27 November 2024 – ELRC434-24/25MP

Panellist: Asnath Sedibane Case No: ELRC434-24/25MP Date of Award: 21 November 2024

In the ARBITRATION between:

SADTU obo Mandla Dube
(Union / Applicant)
and

Education Department of Mpumalanga
(1st Respondent)

Francina Mthethwa
(2nd Respondent)

Union/Applicant’s representative:   Mr JN Chibi (Union Representative)                            
Union/Applicant’s address:          
1st Respondent’s representative:    Mr B Malaza (1st Respondent’s Representative)   
1st Respondent’s address:       

    2nd Respondent’s representative:    Mr JJ Mahlalela (Union Representative)  
                 2nd Respondent’s address:   __________________________________________________

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing between SADTU obo Mandla Dube and the Education Department of Mpumalanga (first respondent) and Francina Mthethwa (second respondent) was held under the auspices of the Education Labour Relation Council (“ELRC”), on 01 October 2024 and 05 November 2024, at the Ehlanzeni District Office, Kanyamazane-A. The matter was set down for arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1996 (“LRA’’).
The leading of oral evidence was finalized on the 5th of November 2024 and it was agreed between the parties and the Panelist that the parties would submit their closing arguments by no later than the 12th of November 2024. The proceedings were conducted in English and were both manually and digitally recorded. I have received closing arguments from the applicant and the first respondent. The second respondent did not submit any closing arguments. I have taken the closing arguments of into consideration when making this award.
The applicant was present throughout the arbitration and was represented by Mr James Chibi, an official of South African Democratic Teachers Union (SADTU). The first respondent was represented by Mr Bongane Malaza, an official of the Education Department of Mpumalanga. The second respondent was present and she was represented by Mr JJ Mahlalela and Mr Kabelo Lekitlane on the different dates. Mr Vukani Malangwane was an observer for the Applicant party on both days of the arbitration.
The parties submitted bundles of documents. The applicant’s bundle was marked as bundle “A” and the first Respondent’s bundle was marked as bundle “R”.
The parties concluded and signed minutes of the pre-arbitration hearing, which were marked as bundle “B”.
ISSUES TO BE DECIDED
I was required to determine whether the first Respondent committed an unfair labour practice relating to promotion against the applicant, by not shortlisting the applicant for the position of Principal, at Mthunzi Primary School.
After the narrowing of issues, it was decided that the following issues were common cause between the parties:
7.1 The Applicant was appointed by the first Respondent as an educator on 17 January 1994. He is currently the Deputy Principal at Mthunzi Primary School.
7.2 The Applicant was appointed to act as Principal at the school from 01 March 2024 until 12 August 2024.
7.3 The second Respondent was appointed in the position of Principal at Mthunzi Primary School.
The parties agreed that the following were the issue in dispute:
8.1 Whether the formation of the shortlisting committee was constituted in terms of the Personne Administrative Measures (PAM).
8.2 Whether the shortlisting criteria adopted by the committee was discriminatory against male applicants.
8.3 Whether the applicant was scored fairly in the shortlisting process and if some of the Applicant’s attachments were not considered in the shortlisting process.
8.4 Whether there was consistency in the shortlisting criteria.
BACKGROUND TO THE DISPUTE
The applicant, Mr Mandla Dube applied for the promotional post of Principal at Mthunzi Primary School. He had acted in the position from March to August 2024. He was not shortlisted for the position and was subsequently not appointed. The second Respondent, Ms Francina Mthethwa was appointed in the position. The Applicant contends that the decision of the shortlisting committee not to shortlist him for the position amounted to unfair labour practice. The relief sought by the Applicant is for the process to be reversed and the appointment of the second Respondent to be set aside.
The first Respondent disputes that the Applicant was unfairly treated in the shortlisting process and that the provisions of PAM were not followed. The 1st Respondent prays that the Applicant’s application be dismissed.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The Applicant, Mr. Mandla Fannie Dube testified under oath as follows:
He is currently the Deputy Principal at Mthunzi Primary School. When the Principal went on retirement in March 2024, he was appointed to act as Principal. He had met the requirements to act in the position.
When the position of Principal was advertised, he applied but was however not shortlisted.
He referred to the minutes of the shortlisting process and pointed out that the circuit manager, Ms Lukhele-Nkosi who was the resource person in the process, had participated in the process and that this was unprocedural. The role of the resource person was to advise and not to partake in the process.
He was scored a 2 instead of a 3 for being the Deputy Principal of a primary school, as per the criteria that was set. He was unfairly robbed of the opportunity to be appointed in the position of Principal of the school.
He was scored 2 on experience whereas candidate number 30 was scored 3. He has more experience than this candidate. He has four years’ experience as Deputy Principal, whereas candidate number 30 has less than a year’s experience.
He was not scored anything for organisational experience and extra mural activities. He had been in the organisational leadership and even attached a letter for that and he had participated in the extra mural activities’ leadership. He had clearly been sidelined and this was unfair.
The shortlisting committee failed to implement their own criteria. Candidates 9 and 12 were scored 11 and 12 respectfully whilst candidates 14 and 17 were scored 13. Candidates 14 and 17 should have been shortlisted instead of candidates 9 and 12 but this had not been done.
Under cross-examination, Mr Dube confirmed that he had acted as Principal for three and a half months and that he had been remunerated for the acting.
He disputed that he had been part of the meeting of the SGB on 29 April 2024 where the formation of the interview panel was discussed. He later conceded that he had attended the meeting and was asked to recuse himself when the issue of the panel was discussed. He contended that the minutes of the meeting were fabricated.
He said that as Deputy Principal, he would automatically take over as Principal in the absence of the Principal and that this was in terms of the South African Schools Act.
He said that Ms Lukhele-Nkosi as resource person had also played the roles of the Chairperson and secretary of the shortlisting committee, she had elected the secretary of the committee and this was unprocedural.
He reiterated that he was not part of the meeting where the SGB requested the intervention of the circuit manager to run the shortlisting process. He also reiterated that the committee had deviated from their own set criteria.
It was put to him that his total score was 11 and not 10 as it appeared on the score sheet and that a witness will testify that he was scored 3 and not 2 for relevant experience. It was also put to him that the panel had been informed by the PAM to address gender equality hence 3 females and 2 males had been shortlisted for the position. He disputed that the criteria were in line with PAM.
He contended that the process had been influenced and that Policy was only used when it suited certain people.
When it was put to him that the union representatives that had observed the process had agreed that it was fair, he contended that people can be easily bribed and that some people were less experienced.
It was put to him that he had said he had not been scored for organisational experience but he had in fact been scored 2. He said that he had not seen the score as it was dark.
He reiterated that the criteria used had discriminated against male candidates.
THE FIRST RESPONDENT`S CASE:
The first Respondent’s first witness, Ms Busisiwe Lucy Ngwenya testified under oath as follows:
She is an educator and the secretary of the School governing Body (SGB) at Mthunzi Primary School. The Applicant is the current Deputy Principal of the school.
One of the items on the agenda of the SGB meeting of 29/04/2024 was the interview of the post of Principal of the school. The SGB took a resolution to request the assistance of the circuit manager to appoint an independent panel for the interviews.
She was nominated by the circuit manager to be the secretary in the interview as the circuit manager could not bring a secretary from the circuit. She had taken the minutes and later typed them. She did not participate nor did she make inputs in the panel.
She had typed the score and became aware during consultation with Mr Malaza, the first respondent’s representative, that there was a typing error with the score of the applicant. The score for relevant experience was typed as 2 instead of 3, the total score was however captured correctly as 11.
Under cross-examination, Ms Ngwenya said that she did not see the necessity to capture the reasons for those who apologised and could not attend the SGB meeting of 29 April 2024.
She disputed that there was another SGB meeting held on 30 April 2024. The letter to the circuit manager had been written on 02 May 2024.
She confirmed that she had been nominated to be an observer in the interview but that she had ended up being a secretary. She dd not see that as a problem as she had only taken minutes.
The criteria for scoring had been set by the panel. The circuit manager brought a blank template and the panel agreed on the scoring on the criteria. Four panel members were scoring.
When referred to the scores of candidates 11, 5, 6 and 36, she conceded to mistakes in the total scores of the candidates. She however disputed that she had disadvantaged the candidates by having captured wrong scores.
She disputed that the outcome of the interviews had been predetermined.
The first Respondent’s second witness, Ms Busisiwe Treah Lukhele-Nkosi testified under oath as follows:
She is the acting circuit manager of Sikhulile circuit since 09 January 2023.
She knows the applicant as they attend the same church.
She confirmed having been requested by the SGB of Mthunzi Primary School to appoint an independent panel for the interviews of the principal’s post. She had appointed four Principals with interview experience.
She was the resource person in the interview process, working on logistics and administration, ensuring equity and fairness in the process. She refuted that she had interfered during the process. She had facilitated the process until a chairperson was appointed to take over the process.
She had nominated Ms Ngwenya, the SGB secretary as secretary during the interview process as she could not bring a secretary from the circuit and she had seen the potential of Ms Ngwenya. She was seconded by Mr Ngcongwane.
She had supplied the template for the criteria and this was from Human Resources. The panel members agreed on the scoring.
Under cross-examination, Ms Lukhele-Nkosi confirmed that the Applicant had acted as Principal after the previous Principal had retired and after the Applicant was recommended by the SGB to act.
She confirmed that the secretary of the interview panel was not appointed through a letter. She said this was because in terms of standard practice, the chief admin clerk at the circuit would be the secretary in the interviews whenever the circuit manager is requested to appoint an independent panel. In this case however, she had only learned on the Friday before the shortlisting process that was scheduled for the next Monday that the chief admin clerk was going on vacation leave. She reiterated that she had nominated Ms Ngwenya to be the secretary of the interviews after she saw her potential.
She did not know Ms Ngwenya before the day of the shortlisting. She confirmed that Ms Ngwenya had been nominated as one of the observers from the SGB but due to the need for a secretary, she had nominated Ms Ngwenya for the role.
She noted that the observers had written their capacity on the attendance register as panel members. She said that this was a human error and she had not noticed it on the day of the shortlisting.
She disputed that the applicant had been disadvantaged in the scoring and said that the score of 2 instead of 3 for relevant experience was a typing error and it did not affect the final score of the applicant.
She disputed that the outcome of the interview had been predetermined.
The first Respondent’s third witness, Mr Thomas Happy Ngcongwane testified under oath as follows:
He is the Principal of Sindzawonye Primary School since 01 October 2019.
He has formed part of the shortlisting and interview panel on a number of occasions.
He was part of the shortlisting and interview panel of the post of Principal at Mthunzi Primary School. The panel consisted of four school Principals. He was appointed through a letter. He does not know how the other panel members were appointed.
He had seconded the nomination of Ms Ngwenya as secretary for the panel. The circuit manager had explained that the chief admin clerk who normally serves as secretary in such processes was on leave and could not attend the process.
The circuit manager had brought the template with the selection criteria and had told them that it was from HR. The panel decided on the scoring of the individual criteria.
The panel had agreed to shortlist 3 females and two males after being informed that the School Management Team (SMT) was dominated by males.
The applicant had acted as Principal for three months. The score of 2 instead of 3 for relevant experience for the applicant was a typing error. The Applicant’s total score was however correct. Even if the error had not been made, the Applicant would still not have been shortlisted as he was still not amongst the two highest scored males.
There were observers from SADTU and NATU and they had both confirmed that the shortlisting process had been free and fair.
Under cross-examination Mr Nqconwane said that the role of the resource person is to observe and assist where necessary. The role of the secretary is to take down minutes.
There were 4 scoring panel members on the day of the shortlisting at Mthunzi Primary School.
He said that Ms Ngwenya had been appointed as secretary for the day and she had not participated in the scoring.
He conceded that the scoring of candidates 5, 6 and 36 were also wrongly recorded but he contended that this did not affect the candidates as their scores were still lower than those of the top five shortlisted candidates.
He disputed that the outcome of the interview was predetermined. He contended that the Applicant was instead the one who tried to influence the process. The Applicant had called him two weeks before the shortlisting process to try and influence him. Closing arguments by the first Respondent
The 1st Respondent submitted that there was no unfair labour practice relating to promotion that was committed by the first Respondent in this matter. The SGB is empowered by section 6(3)(a) of the Employment of Educators Act 76 of 1998(the EEA), to make recommendations on appointments, promotions or transfers in any post on the establishment of a public school. The SGB may not delegate such powers. The SGB did exercise its powers in the current matter.
The Applicant had attempted to unduly influence the decision of the SGB in the meeting that dealt with the issue of the selection committee. It was correct for the Applicant to recuse himself from the meeting as he had a material interest in the matter. The appointment of the secretary of the SGB as secretary of the selection committee was lawful in terms of the PAM, read with ELRC Resolution 2 of 1997.
The selection committee was guided by the PAM when formulating the selection criteria for shortlisting. Ms Lukhele-Nkosi did not influence the process. The Applicant had not met the selection criteria for shortlisting and he was appropriately scored by the selection committee. The process that led to the appointment of the 2nd Respondent was procedurally and substantively fair. The Applicant’s application should be dismissed.
Closing arguments by the Applicant
In closing, the Applicant submitted that he was recommended by the SGB to act as Principal at Mthunzi Primary School and he was duly appointed in the as acting Principal from 01 March 2024. This proves that the Applicant was duly qualified and that he had the expertise to run the school. This created a reasonable expectation that he would be appointed in the permanent position as the school never experiences challenges during his tenure as acting Principal. The Applicant’s exclusion from the process was predetermined by the SGB and the circuit manager. This is based on the fact that the SGB requested the intervention of the circuit manager in running the selection and interview process, indicating that they lacked capacity. The same SGB however became panel members in the process, thereby violating their own resolution. Some panel members were appointed through letter and others were not.
The shortlisting criteria was designed to discriminate against male candidates. The whole shortlisting process was not credible. The Applicant was not scored on leadership at school and organisational level and his total score and the scores of some candidates were wrong. The circuit manager testified that she was not concerned about the scores but her concern was on the shortlisted candidates. She was negligent as she did not check that documents presented to her were correct before she could sign.
The Applicant prays for an order that the process is reversed and that the appointment of the 2nd Respondent is set aside. The Applicant also prays for an order that he be paid acting allowance from July to December 2024, as per his acting appointment letter.
ANALYSIS OF EVIDENCE AND ARGUMENTS
I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
The applicant has declared a dispute relating to promotion, in terms of section 186(2) (a) of the Labour Relations Act 66 of 1995, which provides as follows: 186 Meaning of dismissal and unfair labour practice (2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an
employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
The Applicant testified as the only witness in his case. He stated that he is the Deputy Principal at Mthunzi Primary School and he was appointed as the acting Principal of the school from 01 March 2024. When the position of Principal was advertised, he applied and he met all the requirements for the position but he was not shortlisted.
Mr Dube averred that the first Respondent failed to follow proper procedures in the shortlisting process and had treated him unfairly, denying him the opportunity to be shortlisted and to compete for the position of Principal. The circuit manager who had been the resource person in the shortlisting process had formulated the shortlisting criteria instead of allowing the panel to formulate the criteria. He was scored 2 instead of 3 for experience as Deputy Principal at Primary School level. This is an indication that the panel was unfair and had robbed him of the opportunity to be shortlisted for the position. He was not scored for organisational leadership and for extra mural activities. He feels that the panel was unjust to him and had deliberately sidelined him.
He conceded, under cross-examination, that he had acted as Principal for only three months. He alleged that the minutes of the SGB meeting where a decision was taken to request the circuit manager to assist with the shortlisting and interview process were “cooked” and were not a true reflection of what transpired in the meeting. He alleged that his signature on the attendance register of the meeting was forged. He reiterated that the circuit manager, Ms Lukhele-Nkosi had interfered in the process when she read the agenda and appointed a secretary for the committee.
The Applicant conceded that his total score of 11 was correct even though his score for relevant experience was recorded as 2 instead of 3. He disputed that the criteria used was in line with the PAM.
The Respondent led evidence through three witnesses. Ms Ngwenya testified that she was an educator and the SGB secretary at Mthunzi primary school. The SGB had resolved to seek the assistance of the circuit manager in appointing a panel to shortlist and interview candidates for the position of Principal at the school. The Applicant was asked to recuse himself from the meeting that took the resolution and he had disclosed that he had also applied for the position. She had been nominated by the circuit manager to be the secretary of the shortlisting committee as the circuit manager could not bring a secretary from the district office on the day.
Ms Ngwenya admitted that some of the scores of the candidates, including the Applicant were not recorded correctly. She indicated that the Applicant’s total score of 11 was however correct as he was accordingly scored 3 for relevant experience and the 2 was a typing error. She disputed that the outcome of the shortlisting process had been predetermined.
Ms Lukhele-Nkosi testified that she had appointed an independent panel for the shortlisting and interview process, as per the request of the SGB at Mthunzi primary school. She disputed that she had interfered in the process and stated that she had performed her duties as the resource person. She had nominated Ms Ngwenya to be the secretary of the panel, after seeing her potential and because she could not bring the Chief Administration Clerk who normally acts as secretary in such processes. She had provided the panel with the template of the criteria which is a standard document from HR but the panel had decided on the scoring of each criterion. The scores that were on the typed document that formed part of the submission to HR were correct. She acknowledged that there were errors on the scores on the document provided. She contended that the Applicant’s score could not have been different even if there was no error on the document and that he would still not haven shortlisted as he did not fall within the top 5 candidates who were scored higher than the Applicant and were shortlisted in line with the PAM provisions.
Mr Ngcongwane testified that he was a panel member in the shortlisting and interview process for the position of Principal at Mthunzi primary school. He corroborated the evidence of Ms Ngwenya and Ms Lukhele- Nkosi that Ms Lukhele Nkosi had provided the panel with the template of the criteria and that she had nominated Ms Ngwenya to be the secretary of the committee. He disputed that the outcome of the shortlisting process had been predetermined and that Ms Lukhele- Nkosi had influenced the process. He referred to the PAM provisions and explained that the panel had decided to shortlist three female candidates and two male candidates to address the gender equality provision in the PAM and after learning that the majority of the School Management Team (SMT) were males.
It is trite in unfair labour practice relating to promotion that the onus rests with the applicant employee to prove, on a balance of probabilities that the employer committed an unfair labour practice by not promoting him. It is incumbent upon the applicant to show through evidence that he is the best candidate for the position and that the decision to prefer another candidate over him was unfair. The employer is on the other hand also required, when challenged in promotion disputes, to prove that it acted fairly and in good faith in the process that excluded the Applicant from promotion. This was emphasised by the Labour Court in Pamplin v Western Cape Education Department (C1034/2015) [2018] ZALCCT.
The Applicant has argued that he was unfairly prejudiced by the first Respondent when he was not shortlisted to compete for the post of Principal, despite him having been appointed to act in the same position. The Applicant has averred that the first Respondent deviated from the prescribed procedure for selecting candidates to be shortlisted and subsequently interviewed for the position. The Applicant however failed to refer to any prescript or document to show the prescribed procedure for shortlisting and to also show in what way the first Respondent had deviated from the procedure.
The first Respondent on the other hand led witnesses that stated the procedure that is required in the shortlisting process. Both Ms Ngwenya and Ms Lukhele-Nkosi testified that the SGB’s request for assistance from the circuit manager was in order. They both further testified that the circuit manager acted as a resource person in the shortlisting process and provided the panel with a criteria template from HR. This evidence was also corroborated by Mr Ngcongwane, one of the panel members.
All three of the first Respondent’s witnesses testified that the Resource person, the secretary of the panel and the observers from the SGB did not participate in the scoring of the candidates. Procedure was therefore not breached in this regard.
On the alleged substantive unfairness of the process, the Applicant contended that the panel had deliberately discriminated against male applicants and that this was not in line with the PAM. The Applicant also stated that he was not scored accordingly by the panel and that this resulted in him not being shortlisted when he should have been shortlisted. The Applicant did lead any evidence of the alleged attachments to his application which the first respondent had failed to consider.
The first Respondent led evidence that the PAM provides that in considering applications, the committee must ensure that the equity principles are complied with, to redress gender representativity. Mr Ngcongwane testified that the panel agreed to shortlist three females and two males in order to comply with this provision and after having established that the SMT in the school was dominated by males. Five candidates were shortlisted, in line with the PAM.
The Applicant was scored a total of 11 points, albeit the error with the score for relevant experience having been recorded as 2 instead of the 3 that he was actually scored as he was already a Deputy Principal in a primary school. Ms Ngwenya testified that the error was on the score sheet used in the process but it had been corrected on the typed document that was submitted to the Department. It has not been disputed that the Applicant’s final score of 11 was lower than the scores of the two shortlisted males and the overall scores of the five shortlisted candidates.
It is common cause that the Applicant had acted in the position of Principal for just over three months. He therefore did not qualify to be automatically shortlisted as his acting was less than the minimum 12 months required in clause B.5.4.9 of the PAM.
The Applicant alleged that the outcome of the shortlisting process was predetermined and was influenced by the circuit manager. He however failed to lead any evidence to show any undue influence by the circuit manager or any conniving conduct by the panel. The Applicant threw accusations at the circuit manager and the panel, without any substantial evidence to support these accusations.
The first Respondent led evidence, to prove on a balance of probabilities, that the procedure that was followed in the shortlisting of the post of Principal at Mthunzi primary school was fair and further that the committee shortlisted five candidates that were scored the highest and met the requirements of the post as well as the gender equity requirements.
The Labour Court in Mahape v City of Tshwane Metropolitan Municipality and others (JR 1887/21) [2023] ZALCJHB 176 held that an applicant was required to do more than show that he was a suitable candidate for shortlisting, he was required to establish that the decision not to shortlist him was arbitrary, irrational, or motivated by malice. The Applicant in this case had dismally failed to establish any of these elements.
The Applicant could not prove, on balance of probabilities, that the first Respondent, in not shortlisting him for the post of Principal, committed an unfair labour practice against him. His application therefore stands to fail.
The Applicant in his closing, raised a new issue. It was submitted on his behalf that he was entitled to payment of acting allowance for the period of the remainder of the month of July until December 2024. No evidence was led on this point and such a claim does not fall within a dispute for unfair labour practice relating to promotion. Acting allowance is a benefit and a claim for such should be referred to the council accordingly. I was not clothed with the jurisdiction to consider this claim and I will therefore not make any finding on the claim.
Award
The first Respondent has not committed an unfair labour practice against the Applicant by not shortlisting him for the post of Principal at Mthunzi primary school.
The Applicant’s application is dismissed. The Applicant is not entitled to any relief.