Commissioner: Eva Ngobeni
Case No: ELRC431-20/21GP
Date of Award: 24 June 2021
In the Dispute between:
SADTU obo Bandzo, Lesiba George
(Applicant)
And

Department of Education (1st Respondent) And Cordelia Mmapule Mokgoshi (2nd Respondent)
(Respondent)

Union / Applicant’s representative: Tuwani Ramabulani (SADTU official)
E-mail: bandzogeorge@gmail.com
Fax:
Contact number: 082 838 1227

1st Respondent and 2nd Respondent’s representative: George Mbonde
E-mail: George.mbonde@gauteng.gov.za
Fax:
Contact number: 072 394 0440
DETAILS OF HEARING AND REPRESENTATION

1. This matter was heard for arbitration via virtual Zoom Meeting on 25 March 2021, at 10h00. All parties were in attendance and representation of each party is as indicated above. Parties submitted a consolidated bundle of documents numbered page 1- 93. Parties submitted written closing arguments on 21 May 2021.

ISSUE FOR DETERMINATION

2. I must determine whether the Respondent committed an unfair labour practice in appointing the second Respondent into a position of HOD. If unfair, I must determine the appropriate remedy.

BACKGROUND OF THE DISPUTE

3. The Applicant is currently employed with the Department of Education as an educator, post level 1 at Arethabeng Primary School. The Applicant commenced permanent employment on 01 April 2014 and was employed in terms of the Employment of Educators Act of 1998. The Applicant earns a gross salary of R25 984-44 per month.

4. The Applicant applied for a post of Head of Department (HOD) at Arethabeng Primary School. He was shortlisted, attended an interview, and was recommended for appointment into the position of HOD. However, the Respondent deviated from the recommendations and appointed the 2nd Respondent. Subsequently, the Applicant referred a dispute of unfair labour practice relating to promotion to the Council. The matter remained unresolved at conciliation hence these proceedings. The Applicant sought appointment / promotion into a position of HOD at Arathabeng Primary, alternatively, to be appointed into a similar position at a different school.

SURVEY OF EVIDENCE AND ARGUMENTS
The Applicant testified and called one (1) witness to corroborate his evidence. Only salient points are noted:

5. The Applicant testified that he completed his matric with the following subjects: Maths, Physical Science, Geography, Biology and Northern Sotho. He acquired his Higher Diploma in ABET Education in 2012. His major subject was Business Economics. He completed his Advanced Certificate in Technology in 2013. His experience includes teaching Maths and Physical Science at an ABET Centre. He taught NS Tech and Maths for grade 6/7 at Mathakga Primary School and also taught Maths and Sepedi for intermediate phase.

6. He has 9 years’ experience in teaching intermediate phase. He acted as the Head of Department but not for the same position advertised. There was no communication sent to him indicating that he was unsuccessful. He became aware of his non-appointment when the appointment letter for Ms Mokgoshi came through. He was showed a letter by the Director.

7. Under cross-examination he argued that his ABET qualification was relevant for the position. He further argued that he has experience in primary school. A version was put to him that Ms Mokgoshi has superior qualifications to his. His response was that the requirement of a post was REQV 13. He argued that the incumbent did not complete his honours degree. He conceded that his ABET experience is not relevant to the position he applied for.

8. He further conceded that with his qualification acquired from UNISA, he did not specialize in English and Maths. Accordingly, the information provided on his application that he specialized in English and Maths is incorrect. He conceded that the qualification of Ms Mokgoshi is relevant to the position. When a version was put to him that the incumbent received a Certificate of Recognition for English; his response was that the certificate issued was for attendance and not done at a university level. Therefore, the certificate is not relevant for consideration.

9. He conceded that the incumbent acted in the HOD position for English and NS Tech for 9 months. He argued that it cannot be proven that the incumbent has superior management experience than him. The Respondent failed to communicate with the SGB when deviating from the recommendations. Although the margin between himself and the incumbent is minimal, he believes that the Respondent was unreasonable when appointing the incumbent because he was scored higher.

10. The Applicant conceded that he has not taught English for five (5) years and the last time he did so was in 2014. When a version was put to him that the incumbent is currently an English teacher, manages English Educators at one of the clusters within the district and is superior in her experience; his response was that he is superior because of his experience in NS Tech. Another version was put to him that the incumbent has teaching experience for both NS Tech and English; his response was that he has 9 years’ experience of teaching Sepedi. He argued that the incumbent’s B Tech qualification is not related to an education qualification.

11. When a version was put to him on when he taught NS Tech and for how long at Mathaka Primary school; his response was that he taught from 2012 – 2014 which is two (2) years. He was not certain on when he started teaching at Arethakeng. When a version was put to him that the incumbent was the best of all candidates; his response was that according to the interview panel, he was the best candidate. A version was put to him that he did not have NS Tech and English as a post matric qualification; He argued that he has technology as a subject. He argued that the incumbent has an edge in English Language, and he has an edge on NS Tech.

12. He argued that his certificate and that of the incumbent is graded the same within the department as REQV 13. He has a senior phase whilst the incumbent has a senior phase and FET, but not for primary phase. When a version was put to him that the Respondent is required to appoint the most suitable candidate other than a person who meets the minimum requirements; his response was that from the interview, he was the one recommended for appointment and the incumbent came second.

13. Jack Makhonya testified that shortlisting was done by the district and the Applicant met the minimum requirement. The Applicant was recommended for appointment by the SGB, and the incumbent came second. Interviews were conducted in June 2020 with the appointment effected in October 2020. He received a letter of deviation which specified that the recommended candidate did not meet the minimum requirement and the second candidate is to be appointed. SGB was concerned about the delay in appointments and had thought that this delay was because there was another reason. A communique about the deviation to appoint the second candidate was only received four (4) months after the interview which is contravention to Collective Agreement 2 of 2005.

14. Under cross-examination he stated that he has four (4) years of experience as an SGB member. He further stated that during his first year, the incumbent was a secretary and took his responsibilities seriously. During this time, superiors were happy with her conduct in general. The appointment of any of the three (3) recommended candidate would not be unreasonable because each one could have met the needs of the school. Therefore, the SGB have no issues with the appointment of the incumbent. When a version was put to him on whether the Applicant was the best of all candidates; his response was that he was one of the best.

15. Both Applicants were able to respond to questions. He argued that when making recommendations, they looked at the fact that the incumbent did not have NS Tech and have not taught the subject at school. He conceded that the incumbent has been teaching NS Tech and English, in addition she acted as the HOD. The SGB considered the Applicant because they identified English as one of the subjects he taught in the past. He argued that not teaching the subject at the time, does not imply that he did not have the experience to do so.

16. When a version was put to him that the District Director could not comply with the 14 days due to Covid as her role covers a wide geographical area and her office attends to voluminous appointment; his response was that the Director should have communicated timeously. He argued that the circumstances outlined does not stop one from sending an email. On receipt of the appointment letter, they implemented it as is. He argued that it does not matter who was to be appointed hence they did not query or challenge same. The SGB is only tasked to make a recommendation and there is no problem with the appointment of the incumbent. He conceded that the interviews were conducted in July 2020 and appointment letter issued on 13 October 2020 for resumption on 01 November 2020.

Paula Galego testified on behalf of the Respondent.
(only salient points are stated herein)

17. At the time of Ms Mokgoshi’s appointment, she was the District Director for Tshwane West. She plays an oversight role and quality assurance to ensure compliance. She ratifies Interview processes and attends to appointments. When appointing a candidate, she considers the best interest of the child, a candidate to be appointed and needs of the school. The responsibility of the School Governing Body (SGB) is to shortlist, conduct interviews and make recommendations. As the Director, she is not bound by the recommendations of the SGB.

18. She appointed Ms. Mokgoshi after checking her application form, qualifications, and experience. The Applicant had three (3) months management experience, NS Tech but did not have English language. He also has a qualification of a Higher Diploma in Education. Ms. Mokgoshi has acting experience in English for a period of three (3) months, acted for nine (09) months managing English and three (3) months for NS Tech. Ms. Mokgoshi’s qualifications include a postgraduate qualification in education and senior education and training, a Bachelor’s degree in Technology, a Certificate in Primary and Intermediate Phase.

19. When compared to the Applicant, the incumbent ranked higher because of her qualifications and experience in NS Tech and English. The Applicant only had experience and qualification in NS Tech. Based on the scoring during the interview, all three (3) candidates were employable. The Applicant scored 140, whilst Ms. Mokgoshi scored 134. When regard is had to experience and qualification possessed by Ms. Mokgoshi, the variance in scoring between the Applicant and Ms. Mokgoshi gets closed.

20. Ms. Mokgoshi ranked higher because she answered all questions and is a leader in English. The SGB also recognized the lead role which Ms. Mokgoshi will play in the development of English. Ms. Mokgoshi also has been awarded a Certificate of Appreciation. Due consideration was given to the fact that Ms. Mokgoshi will be able to do justice to the school. The district runs a project meant to enhance the use of English as a home language. Ms. Mokgoshi played a vital role in driving the project.

21. She could not consult with the SGB as envisaged by the guidelines because of the new wave of Covid which affected operations. The department is no longer able to have meetings and parties are engaged through letters. The pandemic also affected the pace at which things were being done. She conceded that the department failed to meet the requirement of the guidelines but managed to engage the SGB, the response of which was that they would not have a problem.

22. Under cross-examination she argued that the post requirement was for head of department in NS Tech and English. She stated that both candidates met the requirements of the post, however Ms. Mokgoshi had an additional qualification for English. When comparing the two (2) candidates: the Applicant had a Higher Diploma in Adult Education whilst Ms. Mokgoshi has a Bachelor’s Degree. English was a determining factor. Any one of the candidates should cover both qualifications as required by the post.

23. Both candidates have certificates in education. The Applicant had an Advanced Certificate whilst Ms. Mokgoshi has a Postgraduate Certificate, a recognition and certification. The incumbent is the best of all candidates. English was prevalent in the incumbent and lacked from the Applicant. She conceded that a three (3) years qualification is categorized as REQV 13. She argued that the appointment of Ms. Mokgoshi was not solely based on qualifications because she is not a qualification expert. She does not interrogate the qualifications but looks at them at face value.

24. When a version was put to her on whether there was anyone with the learning areas required by the post; her response was that a Bachelor’s Degree in Technology covers a wide spectrum. A person with such a qualification cannot be disregarded. She conceded that Physical Science or Biology is not reflected on the qualifications. She argued that the post required a candidate that was strong in NS Tech and English Language. Her understanding was that all candidates who attended the interviews met the minimum requirements.

25. She disputed the version that the Applicant was more qualified in terms of NS Tech and that Ms. Mokgoshi did not meet the minimum requirements. A Certificate of Participation given to the Applicant was recognized to address a particular part of the post. She conceded that none of the candidates had a tertiary qualification relating to English. When a version was put to her that the Applicant had the edge on NS Tech; her response was that an assessment to make an appointment was not done on a piecemeal basis. Experience and qualifications was were considered for appointment. The position was for Head of Department for NS Tech and English.

26. When asked whether she considered that the Applicant taught NS Tech for six (6) years and taught English for three (3) years at Mathaka; her response was that she considered the entire educational experience which weighed more on the experience to act. The Applicant acted three (3) months for Maths, NS Tech and Sepedi. She argued that she needed a person that was experienced. Ms. Mokgoshi had the edge on experience.

27. She acknowledged the failure of the department to adhere to the guidelines required in the event of a deviation on appointment. She argued that she could not meet the SGB due to Covid restrictions but consulted with them in writing. She disputed the version that the SGB did not receive a letter detailing the deviation. When a version was put to her that females are overrepresented at the school; her response was that gender was not a determinant in the appointment of Ms. Mokgoshi. Employment equity is not considered at school level but at departmental level. She conceded that the outcome of the interview was not shared with candidates during the five (5) days period due to the new normal. Due process could have been followed to allow for the Applicant to lodge a grievance.

ANALYSIS OF EVIDENCE AND ARGUMENT

28. It is common cause that: _
a) the Applicant and Ms Mokgoshi met the minimum requirements of the post;
b) the Applicant was recommended for appointment by the SGB, but Ms Mokgoshi was appointed although she was the second recommended candidate;
c) the appointment was effected after two (2) months of conducting the interviews; and
d) a letter outlining the deviation was sent to the SGB, with an appointment letter of Ms. Mokgoshi, denying the Applicant an opportunity to lodge a grievance before the appointment.

29. Clause 6.2.15 read together with clause 6.2.16 of the Recruitment and Selection Guidelines of the Appointment of the Educators provides thus: _
a) The Head of Department or delegated authority considers the recommendation by ensuring that the SGB has met the requirements as stipulated and thereafter may appoint the suitable candidate.
b) Despite the order of preference in form C/Submission: Annexure A, the Head of Department or delegated authority will appoint a suitable candidate on the list of interviewed candidates.
c) …………………………………………………………….

6.2.16 Recommendation process
a) The SGB chairperson will recommend to the HOD /District Director
b) In cases where the HOD or delegated authority declines the SGB’s recommendation he/she must provide full motivation in writing within 14 working days or call a meeting to discuss the decline of the recommendation and to minute the decision taken in the meeting.
c) It must be mentioned that should there be no communique within 14 working days from the HOD or delegated authority it will imply that the recommendation made by the SGB stands.
d) …………………………………………………………

30. It is trite that the SGB can only make recommendations for appointment. The HOD is ceased with the responsibility to appoint the most suitable candidate after due consideration of the recommendations made by the SGB. The Court noted in SAPS v SSSBC [2010] 8 BLLR 892 (LC) thus ‘where an employee complains about the fact that another employee was promoted, he or she must show that he or she has the necessary skills and that the person who was promoted does not possess the same or similar level of skills. The fact that the candidate who was eventually promoted did not score the highest marks or is not better qualified does not, however, necessarily justify a conclusion that a decision not to promote was unfair’.

31. It is evident from the facts that the Applicant and Ms Mokgoshi possessed similar level of skills. Although the Applicant was scored higher by the SGB, Ms Mokgoshi has skills in managerial experience, exposure and involvement within the district on issues pertaining to English language and her qualifications placed her as a better suited candidate for the position. Suffice to state that her being a cluster leader in the district placed her in a position to can advance the needs of the school and the best interest of the child. The SGB Chairperson alluded that any one of the three (3) candidates recommended was best suited and could serve the interest of the school. I therefore find that there was no substantive unfairness in the appointment of Ms. Mokgoshi.

32. On procedural aspect, the Respondent failed to adhere to the guidelines in meeting the SGB to outline the reasons for the deviation. More so, there has been a considerable delay in finalising the appointment. The Applicant was denied an opportunity to lodge a grievance against the appointment of Ms Mokgoshi given that the appointment letter was issued together with the letter of deviation. Although the Respondent cited reasons related to the new norm being Covid, the reasons proffered are not acceptable given that the interviews were also conducted during the period of the new norm.

33. Having considered the parties submissions, I find that the Applicant failed to discharge the onus to prove on balance of probabilities that the conduct of the Respondent amounts to an unfair labour practice relating to non-promotion. The Applicant was able to prove a procedural defect in so far as him being denied an opportunity to lodge a grievance, and the failure by the Respondent to communicate the decision timeously. On this basis, I order as follows:

AWARD

34. The Respondent has not committed unfair labour practice against the Applicant relating to non-appointment.
35. The Respondent, Department of Education (Gauteng), is ordered to pay solatium to the Applicant, George Bandzo, in the amount of R5 000-00.

36. This amount is due and payable into the Applicant’s bank account details as known to the Respondent on or before 01 July 2021.

Thus done and signed in Pretoria on 24 June 2021

ELRC Panellist
Evah T. Ngobeni