3 June 2022 – ELRC 665-21-22 KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN DURBAN
Case No ELRC 665-21-22 KZN
In the matter between
NATU O B O THULANI ZAKHELE MBUYAZI Applicant
and
DEPARTMENT OF EDUCATION: KZN 1st Respondent
Ms PEARL SHANGASE 2nd Respondent

ARBITRATOR : AS Dorasamy
HEARD : 19 & 20 MAY 2022
DATE OF AWARD : 2 JUNE 2022
SUMMARY : Labour Relations Act 66 of 1995 – Section 186(2) (a) – alleged unfair
conduct related to promotion
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration on 19 and 20 May 2022 and the evidence was completed at the Ndwedwe Circuit office, under the auspices of the Education Labour Relations Council (ELRC). Mr Mbuyazi represented himself, Ms N A Ngonyama represented the Department of Education KZN (1st respondent), second respondent Ms Thembisile Pearl Shangase represented herself. The parties were to submit written closing arguments by the 27 May 2022. The party’s submissions and the applicable provisions of the applicable circulars relating to promotions were considered when I arrived at my decision.
THE ISSUE IN DISPUTE
2 I am required to determine whether the 1ST respondent committed any unfair labour practice relating to not promoting the applicant to the post in question (HRM Circular Number 13 of 2020 Principal of Mgezengwana Primary School post number 18, and dependent thereon the appropriate relief may be determined.
THE BACKGROUND TO THE DISPUTE
3.1 The applicant applied for the post, was short-listed and interviewed in the first two processes but not short listed and not appointed by the independent panel that took over the process.
3.2. Ms Thembisile Pearl Shangase was appointed to the post. The applicant prays that the appointment be set aside alternatively and the first two processes done by the School Governing Body was fair.
The respondents oppose the relief sought by the applicant.
3.3. All documents referred to had been made available to the parties at arbitration. The markings of the documents was standardised with the parties at the arbitration.

APPLICANT’S (EMPLOYEE) OPENING STATEMENT
4. There was an advert for principalship and he was short listed and interviewed in two processes.
5. The processes were to be conducted and observed by the Unions.
6. There were grievances and the District Grievance Committee (DGC) set aside both the processes and recommended that the process by re-done by the District. He was unhappy and lodged a dispute with the ELRC.
7. He prays that the processes done by the SGB must be considered and the one done by the District must be ignored. He believes that the SGB was fair.

FIRST RESPONDENT’S (EMPLOYER) OPENING STATEMENT
8. The first respondent believes that there were irregularities in the two processes resulting in the Department of Education taking over the process. The first two processes were nullified.
9. The person appointed must continue to work as principal as the school is functioning well.

SECOND RESPONDENT’S OPENING STATEMENT
10. The second respondent was invited to third interviews. There were three who attended the interviews. One of the applicants had died and the other had an appointment.
11. She received a letter of appointment and wants to stay as principal of the school.

SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.

Ms ZODWA CLAUDIA MAGWAZA
Ms Magwaza testified to the following effect:
12. She was observing for her union and was present for the first and second processes. The SADTU observer and the Human Resource person complained about the scores.
13. She was not part of the DGC process.
14. In the second process the HR person and SADTU person complained and at the end the HR person influenced the panelists not to sign.
15. The DGC decision was wrongly taken.
16. She heard the DGC decision to take the process to the District. She was not aware of the District Director’s letter to the HOD.

Under cross-examination by the First Respondent she stated that:
17. The applicant attended the re-done processes. She agreed that the processes be re-done because
of the irregularities.

Under cross examination by the Second Respondent she stated that:
18. The appointee is from her union. The union was invited at the District level. SADTU was also
present at the District level. The first two processes were null and void. She was not invited to the
third process and her union sent a person to observe the process.

JUSTICE THAMSANQA MHLONGO
He testified as follows:
19. During the first two sittings he was an IC member and scorer. The short listing was done once and the Interviews twice.
20. In the second process the scores were changed. The SADTU observer said that he would lodge a grievance.
21. As IC member and a scorer and SGB chairperson he did receive a letter informing him that the matter would be taken to the District. The letter was sent to the SGB and collected from Stanger. The letter said the process would be taken by the District.
Under cross-examination by the First Respondent he stated that:
22. He was aware that the process was taken over by the Department. The SGB was contaminated by the processes as there was flaws and irregularities. The Department was right to take over the process.
EVIDENCE ON BEHALF OF THE FIRST AND SECOND RESPONDENTS
FIRST RESPONDENT
NONHLANHLA FORTUNATE DLAMINI
She testified as follows:
23. She was a member of the SGB and IC. There were inconsistencies in the scoring. The second process the same thing happened and she did not sign because there was no fairness. The matter was taken over by the District.
24. The second respondent elected not to call any witnesses.
CLOSING ARGUMENTS
25. The parties submitted written closing arguments that were considered in arriving at my decision. The parties except the second respondent must be complimented for submitting comprehensive arguments.

ANALYSIS OF EVIDENCE AND ARGUMENT
THE RELEVANT LEGAL PRINCIPLES
26 In Noonan v Safety and Sectorial Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity of competing for a post then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
27. It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
The SGB must submit to the Head of Department a list (in order of preference- this was not done because the process was done by the District) of at least three names of candidates for a post. The Head of Department must not, as was the case in the past, approve the first candidate on the strength of the recommendation only, but must make sure that the recommendation complies with the requirements (criteria) set out in the EEA. The HOD has an obligation to reject the list if it does not comply with the requirements of paragraph 3(b) of section 6 of the Powers of employers.
If the HOD is satisfied that the list complies with the Act, he or she may appoint any one of the candidates on the list. The preference of the governing body is purely an indication; the HOD has no obligation to follow that indication and may even decide to appoint the third name instead of the first one on the list.
28. In this case the Union lodged a grievance against the two processes. The applicant’s union observer together with her Union attend the DGC meeting. The DGC ordered that the processes be re-done and be done by the District. In the third process the applicant was not short listed. The Interview Committee District Committee made a recommendation that Ms Thembisile Pearl Shangase be appointed to the post. This was done. The applicant’s Union was present and confirmed the recommendation of the District Committee.
29. In the present case the HOD considered the indication/ recommendation of the District Committee and decided to appoint Ms Thembisile Pearl Shangase. The appointment was not arbitrary or motivated by an unacceptable reason. The decision can be rationally justified, as the appointee was like the applicant a Black male/female, and met the minimum requirements for the post. Therefore I do not believe that there are any justifiable reasons to interfere with the decision to appoint Ms Thembisile Pearl Shangase as principal of Mgezengwana Primary School.

APPLICATION OF THE LAW TO THE FACTS
30. The promotion process of the respondent the Department of Education is regulated by HRM Circular NO.13 of 2020 documents and collective agreements.
The stakeholders in the education sector continuously appraise the procedure manuals and where necessary amendments are effected.
31. The following are of importance to direct parties in this sector that careful consideration must be given to the following principles that guide/ direct the promotion/ appointment process. Should a better understanding evolve then this would lead to a more expeditious filling of advertised posts and effective teaching and learning situation. It is a clear from the number of disputes attended to by the ELRC that the education sector is saddled with promotion disputes that have the net result that the vacant posts remain in limbo until the matters are settled either by agreement or by awards.
26. The following are recorded in the promotion manuals.
2. GENERAL PRINCIPLES
This procedure manual is developed within the framework of the Personnel Administrative Measures (PAM) and replaces all other previous practices and procedure manuals.

OBSERVERS
9.1…….
14.1. Valid credentials, on the letterhead of the officially recognised
Teacher Organisations ………… must be produced by observers.
14.3. Observers must sign the declaration of confidentiality (HER 12).

15 ROLE OF ORGANISED LABOUR AS OBSERVERS
Only Teacher Unions party to the ELRC (SADTU CTU/ATU) also has a stake in the fair and just transfer or appointment of everyone in the system, as such:
15.1. Teachers’ unions as reflected above must observe the compliance with the legal prescriptions.
15.2 Observers are there to observe the substantive and procedural fairness are adhered to, and not to be directly involved in the processes of shortlisting and interviewing or to interfere with the appointment process by influencing any of the decisions during shortlisting, interviewing or recommendation phases.

18. CONFIDENTIALITY
18.1. Personal information pertaining to the individual applicant is confidential and should not be discussed outside the meeting of the interview committee or school governing body.
18.2. All members of the interview committee, and School Governing Body members must sign the declaration of confidentiality [EHR 12]. (my emphasis)

24. GRIEVANCES / DISPUTES
24.2 An aggrieved applicant may lodge a grievance on the attached Application Form (GR 1) with the Employee Relations component in the District.
24.3 A Union Observer may also lodge a grievance on behalf of its member/s by completing the attached form and submitting it to the Employee Relations component in the District.
24.4. A grievance should ideally be lodged within 7 days from the date when the
grievance arise.
24.8 A declaration of a grievance will not prevent the Interview Committee from
proceeding with the Selection Process unless it is advised to halt the proceedings by the District Grievance Committee.
24.9 Should the matter not be resolved to the satisfaction of the aggrieved party, a formal
dispute may be lodged with the ELRC using the prescribed procedures.
32. The first concern is that the promotion/ appointment procedure manual clearly defines the
process and the obligations of the participants in the process. All participants must sign a
confidentiality undertaking put simply it means that all information in their hands are
privileged and confidential. As such any disclosure would render such information
inadmissible. There must be strict adherence to the confidentiality clause. This seems to
be the root cause of grievances and disputes at stages that the drafter had not envisaged.
33. There is no provision in the grievance procedure for candidates to initiate a grievance
before the outcome of the process is disclosed.
By that it means that the applicant/ candidate can only dispute the process with information that he/she has and not on information provided to him/her by the participants to the process.
34. The only exception is the Union observer who has officially and in writing indicated to the
chairperson of his/her intention to lodge a grievance.
35. Clearly the drafters of the procedures did not envisage the escalation of disputes but
attempted to provide a quick and speedy finalisation of appointment to advertised posts.
36. The parties are bound by the collective agreement and this includes individual educators
employed by the KwaZulu Natal Education department.

36. In any event the SGB only makes recommendation to the Head of Department who has
wide power in terms of the amendments to section 6 of the Employment of Educators Act,
1998 of which the following should be noted:
Section 7 (1) Section 6 of the Employment of Educators Act, 1998 is hereby amended by the substitution for subsection (3) of the following subsection:
(3) (a) …………..
(c) The governing body or the council, as the case may be, must submit, in order of
preference to the Head of Department (HOD), a list of-
(i) at least three names of recommended candidates; or
(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) (iii) … appoint a suitable candidate temporarily or re-advertise the post.
(h) The governing body or the council, as the case may be, may appeal to the
Member of the Executive Council against the decision of the HOD regarding the
temporary appointment contemplated in paragraph (g).
(k) If no appeal is lodged within 14 days, the HOD may convert the temporary appointment into a permanent appointment in section 6 B.
37. Turning to the matter at hand it is clear that the Interview Committee of the District was engaged/ monitored by the unions SADTU and CTU “ATU” and submitted its preferred candidate. They put their recommendations to the HOD that the appointee be appointed to the post. One must be mindful that the members of the SGB are elected by the school committee to look after the best interest of the school and the community and undertake their duties on a voluntary basis and without remuneration. They cannot be judged as an expert panel and perform their function under the guidance of the Department nominee. Therefore one can conclude that the persons entrusted with seeing that the process was fair including the union present did not share the concerns expressed by the applicant that of being unfairly treated.
38. The applicant’s union that was a party to the process and approved the appointment of Ms Thembisile Pearl Shangase. I conclude that the appointment process to be fair. The application must fail.
39. As a consequence of the above I determine that the appointment of Ms Thembisile Pearl Shangase be confirmed.
40. COSTS
I have considered the issue of costs and determine that no party acted frivolously or vexatiously in the proceedings and do not order of costs against any party.
AWARD
41.1 The application is dismissed
41.2. The appointment of Ms Thembisile Pearl Shangase as principal of Mgezengwana Primary School is confirmed.
41.3. There is no order as to costs.