28 November 2022 – ELRC103-22/23 KZN

IN THE ELRC ARBITRATION
BETWEEN:
NATU obo DARYL BONGANI NTULI “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the 1st Respondent”
NDLAZI, M “ the 2nd Respondent”

ARBITRATION AWARD

Case Number: ELRC103-22/23 KZN
Last date of the award: 14 November 2022
Date of the award: 24 November 2022
ELRC Arbitrator: Lindiwe Makhanya
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601 E-Mail: gen.sec@elrc.co.za Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration commenced on 22 July 2022, and after several sessions was finalised on 14 November 2022, at the Respondent’s premises, Umkhanyakude district office. It was held under the auspices of the Education Labour Relations Council (“the council”) ELRC in terms of section 191(5) (a) of the Labour Relations Act No.66 of 1995, as amended (“the Act”).

2. The Applicant, Mr. Darly Bongani Ntuli, was represented by Mr. S.L. Buthelezi, Union Official from NATU and the First Respondent, Department of Education-KwaZulu Natal, was represented by Mr. S. Mkhwanazi, Human resources manager. The proceedings were digitally recorded.

PRELIMINARY ISSUES, JURISDICTION, and ISSUES TO BE DECIDED

3. No jurisdictional issues were raised.
4. I have to decide whether or not the First Respondent committed unfair labour practice by not appointing the Applicant.
5. The Applicant sought to be appointed to the position of the principal at Esibhoweni primary school that was advertised in HRM Circular no. 35 of 2021.

BACKGROUND TO THE DISPUTE

6. The First Respondent is the Department of Education located in Umkuze, KwaZulu Natal. The Applicant commenced employment with the First Respondent on 27 January 1994 and was employed as Departmental head. The Applicant applied for the position of principal at Esibhoweni primary school, post no. 2403 as advertised in HRM Circular no. 35 of 2021. He attended the interview where he scored the highest points, 32.98, and was recommended by the interview committee but was not appointed to the position; instead, the Second Respondent, Ms.Ndlazi, was appointed, whereas she scored 30.32 points.

SURVEY OF EVIDENCE AND ARGUMENT

7. The First Respondent presented a bundle of documents which was marked “B,” and the Applicant presented a bundle of documents which was marked “A. Both parties submitted their closing arguments.

THE APPLICANT’ CASE

8. Mr. Darly Bongani Ntuli testified under oath that he worked at Esibhoweni primary school as a Departmental head for 15 years. He acted as a principal for one year and six months. He attended an interview for the position of principal at Esibhoweni primary school. After the interview, he was phoned by Mr. Mkhonto, a union official and the chairperson of the interview committee, that he had been successful. However, he was disappointed when Ms. Ndlazi was introduced as the new school principal. He applied for the position because he had experience and a clean disciplinary record.
9. Under cross-examination, when he was referred to page 7, “Bundle B,” clause 16 of HRM circular no 35 of 2021, which stipulates that the School Governing Board (SGB) has powers to change the rank order of preference of the interview committee, he responded that he was not aware. He conceded that there was no policy in place which stated that once a person acted in a position, they had to be appointed in that position.
10. He admitted that he did not enquire as to why Ndlazi was appointed. Although he did not remember when the interview occurred, he recalled that he was phoned by the chairperson of the SGB, Mr. Mabika, who informed him that he was a successful candidate. He later phoned Mkhonto, who refused to tell him the interview’s outcome. When asked why he contradicted himself regarding who had informed him about the interview results, he said he was confused when he testified during examination- in- chief. He conceded that he did not receive a letter of appointment from the First Respondent. He did not dispute that the SGB had a right to request the district office to appoint another candidate.
11. During re-examination, he said he disagreed with the SGB that learners were leaving the school to enroll elsewhere during his tenure as an acting principal. The SGB wrote the letter to the First Respondent that did not comprise teaching and non-teaching staff representatives, as only learner representatives were present.
12. Mr. Jeffrey Montukabonwa Mkhonto testified under oath that he was a member of the union, NATU. He was in an interview but did not participate in the shortlisting process. The Applicant was rated number one in an interview, whereas Ndlazi was rated number two.
13. Under cross-examination, he said he was an observer during the interview process but disputed that he called the Applicant and informed him that he had been successful. The Applicant informed him that Mabika called and congratulated him for being successful in an interview.
14. He admitted that he had signed the declaration form before the interview and was aware of the confidentiality of the interview process.
15. There was no re-examination.

THE RESPONDENT’S CASE

16. Mr. Mhawu Mabika testified that he was the chairperson of the SGB at Esibhoweni primary school. He disputed that he had phoned the Applicant to congratulate him about the results of the interview because he and the other members of the SGB ( parent component) had written a letter to the Respondent. After all, there were lots of problems at school. Many learners were leaving the school as it was poorly managed. The Applicant, the acting principal during that time, used to arrive late for work, and sometimes he would report for duty under the influence of alcohol. Learners would arrive in their homes with cigarette butts claiming they belonged to him; hence the SGB requested the First Respondent to change the rank order of the candidates for the principal position.
17. Under cross-examination, he said his role during the interview was that of a chairperson. The request to change the rank order of the candidates was due to the situation at the school, and some parents were proposing the closure of the school because of the Applicant’s conduct. After Ndlazi was appointed, there had been good progress at the school, and learners were no longer leaving.
18. He disputed that he phoned the Applicant because, after the interview, he and the other members of the SGB wrote a letter to the First Respondent requesting the change of the candidate’s rank order.
19. The teaching and non-teaching representatives of the SGB were informed about the meeting on 6 October 2021. However, they did not attend, so the meeting proceeded in their absence, and a letter was written to the First Respondent. In the letter addressed to the district office, they stated that they liked all the candidates but requested anyone from rank number two to five to be appointed except the Applicant due to his behaviour.
20. During re-examination, he said it was not the SGB’s responsibility to report the Applicant’s behaviour to the district office. It was in the learners’ interest to request the district office not to consider the Applicant for the principal position.
21. He said the SGB did not have the authority to appoint the principal, which was why they requested the district office to change the rank order of preference. The duty of the interview committee was to recommend the candidates.

ANALYSIS OF EVIDENCE AND ARGUMENT

22. I have taken note of section 186(2) of the LRA, which states that an “unfair labour practice” means any unfair act or omission that arises between an employer and an employee. I read this section together with section 185 (b) of the LRA, which states as follows; “Every employee has the right not to be: (b) subjected to unfair labour practice.
23. The Applicant bears the onus to prove that he was subjected to an unfair labour practice related to the promotion.
24. It was common cause that the Applicant scored the highest points by the interview committee for the principal position at Eshibhoweni primary school. It was also common cause that the Applicant was not appointed to the position, but Ndlazi was appointed, whereas she scored lower points during an interview.
25. The First Respondent disputed that the Applicant ought to have been appointed to the principal position because he had scored the highest points in an interview.
26. At the outset, it is important to state that I found the evidence of the Applicant that Mabika informed him that he was the successful candidate not to be truthful because Mabika’s evidence revealed that he was part of the SGB members who wrote a letter to the district office requesting a change of rank order of recommended candidate of the interview committee. Therefore, it cannot be correct for the Applicant to claim that Mabika informed him that he was successful in an interview when Mabika was part of the SGB members that did not want the Applicant to be appointed.
27. The Applicant claimed he ought to have been appointed to the principal position as he scored the highest point in an interview. On the other hand, the First Respondent claimed that although the Applicant scored the highest, the SGB had authority in terms of clause 16 of HRM circular no 35 of 2021 to change the rank order of recommended candidates of the interview committee. After the interview committee recommended the Applicant, the SGB members decided to have a meeting, as testified by Mabika, where a letter was drafted requesting the district office to change the rank order of recommended candidates. The reasons put forward by the SGB were that the Applicant did not manage the school properly while he was an acting principal.
28. The Applicant believed that since he scored the highest in an interview, he ought to have been appointed to a position. However, he did not dispute that the interview committee did not have the authority to appoint. The recommendations of the interview committee alone did not guarantee the Applicant’s appointment, which was why the district office changed the rank order of recommended candidate; hence Ndlazi was appointed.
29. During cross-examination, the Applicant admitted that he did not enquire from the First Respondent about why Ndlazi was appointed. It seems to appear that the Applicant did not know the reason why Ndlazi was found to have been the best candidate after the district office made a final decision because his bone of contention was that he scored the highest points in an interview and, therefore, ought to have been appointed. However, the Applicant did not testify that he was the best-suited candidate compared to Ndlazi. There was also no evidence of the Applicant’s qualifications or suitability for the position, so it needed to be clarified on what basis the Applicant claimed to be the most suitable candidate compared to Ndlazi when he did not present any evidence to suggest such.
30. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC, it was held that a finding that a failure to promote was unfair must be a rational one, i.e., it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the employees’ qualifications and or suitability for the position in question against that of other candidates. In this present case, being scored the highest in an interview did not mean that the Applicant would be appointed to a position even after it was discovered that he did not meet the inherent requirements of the post. According to the First Respondent, the Applicant did not possess the qualities to enable him to manage the school properly because the request of the SGB was considered, and Ndlazi was appointed. It must be noted that the Applicant did not dispute the evidence of Mabika that during his tenure as an acting principal, there were lots of problems at school which resulted in the SGB requesting a change of rank order of recommended candidates. Therefore it cannot be correct for the Applicant to claim that he was overlooked for promotion when the school had problems when he was acting principal.
31. The discretion not to promote should be exercised in a way that does not constitute an unfair labour practice and does not fall foul of the balanced approach called for by the Constitution. In this case, the first Respondent did not dispute that the Applicant scored the highest points during an interview; however, it exercised its discretion by not appointing him. The evidence of Mabika revealed that the Applicant did not properly conduct himself while he was the acting principal of the school; as parents were threatening to shut down the school, the request of the SGB was considered by the district office. Considering the undisputed evidence of Mabika regarding the Applicant’s behaviour, the first Respondent demonstrated that the decision not to appoint the Applicant was exercised correctly and not based on a biaised manner. The first Respondent was not expected to appoint the Applicant when the parents threatened to close the school due to his conduct while acting principal. In my view, the decision not to appoint the Applicant was rationally justified. There was no evidence led to suggest that the first Respondent was capricious or arbitrary in its decision.
32. It is trite law that an employee who complains that the employer’s decision or conduct constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct is not established, that is the end of the matter. The Applicant failed to prove that he was the most suitable candidate compared to Ndlazi as no evidence was led in that regard. In the circumstances, it is my finding that the Applicant has failed to establish the existence of an unfair labour practice case within the context of section 186(2)(a) of the LRA.
33. I, therefore, make the following award:

AWARD

34. The Applicant has failed to prove unfair labour practice conduct.
35. The Applicant is not entitled to any relief.

LINDIWE MAKHANYA
PANELLIST