ARBITRATION
AWARD

In the matter between

SADTU obo Nomfanekiso Manqina Applicant

and

Eastern Cape Department of Education First Respondent

Sicelo Siphiwo Manciya Second Respondent

Appearances: For the applicant: Mr Siyabonga Gashi (SADTU official);
For the first respondent: Mr Tseu Liphapang;
For the second respondent: Ms Tokozile Mtiya (SADTU)

Arbitrator: Mxolisi Alex Nozigqwaba
Heard: 01 August 2023
Delivered: 28 August 2023
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

1. This arbitration was held at Department of Education TRINSET Offices in Mthatha on 01 August 2023. Ms Nomfanekiso Manqina (applicant) was in attendance and was represented by Mr Siyabonga Gashi (SADTU official). Eastern Department of Education (1st respondent) was represented by its labour relations manager, Mr Liphapang Tseu. The appointed incumbent in the contested position, Mr Sicelo Siphiwo Manciya (2nd respondent), was represented by a SADTU official, Ms Tokozile Mtiya.
2. At completion of the proceedings parties agreed to submit written heads of arguments by not later than 08 August 2023, and they submitted as agreed. I have considered these heads in penning this award.
ISSUE TO BE DECIDED

3. I have to determine whether an unfair labour practice relating to promotion was committed when the 1st respondent took the decision to appoint the 2nd respondent and not the applicant after the two had received the same scores after their interviews. The applicant alleges that an unfair criteria was utilised to break the tie between them. If unfair labour practice is proven I will issue an appropriate relief.
BACKGROUND TO THE ISSUE

4. This is a promotion dispute involving Ndakana Primary School principal position (post level 2) advertised in the 1st respondent’s Open Post Bulletin Vol 1 of 2022, with gross salary of between R4 65000.00 and R930 000.00. Ndakana Primary School is in Circuit 23 Qumbu CMC under OR Tambo Inland.

5. After the post was advertised the applicant (educator post level 1 who is earning a gross salary of R28 728.00 per month), the 2nd respondent (also post level 1 assistant teacher who rejoined the 1st respondent after having resigned) and other candidates applied for the post. The 2nd respondent, the applicant and other candidates were shortlisted, and were invited to interviews where they contested their candidature. The applicant and the 2nd respondent were both score as top candidates. The 2nd respondent got appointed after the 1st School Governing Body adopted and utilised a certain criteria in braking the tie. His appointment to the position took effect from 16 January 2023.
6. The applicant’s challenge to the post is that the criteria adopted and utilised by the SGB to break the tie between her and the incumbent was grossly unfair as the incumbent got preferred because he is of male gender. The applicant is therefore saying the 1st respondent’s action of accepting and endorsing the grossly unfair criteria, which is reflected in the SGB minutes was both substantively and procedurally unfair. The relief she is seeking is that the appointment of the 2nd respondent be set aside and the process be recommenced at interviews, or alternatively be awarded compensation, or any appropriate relief allowed by section 193(4) of the Labour Relations Act 66 of 1995 (LRA). It is noteworthy that the applicant later changed her stance and pinned her mast to compensation as the ultimate relief sought.
7. The 1st and 2nd respondents dispute that an unfair labour practice was committed.
SURVEY OF THE EVIDENCE AND ARGUMENTS

8. It is common cause that the applicant and the 2nd respondent were both ranked as top candidates after the interviews as they were both scored at 72. The two met all post requirements. It is also common cause that qualifications and experience wise both candidates were fairly matched. They both have 20 years plus teaching experience, and have Senior Primary Teachers’ Diploma and Advance Certificate in Education. The applicant’s unfair labour practice challenge emanates from the criteria utilized to break this tie, which led to the incumbent being a preferred and successful candidate.

9. The applicant testified that she takes no issue with the process from shortlisting to interview stage. She also has no issue with the fact that she and the incumbent shared top candidature rating in terms of scoring by the panel. What she takes issue with is the criteria that got to be adopted and used by the School Governing Body (SGB) ratification committee in breaking the tie. In the recommendation meeting the SGB preferred the incumbent on the strength of him being a male. From the minutes of that meeting the following was said: ‘Siphuma noManciya ngenxa yesililo sabahlali bafuna indoda, nantsi ke indoda size nayo bahlali..’ [loosely translated as: We decide on Manciya’s name because of the communities cry for a man, there is the man that we brought you] (Page 31 of the 1st respondent’s bundle B).

10. On cross examination it was put to her that the incumbent got to be a preferred candidate after voting by the committee was resorted. The incumbent got majority votes from the committee. Her reply was that the SGB chair had influenced members to vote for a male candidate, and such sentiment is even reflected in the ratification minutes.

11. Mr Vuyolwethu Maxanyana (community member) testified that he attended a community meeting which dealt with who was to be the preferred candidate. In the meeting the most vocal position was that a male should be considered in order to achieve change. He conceded that he got to learn that a process of voting was engaged upon.

12. The first respondent’s witness, Ms Zoliswa Nogcntsi (SGB teacher component member) testified that she was part of the interview panel. After the applicant and the incumbent were scored the same voting was engaged upon in the ratification meeting, and from that process the incumbent got to be the preferred candidate. The Circuit Manager was then formally told that the incumbent worn and was the recommended candidate.

13. On cross examination she conceded that what is reflected in ratification committee minutes is that a male was preferred. When asked why was the resolution to vote and the voting results not reflected in the minutes in page 31 of B, her answer was that it was late and they were rushing to close. She went further to say her SGB had not received any training.

14. Mr Mahamba Mlungisi (Circuit Manager) testified that Ndakana Primary School is under his Circuit. In the recruitment process he offered guidance and never participated directly. He did not attend the ratification meeting. After having realized that there were two top scored candidates he advised the panel members to convene a meeting and decide who would be preferred candidate. He advised that they were allowed to vote or even toss a coin. He is not aware of the committee having taken a stance that it preferred a male candidate.

15. On cross examination he was referred to the ratification minutes in page 31 of B, and his answer was that he could not decipher what was said in the meeting as Xhosa language was not properly written. He went further to say that it was at arbitration proceedings that he first had sight of the ratification minutes.

16. It is argued for the applicant that from the ratification minutes it is crista clear that the SGB took a decisive stance to prefer the male candidate over the female one, in their apparent endeavour to break the tie. This stance was in direct contravention of section 6(3)(b)(iv) of the Employment of Educators Act 76 of 1998 as amended (EEA), which provides that a procedure that would ensure that the recommendation is not obtained through undue influence on members of the governing body is to be utilised. The voting which was engaged on (as per Ms Nogcantsi’s testimony) to break the tie is not recorded in the ratification minutes. In explaining this anomaly Ms Nogcantsi testified that the process of voting was not recorded in the minutes because it was late and they were rushing to conclude and close the meeting. From the unfairness occasioned by the 1st respondent’s unfairness the applicant got to be denied an opportunity to be promoted, and a flimsy excuse was advanced to justify the stance taken. The applicant therefore seeks a relief of compensation equivalent to seven months remuneration.

17. For the 1st respondent it was argued that there was a tie between the applicant and the incumbent and that tie had to be broken. The applicant’s witness confirmed that he got to learn that voting was engaged on in the ratification meeting he was not part of. The decision to promote the 2nd respondent, after engaging in voting to break the tie, was a fair one. The incumbent’s promotion got confirmed by the Eastern Cape Department of Education MEC, and he is already performing his principal duties. Setting his appointment aside would negatively affect the dispensing of the constitutional right of education to learners of Ndakana Primary School.

ANALYSIS OF EVIDENCE AND ARGUMENTS

18. The applicant’s case is not that qualifications wise and in terms of working experience she was far a better candidate than the incumbent. It is common cause that there is no difference in their qualifications and on teaching experience they both have 20 years plus experience. The crisp dispute of the applicant arise from the fact that in breaking the tie when they had both been scored 72 during interviews. She regards the criteria employed as having resulted in unfair labour practice.

19. It got to be a proven fact that the minutes of the ratification meeting were part of the recruitment file and can rightfully be regarded as part of the record pertaining to the decision to ultimately promote the 2nd applicant. Section 6 of the EEA makes the Provincial Head of Department (HoD) the ultimate appointing or promoting authority. Upon having received the recommendations from the SGB, which has to contain three preferred candidates in their order of preference , the HoD must before making an appointment (or approving promotion) ensure that the SGB has, inter alia, adhered to democratic values and principles and ensured that the recommendation was not obtained through undue influence on the members of the SGB. It is clear from the proven facts that the minutes of the SGB ratification meeting were not taken into consideration, or at least did not raise red flags to the HoD and thus calling for the breaking of the tie process to be scrutinized. It may happen that the said minutes were wrongfully not included as record of the SGB decision, but what remains factual is that the minutes are part of the record of the SGB decision.

20. There was evidence adduced by the respondent to the effect that voting was agreed to and resorted to for purposes of breaking the tie. The applicant’s witness conceded that he got to learn that voting was engaged upon in the ratification meeting he did not attend. It may happen that voting happened indeed and the incumbent got the most vote. What remains factual though is that such voting would have happened in the backdrop of the SGB influenced position, as reflected in the ratification minutes, that a male candidate was to be endorsed.

21. The HoD does have powers in terms of section 6(3)(e) and (f) either decline SGB recommendations if he is not convinced that it met the set requirements, or appoint any candidate he deems suitable from the list, and do that not in line with the proffered order of preference. In this case neither of these powers were utilised despite prevailing evidence from the record of the SGB decision (in the form of ratification minutes) that the incumbent got to be preferred on the strength of being male. From the evidence before me it has therefore been proven that the preference of the incumbent over the applicant was solely informed by the fact that he was male and that criteria can rightfully be regarded as unfair.

22. In Head of the Western Cape Education Department and Others v Governing Body of the Point High School and Others the SCA held that the Head of Department is enjoined to act reasonably in making appointments. The SCA made the following noteworthy remarks:
‘[15] …. In my view the HoD proceeded without proper understanding of the scope of the discretion which he was called upon to exercise. He disregarded the necessity of actually weighing the equity considerations to which he sought to give effect, against the interests of the Governing Body and the School (including the pupils) to have the benefit of improved ability in the teaching staff. In doing so he omitted to reach a reasonable equilibrium between these interests, rendering his decision reviewable on the basis described in Bato Star.’

23. In Department of Rural Development and Agrarian Reform v GPSSBC and Others the LAC held that the employer’s decision to promote one employee and not promote another may be interfered with in circumstances where the employer acted capriciously, arbitrary or in bad faith. In the case at hand there was really no rational basis for the 1st respondent’s HoD or his delegate to endorse the incumbent’s appointment who was recommended for promotion on the strength of him being male, as reflected in ratification minutes. Had utilisation of incorrect and unfair criteria been realized and corrective measures been engaged such unfair decision would not have found sustenance.

24. In the circumstances the 1st respondent is found to have exercised its discretion capriciously as it endorsed and approved the SGB’s incorrect and unfair criteria, of preferring the incumbent over the applicant solely because he is male. The 1st respondent’s decision was thus unreasonable in accordance with the standard set out in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others , and as a result thereof applicant was subjected to unfair labour practice. The decision has been proven to be substantively unfair as it is the ultimate decision to appoint the incumbent on the basis of being male which is proven to be unfair.

25. The applicant is seeking compensation. The unfair labour practice she was subjected to stems from the hurt she endured as a result of the unfair criteria utilised and somehow endorsed by the 1st respondent when it confirmed the SGB’s appointment of the 2nd respondent. The relief that I will go with in the circumstances is compensation, which should be regarded as solatium for the hurt and prejudice which has been suffered by the applicant. In South African Post Office Limited v Soman NO and Others solatium was described as monetary relief or 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 (disciplinary action short of dismissal). The Labour Court found that he had been subjected to disciplinary action which was not warranted and as a result suffered hurt and humiliation. The Court found 6 months compensation to be a fair and equitable compensation.

26. In the case at hand the applicant and the 2nd respondent had been awarded the same score and the 1st respondent endorsed and approved an unfair criteria utilised by the SGB’s ratification committee. The stance adopted by the SGB, in breaking the tie, went against the grain upon which our fair labour practice principle is founded, which is section of the 1996 Constitution. It is unimaginable that 29 years after the constitutional dispensation there can be a government functionary or agent which would prefer a candidate on the strength of being a male. A fair criteria of breaking the tie, like looking at candidate’s subject results, would have been a fair criteria. The 1st respondent had an opportunity to pick up the incorrectness of the criteria (as was reflected in ratification committee minutes) and apply corrective means, but such was not done. The applicant can rightfully be said to have been hurt and disillusioned when she got to learn that the incumbent got to be preferred over her solely because he was a male. In the circumstances I find R90 000.00 compensation to be a fair and equitable relief to pacify the hurt and disillusionment she has endured. I have taken into consideration of the fact that R50 000.00 solatium which was issued by LAC in 2014 (in SAA v V ) for unfair discrimination would be worth much more in August 2023. I have also considered the recent case law of Laubscher (decided in 2020) where 6 months was awarded as solatium.
AWARD

27. I therefore make the following award:
27.1. The 1st respondent committed an unfair labour practice as provided in section 186(2) of the LRA.
27.2. The 1st respondent is ordered to compensate the applicant with R90 000.00 being solatium for the hurt endured by the applicant as a result of the 1st respondent’s decision.
27.3. Interests on the amount in paragraph 26.2 above will accrue at the current applicable rate of 11.25 % interest (in terms of Prescribed Rate of Interest Act) from 30 September 2023.

Signature:

Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRC