ARBITRATION AWARD
IN THE MATTER BETWEEN: ELRC1071-24/25MP
PEU obo Anila George APPLICANT
And
Education Department of Mpumalanga 1st RESPONDENT
Gladys Mathebula Manzini 2nd RESPONDENT
1. DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged Unfair Labour Practice, referred to in terms of section 186(2) of the Labour Relations Act 66 of 1995, as amended was finalized at The Department of Education-Mpumalanga, Bushbuckridge on 08 August 2025.
1.2. Both parties attended the proceedings. The respondent was represented by Macmillan Shabangu, while the applicant was represented by Matimba Isaac Khosa, official of PEU.
1.3. The hearing was held in English and Xitsonga and was digitally recorded.
2. ISSUES TO BE DECIDED
2.1. Whether or not the decision of the respondent not to appoint the applicant to the position of school deputy principal at Magwagwaza Secondary School was procedurally and substantively fair. If not, I must determine appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.
3. BACKGROUND TO THE ISSUES
3.1. The applicant is employed by the respondent as an educator at Magwagwaza Secondary School. She viewed her non-appointment to the position to be procedurally and substantively unfair and prayed for process to be nullified and start afresh.
3.2. Prior to the commencement of the proceedings, respondent submitted a bundle of documents marked “R”, while the applicant submitted a bundle of documents marked “A1, A2 and A3”.
3.3. The applicant closed her case after leading her own evidence, while the respondent closed its case after leading the evidence of five witnesses.
3.4. Only the respondent submitted its written closing arguments on the agreed date and time (15 August 2025). The applicant party failed to submit their closing arguments despite being granted an extension to submit the written closing argument by close of business on 19 August 2025.
4. SUMMARY OF EVIDENCE AND ARGUMENTS
4.1. The following is a summary of only relevant evidence submitted by both parties and which was taken into account in order to arrive at a decision in the matter.
5. THE APPLICANT’S CASE
5.1. The applicant, Anila George, testified that she has been employed at Magwagwaza Secondary School for three years. She applied for the position of deputy principal at the school. She was shortlisted and interviewed. On the day of the interviews, the 2nd respondent was the first candidate to be interviewed. The 2nd respondent only spent between three to four minutes inside the interview room. Because of the time the 2nd respondent spent with the interview room, she and other candidates became very suspicious. When all the candidates were introduced to the interview panel, the department representative and unions representatives were not present, but they were present when all candidates were interviewed. The appointment process was unfair because she performed well during the interviews but was scored very low. After the interviews, the principal informed her that she performed well. Question 2 that relates to the initiative with regard to education, was incorrectly asked or put to her. Question 8, that relates to self-management and team management, she was scored very low (5) despite answering it in full.
5.2. Under cross-examination, the applicant testified that all the candidates were asked the same questions. She only realized after the interviews that question 2 was incorrectly asked or put to her. It is a requirement that interview process must only commence if it is fully constituted. In the absence of the department representative and the unions representatives, the panel probably discussed that the 2nd respondent be favored. She spent almost 30 minutes with the interview panel. The department representative and the unions officials were present when all the candidates were interviewed.
6. THE RESPONDENT’S CASE
6.1. The respondent’s first witness was Godfrey Winston Mhaleni. He testified that he joined the interviews when the first candidate was called in. After the interviews, all the parties, himself, the two unions and chairperson, agreed that the whole process was fair in every respect. All four candidates were asked the same questions and were also given 30 minutes each to respondent to the questions asked. The 2nd respondent spent around 20 minutes inside the interview room. During the interviews, he never observed any biasness. The two unions, PEU and SADTU, represented the four candidates. During and after the interviews, the two unions never raised any objection. The panel refused to physically hand over the questions paper to the employee when she requested such because other candidates were never given such opportunity.
6.2. Under cross-examination, Godfrey Winston Mhaleni, testified that his responsibility on the day in question was to provide guidance and support to the interview panel members. He gave the interviews package to the SGB secretary to hand it over to the chairperson since he was still busy with an urgent school matter. When the interviews questions were formulated, he was not present. He joined the process before the first candidate was interviewed. The panel members were very consistent in their scoring of candidates. The written and typed minutes of the interviews process were signed by him and other panel members. He never informed the employee that she had performed well.
6.3. The respondent’s second witness was Norman Mhaleni. He testified that during the interviews, he was taking minutes. Both the typed and written minutes were compiled by him. The minutes are true reflection of what transpired or said during the interviews. The minutes were never tempered with and both minutes were signed by all the panel members. It is practically impossible that he captured the 2nd respondent presentation in five minutes.
6.4. Under cross-examination, Norman Mhaleni, testified that during the interviews, he was not scoring the candidates. Before the commencement of the interviews, all members signed the confidentiality form. The department representative joined the panel before the first candidate was interviewed. The unions representatives also arrived before the first candidate was interviewed.
6.5. The respondent’s third witness was Sedney Sithole. He testified that on the day of the interviews, he was a panel member. Prior to the arrival of the department representative and the two unions officials, no discussion was held to favor the 2nd respondent. The two unions officials were happy with how the interviews were conducted. The unions officials and the department representative were present when the first candidate was interviewed. During and after the interviews, the two unions never lodged any complaints. Apart that the 2nd respondent is an educator at Magwagwaza Secondary School, he does not know her on a personal level. According to him, the interviews were free and fair.
6.6. Under cross-examination, Sedney Sithole, testified that the department representative and the unions official arrived before the first candidate was interviewed. He can’t remember if the department representative was present during the formulation of questions. The unions officials were present during the formulation of questions.
6.7. The respondent’s fourth witness was Lazarus Edward Mkhari. He testified that he was the chairperson of the shortlisting and interviews process. The department representative and the unions officials arrived late but they both indicated that the process could commence, and they would join later. The panel members scored the candidates independently and there are no discrepancies in the scoring. All candidates were given 30 minutes to respond to the questions and no candidate had spent 5 minutes inside the interview room. Because all the candidates were treated the same, the employee was refused permission to personally view the question paper.
6.8. Under cross-examination, Lazarus Edward Mkhari, testified that during and after the interviews, all the parties involved never raised any objection but declared the interviews as free and fair. The interviews package was handed to him by the secretary of the SGB. The unions officials arrived before the formulations of questions, while the department representative arrived before the first candidate was interviewed. Prior to the arrival of the department representative and the unions officials, no discussion was held to favor the 2nd respondent.
6.9. The respondent’s fifth witness was N. Ngobeni. He testified that during the interviews on 14 August 2024, he was an observer as a chairperson of the SGB. The 2nd respondent was recommended for appointment because she scored the highest during the interview. The secretary of the SGB brought the interview package to the venue and handed it over to the chairperson of the interview panel. The 2nd respondent was not favored, and no meetings were held before the interview to discuss her. The interview panel was chosen by the SGB based on their expertise and it consisted of school principals of neighboring schools. The two officials of the two different unions arrived before the process of interviewing candidates commenced.
6.10. Under cross-examination, N. Ngobeni, testified that he attended the induction course immediately after his appointment as chairperson of the SGB. The SGB recommended the 2nd respondent based on her performance during the interviews. When the recommendation was made, all members of the SGB were present. When making the recommendation to appoint the 2nd respondent, the respondent’s Equity Plan was considered.
7. ANALYSIS OF EVIDENCE AND ARGUMENTS
7.1. In this matter, the onus was on the applicant to prove on balance of probabilities that the decision not to appoint her to the position of deputy principal was procedurally and substantively unfair.
7.2. The Collective Agreement Number No 3 of 2016 ELRC Guidelines: Promotion Arbitrations, provides that where the employee complains that another employee was promoted, he or she must show that:
a) he or she has the necessary skills; and
b) the person who was promoted does not possess the same or same level of skills.
7.3. In Arries v CCMA and others (2006) 27 ILJ 2324 (LC), the Court held that there are limited grounds on which a commissioner, or a Court may interfere with a discretion which has been exercised by a competent to exercise that discretion. The reason for this is clearly that the ambit of decision-making powers inherent in the exercising of a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought 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 further held 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 unsubstantial reasons, or based upon any wrong principle or in a biased manner.
7.4. The applicant argued that the interviews process was procedurally unfair in that the process commenced in the absence of the department representative and unions officials. It is common cause that the department representative and the unions officials were not present during the initial stages of the interviews process. However, the applicant’s union and the department representatives gave the chairperson a go ahead to commence with the process in their absence. I therefore find it unreasonable and unfair that the applicant’s union would promote this alleged breach of procedure to later use it to argue their case. To merely assume that in the absence of the department representative and unions officials, the panel might have discussed to favor the 2nd respondent, is not enough and such assertion must be supported by facts. Finally, the applicant has failed dismally to show how the breach of the alleged procedure had unfairly prejudiced against her. The Collective Agreement No 3 of 2016 ELRC Guidelines: Promotion Arbitrations provides that when deciding whether a procedure in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator examine the actual procedure followed. Unless the actual results in unfairness, the arbitrator should not make a finding of procedural unfairness. I therefore conclude that the promotion process was procedurally fair.
7.5. The applicant argued that the respondent’s decision not to appoint her was based in a biased manner. The applicant relied on disputed allegations that the 2nd respondent only spent 5 minutes inside the interview room and question 2 was incorrectly put to her and that on question 8 she was scored very low despite answering the question in full. The applicant’s version that the 2nd respondent only spent 5 minutes inside the interview room is not convincing and not supported by any evidence. According to the written minutes submitted by the respondent, it is not likely to be true that what the 2nd respondent submitted was said in five minutes. It is not enough for the applicant to merely submit that question 2 was incorrectly put to her without fully explaining how the question was supposed to have been asked and how she was unfairly prejudiced by such an error. It is not enough to only submit that on question 8 she was scored low despite answering the question in full but failed to compare the qualities of the 2nd respondent in relation to the same question. The respondent’s reason for refusing to hand over the question paper to the applicant is acceptable. Nothing much was submitted by the applicant regarding her suitability for the position in question, against that of the 2nd respondent or other candidates. If indeed the process to appoint the 2nd respondent was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner, the applicant’s union probably could have raised an objection during the interviews or immediately after the process than wait until the appointment of the 2nd respondent. A mere unhappiness or a perception of unfairness does not establish unfair conduct. Finally, the applicant’s claim that she falls under the disadvantage group in terms of the Respondent’s Employment Equity Plan, was not supported by documentary evidence.
7.6. In the circumstances, I conclude that the applicant has failed to prove on balance of probabilities that the decision not to appoint her to the position of the school deputy principal was procedurally and substantively unfair.
8. AWARD
8.1. The applicant’s application is dismissed.
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ELRC COMMISSSIONER: NICHOLUS SONO
DATE: 26 August 2025