IN THE ELRC ARBITRATION
BETWEEN:

NATU OBO MDLOLO N “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”

ARBITRATION AWARD

Case Number: PSES392-20/21KZN
Last date of arbitration: 9 September 2021
Date of award: 01 March 2022
Closing Arguments: 23 September 2021

NOZIPHO B KHUMALO
ELRC Arbitrator

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. The matter was set-down for arbitration in terms of Section 191(5)(a) of the Labour Relations Act (LRA) at the offices of the Department of Education in Ladysmith, on the 15/04/2021, 3 & 4/06/2021 and 8 & 9/09/2021 Mr S Ngcobo appeared for the First Respondent, Mr F Radebe an official of SADTU represented the Second Respondent. The Applicant, Ms Mdlolo was represented by Mr N Mtolo an official of NATU.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

2. The Applicant is employed by the Respondent as an educator at Sicelokuhle Primary School for eighteen (18) years. In 2019 she applied for a post of principal at Sicelobuhle Primary School in terms of HRM36/2019.

3. The Applicant applied for the post and was short listed for interview which took place on the 5 February 2020. The Applicant scored highest in the interview and the Second Respondent, Lindani Thamsanqa Mazibuko, who was appointed in the position came second.

4. The Applicant seeks that the ratification be found to be improperly constituted and the appointment of the Second Respondent to be set aside.

5. The Applicant handed in Annexure “A” whilst the Respondent handed in Annexure “B”.

6. I have to decide whether the ratification process was properly instituted or not.

PRELIMINARY ISSUES

7. The Respondent raised preliminary points contending that firstly the Second Respondent was not served with the notice of set down, secondly that the parties have not held a pre-arbitration meeting.

8. A ruling was issued that the second respondent be joined in the proceedings and that the parties hold a pre-arbitration meeting on the 05/05/2021.

SUMMARY OF EVIDENCE AND ARGUMENTS

Applicant’s case

9. The Applicant testified and called Three (3) witnesses, Fikile Gladness Radebe, “Radebe, Mbali Mosia, “Mosia” and Goodman Makhaza, “Makhaza”. Their evidence is summarised as follows. The Applicant was shortlisted for the post of principal at Sicelokuhle Primary School that was advertised by the Respondent. The interviews took place on 5 February 2020. The Applicant scored of 33,98 and the Second Respondent scored 33,97 at the interviews, “B”15. There were two African female educators that had applied for this post. The school does not have any female teachers occupying a senior management position.

10. At the time when the post was advertised, the Second Respondent was in possession of a bachelor of education degree and had been an educator for nine (9) years. He had also been acting as deputy principal for three months. The Applicant at the time of the post was in possession of a bachelor of arts degree, a diploma in education and a certificate in computer management. She had been an educator for sixteen (16) years.

11. In terms of clause 16.4, 16.5 and 16.6 of HRM circular 36 of 2019, when the interview are concluded by the interview committee, the chairperson of the IC takes the EHR11 document to the SGB. The SGB will make its recommendation and submit it to the IC. If all parties are happy that the recommendation of the SGB does not discriminate and it is in accordance with HRM36 of 2019, the interview committee must change the rank order and forward to the SGB for ratification.

12. In this case the ratification took place on the 06/02/2020, “B”15. The ERH11 form was completed on the 25/02/2020 which is unlawful because ratification took place prior to the submission of the EHR11 form to the IC. There is also no coloration between the reasons submitted by the HOD and the SGB for recommending the Second Respondent, “B”19.

13. The application of the Second Respondent was validated by Magangane who is a departmental head at Sicelokuhle Primary School, “A”45. This validation did not comply with clause 5.7.1 of HRM36 of 2019 which states clearly who the authorised personnel is for validating application documents.

14. The Respondent concluded the recruitment processes in the post despite a grievance that was lodged in respect of the post, “A”52. The Applicant is a member of two (2) unions, NATU and SADTU which both submitted a grievance contending the appointment of the Second Respondent.

15. Radebe stated that she participated in the interview process which took place on 5 February 2020 as a union observer on behalf of SADTU. The Applicant scored highest in the interview with a score of 3,98 and the Second Respondent scored second highest with a score of 3,97. The ERH11 form was signed on that day when the interview was concluded. On 25 February 2020, the IC meet and the circuit manager informed them that the SGB preferred the Second Respondent who scored second in the interview. Radebe asked in that meeting if that was a unanimous decision of the SGB. The response she received from the circuit manager is that it is none of her business. When they asked for the minutes of meeting of the SGB they were told by the circuit manage that it is confidential.

16. The circuit manager was also asked to provide reasons as to why the SGB discredited the Applicant, especially since it was aware of the current management of the school. The circuit manager issued a new EHR11 form with the changed rank order. Radebe asked to be excused from the meeting to seek advice from her union secretary who advised her not to sign anything. She then left the meeting without signing the ERH11 form.

17. Mosia represented the teacher component in the interview process which took place in February 2020. On 06 February 2020 a meeting took place where the chairperson talked about recommending the Second Respondent. There was a question raised by someone and the chairperson and the secretary went out of the meeting room. When they returned, the chairperson cancelled the meeting without any reason, explanation or response to the question that was raised before they left the room. There were no minutes taken and she is not aware of any other date that was took place thereafter as she was booked of sick by her doctor.

18. Makhaza who is the branch chairperson of NATU stated that he received a complaint from the Applicant in around July 2020. He immediately went to Zulu who is the director of HR. This was because he realised that the Applicant’s complain was late. Zulu advised him to put his grievance in writing. On 5 July 2020 he wrote the grievance letter and forwarded to Zulu as advised by Zulu, “A”53. He did not receive a response from Zulu regarding the grievance which was sent to him on 5 July 2020.

The Respondent’s case

19. The Respondent called two witnesses by the names of Xolani Hlatshwayo, “Hlatshwayo” and Sphamandla Khulu, “Khulu”. Their evidence is summarised as follows. Hlatshwayo was the resources person in the interview process which took place in February 2020. On 25 October 2019, which was the closing date of the post, he received a call from the Second Respondent requesting him to validate his application. He was not present on this day and delegated this function to Magangane who was a departmental head present at the school on 25 October 2020. The Applicant was not in any way prejudiced because validation does not guarantee an appointment. The shortlisting process took place on 22 November 2019 and the form EHR9 was completed with all the names of the candidates,“B”11.

20. Hlatshwayo further stated that the ratification process is the competency of the SGB which takes place after the interview process. It can be done on the same day or on a different day. In this case, the ratification took place on 6 February 2020, “B”12. After the interview, the IC will take its recommendation to the SGB which will either be accepted or declined by the SGB. In the event that the SGB does not accept the recommendation of the IC, there will be a change in the rank order. That process of change of the rank order is called ratification. The SGB must give a motivation as why the change in the rank order, “B”13. If the IC agrees with the change in the rank order, a new EHR11 form will be completed with the new rank order, “B”15. In this case, the ratification meeting took place on 6 February 2020 which was the same day that the EHR11 form and motivation were done.

21. On 25 February 2020, the SGB reported to the IC the outcome of the ratification meeting, “B”17. Radebe was present at the meeting and signed the attendance register and the minutes of the meeting, “B” 17 and “B”18. Radebe however refused to sign the EHR11 because she said that she was going to consult with her superiors before she can sign, “B”15.

22. The documents were submitted to the district office. Since there was a motivation in this case, the documents were forwarded to the head of department. The head of department agreed with the recommendation of the SGB, “B”19. The district office then generated an appointment letter as per the decision of the HOD,”B”20.

23. The post in question was not identified to address any imbalances between the male and female educators at the school. The role of union members in an interview is to observe whether the roles taken by the panel members are within the procedures stipulated in the bulletin. If there are any queries from the observers, they are addressed with the chairperson of the IC. If they intend to lodge a grievance, they should make the IC aware of that intention during the meeting. They may also lodge a grievance on behalf of union members by completing a grievance form, “A”17.

24. Khulu who is the branch secretary of SADTU stated that Radebe was deployed by SADTU as an observer during the interview process at Sicelokuhle Primary School. When the interview was concluded, Radebe reported to him that the interview went well. There was no mention of irregularities by the IC and grievances.

SUMMARY OF ARGUMENTS

25. The Respondent argued that in the Principal post no 1146 that process was followed to the letter. The post was never meant to address the imbalances of the past in that school because HRM 36 of 2019 did not state that female candidates would be preferred for the post. It instead required that all applicants who met the minimum requirements of the post and who are interested must apply. Addressing the imbalances of the past is not the competence of the Interview Committee of a particular school but is the competence of the KZN DoE as the Employer after considering all schools in the Province and as guided by its Employment Equity Plan. There was no prejudice whatsoever suffered by the Applicant by having the Second Respondent’s application validated by Mr Magangane.

26. The Applicant argued that but for the shotgun approach in change the rank order which was done by the Employer, Miss Mdlolo would presumably have been appointed as headmaster of the institution. She had been ranked first and the change in rank order materially affected her chances of obtaining the post. The applicant relied on the case of Kimberley Junior School v the Head of the Northern Cape Education Department [2009] ZASCA 58 ( 28 May 2009)1 . where the court stated emphatically that a recommendation of the School Governing Body is a pre requisite for the HOD to exercise his discretion, in the absence of which the appointment is ultra vires and must be set aside. At clause 12 of the judgment ‘In administrative law parlance the head of departments power to appoint under s 6 (3) (f) is therefore dependent on the jurisdictional fact of a recommendation by the governing body’. At clause 19 of the judgment ‘In the absence of the jurisdictional fact of a recommendation by the SGB the HOD had no authority to make an appointment. Or – in the language of s 6 (2) (a) (i) and s 6 (2) (f) (i) of PAJA – absent any recommendation by the SGB, the HOD was not authorised by the empowering provision to make an appointment’. the Applicant argued that based on this authority, it is clear that exercise of power that is ultra vires must be set aside.

ANALYSIS OF EVIDENCE AND ARGUMENT

27. In this case it is common cause that the Applicant scored highest at the interview with a score of 33,98. It is also common cause that the SGB recommended the Second Respondent who scored second at the interview with as score of 33.97. Further, both the Applicant and the Second Respondent met the requirements of the post.

28. The Applicant’s averment is that the ratification process was not done in accordance with prescripts of the Employment of Educators Act 84 of 1996. She was as a result prejudiced because of this irregularity and the Second Respondent was then recommended for the post.

29. Hlatshwayo testified that the ratification meeting took place on the 6 February 2021 where the motivation was also drafted which supported the recommendation of the SGB change in the rank order, “B”13. On the 25 February 2020, the IC received the EHR11 form from the SGB with the change in the rank order. The evidence of Mosia is that the meeting that that was held on 6 February 2020 was cancelled and no minutes were taken of that meeting. Hlatshwayo further stated under re-examination that Mosia was not present on 6 February 2020 when the ratification took place. This evidence was supported by the attendance register, “B”12. I therefore find the evidence of Hlatshwayo to be the most probable as it is substantiated and the evidence of Mosia to be hearsay as she was in terms of “B”12 not present at the meeting which took place on 6 February 2020.

30. On the 25 February 2020 Mosia was present and signed the EHR11 form which was not only confirming the change in the rank order but also the meeting that took place on 6 February 2020. This raises a question that if no ratification meeting took place on 6 February 2020, why would she append her signature in this document? “B”15. This again proves Mosia as an unreliable and dishonest witness. I find in this regard the version of Hlatshwayo that the ratification happened on 6 February 2020 to be the most probable version.

31. Radebe’s evidence is that although she was present on 25 February 2020 when the IC received the report back from the SGB, she did not sign the minutes thereof, “B”17-18. This was because she excused herself from the meeting to seek advice from her superiors regarding the recommendation of the SGB. When she was questioned about her signature which appeared on “B”18, her only explanation was that the minutes do not make sense and are incomplete because there were five items on the agenda but only four appear in this document. Hlatshwayo’s undisputed evidence was that Radebe did sign the minutes but refused only to sign the ERH11 form on 25 February 2020 because she said that she needed to consult which was not an objection.

32. Khulu who is the branch secretary of SADTU testified that Radebe was deployed by SADTU as an observer in the interview process. When the interview was concluded, Radebe reported to him that everything went well and there was no mention of a grievance. This contradicts the evidence of Radebe that she did not sign the ERH11 form because she was advised by her secretary not to sign anything on 25 February 2020. Radebe was asked at cross-examination what steps did she take after seeing her signature on a document which she claims that she did not sign, her response was maybe she will do something about it. This response was totally unexpected from someone who is claiming that her signature was obtained fraudulently. I also do not believe that Radebe did not know about her signature appearing on the minutes because she is the one who signed the minutes.

33. The Applicant bases her argument on clause 16 of HRM36 of 2019 that after the SGB makes recommendation, the IC must change the rank order according to the recommendation of the SGB and submit a new ERH11 form to the SGB for ratification. The evidence of Hlatshwayo is that a SGB meeting took place on 6 February 2020 where ratification was done, “B”13 and “B”15. Clause 16 clearly states firstly that the rank order may only be changed by the SGB at ratification. Secondly, it states the documents that must accompany the SGB recommendation in the event that it is different from that of the IC. Clause 16 only outlines what must happen if the rank order is changed and does not specify the process step by step.

34. The Applicant also raised the issue that the application documents of the Second Respondent were not properly validated. Hlatshwayo testified that he delegated this function to Magangane as he was not around. The Applicant argued that this resulted in her not obtaining the post because if the application was disqualified as it should have been, she would have been appointed especially because she had scored highest. I find this argument to be baseless because the Applicant failed to consider that there were other candidates who were also shortlisted because they met all the requirements of the post. There is still no guarantee that she would have been appointed. The Applicant also stated that the Second Respondent met all the requirements of the post.

35. The Applicant and Radebe both testified that the motivation of the SGB,”B”13 and the recommendation of the HOD do not correlate. I find this evidence baseless and meaningless because both these document contain the same subject which is appointing the Second Respondent in post of Principal at Sicelokuhle primary School.

36. The Applicant and Makhaza testified that a grievance was lodge disputing the appointment of the Second Respondent. Makhaza’s evidence is that he only became aware of the Applicant’s grievance in around July 2020 and he immediately wrote a grievance letter to Zulu. Makhaza however confirmed that he did not complete a grievance form as per the procedures of the Respondent but addressed letter to Zulu. The Applicant however testified that after the interview, Radebe told her what transpired and that she must lodge a grievance which she did by completing a grievance form which she left with Khulu. Khulu was called to testify but this version was not put to him. In fact, Khulu stated clearly that he was not aware on any grievance from the Applicant or Radebe. I therefore find that there was no grievance lodge either by SADTU or by NATU. Therefore, the Respondent had no reason not to appoint the Second Respondent.

FINDING

37. I therefore find that the conduct of the Respondent did not constitute any unfairness.

AWARD

38. The application of the Applicant is dismissed.

Commissioner: Nozipho B Khumalo
Date : 1 March 2022