28 January 2025 – ELRC305-24/25EC

Case Number: ELRC305-24/25EC

In the matter between

SADTU obo Mawabo Silekwa First Applicant

Mzoli Voyiya Second Applicant

and

Eastern Cape Department of Education First Respondent

Nombulelo Momo Second Respondent

Nomawethu Vabaza Third Respondent

Appearances: For the applicants: Mr Aaron Mhlontlo (NAPTOSA)
For the 1st respondent: Mr Xolani Sam
For the 2nd respondent: Mr Mzwandile Ngondo, Ms K. Ntshinga-Jim (SADTU)
For the 3rd respondent: Mr Songezo Ngandi
Arbitrator: Mxolisi Alex Nozigqwaba
Heard: 02 September 2024; 16-17 October 2024; 10- 11 December 2024
Delivered: 22 January 2025
Summary: Labour Relations Act 66 of 1995, as amended, section 186(2)(a)-
Alleged unfair labour practice relating to promotion

DETAILS OF HEARING AND REPRESENTATION

This arbitration was held at Batandwa Ndondo Office Park (housing Chris Hani District Office) in Komani on 02 September 2024; 16- 17 October 2024 and 10- 11 December 2024.
Mr Mawabo Silekwa (1st applicant) and Mr Mzoli Voyiya (2nd applicant) were in attendance in all the sessions and were represented by a NAPTOSA official, Mr Aaron Mhlontlo. The Eastern Cape Department of Education (1st respondent) was represented by its HRD Assistant Director, Mr Xolani Sam. Ms Nomampondomise Qomfo (2nd respondent) was represented by SADTU officials Mr Mzwandile Ngondo (02 September 2024 and 16- 17 October 2024) and Ms Kutala Ntshinga- Jim (10- 11 December 2024). Ms Nomawethu Vabaza (3rd respondent) was represented by a NAPTOSA official, Mr Songezo Ngandi.
The dispute is about an unfair labour practice related to promotion, in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (LRA). The applicants are alleging that the 1st respondent committed unfair labour practice when it overlooked them and promoted the 2nd and the 3rd respondents into two Circuit Manager positions in Chris Hani West.
On the last day of the proceedings (11 December 2024) parties agreed to submit written heads of arguments by not later than 18 December 2024. Heads of arguments were submitted as agreed by parties. It is noteworthy that heads which were emailed on 18th December 2024 only got to be sent to me on 06 January 2025. I have considered the submitted heads in penning this award.
ISSUE TO BE DECIDED
I am required to determine whether unfair labour practice relating to promotion was committed when the 1st respondent did not shortlist the 1st and 2nd applicants in two advertised Circuit Manager positions in Chris Hani West District and thus withheld them the opportunity to contest their candidature. I also have to make a determination on the allegation that the two appointed incumbents (2nd and 3rd respondents) were not suitably qualified for them to be appointed and also whether the unfair withholding of the applicants from contesting their candidature withheld them of a realistic chance to be appointed in the two positions. If an unfair labour practice is proven I will issue the appropriate relief.
BACKGROUND TO THE ISSUE
This is a promotion dispute involving Chris Hani West two DCES Circuit Manager positions (with post reference CMCHW101/02/24) advertised in OTP E-Recruitment Circular dated 15 February 2024. The positions are at post level 6 and their commencing salary is R572 346.00 per annum.
The 1st applicant (Ngubesizwe Senior Secondary School principal at material times), the 2nd applicant (Lundi Full Public Service School principal at material times) applied for the two positions. The incumbents, the 2nd and 3rd respondents, also applied for the positions and were subsequently promoted at the completion of the recruitment processes. Their promotions took effect from 01 July 2024.
The basis of the applicants’ unfair labour practice claim is that the process leading to the promotion of the 2nd and 3rd respondents was procedurally flawed. The applicants were overlooked even though they are better qualified and have more managerial experience than the incumbents.
The applicants are seeking the relief of compensation.
The respondents dispute that unfair labour practices were committed.
SURVEY OF THE EVIDENCE AND ARGUMENTS
It is common cause that the post requirements as reflected in the advert are, among others, RVQ 13/14 qualification; SACE registration as professional educator; proven experience in leading and coordinating school’s improvement projects; supervisory and interpersonal skills; computer literacy – MS Word, MS Excel, MS Power Point and MS Outlook; a valid driver’s license; and competencies in, among others, monitoring and evaluation, performance management, writing and reporting. In the advert candidates were warned that failure to submit all the requested documents would result in the application not being considered (pages 28- 30 of 1st respondent’s bundle B). The advert also unequivocally mentioned that candidates whose appointment or promotion would promote representativeness would receive preference (page 18 of B). The advert also made an undertaking that 1st respondent’s employment equity targets would be adhered to.
The 1st applicants’ qualifications and employment circumstances are mostly common cause and are uncontested. The 1st applicant’s qualifications, as reflected in his application, are as follows: Matric; Primary Teachers Diploma; B-Tech in Educational Management; Bachelor of Education Honors Degree in Curriculum Studies; and National Certificate in Information Technology (End User Computing NQ Level 3 offered by SETA accredited Information Technology Resource Centre). Whether his code B driver’s license, which has been proven that he does have, was uploaded in his application is under contest. He started to work for the 1st respondent as an entry level educator in February 1994 and is a principal at Ngubesizwe SSS in Engcobo. He is a P4 principal earning a gross monthly salary of R58 030.75.
The 2nd applicant’s qualifications, as reflected in his application, are as follows: Matric; Primary Teachers’ Diploma; Bachelor of Education in Science Math and Technology Education; Bachelor of Education Honours in Education Management; Master of Education; and was still pursuing Doctorate studies (Doctor of Education) with Walter Sisulu University at the time of applying for the position. He also has an Introduction to ICT Certificate from Onyx IT. He started to work for the respondent as an entry level educator in April 1996. He is a P4 principal at Lundi Full-Service School in Elliot and is earning a gross monthly salary of R61 195.50.
The 2nd respondent’s qualifications, as reflected in her application, are as follows: Matric; Bachelor of Arts (Education); She started to work for the 1st respondent as an entry level educator in May 2003. At the time of applying for the position she was a School principal at KwaMhlontlo Senior Secondary School.
The 3rd respondent’s qualifications, as reflected in her application are as follows: Matric; Bachelor of Science; and Higher Diploma in Education. She started as an entry level educator in 1996. From January 2010 she got promoted to being Departmental Head at Mathew Goniwe Comprehensive School. At the time of applying for the position she was a Senior Education Specialist for FET Life Sciences and was acting as Cradock Circuit Manager.
The applicants’ cases are that the process leading to the promotion of the two incumbents was flawed as the panel was not properly constituted. The recruitment process was partly done in East London (the shortlisting part) and the remainder of it was done in District office. The notice for the shortlisting process was given to the unions less than five days before the process, and that was in breach of the PAM Document requirement that such notice be given not less than five days before the start of the process. The declaration form, certifying that the recruitment process was fair was never signed by the applicants’ union, NAPTOSA. The applicants’ were not shortlisted even though they possessed higher qualifications and managerial experience than the incumbents and some of the shortlisted candidates. The applicants’ are also taking issue of the fact that the incumbents were shortlisted and appointed even though they did not meet the post requirement of possessing computer literacy qualification. The applicants’, who both have computer literacy qualifications, were overlooked. They also take issue at the fact that the task of confirming years’ experience of candidates was assigned to the acting Deputy Director HRM& P and that the said information was never presented to the panel for scrutiny. The applicants also take issue at the fact that the unions actively participated in the process, while their role is only to observe the process.
The respondents‘ case is that the process leading to the promotion of the incumbents was done in line with its recruitment processes.
APPLICANT’S CASE
1st Applicant
Mr Mawabo Silekwa (1st applicant) testified that he started to work for the 1st respondent as an entry level educator on 17 February 1994, and in1996 he was promoted to being an HOD (now known as Departmental Head). In 2009 he was appointed as Qoba Junior Primary Deputy Principal, a position he held until he was appointed at Ngubesizwe Primary School in Engcobo.
In Ngubesizwe the applicant spearheaded processes which led to the school being elevated to a high school level. He managed to progressively take the school to being a fully-fledged senior secondary school when it had its first grade 12 class in 2015. The school has been producing excellent matric results and in 2023 it produced a 90% matric pass.
His post matric qualifications, which were uploaded in his application, are a Teacher’s Diploma; B-Tech Education Management; Bachelor of Education Honours and IT and User Computing Certificate.
He applied for the position through the Department’s E-Recruitment Portal by uploading his document and filling in the required information (pages 74 to 77 of applicants’ bundle B).
In the sifting meeting held on 29 February 2024 the panel’s set sifting criteria was to look for candidates with driver’s licenses; REQV 13/14 qualifications; and educational field experience of 8 years and above. The 1st applicant had these attributes together with required computer literacy mentioned in the advert. The 1st applicant (reflected as candidate 96 in the master list) together with other 42 candidates did not provide proof of having driver’s licenses. He feels that he was disadvantaged as he had uploaded his license when he was applying, as reflected in the portal (page 77 of B).
The 1st applicant also feels like he has been treated unfairly when candidates far less qualified than him, and possessing shorter experience, got to be shortlisted and ultimately appointed. The incumbents also did not have computer literacy as required by the advert.
The 1st applicant also regards himself to have be unfairly treated by the fact that he is reflected to have been sifted out due to the alleged non-availability of his cited work experience in the master list. He had uploaded his work experience on the portal and such experience is also appearing in his CV. The panel disadvantaged him as the non-inclusion of his experience in the master list was a mistake done by its own compilers.
In page 29 of B the 1st applicant (candidate 98), together with other 119 candidates, is reflected as having gone through the second round of shortlisting even though he was said to have been sifted out due to not having a driver’s license and his work experience not reflecting in the master list.
The panel had on the second round of shortlisting adopted a stance of prioritizing female candidates for shortlisting. It was decided that 6 female candidates would be shortlisted, and 4 candidates with extensive experience be drawn from male candidates. The incumbents got to be shortlisted at part of the 6 female candidates. The 1st applicant takes issue with the fact that the 2nd respondent, Ms Qomfo made it to the final shortlist even though she has, as reflected in the master list, 5 years 5 months experience. The set requisite experience had been set by the panel to be 8 years. The 3rd respondent, Ms Vabaza, candidate 131, who was shortlisted together as additional 4 candidates to the 6 female candidates, has less teaching experience, which is actually 22 years, compared to the 1st applicant’s 28 years’ service. His experience was incorrectly reflected in the master list as 35 years 2 months, while it is actually 22 years.
There is also candidate 154 (pages 42 of B) who is a female candidate who had had more than 9 years managerial experience and a master’s degree in education who was not included to the 6 shortlisted females even though she had better attributes than the other shortlisted females.
When questioned about the indication in page 30 of B spreadsheet that he did not have a driver’s license his answer was that in the portal he had uploaded his license as is appearing in page 77 of B (screenshot of the uploaded page where his driver’s license is reflected as having been uploaded).
2nd Applicant
Mr Mzoli Osborn Voyiya (2nd applicant) testified that he started to work for the 1st respondent as an entry level educator in April 1996 at Zadungeni JSS. In 2002 he was promoted to be the departmental head of Lundi JSS. He was promoted to being the deputy principal of the same school. Lundi got to be elevated to be a full-service School, and the 2nd applicant was appointed as its principal with effect from 01 January 2015.
The 2nd applicant’s post matric qualifications are Primary Teacher’s Diploma, Bachelor of Education; Bachelor of Education Honours (Education Management); Master of Education (Educational Management, Law, Policy and Development) (pages 95- 104 of B). At the applying for the position, he was pursuing his Doctoral studies (Doctor of Education) with WUSU, and he has recently completed this qualification. He also has a Certificate in Introduction to ICT from Onyx IT (106- 107 of B).
In the master list the 2nd applicant’s profile is not fully reflective of the information he had provided in his CV. He is reflected as a principal of the Department of Education. His stint as departmental head, deputy principal and the principal of Lundi Full-Service School is not reflected in the master list, where he is identified as candidate 129 (page 42 of A). Other candidates’ profiles fully reflect the different positions they held. He views this as having disadvantaged him as the panel was not in a position to quickly see the different positions he had held.
The 2nd applicant was shortlisted in the 1st round of shortlisting but was eliminated in the 2nd round. The panel had set the 2nd round criteria as follows: that the employees in acting capacity in the position be shortlisted; set targets of the 1st respondent’s employment equity plan be considered for purpose of addressing the shortage of females in management.
In line with the 2nd round set criteria 6 females (candidates 64, 72, 153, 157, 252, and 268) and 4 males (candidates 97, 131, 187, and 227) were shortlisted. This was in line with the 1st respondent’s Chris Hani District Employment Equity plan, and the need to address the underrepresentation of females as office-based educators in Chis Hani West. At material times, of the 10 office-based educators in Chris Hani West there were 4 females and 6 males. It was therefore crucial that the 1st respondent shortlist more female candidates in order to give them a better chance of positioning for the two positions. The 2nd applicant agrees that the 1st respondent is indeed mandated to apply employment equity but should do so fairly.
The 2nd applicant took issue with the fact that Candidate 97, who is one of the 4 shortlisted male candidates has the same years of experience as the 2nd applicant but has less qualifications than him. In the master list candidate’s experience as 28 years (page 38 of B), while in shortlisting minutes he is incorrectly reflected as having 31 years 10 months experience. The applicant’s experience as reflected in the CV he had uploaded was 28 years in 2024. The 2nd applicant’s highest qualification at the time of applying for the position was a Master’s degree, whereas candidate 97’s highest qualification is a Senior Primary Teacher’s Diploma.
Candidate 131 (page 41 of B) is reflected in the shortlisting minutes as having 35 years’ experience whereas in actual fact he had 29 years. His 6 years stint as the principal at Lukhanji Primary School is incorrectly captured twice in the master list, resulting in his experience being captured as 35 years instead of 29 years. He therefore is a year above the 2nd applicant experience wise. Candidate 131’s experience, of a year above the 2nd applicant’s, could not have made him a better candidate than the 2nd applicant whose highest qualification was a master’s degree. Candidate 131’s highest qualification was a Further Diploma in Education.
Candidate 187 (page 46(a) of B) has 35 years of experience, and his highest qualification is a Honours degree in Education. He should not have been regarded as a better candidate than the 2nd applicant who had master’s degree in education and 28 years’ experience.
The 2nd applicant further testified that the 1st respondent also acted unfairly when it shortlisted, as female candidates, candidates who did not meet the set requirements. The 2nd respondent (candidate 153) had only 5 years’ field managerial experience, which is far less than the agreed 8 years’ educational field experience. Her qualifications are less when compared to him and the 1st applicant.
On the issue of procedure, the applicant is taking issue with the process in the appointment of the panel. Mr Godlo was appointed chairperson of selection processes of the posts (DCES- Circuit Managers, DCES- Inclusive Education and DCES- GET). The heading of the appointment letter reads as follows: ‘APPOINTMENT AS A CHAIRPERSON IN RESPECT OF THE ADVERTISED POSITION’ (page 23 of B). In the second last paragraph of the letter Mr Godlo is advised of being appointed as the panel member of the selection committee for the positions, and this is contrary to what is mentioned in the heading of the letter.
The letter appointing Ms EN Futshane says in the heading she has been appointed as a panelist in respect of the advertised position (page 24 of B). In the third last paragraph of the letter, she is advised that she has been appointed as the chairperson of the selection committee for the positions, and this is contrary to what is mentioned in the heading of her appointment letter.
The letter appointing Professor Magadu says in the heading that he has been appointed as a panelist in respect of the advertised position (page 25 of B). In the third last paragraph of the letter, he is advised that he has been appointed as the chairperson of the selection committee for the positions, and this is contrary to what is mentioned in the heading of his appointment letter.
The 2nd applicant also took issue with the memorandum which approved the appointment of the panel. The memo was signed by the District Director on 08 April 2024, supported by the Cluster B Acting Chief Director on 08 April 2024, also supported by the Acting Human Resources Director on the same day (page 33 of A). The witness does not believe that it is possible that these high-ranking officials could have been in the same place for them to sign on the same day. He also takes issue with the fact that the Acting Deputy Director General (DDG) signed and approved the appointment of the panel on 10 April 2024 (page 34 of A) and the panel members’ appointment letters, which were compiled on 10 April, were signed by the same DDG on 15 April 2024 (pages 35- 37 of A). He views the process of appointing panelists as having been done in a haphazard way.
1ST RESPONDENT’S CASE
Mr Nkosinathi Godlo
Mr Nkosinathi Godlo (Chris Hani District Director) testified that his District comprises Chris Hani West and East. The two DCES positions were meant for Chris Hani West. One was for Inxuba Yethemba CSC , while the other was for Cacadu CSC. Applications were to be uploaded by candidates through the 1st respondent’s recruitment portal.
Sometime after the closing date for the posts, processes of setting up the selection panel were engaged upon. A memo was crafted for the approval of the appointment of panel members and was signed by Mr Godlo and supported by Cluster B Acting Chief Director on 08 April 2024 (page 33 of A). Then on 10 April 2024 the Human Resources Acting Chief Director recommended and the Action DDG approved the appointment of panel members. It is difficult to find these senior officials within a short space of time (page 34 of A). Fortunately for Mr Godlo he managed to get hold of them in a meeting they attended in East London. Letters appointing panel members were then drawn up and signed by the acting DDG on 15 April 2024 (page 35- 37 of A). The first letter (page 35 of A) appointed Mr Godlo as the Chairperson of the panel. There was an obvious typographical error with regards to letters appointing Ms Futshane and Professor Magadu, as in the third last paragraph they are advised of being appointed as panel chairpersons.
The panel took over from the sifting that had been conducted on 12 April 2024 under the watch of the District’s HRA and P Deputy Director. The sifting criteria was to consider and retain candidates with driver’s licenses, REQV13/14 and with educational field experience of 8 years and above. On about 8th April 2024 the District alerted the unions that shortlisting would be engaged upon and that they would be invited to observe the processes. Then on 16 April 20224 the panel, with observers from unions, sat for shortlisting, and the minutes of the process were accordingly signed by Mr Godlo and the scriber (pages 53- 55 of A). A decision was taken by the panel that 10 candidates be shortlisted for the two posts, and that the two who would emerge as top scoring candidates in interviews would be appointed. A total of 120 candidates remained after eliminating weaker candidates from the master list. On the second round of shortlisting the panel agreed to consider employment equity by looking at the District’s employment equity targets. They then agreed that 6 female candidates be prioritized for shortlisting. Then 4 male candidates would be shortlisted to add up and make the total of 10 candidates.
On the issue of equity, Mr Godlo testified that the District had been lambasted by top management on its tardiness in addressing equity. In Chris Hani West office based educators males were 11, while females were only 4. The 2nd and the 3rd respondents’ were shortlisted as part of the 6 female candidates, after having met the minimum requirements.
The 1st applicant (reflected as candidate 98) was sifted out even before the panel shortlisting session. The reason for sifting him out is because he did not have a driver’s license or the document was not attached or uploaded in his application. The reason the 1st applicant was reflected as not having a driver’s license is because he failed to upload his driver’s license when he uploaded his application. The master list as generated by the recruitment portal would not have said he has no license if he had uploaded his license.
The 2nd applicant (reflected as candidate 129) made it through the first round of shortlisting. He, however, did not make in round two as male candidates with more experience than him got preference. The 2nd applicant has a total of 28 years’ experience. The number of years’ experience of the 4 shortlisted male candidates ranged from 31 years 10 months to 36 years. The responsibility of verifying the number of years’ experience for each candidate (those who had made it through the first round) was assigned to the 1st respondent’s manager, Mr Mayongo.
On the issue of the union participation in the process Mr Godlo testified that inasmuch the unions adopt observer status at the shortlisting and interview proceedings the panel would listen to them when they raise issues. They, however, do not participate in the actual decision making.
It was put to the witness that the experience reflected in the shortlisting minutes was not accurate about the actual experience of some of the male candidates who were shortlisted. He could not dispute that assertion.
It was also put to the witness that the 1st applicant was disadvantaged in the process when he was regarded as not having the drivers’ license even though he had uploaded it in his application. The witness was referred to 1st applicant’s uploaded documents, where his drivers’ license is reflected as having been uploaded with other documents. The witness maintained that the system which generated the master list could not have missed his drivers’ license if it had been uploaded.
2ND RESPONDENT’S CASE
Ms Nomampondomise Qomfo
Ms Nomampondomise Qomfo (2nd respondent) testified that she started her teaching career as an entry level educator in 2003 at Fremantle Boys School. She was then appointed as Departmental Head at Siyabalala SSS. She worked tirelessly to improve the poor results of this school, and her efforts yielded results as the school moved from 48% to 64% pass in 2015. In 2016 she was appointed as the principal of the school. In January 2022 she moved to Lady Frere and was appointed as the principal of Kwamhlontlo SSS. She worked tirelessly to improve the poor performance of the school and managed to get the school to a 70% plus pass rate.
When the opportunity was presented to apply for the DCES Circuit Manager position she felt that it was time for her skills to be utilised at district level.
On the issue of computer literacy certificate, she testified that in her CV (page 125 of A) she indicated that she has an ICT for Teachers Certificate, and uploaded the certificate in her application. When it was put to her that her certificate was not adequate as there was no indication of her having been trained on important computer programs, she mentioned that while doing her degree in UNITRA (now WUSU) she did and received her certificate in November 1998 for Computer Literacy from UNITRA. She brought the certificate as proof that she had indeed been trained in MS Word, MS Excel and MS Access. She conceded though that she did not upload the UNITRA Computer certificate when she applied for the position.
On the issue of experience, the 2nd respondent testified that her teaching experience was from 2003, while her managerial experience in 2014 when appointed as Departmental Head. She then served as school principal from 2016 up to the time she applied for the position.
Arguments
It is argued for the applicants that it has been proven that the applicants were not fairly considered for shortlisting even though they had drivers’ licenses and computer literacy qualifications, which were requirements mentioned in the advert.
The requirement of computer literacy qualification was not upheld by the 1st respondent as it was not mentioned as a sifting criterion. This led to the inclusion of candidates, like the incumbents, who according to their applications did not have proven computer literacy, being shortlisted. The applicants, who had the best attributes qualification wise and experience were not shortlisted, and candidates with lesser attributes (qualifications and experience) ended up being shortlisted. The experience of some of the candidates who made it to the shortlist was inflated and not correctly captured. This was as a result of an irregular stance taken by the respondent wherein the confirmation of years of experience was to be done by acting Deputy Director HRM and P and such information was never verified and conformed by the panel.
Also, union observers irregularly participated in the process when they argued that the experience of the candidates they knew was not correctly mentioned. The applicants’ case, which it is argued has been proven, is that by not being shortlisted they were unfairly withheld a fair opportunity to contest their candidature. The applicants therefore argue that the recruitment process was flawed and the ultimate decision to appoint the incumbents was substantively unfair. The relief sought by the applicants is that they each be awarded 12 months compensation calculated either on the entry notch of the Circuit Manager position (R572 000.00) or from their current notches (R696 369.00 for the 1st applicant and R734 346.00 for the 2nd applicant). They seek compensation as they feel that the learner’s best interests should take precedence and therefore the administration of leaners development activities should not be disturbed by the reversal of the incumbents’ appointments.
For the 1st respondent it was argued that the process towards appointing the two incumbents was fair. The typographical errors made in the appointment letters of panelists cannot be said to have rendered the process irregular. The heading of each appointment letter clearly mentioned each panelist title. The unions were in attendance during the shortlisting processes, and no one raised any objection to the process followed.
Computer literacy was viewed as an added advantage rather than a requirement for a candidate to be considered. The incumbents both have more than 8 years’ educational field experience and were adequately qualified. There never was any bias towards the incumbents. Mistakes, which cannot be said to be substantial, cannot render the process to be so irregular so as to warrant it being regarded as unfair towards the applicants. With the best interests of the learners being considered, the mistakes in the process should not lead to the incumbents’ appointments being reversed. In the circumstances the 1st respondent’s prayer is that the applicants’ case be dismissed and the relief that they are seeking be refused as they have not succeeded in proving biasness against them.
For the 2nd respondent it was argued that her actual experience, as reflected in her CV, was 19 years and thus more than the 8 years required minimum experience. She had the required REQV 13/14 and had sound knowledge teacher development as she had and coordinated school improvement projects. There is an ICT certificate she had included in her application, and this means she had computer literacy qualifications when she applied for the position. She also has a Computer Literacy certificate from UNITRA, which she had not included in her application. The decision to appoint her was rational and a fair labour practice.
The 3rd respondent’s argument is that she is suitably qualified for the position as she met the minimum requirements of the post and was appointed after she went through the interview process.
ANALYSIS OF EVIDENCE AND ARGUMENTS
The 1st respondent led evidence to the effect that in filling the two positions, it had to do so in line with set employment equity targets for the region. Section 6(2)(a) of the Employment Equity Act 55 of 1998 (EEA) provides that it is not unfair to take affirmative action measures consistent with the purpose of the EEA. Designated employers, of which the respondent is also one by virtue of being an organ of state, are in terms of sections 13(2) (c) and 20 of the EEA implored to prepare employment equity plans with set numerical goals which exclude quotas. A party questioning the validity of the employment equity plan may do so through review proceedings in Labour Court. Section 15(4) of the EEA makes it clear that the designated employer may not adopt an employment equity policy or practice that would establish an absolute barrier to the future or continued employment or promotion of people who are not from designated group. This was amplified in Solidarity obo Erasmus v Eskom SOC Ltd where the Labour Court held that the blunt and inflexible implementation of employment equity at the shortlisting stage is an absolute barrier to the ability of the designated groups to compete with employment equity candidates from the inception of recruitment process.
The implementation of a valid plan may amount to job reservation if applied rigidly, which is what was never intended by the Constitution and the EEA. Section 20 of the EEA provides that candidates identified to advance employment equity targets must be suitable qualified for the job in question. In South African Police Service v Solidarity obo Banard and Another the Constitutional Court held that employment equity designated employees must be suitably qualified in order not to sacrifice efficiency and competency at the altar of remedial employment. They must have existing or potential competence to do the job applied for which includes requisite skills and experience. The Court went further to say that a validly adopted employment equity plan must be put to use lawfully and may not be harnessed beyond its lawful limits or applied capriciously or for ulterior or impermissible purpose. The employment equity plan of an organisation must be heeded and if not heeded a full motivation, as was provided by the SAPS Commissioner in Barnard’s case, for not doing so must be recorded.
The advert for the post in question mentioned that employment equity and affirmative action would be considered in filling the position. The 1st respondent has an employment equity plan, which was consulted upon before it became a final document. There was no evidence to the effect that the plan’s validity is under question and that processes are afoot to challenge its validity in the Labour Court. According to the plan females were identified as being underrepresented as office-based educators (page 99 of A) and this meant that endeavors were to be made to give advantage to the underrepresented group of employees. The inclusion of employment equity as a consideration during round two of shortlisting can therefore not be regarded as having been done in a haphazard and unfair manner. The manner of applying employment equity had to ensure that absolute barriers are not put to hinder male aspirations of ascending to senior positions. The allocation of 6 spaces on the shortlist for the female candidates and 4 spaces for the male candidates fairly allowed the males to be part of the contest for the position. What then needed to be complied with by the 1st respondent is section 20 of the EEA, which provides that candidates identified for employment equity purpose must be suitably qualified. What is to be determined on the issue of employment equity consideration is whether the incumbents were suitably qualified for them to be included in the shortlist and ultimately promoted.
The decision to sift out the 1st applicant, even though it was not carried out, because of not having drivers’ license was not justified. It has been proven through screenshot of what he uploaded (page 77 of B) that a divers’ license is one of the documents that the 1st respondent uploaded in his application. Mr Goxo’s evidence that the document on page 46- 47, in which the 1st applicant is reflected as not having a drivers’ license, is automatically generated and printed from the recruitment portal has not been proven. The document seems to be an excel generated document and the data in it appears to have been inserted or populated by a person. The 1st applicant (candidate 98), despite being sifted out, was included together with 2nd applicant (candidate 129) at the first round of shortlisting.
On the second round of shortlisting employment equity was rightfully included as one of the considerations. Of the 10 candidates to be shortlisted for the two positions the panel decided, rightfully so, to have 6 female candidates and 4 male candidates. The female candidates who were to make it to the short list had to, in terms of section 20 of the EEA and clause B.5.6.4 of PAM, be suitably qualified. This means they had to meet the minimum requirements of the post. The 3rd respondent had more than 8 years’ experience and possessed the requisite qualifications. What was outstanding in her documents was only computer literary qualification. Computer literacy was mentioned in the advert as one of the requirements that a candidate must have for him or her to be considered. At the time of applying for the position the 3rd respondent held the position of Senior Education Specialist- FET Life Sciences and had held that position from 2013. She had also acted as a Circuit Manager for 3 months. Her 3 months acting stint would not have made her to be eligible to be automatically shortlisted as her acting stint had not been 12 months as required by clause B5.6.7 of PAM.
The panel had taken a decision that employees who had acted in the position be considered; hence she was. The 2nd respondent’s educational field experience has been proven to be about 19 years, and thus more than 8 years as per the sifting criteria. What is mentioned in the master list is not a true reflection of what is in her CV, which was uploaded in her application. She also had the requisite REQV13/14 qualifications. With regards to computer literacy qualification, what was included and uploaded in her application was ICT Skills for Teachers certificate. The computer certificate with all the requisite programs obtained from UNITRA (now known as WUSU) was not included in her application. Her UNITRA certificate was presented in the proceedings and I am satisfied that it is authentic
. What remains factually though is that the certificate was not included in her application, and thus she cannot be said to have been regarded by the panel as possessing computer literacy certificate. The ICT Skills for Teachers certificate cannot be said to be the required certificate as there is no mention in its modules content of the requisite computer programs mentioned in the advert. What has been proven is that even though both incumbents possessed the requisite REQC13/14 and experience they lacked computer literacy qualifications.
On the question of whether the applicants were unfairly excluded from the 6 shortlisted male candidates I have considered firstly that candidate 131’s work experience was incorrectly inflated to be 35, whereas in actual fact it was just above 25 months. This candidate was also far less qualified than the two applicants. There is also candidate 97, with the highest qualification being Senior Primary Teachers’ Diploma. The 1st applicant’s highest qualification was Bachelor of Education Honours, while the 2nd applicant had a Master of Education. The two applicants (one with experience of 28 years and the other with 30 years) should reasonably have been seen as better candidates than a candidate possessing only a Senior Teachers’ diploma, with between one- and two years’ experience above candidates with much superior academic qualifications than him. I am therefore convinced that had it not been the panel’s incorrect decision of including candidates 131 and 97 to the 6 shortlisted male candidates the applicants, with their attributes stood much better chances of being included in the 6 shortlisted candidates. The exclusion of the applicants from the 6 shortlisted candidates therefore amounts to procedural unfairness.
On the issue of whether the applicants can be said to be the best candidates, who if they were shortlisted and given opportunity to contest their candidature would have been appointed, I find that such has not been proven. There is candidate 187 (one the 6 shortlisted male candidates) whose highest qualification was Bachelor of Education Honours, who also had 34 years of experience. There is also candidate 227 (shortlisted male candidate) whose highest qualification was a B-Tech in Education Management and had 36 years’ experience. With these candidates in the shortlist the applicants cannot say they would have performed far more better than them if the two incumbents were not the best performing candidates.
The unfairness that has been proven is that of withholding the two applicants to present their candidature in the interview stage. Had it not been for the 1st respondent’s conduct they should have been shortlisted and allowed an opportunity to present their candidature. They, however, cannot be said to have been the best candidates had they been given that opportunity.
The relief sought by the applicants is compensation. They argue that they do not want to disturb the administration and carrying out of the mandate of improving teaching and learning in the Circuits concerned. They hold the best interests of the child to be paramount. The compensation that is to be awarded in the circumstances is for solatium for the hurt and pain endured by the applicants for having been withheld an opportunity to contest their candidature. I take this decision to be in line with what is provided in clause 71 of ELRC Resolution 3 of 2016 (Guidelines on promotions). The applicants have not had the opportunity to be considered as candidates worthy of promotion because of the 1st respondent’s unfair conduct.
The relief to be awarded to the applicants is that of solatium for the pain endured for having not been afforded the opportunity to contest their candidatures. In South African Post Office Limited v Soman NO and Others solatium was described as monetary relief or a pacifier for the injured feelings and humiliation that the employee suffered at the hands of the employer, or payment for impairment of the employee’s dignity. The solatium has to be just and equitable as in accordance with section 194(4) of the LRA. In Laubscher v GPSSBC and Others a South African diplomat, who was about to retire, was found to have been subjected to an unfair labour practice. The Court found 6 months compensation to be a fair and equitable compensation. The diplomat had been subjected to an unfair disciplinary sanction. In the case at hand the applicants were withheld an opportunity to contest their candidature.
I find that a fair and equitable compensation after consideration of all the circumstances of this case would be 3 months for each of the two applicants.

AWARD

I therefore make the following award:
75.1. The 1st respondent committed an unfair labour practice as provided in section 186(2)(a) of the LRA in that it acted in an unfair manner when it wrongfully did not shortlist the two applicants in the last round even though they had better attributes better than some of the 6 shortlisted male candidates.
75.2. The 1st respondent is ordered to compensate each of the two applicants with 3 months’ remuneration as solatium for the hurt endured as a result of the unfairness.
75.3. The 1st respondent is ordered to pay compensation to each of the two applicants by not later than 20 February 2025, in the following terms:
The 1st applicant (Mr Mawabo Silekwa) R174 092.25 (R58 030.75 x 3 months)
The 2nd applicant (Mr Mzoli Voyiya) R183 586.50 (R61 195.50 x 3 months)

Signature:

Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRCd at Pretoria, dated 28 January 2025.