IN THE ELRC ARBITRATION
BETWEEN:
NATU obo MVUBU NN the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU-NATAL 1st “Respondent”
XABA S 2nd “Respondent”
ARBITRATION AWARD
Case Number: ELRC239-22/23KZN
Last date of arbitration: 03 September 2024
Date of submission of closing arguments: 09 October 2024
Date of award: 22 October 2024
NTOMBIZONKE MBILI
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
The General Secretary
ELRC Building
Private Bag X126
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration commenced on 06 February 2024, proceeded on 07 March 2024, 27 March 2024, 07 May 2024, 11 July 2024 and the presentation of evidence was finalized on 03 September 2024. The arbitration was held at the Ulundi offices of the KwaZulu-Natal Department of Education.
2. NATU a trade union, referred this dispute on behalf of its member, Nonsikelelo N Mvubu (hereinafter referred to as the Applicant.). The Applicant was represented by Mr Njabulo Mtolo, a Union Official from NATU.
3. The Respondent, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Mr ME Mabaso, employed by the Department as an Assistant Director for Labour Relations and the second Respondent, Mr Simphiwe Xaba was represented by Mr Seth Acheampony, an Attorney.
4. Bundles of documents were submitted on behalf of the Respondent and the Applicant respectively. The proceedings were digitally and manually recorded. The services of an interpreter were utilized and Ms Pinky Mabele provided interpreting services.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
5. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186 (2) of the Labour Relations Act 66 of 1995 (LRA) related to Appointment/Promotion.
6. I am required to decide whether the conduct of the Head of Department in dissolving the School Governing Body, appointing an independent committee and appointment of second respondent amounts to an unfair labour practice.
7. Whether first Respondent should have considered the grievance lodged by the Union Observer.
8. The Applicant seeks for the first process to stand and run its course.
BACKGROUND
9. On 03 September 2024 the parties agreed that the process should be conducted as a stated case. This view was considered by the parties after they exchanged bundles of documents and delving deeper into the merits of the case.
10. The parties agreed on the following timelines in respect of submitting their arguments. The Applicant party agreed to make written submissions and file by no later than 17 September 2024. The Respondent was to file the answering arguments on 25 September 2024 and the Applicant was to reply by 02 October 2024.
11. On 17 September 2024, Mr Njabulo Mtolo, the Applicant’s representative made a request for the extension of the submission dates based on the reasons that Masibumbane Secondary School had been broken into and the laptop containing the arguments had been stolen. The Respondent confirmed the state of events and consented to the request for extension. The request was granted by the Commissioner and the parties were directed to submit on the following new dates: the Applicant was to submit arguments on 26 September 2024, the Respondent to file answering arguments on 02 October 2024 and the Applicant to reply on 09 October 2024.
The parties agreed that the common cause factors are as follows:
a) Post number 2585 was advertised in HRM 35 OF 2021. The post description, Deputy Principal (opposed position) at KwaNogcoyi Primary School.
b) The Applicant at the time of the post was employed as a post level one Educator and the second respondent was employed as the Departmental Head.
c) There were two processes. The first process the Applicant was shortlisted and interviewed and was ranked number one. The second respondent applied and was not shortlisted.
d) In the second process the Applicant was not shortlisted, and the second respondent was shortlisted, interviewed and successful.
e) Mr Siyabonga Mhlongo, a Union Official from SADTU, that acted as an observer in the interview committee, lodged a grievance against the process. The outcome of the grievance was that the process should be redone from the formation of the interview committee.
f) In the second process there was a new formulation of the interviewing committee. The interviewing committee was formed by the Department and not the school governing body.
g) The Applicant is seeking for the first process to stand and run its course.
SUMMARY OF ARGUMENTS
The Applicant’s case
12. The Applicant made submissions which I will set out to include the most salient given the limited issues I am set to determine.
13. The Locus Standi of the Union observer to file a grievance was placed in dispute.
14. According to the applicant, the union observer, Mhlongo, lacked the authority to refer a grievance In his own capacity.
15. Mhlongo was not an applicant for the principal post and therefore could not have been treated unfairly.
16. In respect of Administrative Irregularities the applicant submitted that the Head of Department (HOD) acted ultra vires by dissolving the School Governing Body (SGB).
17. It was argued that the HOD had no legal authority to dissolve the SGB. The SGB has its own legal personality and cannot be dissolved by the HOD.
18. In respect of procedural fairness the applicant averred that the HOD failed to consider written representations from the SGB. The HOD denied the SGB the right to appeal.
19. It was further submitted that the HOD’s decision was unreasonable and motivated by a desire to finalize the appointment by any means necessary.
20. The applicant further made the averments in respect of questionable documentation, to this end the applicant stated that the letters submitted by the respondents appeared to be fraudulent, that there were inconsistencies in letterheads and fonts suggest tampering.
21. The applicant argued that the documents should be disregarded as evidence.
22. The applicant stated that the HOD acted Ultra Vires in so far as the appointment was concerned. He submitted that the HOD’s appointment of an independent panel was unlawful. The panel’s mandate was to appoint a deputy principal, by passing the SGB’s recommendation.
23. The applicant argued that the appointment of Mr. Xaba should be set aside. He went on to state that there was breach of administrative justice as the HOD’s decision violated the principles of administrative justice. The decision was unlawful, unreasonable and procedurally unfair in the applicant’s point of view.
The Respondent’s case
24. The Respondents, represented by the 1st Respondent (the Employer), presented the arguments summarised herein below.
25. Regarding the Union Observer’s right to lodge grievance the respondent stated that the union observer has the right to lodge grievances on behalf of members (Procedure Manual, paragraph 15.6). The observer lodged a grievance on behalf of Ms. NE Mazeka, a candidate affected by the selection process.
26. The respondent further argued that the Head of Department has the power to appoint without the School Governing Body’s recommendation if they fail to act within two months (Employment of Educators Act, Section 6(3)(L)).
27. The School Governing Body failed to redo the selection process within the stipulated timeframe and were accordingly in breach of the legal framework. The appointment process followed the procedure directive for selection processes (HRM Circular 55 of 2015).
28. It was argued that the Independent Panel’s selection process was fair and unbiased the School Governing Body’s acknowledged challenges in functionality. The Body failed to account for promotion posts, including the disputed one.
29. It was argued on behalf of the respondent that no unfair labour practice was carried out by the respondent. The selection process was procedurally fair. It was argued that there are alternative remedies that the applicant could have utilised. It was argued that if the Commissioner finds procedural flaws, consider alternative remedies to avoid disrupting teaching and learning.
30. The respondent objected to the setting aside of 2nd Respondent’s appointment as it would jeopardize the interest of the school and learners.
31. The Respondents requested the dismissal of the Applicant’s dispute, arguing that the appointment process was lawful, reasonable and procedurally fair.
ANALYSIS OF EVIDENCE AND ARGUMENT
32. This matter is a promotional post dispute related to Post number 2585 as advertised in HRM 35 OF 2021. The post description was for the Deputy Principal position at KwaNogcoyi Primary School.
33. In a matter such as the present where an applicant is claiming that she has been subjected to an unfair labour practice. The applicant bears the onus to demonstrate that she has been subjected to an unfair labour practice by being overlooked for promotion in circumstances where they were the best candidate for appointment.
34. Proper regard had to the summary of the issues that the parties have agreed forms the basis of what I am to determine, raises the question of whether I have the powers to consider what the parties are calling on me to determine. This inadvertently means that if I do, then I will not be constrained to consider the questions I am called upon to consider.
35. In the case of President of the Republic of South Africa and others v South African Rugby Football Union and Others 1999 (10) BCLR 1059 held that:
“In section 33 the adjective ‘administrative’ and not ‘executive’ is used to qualify ‘action’. This suggests that the test for determining whether conduct constitutes ‘administrative action’ is not the question whether the action concerned is performed by a member of the executive arm of government. What matters is not so much the functionary as the function. The question is whether the task itself is administrative or not.”
36. It appears from the facts that the HOD exercised powers in terms of the Employment of Educators Act (EEA) as well as under the South African Schools Act (SASA) when he dissolved the SGB of KwaNogcoyi Primary School and directed the process to start afresh. The proper question here is whether the HOD had the power to do so, if he did, then the next question is whether I can interfere with such powers.
37. In terms of section 6(3) of the EEA, the HOD has the power to do the following:
“(f) Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list.
(g) If the Head of Department declines a recommendation, he or she must (i) consider all the applications submitted for that post; (ii) apply the requirements in paragraph (b)(i) to (iv); and (iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post.”
38. Section 22(1) of the SASA states the following:
“(1) The Head of Department may on reasonable grounds withdraw the function of a Governing Body”
39. From the above provisions it appears that the HOD has the power to decline a recommendation and to consider the applications submitted by applicants to a post. The HOD further, has the power to dissolve a Governing Body of a Government School. The nub of the issues arising from this dispute is whether the HOD exercised the statutory powers in a manner that is reasonable, fair and just.
40. In the case of Minister of Defence and Military Veterans v Motau and Others (CCT 133/13) [2014] ZACC 18; 2014 (8) BCLR 930 (CC); 2014 (5) SA 69 (CC) section 3 of the Promotion of Administrative Justice Act 3 of 2000 was interpreted to define administrative action in the following regard:
“… there must be (a) a decision of an administrative nature; (b) by an organ of State or a natural or juristic person; (c) exercising a public power or performing a public function; (d) in terms of legislation or an empowering provision; (e) that adversely affects rights; (f) that has direct, external legal effects; and (g) that does not fall under any of the listed exclusions.”
41. In the case of Pepcor Retirement Fund and Another v Financial Services Board and Another 2003 (6) SA 38 (SCA) the SCA held:
“This Court has already held that if an administrative act has been performed irregularly – be it as a result of an administrative error, fraud or other circumstance – then, depending upon the legislation involved and the nature and functions of the public body, it may not only be entitled but also bound to raise the matter in a court of law, if prejudiced…”
42. In the case that presents before me it seems that we are dealing with an instance of the HOD’s, exercise of public power, accorded to him in terms of legislation. This is so because the HOD was exercising powers in terms of the EEA and the SASA when he considered the applications and when he dissolved the SGB. It is at the center of this dispute that the HOD through his powers under both the EEA and SASA, interfered with the process which gave rise to the complaint and allegations of an unfair labour practice. It would be amiss of me not to consider these essential issues.
43. Where a party seeks to challenge administrative action in line with the decision of Pepcor Retirement Fund and Another v Financial Services Board and Another 2003 supra, the appropriate forum is the High Court. The Labour Court can also be approached in terms of section 158(1)(h) of the LRA, which also makes provision for review of a decision where a decision is made by the State as an employer. These are the appropriate forums where the administrative action may be challenged.
44. There is a body of jurisprudence that deals with the effect of administrative action, which is what I must consider in this matter. The classicus case in relation to the effect of administrative action is the case of Oudekraal Estates (Pty) Ltd v City of Cape Town and Others (41/2003) [2004] ZASCA 48; [2004] 3 All SA 1 (SCA); 2004 (6) SA 222 (SCA) (28 May 2004). In this case the SCA held:
“Until the Administrator’s approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. The proper functioning of a modern state would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognised that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside.”
45. The decision of the HOD cannot be interfered with, except through a Court by way of a review. I am accordingly not clothed with powers to interfere with the determination that was made by the HOD.
46. It follows from the above analogy that I am constrained in considering the issues giving rise to the allegations of an unfair labour practice claim before me as they stand, my interference would invite being held to be exceeding my powers. Which are set out in section 138 (9) of the LRA as follows:
“(9) The commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award—
(a) that gives effect to any collective agreement;
(b) that gives effect to the provisions and primary objects of this Act;
(c) that includes, or is in the form of, a declaratory order.”
47. The issues that I am called upon to entertain go beyond what the LRA allows me to undertake. It is for this reason that I am constrained from dealing with the dispute before me.
48. The applicant is not without a remedy, as a review can still be brought before a court where relief may still be granted.
AWARD
I accordingly make the following award:-
1. The Council does not have jurisdiction to entertain the matter;
2. The referral is dismissed.
NTOMBIZONKE MBILI
Arbitrator 22 OCTOBER 2024
ELRC239-22/23KZN