Panelist: Victor Madula Case No.: ELRC483-24/25LP Date of Award: 18 November 2024

In the ARBITRATION between:

MABALA MULALO GRACE Applicant

And

LIMPOPO DEPARTMENT OF EDUCATION 1st Respondent

MAANO MATSHIDISO GRACE 2nd Respondent

Details of hearing and representation

1. This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act). The hearing took place at the Department of Education, Corner Hospital and Hans Van Rensburg Streets, Voorwarts Building, Polokwane, Limpopo Province on 31 October 2024 at 9:00AM. The Applicant, Mabala Mulalo Grace was represented by Ramango N.P from South African Democratic Teachers Union (SADTU), while both the 1st and 2nd Respondents, Limpopo Department of Education and Maano Matshidiso Grace were represented by Rasebotsa Nthabisheng, official of the 1st Respondent. The proceedings were digitally voice recorded and conducted in English. The parties handed in bundles of documents and Applicant’s bundle was marked Bundle A, while the Respondents’ bundle was Bundle R.

Nature of the dispute

2. The dispute was about the Applicant’s alleged unfair labour practice related to promotion. The Applicant is alleging that the 1st Respondent’s failure to appoint her to the position of Principal (P3) of Sikhwivhilu Primary School constituted unfair labour practice related to promotion.

Issues to be decided.

3. I must decide whether the failure by the 1st Respondent to appoint the Applicant as the Principal (P3) of Sikhwivhilu Primary School constitutes unfair labour practice or not. I must determine an appropriate relief if it is found that the conduct of the 1st Respondent was unfair.

Background to the dispute and common cause issues

4. The Applicant has been appointed by 1st Respondent since 1994. She is currently employed as a principal, post level 2 (P2) since 2024, earning a salary of R41 831.50 per month. She was appointed at Tshithuthuni Primary School as principal (post level 2) effective from 01 August 2024. The posts of principalship (P2 and P3 ) were advertised through Departmental Circular NO: 1 VOL 1/2024 dated 17 April 2024. The Applicant applied, was shortlisted and interviewed for the principal, post level 2 for Tshithuthuni Primary School. She also applied, was shortlisted and interviewed for principal post level 3 (P3) at Sikhwivhilu Primary School. She was recommended for appointment in both principal post levels 2 and 3 at Tshithuthuni and Sikhwivhilu Primary Schools respectively.
5. The relief sought by the Applicant is to be appointed principal (P3) at Sikhwivhilu Primary School. Survey of the Applicant’s evidence and argument

One witness, the Applicant herself, Mabala Mulalo Grace testified under oath and in English that:

6. She applied for more schools from the advertisement, Departmental Circular NO:1 Volume 1/2024. She was called for interviews in respect of Sikhwivhilu Primary School’s principal post (P3) and scored 87,25% and the 2nd Respondent scored 76,75%. She referred to her appointment letter to a position of principal (P2) at Tshithuthuni Primary School (page 17 of Bundle A). That appointment was unfair since it did not promote her because it was on the same post, position, and salary levels as the one she was occupying at Ravhuhali Secondary School.
7. Her highest qualification was Master’s degree (M+6), while the 2nd Respondent Honours Degree (M+5). The 2nd Respondent was a Deputy Principal before she was appointed at Sikhwivhilu Primary School. Her wish was to be appointed principal for P3 school and above. She accepted her appointment as the principal of Tshithuthuni Primary School on 05 August 2024. The appointment of the 2nd Respondent was not fair because she (2nd Respondent) was not the best candidate for the post of principal (P3) at Sikhwivhilu Primary School. She (Applicant) was the best candidate in both posts, Tshithuthuni and Sikhwivhilu Primary Schools. The panel should have appointed her in both the schools and allowed her to choose which one she takes. It is not wrong to apply for all the positions. The failure to appoint her at Sikhwivhilu Primary School was not in line with the provisions of section 6(3)(a) of the Employment of Educators Act, 76 of 1998 as amended (page 113 of Bundle R). It was not reasonable to say she was already recommended for Tshithuthuni Primary School. According to the School Governing Body’s recommendations, the next candidate to be appointed was Muofhe M.M in order of preference (page 89 of Bundle R). The 2nd Respondent was the last to be appointed.
8. During the cross-examination, she testified that she applied for many posts from the advertisement. She was recommended for appointments at Sikhwivhilu and Tshithuthuni Primary Schools. The 1st Respondent knew that her wish was to be appointed at Sikhwivhilu Primary School (P3). She knew that Tshithuthuni Primary School’s post was a P2 school, and she applied for it. She signed the acceptance letter for the Tshithuthuni Primary School’s post accepting the offer. The acceptance of Tshithuthuni Primary School’s post does not prevent her from getting other promotions. The SGB’s role is to recommend, and the appointment is done by the District Director. The 2nd Respondent was number two (2) according to the recommendations of the interview panel and number five (5) according to the SGB. The SGB has more weight than the interview panel. The Head of the Department has the power to appoint. The reason that she was already appointed to Tshithuthuni Primary School was not sound. The 2nd Respondent was not the best but part of the recommended candidates. The 1st Respondent should have based the appointment on the recommendation of the SGB and not the interview panel. Survey of the Respondents’ evidence and argument One witness for the Respondents. Mukondeleli Violet Makhari testified under oath and in English that:
9. She is the Deputy Director: Corporate Services of the 1st Respondent. She deals with recruitment in terms of making recommendations for appointments to the District Director. The Applicant applied for a position of principal in more than one school. During the time they were making recommendations, the first file in respect of the Applicant was for the post of Tshithuthuni Primary School. The file for Sikhwivhilu Primary School came to them after the one for Tshithuthuni Primary School. When the file for Sikhwivhilu Primary School came, they had already appointed the Applicant at Tshithuthuni Primary school, hence the 2nd Respondent was appointed at Sikhwivhilu Primary School. The 2nd Respondent was appointed at Sikhwivhilu Primary School because the Applicant was already appointed at Tshithuthuni Primary School. The fact that the Applicant applied for many schools, means she (Applicant) wanted to be appointed in any of those schools. The Head of Department (HOD) is responsible for appointments of any educator in the province. However, the appointment function was delegated to the District Director. The 2nd Respondent was appointed by the District Director. The 2nd Respondent and the Applicant were on the list of the recommended candidates in respect of the principal posts at Tshithuthuni and Sikhwivhilu Primary Schools. The reason for failure to appoint the Applicant at Sikhwivhilu Primary School was sound because the Applicant was already appointed at Tshithuthuni Primary School (page 119 of Bundle R, clause 44). The Applicant accepted the offer for the post of principal at Tshithuthuni Primary School. The 1st Respondent is not obliged to stick to the recommendations of the SGB.
10. During the cross-examination, she testified that the appointments of both the Applicant and the 2nd Respondent were based on the score list. The Interview Panel was appointed by the SGB. There is no policy which provides that when a person was appointed in two schools, he or she should be issued with two appointment letters. The Applicant was not unfairly treated because she (Applicant) was the one who applied for those posts knowing that Tshithuthuni Primary School was at post level P2.

Analysis of the evidence and arguments

I find that the decision of the 1st Respondent, Limpopo Department of Education not to appoint the Applicant, Mabala Mulalo Grace as the principal of Sikhwivhilu Primary School, did not constitute unfair labour practice. VICTOR MADULA

In terms of Section 193 (4) of the Labour Relations Act, 66 of 1995 as amended, an Arbitrator appointed in terms of this Act may determine any unfair labour practice dispute on terms the Arbitrator deems reasonable. Section 186 (2) (a) of the Act defines an unfair labour practice as follows: “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 dismissal for a reason relating to probation] or training an employee or relating to the provision of benefits to an employee”.
The Applicant referred an unfair labour practice dispute related to promotion. She alleged that the 1st Respondent failed to promote her by not appointing her into the principalship post of Sikhwivhilu Primary School. The Applicant has a duty to begin and the onus to prove on the balance of probabilities rests with her. The Applicant must prove on the balance of probabilities that the conduct of the 1st Respondent for failing to appoint her as principal of Sikhwivhilu Primary School constituted unfair labour practice since she was the best candidate for the position.

It is common cause that the Applicant applied, was shortlisted, interviewed and recommended for the principalship post of Tshithuthuni and Sikhwivhilu Primary Schools advertised through open vacancy list No:1 Volume 1/2024, dated 17 April 2024. It is again common cause that the Applicant was shortlisted, interviewed, and recommended by both the interview panel and the School Governing Body (SGB). The Applicant was eventually appointed the principal of Tshithuthuni Primary School. The Applicant conceded to the evidence of the Respondents that she applied for the principalship post for both Tshithuthuni and Sikhwivhilu Primary Schools. The Applicant knew that Tshithuthuni Primary School’s post was P2 when she applied for it. She also knew when she applied that Sikhwivhilu Primary School’s post was P3. The Applicant in her evidence-in chief testified that her wish was to be appointed the principal of Sikhwivhilu Primary School (P3) and not Tshithuthuni Primary School (P2). However, if that was her wish, why did she also apply and accept the post of principalship of Tshithuthuni Primary School that she did not wish to be appointed to. The Applicant shot herself on the foot by applying for posts she did not want. It was not unfair for the 1st Respondent to appoint the Applicant into the post of principal at Tshithuthuni Primary School because she applied for it.

Section 6(3)(f) of the Employment of the Educators Act, 76 of 1998 as amended states that “Despite the order of preference in paragraph (c) and subject to paragraph (b), the Head of Department may appoint any suitable candidate on the list”. The 2nd Respondent was also on the list of both the SGB and the interview panel. The 2nd Respondent was number five (5) in terms of the order of preference by the SGB, but number two (2) in terms of scores by the interview panel. The 2nd Respondent scored 307. The Applicant testified that the 1st Respondent should have considered the order of preference by the SGB and not the interviewing panel. The Respondents testified that the Head of Department or whoever is delegated may appoint any candidate from the list by the SGB or interview panel. I agree with the argument of the Respondents as it is consistent with section 6(3)(f) of the Employment of the Educators Act, 76 of 1998 as amended.

In Department of Rural Development & Agrarian Reform, Eastern Cape v General Public Service Sectoral Bargaining Council & others (2020) 41 ILJ 1321 (LAC) the court held that it is not sufficient for a candidate for promotion to claim that she was better qualified or more suitable than the successful candidate. The candidate must show that the decision to appoint another was unfair. The Applicant testified that she was the best candidate and the 2nd Respondent who was appointed at Sikhwivhilu Primary School was not. She obtained position one (1) in the interviews of both Tshithuthuni and Sikhwivhilu Primary Schools and the 2nd Respondent was position two (2) in terms of scores by the interview panel and five (5) in terms of the SGB order of preference. The Respondents testified that by the time the file for Sikhwivhilu Primary School’s post came, the Applicant had already been appointed for Tshithuthuni Primary School. The file for Tshithuthuni Primary School came first and the Applicant was recommended and appointed into the principalship post. There was no dispute that the 2nd Respondent was part of the list of suitable candidates for Sikhwivhilu Primary School and she was number two (2) in terms of scoring.

It is trite law in Sidumo v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held that the test for fairness is reasonableness. An Arbitrator must determine whether the decision taken by a decision maker is one that any reasonable decision maker would have taken, given the same set of facts or not. In this matter I must decide whether the decision by the 1st Respondent not to appoint the Applicant as the principal of Sikhwivhilu Primary School was a decision that any decision maker would have taken given the same set of facts. The Applicant had already been recommended for appointment for the position of principal at Tshithuthuni Primary School, the post she applied and interviewed for.

In view of the above analysis I am of the view that there was nothing unreasonable in the appointment of the 2nd Respondent to the post of principalship at Sikhwivhilu Primary School. To me, the 1st Respondent has provided a sound reason for the appointment of the 2nd Respondent. The Applicant has on balance of probabilities failed to display that the 1st Respondent has committed an unfair labour practice by failing to appoint her as principal of Sikhwivhilu Primary School. Therefore, the dispute of the Applicant stands to fail.

Award

17. I find that the decision of the 1st Respondent, Limpopo Department of Education not to appoint the Applicant, Mabala Mulalo Grace as the principal of Sikhwivhilu Primary School, did not constitute unfair labour practice.

VICTOR MADULA