In the matter between:

PHUMELELE SIMELANE, Applicant/Employee

and

DEPARTMENT OF EDUCATION, KWAZULU-NATAL, Respondent/Employer

Union/Applicant’s representative: Mr S C Selepe

Fax: 034 980 8109

VRYHEID

Respondent’s representative: Mr N L Ndlovu

Fax: 034 989 9839

VRYHEID

DETAILS OF THE HEARING AND REPRESENTATION
1 The arbitration hearing was held on 20 September 2011 at the Department of Education offices, corner Suid and West Streets, Vryheid. The proceedings were recorded. The applicant was represented by SADTU union official Mr S C Selepe while the respondent was represented by ER/HR senior education specialist Mr N L Ndlovu. The proceedings were conducted in English.

2 The respondent handed in a bundle of documents none of which were disputed.

3 The parties were given, at their request, until 23 September 2011 to submit their written closing statements. The respondent did not file a closing statement.

ISSUE TO BE DECIDED
4 The issue for decision is whether there was an unfair labour practice committed in the recruitment of persons to the post of deputy principal (post number 1818). The applicant asked for the recruitment and appointment process to be entirely redone without the involvement of the school governing body (SGB).

BACKGROUND TO THE DISPUTE
5 The applicant is PHUMELELE SIMELANE, an educator and acting HOD at the Amakhwatha Junior Secondary School (the School), Vryheid. She commenced employment as an educator in January 1994.

6 The respondent is the Department of Education, KwaZulu-Natal.

7 The applicant referred an unfair labour practice dispute to the ELRC on 31 May 2011. The matter was conciliated on 21 June 2011 but remained unresolved. Hence the referral to arbitration.

8 In her referral the applicant raised amongst other things the fact that she had been unfairly discriminated against on the basis of her gender. She was advised that an arbitrator did not have jurisdiction to arbitrate this dispute without the consent of the respondent in terms of s 10(6) of the Employment Equity Act 55 1998. With the respondent indicating that it was not prepared to consent, the applicant chose to abandon this part of her dispute.

PRELIMINARY ISSUES
9 The respondent raised two preliminary points:

a. That the applicant’s referral was premature because no appointment had yet been made; and

b. That the applicant does not have locus standi because she had of her own accord chosen not to attend the interview.

10 The applicant opposed both points. Her response as regards the first point was that it would not be correct for her to wait until an appointment is made because the appointment process was questionable.

11 As regards the second point the applicant stated that she had not been fairly treated as required by law and as such it was her contention that she did indeed have locus standi.

12 Both points are hereby dismissed for the reasons set out more fully below.

SURVEY OF THE EVIDENCE
13 The applicant gave evidence herself and called Norna Makhosazana Sibiya to give evidence on her behalf. The respondent called Mkhanyiseli Mhlongo to give evidence on its behalf.

14 The following facts were either common cause, agreed or remained undisputed in cross examination:

a. There are two deputy principalships at the School. A vacancy existed for one of the posts (the Post). It was advertised in HRM Circular 37 of 2010;

b. The applicant applied for the Post by completing the relevant documents;

c. The applicant was in possession of the relevant qualifications and experience for the Post;

d. Other individuals also expressed an interest in the Post and submitted their applications;

e. A shortlisting committee was duly established and the applicant was shortlisted for interview;

f. She was invited to the interview;

g. She did not attend the interview for a reason that is disputed;

h. The applicant sent a letter dated 6 May 2011 to the Department’s offices in Vryheid setting out her reason for not attending the interview. The letter is as follows:

“I Phumelele Simelane would like to take this opportunity in laying down my grievance about the interviewing committee to your highly reputable department.

On 26 June 2011 round about half past three pm (3.30pm) we the SGB members of Amakhwatha Junior Secondary School had a meeting about the way forward to uplift the standard of our school. After the closure of the said meeting, I was hereby encountered by the so called chair of the interviewing committee and his utterances to me was and I quote “This deputy post that you are vying for, we are going to appoint a male candidate and that person is Mr S Buthelezi, because in future we want him to be the principal of Amakhwatha” unquote. I was so furious and much grieved but had to swallow it calmly and humbly.

The following are the grievances I had in me as a woman and also as an applicant of the deputy principal’s post:

· He has humiliated, discriminated and undermined me;

· He is gender bias on me as a woman;

· He also knows Mr S Buthelezi to be the eligible candidate for the deputy post, why then was I invited to be so embarrassed.

I would be much grateful if the said interviewing committee will be dissolved with immediate effect since there seem to be corruption with the committee.

I am therefore anticipating on your usual co-operation and thanking you in advance.”

i. Mhlongo was the chairperson of the school governing body (SGB) and chaired the interviewing committee;

j. Mhlongo became aware of the above grievance on 16 May 2011;

k. The interviews were conducted and a list of recommended names was forwarded to the Head of Department of the respondent. The HOD has yet to make an appointment.

l. Neither Mhlongo nor the respondent responded to the applicant’s letter dated 6 May 2011.

15 Mhlongo flatly disputed that he had made the utterance attributed to him in the letter.

16 The applicant argued in her written closing statement there had been procedural unfairness insofar as Mhlongo’s statement indicated that the process was rigged in favour of Mr Buthelezi.

ANALYSIS OF EVIDENCE AND ARGUMENTS

17 As regards the preliminary points I find that the applicant does indeed have locus standi to raise this dispute. She was an applicant for the post and she had allegedly been the victim of an irregularity that had the potential to prejudice her rights and interests.

18 I make a finding on the other preliminary point below.

19 In the view that I take of the matter the central issue is whether Mhlongo made the disputed utterance. I find for the following reasons that he probably made the utterance:

a. He did not suggest a reason why the applicant would attribute such statement to him. There was no evidence of any bad blood between them;

b. Furthermore, the letter of the applicant has the ring of truth to it because it sets out the place, date and time when the utterance appears to have been made. The letter actually names a person who appeared to be favoured by Mhlongo in his capacity as chairperson of the interviewing committee;

c. Mhlongo became aware of the letter 10 days after it had been written. Yet neither he nor the respondent replied to the letter. At the very least one would have expected them, without delay, to have rebutted what they contended to be falsehoods. But there was no such action. Both the respondent and Mhlongo maintained an inexplicable silence.

20 With no response from either Mhlongo or the respondent the applicant was entitled to believe that they either admitted or acquiesced in her allegations. I find further that the utterance was unfair towards the applicant.

21 Mhlongo held a powerful position in the SGB: he chaired both it and the interviewing committee. It does not take a leap of imagination to assume that persons holding such high office have the power to influence other persons.

22 With Mhlongo having probably made the utterance I find that he had closed his mind on who was the most suitable candidate. In other words he had pre-judged the outcome of the process by naming the most suitable candidate even before the interviews were conducted. I find that it would have served no purpose for the applicant to have attended the interview especially when she had evidence that a leading member of the interviewing committee had pre-judged the matter.

23 I find that the process was rendered unfair by the utterance of Mhlongo.

24 It was argued by the respondent that the referral was premature as no appointment had yet been made. I do not agree. The applicant had knowledge of an irregularity and she did what was reasonable: she brought it to the attention of the powers that be without delay. I cannot find that the referral is premature. In making the referral to the ELRC I find that the applicant prevented the position being complicated, which is what would have happened had the position been filled.

25 In all the circumstances I find that there was an unfair labour practice committed against the applicant.

26 It remains to determine the relief to be afforded to the applicant. She asked that the process be redone without the involvement of the SGB. I am not aware of any power whereby I can exclude the SGB from involvement in the process.

27 All I can order is that the process be redone, which is what I propose to do.

AWARD
28 I find that an unfair labour practice was committed in the recruitment and appointment process for the post of deputy principal of Amakhatha Junior Secondary School, post number 1818.

29 It is ordered that the process of recruitment and appointment of a suitable person to the post of deputy principal of Amakhwatha Junior Secondary School, post number 1818 be completely redone.

Dated at DURBAN on this the 27th day of SEPTEMBER 2011.

______________________

R J PURSHOTAM

Commissioner