with the applicant outside of the school is hearsay and even if it were true it would not have influenced the process. He knows that the applicant is a resident in Thokoza.
RESPONDENT’S CASE
The respondent called four witnesses as follows: –
First witness: Khazamula Rikhotso testified under oath as follows:
[26] He is the principal of Setsing Primary School. He did not take part in the shortlisting and interviews for the post of Deputy Principal that lead to the appointment of Ms. Masenya,as he had requested to recuse himself. He was home during the time of the interviews, he does not stay far from school. On the day of the interviews, he was called by the caretaker to come and lock the school after the interviews were concluded. Upon his arrival he met the IDSO Mr. Madotyeni at the admin block who was on his way out. They greeted and Mr. Madotyeni rushed to his car and drove off. He proceeded to the Admin and met Mr. Moloi, an educator who was one of the panellists. He asked Mr. Moloi if they were done with interviews to which Mr. Moloi conceded. He waited outside for them to conclude so he could lock up. Except for asking Mr. Moloi if they were done, he did not interact with any of the panellists and he denies having discussed interviews with Madotyeni. He then locked the premises after they were done.
[27] He could never ask the panel members to change the scores. The essence of capturing minutes is to state all that transpired. If he had asked Mr. Phokoane to change the scores and the panel deliberated on it, it would have been recorded in the minutes. The complaint against the district director written by Mr. Phokoane on page 82 of Bundle A is an afterthought. The interviews were conducted on 29 October 2022 and the letter was authored in July 2023. Mr. Phokoane is clearly frustrated that the applicant was not appointed. The time lapse is just too great to only complain almost a year later about such a serious allegation. There is an earlier letter dated 23 April 2023 addressed to the HOD of Basic Education, in that 4 paged letter, there is no mention of the principal asking for scores to be changed.
Cross examination
[28] He asked to be recused because one of his next of kin was an applicant on the post. Him greeting Mr. Madotyeni will not be minuted because it was outside of the interview process, anything else regarding the process should have been minuted.
[29] He only became aware of the allegation that he requested alteration of scores when he was preparing to come to testify in the arbitration.
Second Witness: Mathoto Ellen Raphoto
[30] She is the Deputy Director: Transversal Human Resource Services (THRS) and she heads the recruitment section.
[31] Upon receipt of the interview file from the school, they have to interrogate the file and see the rankings submitted by the SGB in comparison with the requirements for the post.
[32] In this case, the second respondent was acting as a PL3 educator for almost a more than a year at the time of interviews and was occupying a PL2 post while the applicant was a PL1 educator and acting on a PL2 post. The applicant also had a break in service from 2015 to 2021. All the three recommended candidates are appointable and the appointing authority must appoint any one of them.
[33] They also scrutinised the scores and realised that the scores were inconsistent and were made in such a way to disadvantage the second respondent for the benefit of the applicant.
[34] Section 6(3) (b) of the Employment of Educators Act 76 of 1998, as amended provides that: In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representativity are complied with and the governing body or council as the case may be, must adhere to- (e) Procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.
Cross examination and Re-examination
[35] It is correct that the actual years of experience will be considered even after break in service. Her submission is that the applicant’s previous experience was considered that is why he was shortlisted. Considering the current experience does not mean that the previous experience was not considered.
[36] In the event the appointing authority declines the recommendation of the SGB, it is difficult to meet the 14 day requirement to meet with the SGB to explain the reason for decline as required by the ELRC Collective Agreement 1 of 2021 Clause 16, 16.2. The director did not object the recommendation of the SGB, she appointed the recommended candidate, but the second ranked candidate. The 14 day period is not applicable in this matter because there was no decline of recommendation.
[37] When considering the file, the inconsistency in terms of scoring was considered and the managerial experience. In the letter that was written to SGB regarding the appointment, the inconsistent scoring was not mentioned. She insisted that they had deliberated on the scoring even though it is not written in the letter.
Third witness: Busisiwe Luthuli
[38] She is the District Director. She categorically denies that she ever called Mr. Phokoane on his cell phone regarding any appointment to any post. She has systems in place in her office and she follows those systems to engage with parties. There is a circuit manager, cluster leader and there are two personal assistants, and those people assist her in whatever communication that she wants to make with the school. Secondly, she handles issues of appointment with utmost confidentiality, and she would not discuss it with anyone, let alone the SGB.
[39] The ELRC Collective Agreement 1 of 2021 Clause 16, 16.2 does not find application in this matter because she appointed the person recommended by the SGB who was ranked number 2.
[40] Most of the recruitment processes happen at the school level. She thus has a role to check what was done by the school and exercise her discretion in terms of the post requirements of the recommended candidates, she does not simply endorse the recommendation of the SGB. She appointed the second respondent because of her leadership experience and that Ms. Masenya had been at the same school as an HOD. The second respondent had continuous service while the applicant had been out of the school for some period. The core role of the post is to manage curriculum and the second respondent had more of the managerial experience that was needed. She also saw that the scoring was not consistent. It appeared that two panellists wanted to disadvantage one candidate and benefit the applicant. A level of consistency is to be expected of panellists who are sitting listening to one answer from a specific candidate.
[41] The letters written to the applicant by the SGB explaining the interview process and ranking order were irregular because they breached confidentiality. The level of details in the letter is more than what was enquired about even by the applicant ; it was as if the SGB wanted to ensure the applicant that they had indeed recommended him.
[42] The SGB is not part of the persons that can lodge a grievance, yet the non-appointment of the applicant was mainly challenged by the SGB. Page 78 to 90 is the letter to the HOD by the SGB on 26 April 2024 lodging a dispute about the appointment of the second respondent which came to the SGB’s attention on 24 April 2024. They want the applicant appointed by hook or crook. Appointing people who are not the best candidates does not benefit the learner.
Cross-examination
[43] Evidence shows that one or two panel members were not trust-worthy. Mr. Seopesengwe qualified for the post but when looking at scoring and managerial experience, she appointed the second respondent who also qualified and was the best for the post. The applicant was a PL1 educator, and the second respondent was at the current moment a PL2.
[44] She does not know the applicant nor the second respondent and has no reason to advantage one over and above the other. She denied that she appointed the second respondent as a way of soothing the second respondent’s feelings after she had lodged a grievance against Mr Phokoane
Fourth Witness: Mr. Mxolisi Madotyeni
[45] He is the IDSO/Cluster leader and monitors and supports operations at schools. He also represents resource persons at schools during interviews.
[46] He attended the interviews that lead to the appointment of the second respondent. The process was fine with no obvious glitches. He met with all the panellists in the morning, and they prepared questions. He had an appointment in the Free State and indicated that he would leave earlier. After the scores were consolidated the 3 highest ranking officials were identified. He left the interview room for Free State. He met the principal on his way out and they greeted. He denies that he ever agreed with the principal or anyone to change the scores so that they favour the second respondent.
[47] There was the first deputy principal post that was advertised, and the second respondent had applied. She lodged a grievance that Mr. Phokoane had breached confidentiality by untimely disclosing the scores of that interview. (untimely). He got a directive to intervene between Mr. Phokoane and the second respondent. He wrote an email inviting Mr. Phokoane to a meeting but Mr. Phokoane refused to attend the meeting.
[48] He knows the applicant. The applicant had applied for a post of HOD at Mohaung Primary School. It is a school he is also responsible for. The applicant was the successful candidate in that post. When he called the applicant to come and get the letter of appointment, the applicant indicated to him that there had been a promise of a higher post that is why he wouldn’t accept the HOD post. This was after the applicant had attended the interviews for ES72ED1016 deputy principal post.
[49] He is aware that the relationship of Ms. Dlamini and second respondent was not good. During one of his school visits Ms. Dlamini once asked him to intervene between her, Ms. Masenya and Ms. Kunene, Ms. Dlamini had indicated that Ms. Kunene and the second respondent often made noise for her whilst sitting next to her office. Ms. Dlamini indicated she had sought the intervention of the principal, but it did not help. Ms. Dlamini even cried when she was relating these issues to him. He spoke to the two employees and when he invited Ms. Dlamini to also be part of the discussions she did not agree. He can conclude that given the history, it is highly probable that Ms. Dlamini lacked partiality in scoring Ms. Masenya. Ms. Dlamini and Mr. Phokoane are the ones who scored Ms. Masenya the lowest of all panellists.
[50] It is very strange and odd that the applicant, with his experience as an educator, would write to the SGB seeking clarity about a promotional post as he knows that he should have written to his employer, the first respondent. It is even more odd that the SGB would breach the confidentiality they signed for to divulge information to the applicant.
[51] When Mr. Phokoane wrote to the HOD on 26 April 2023, he mentioned nothing about the allegation against the witness of agreeing with the principal to change the scores and if it were true that it happened, he would have mentioned it then.
Cross examination
[52] There was no obvious bias during the interview itself and had he observed any bias) he would have intervened. The bias of Mr. Phokoane and Ms. Dlamini in their scoring only became apparent at the quality assurance processes that are followed in HR sections of the department.
[53] He is aware that the applicant was a principal but a PL2 principal which is still lesser than a PL3 HOD in terms of responsibilities.
[54] He has a good relationship with the applicant and they even worked together in one of the schools that the witness is responsible for. He denies that he ensured that the applicant does not get the post of Deputy Principal after the applicant declined the HOD post. He holds nothing against the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
[55] In terms of section 186(2)(a) of the Labour Relations Act (LRA), an employer commits an unfair labour practice if it commits any unfair conduct in relation to, inter alia, promotion.
[56] The applicant bears the onus to prove on balance of probabilities that the employer has committed an unfair labour practice. In order to discharge this onus, over and above proving that he has met the minimum requirements for the post the employee must prove that the decision not to appoint him was unfair. The employee discharges this onus by not only proving that he was the best candidate but also was denied a promotion based on arbitrary grounds.
[57] It is trite that there is no general right to promotion. Employees do however have a right to be fairly considered when a vacancy arises. It is common cause that the applicant was considered together with the second respondent.
[58] Appointment to a promotional post is governed by the provisions of Section 6 of the Employment of Educators Act 76 of 1998 (EE Act) and Collective Agreements and Personnel Administrative Measures which encapsulate the same or similar provisions. In terms of the provisions of this binding source of law and document , the governing body must submit, in order of preference, to the Head of Department or delegated authority, a list of at least three names of recommended candidates. Further, despite the order of preference the Head of Department or delegated authority may appoint any suitable candidate on the list.
[59] In the current case, the interview committee scored the applicant the highest and the second respondent the second highest. Both the applicant and the second respondent were in the list of the three recommended candidates that was submitted to the appointing authority. There is no dispute that this was in line and in compliance with the enabling provisions of the EE Act.
[60] The applicant however submitted that his non – appointment amounted to a decline of the SGB recommendation and the ELRC Collective Agreement 1 of 2021 Clause 16, 16.2. The clause provides that where the appointing authority declines the SGB’s recommendation, a full motivation must be provided within 14 days or a meeting must be called. If no motivation is given or no meeting is convened, the SGB’s recommendation must stand. He argued that on the strength of this clause, the SGB recommendation recommending him as the first ranked candidate must stand.
[61] The applicant’s argument is clearly a misinterpretation of the provision. If the appointing authority has powers to appoint any of the three SGB recommended candidates, how can such an appointment at the same time amount to a decline of SGB’s recommendation? The provision is clear given its literal interpretation. Nothing in ELRC Collective Agreement 1 of 2021 Clause 16, 16.2 suggests that if the appointing authority declines the preference of the SGB, a full motivation must be given. I agree with the testimony of the respondent’s witnesses and the argument by the first respondent that this provision does not find application in this matter.
[62] The applicant argued that he was the best candidate because he had many years of managerial experience as opposed to the second respondent. The district director stated that she appointed the second respondent because of her leadership experience acting on PL3 and that Ms.. Masenya had been at the same school as an HOD (PL2) at the time of appointment while the applicant was holding a PL1 position. The second respondent had continuous service while the applicant had been out of the school for some period. The respondent’s witnesses testified that considering the current experience does not mean that the previous experience was not considered. The applicant’s previous experience was considered and that is why he was shortlisted and interviewed. It was testified by the district director that the core role of the post is to manage curriculum and the second respondent had more of the managerial experience that was needed.
[63] It should be noted that the discretion that is exercised by the district director is not merely a box-ticking exercise but a value judgement in terms of who would be the best candidate for the post, putting the learner’s interests as a priority. In her assessment, given the fact that the second respondent was acting as a deputy principal PL3 and was at the time occupying a PL2 post, she viewed the second respondent as the best candidate. The applicant and the second respondent both have years of managerial experience which differ in both quantity of years and quality in respect of the post applied for.
[64] In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this 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 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.
[65] In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held, with reference to the Aries case above, that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following:
● whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer; or
● whether the employer’s decision was arbitrary, or capricious, or unfair; or
● whether the employer failed to apply its mind to the promotion of the employee; or
● whether the employer’s decision not to promote was motivated by bad faith;
● whether the employer’s decision not to promote was discriminatory;
● 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;
● whether the employer’s decision not to promote was taken in a biased manner.
[66] The onus is on the applicant to discharge. The applicant’s witness, Mr. Phokoane sought to impugn the promotion of the second respondent by introducing a presence of bias and undue influence by making allegations of corruption against the principal, Mr. Madotyeni and the district director.
[67] I reject his submissions as an after-thought and a fabrication. This is because Mr. Phokoane has shown in his myriad of letters to different authorities that he is familiar with the procedures and applicable principles regarding appointments. He is one man that testified bluntly without fear. Had all these corrupt activities occurred, he would have taken the necessary steps against such corrupt activities. Some of the said corrupt activities (i.e. involving the principal and Mr. Madotyeni) allegedly occurred on the interview day and were deliberated on by the interview panel, yet it is not in the minutes. This begs the question of why it would be excluded from the minutes if the interview committee deliberated on it and rejected the rigging of scores as allegedly suggested by the principal and Mr. Madotyeni.
[68] Further, when Mr Phokoane first complained as per his letter to the HOD in April 2023 he could have mentioned the corrupt activities, which he failed to do. The only letter which mentions that an individual tried to influence rigging the scores is only in July 2023, almost 9 (nine) months after the interviews. The alleged call by the district director is not mentioned anywhere but arose for the first time at an arbitration sitting in 2024, two years after its alleged occurrence.
[69] The applicant himself did not make any submission that the appointment was based on an arbitrary ground.
[70] The respondent argued, which argument it admitted to have been on benefit of hindsight, that Mr. Phokoane and Ms. Dlamini in their conduct sought to unduly influence the interviews and the outcome of the interviews and this is seen in their scoring of the applicant and the second respondent. Section 6(3) (b) of the Employment of Educators Act 76 of 1998, as amended provides that: “In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representativity are complied with and the governing body or council as the case may be, must adhere to- (e) Procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body (own emphasis).”
[71] Because this was a benefit of hindsight, it did not serve as a reason for the non-appointment of the applicant and thus not taken further in this award. In any event, in terms of Section 6(3) (e) of the Employment of Educators Act 76 of 1998 if the governing body has not met the requirements in paragraph (b), the Head of Department must decline the recommendation. The appointing authority exercised its discretion on the basis of who was the best candidate and not based on any perceived undue influence.
[72] It is my finding that the applicant failed to discharge on balance of probabilities that the first respondent committed an unfair labour practice by not promoting her.
AWARD
- The First Respondent did not commit an unfair labour practice towards the applicant by not promoting him to the position of a deputy principal (PL3) post number ES72ED1016.
- The case against the Respondents is dismissed
Signed and dated at Pretoria on this 25th day of November 2024
Kuvonakala Chavalala (Commissioner)