IN THE EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: ELRC 666-23/24 EC
IN THE ARBITRATION
Between
NAPTOSA obo ZUZIWE NONGOGO MDOLO APPLICANT
AND
DEPARTMENT OF EDUCATION – EASTERN CAPE 1ST RESPONDENT
NOYISE TYABULA PEZULU 2ND RESPONDENT

ARBITRATION AWARD
DATE/S OF HEARING 03 APRIL 2024- 26 JULY 2024
DATE AWARD SUBMITTED 29 AUGUST 2024
NAME OF PANELIST BONGANI MTATI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) at Lusikisiki College Education Centre offices in Lusikisiki on 3 April 2024, 16-17 May 2024, 24-25 June 2024 and 26 July 2024 at 09h00. Mr A. Mhlontlo, from NAPTOSA represented the Applicant. Mr K Dalasile, an official from the Department of Education, represented First Respondent being the Department of Education Eastern Cape. Mr B.E Bewu, from SADTU represented Second Respondent, Mrs Noyise Tyabula Pezulu.

ISSUES TO BE DECIDED

2. I am required to determine whether the First Respondent committed an unfair labour practice relating to promotion against the Applicant. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE
3. This is a promotion dispute involving post bulletin volume 3 of 2023 in the Eastern Cape being post of Principal for Mdutshane Secondary School.

4. Applicant was teaching at Langa Secondary School since 2015 as post level three Educator, (Deputy Principal) with 27 years teaching experience and the Second Respondent was post level 3 (Deputy Principal) Educator teaching at Mdutshane Secondary School and during her appointment was Deputy Principal at Mdutshane Secondary School.

5. The Second Respondent’s appointment was approved by the Department of Education on 13 December 2023 to assume duties as Principal at Mdutshane Secondary school.
6. The Applicant initiated her dispute by first lodging a grievance which was set down for hearing and her claim was not resolved.

7. Applicant alleged that she was not appointed despite meeting all the requirements of the post advertised due to SADTU representative and resource person’s interference with employment process and panel did not play their rightful role as per ELRC FROM E1 referral form.

SURVEY OF EVIDENCE AND ARRGUMENT
Employee’s case
Witness: Zuziwe Nongogo Mdolo
8. She testified under oath that she was the Deputy Principal of Langa Secondary School, started to work as an Educator in 1997, in 2002 was promoted as Head of Department and in 2015 promoted as Deputy Principal up to date. She further submitted that she was also Deputy Secretary of the School Governing Body (SGB) from 2009 to 2011 at Langa Secondary School.

9. She testified that she was a qualified educator with STD and ACE in management who applied for a post of Principal at Mdutshane Secondary School that was advertised in the bulletin in 2023 that required candidate with management and leadership learning areas.

10. She submitted that she knew the constitution of the SGB as formed by parents, educators, learners and principal, but not by education official, as CMC is not part of the SGB constitution.

11. She referred to the bundle constituting panel and substitution of panel member Mrs Busuku, who did not come to the interviews and was substituted by Mrs Nkwinti which she described as irregular.

12. She submitted that the procedure of election of substituted panellist was not followed as there was no raiser of the member, seconded and counter and was supposed to be in the minute book of the SGB. She further doubted writing of the minutes in the departmental letter head and not using school letter head.

13. She stated that union present was SADTU and NAPTOSA which were supposed to have been invited into the shortlisting, but NAPTOSA was absent and SADTU attended shortlisting.

14. She referred to the attendance register that was signed by SGB members substituting panellist Busuku as had no minutes, which she submitted that means no meeting held and invalidated the process of amending panel, so viewed no meeting held and was just completion of forms.

15. She referred to the recruitment and selection policy of the First Respondent where she submitted that members of the interviewing committee should for purposes of consistency as far as possible remain the same for both shortlisting and interviewing processes, so viewed changing of panel as irregular step which contravened the recruitment and selection policy.

16. She further referred to the reason for substituting panellist Busuku as contradictory as was reported sick and on her written letter was bereaved of her sister’s child.

17. She stated that on the day of interviews it was agreed that the first candidate to arrive in the venue was the candidate to start to be interviewed by the panel and was the first candidate that arrived first in the venue for interviews.

18. She compared score sheets of panellists with her performance as has felt been under scored by panellists as she deserved higher scores than what she was awarded by panellists, so she concluded that panellists had not favoured her. She further compared her scores with the Second Respondent as being high for the Second Respondent being 420 scores and low to her being 340 scores whilst she viewed performed well according to her own scoring.

19. She further compared her qualification with the qualification of Second Respondent where she submitted that according to the advert in the bulletin which required management and leadership was more qualified than the Second Respondent as Second Respondent had not yet obtained BED Honours in management and law policies and she has management in her qualification ACE in management.

20. She further stated that they both have management practice with the Second as both are on post level three being deputy principals, but had an upper hand on teaching experience than the Second Respondent as she has 26 years and Second Respondent has 21 years teaching experience.
21. She stated that she was unfairly treated for not being appointed as Principal of Mdutshane Secondary School and her prayer is the setting aside of the process of employment to start the process again.

22. She testified during cross examination that her main issue was the changing of the panel which she described as irregular with no minutes and only report of the SGB meeting, so viewed that no meeting held and no evidence indicating sitting of the meeting to change panel. She further stated during cross examination that she disputed election of the SGB meeting as there was no evidence of the meeting held.

23. She stated during cross examination that no comment when put to her that information in the bundle page 26 and page 27 were indications that the meeting of the SGB for shortlisting and substituting panel took place.

24. She submitted during cross examination that she did not know when asked about the effect of changing panel in her performance at the interviews with reason for the change of panel was absence of panellist Mrs Busuku as was reported being sick and bereaved as the reason for contravening recruitment and selection policy.

25. She further stated during cross examination that she agreed when put to her that the letter of Mrs Busuku dated 7 December 2024 was explaining what took place on the 20 October 2023.
26. She further confirmed during cross examination that departmental letter heads are used to deal with employment processes and not school letter heads.

27. She was further reminded of her testimonies on the sitting of SGB meeting where she stated that there was no meeting held and later changed to only completion of the forms and put to her that those are two different versions, so which one is correct, where she stated that she didn’t know as there was no evidence.

28. She further stated that she did not know whether NAPTOSA was invited or not during shortlisting.

29. She stated during cross examination that she expected her scores to be fours and fives as per her own scoring.
30. She stated that she didn’t know when put to her that panellists have perceived her as her performance during the interviews and not her own scoring.

31. She further stated during cross examination that qualifications of language in teaching and learning was good in the classroom and not in general school management, as was the qualification of the Second Respondent after her STD qualification.

32. She further disputed that interviewing process was procedurally and substantively fair.
33. She further disputed during cross examination that courses of BED passed by the Second Respondent to be considered as qualification, as Second Respondent has not yet obtained the BED qualification.

34. She further disputed that Deputy Principal takes over as Principal in the absence of the principal and did not know that Deputy Principal is a manager.

35. She further stated during cross examination that she did not know when asked what scores she considered correct based on her subjective performance.

36. She further stated during re-examination that the only proof of showing meeting of the SGB held were minutes of the SGB in the minute book of the SGB and Second Respondent was not possessing qualification in management.

Witness: Zimvo Mbobo

37. She testified under oath that she was the Educator at Moyeni Secondary School and was part of the employment process of the Principal at Mdutshane Secondary school and was an observer for NAPTOSA teacher union.

38. She submitted that she was not part of the shortlisting and was present during interviews on the 20 October 2023.

39. She identified minutes of the interviews and attendance registers where she stated that she did not sign all documents as she departed early due to her personal business at Mthatha.
40. She testified that interviews were held at Gcinilifu School where the resource person came to them to brief about expectations, question formulation and resource person was requested to guide panel about questions, which were formulated and handed to the panel to proceed with interviews.

41. She submitted that interviewees were briefed then first candidate was called to be interviewed with five questions and left the panel.

42. She stated that after the first candidate left Mr Mnisi, SADTU representative went to the panel to check scores and reprimanded him as wrong conduct, but Mr Mnisi informed him that he was doing his job and was supported by the resource person Mrs Mthembu.

43. She submitted that Mr Mnisi noticed two panellist that were scoring incorrectly horizontal and not vertically as was expected, then the resource person clarified to the panellists by re-work shopping them on scoring and took the incorrectly score sheet and gave them new score sheets, which she destroyed incorrect score sheets.

44. She stated that all other candidates were interviewed successful until she left the venue.
45. She testified that there were two meetings on the day and did not see the meeting of replacing absent panellist and listed names of panellists in the interviews including Mrs Nkwinti who substituted Mrs Busuku.

46. She submitted that some questions were prepared by panel and other questions were prepared by the resource person.

47. She referred to the gazette dated 9 September 2022 that panel has to draft questions for the interviews and departmental officials are resource persons and observers only.
48. She submitted that she noticed SADTU member and resource person participating in the process and not observing, which she viewed wrong.

49. She further stated that she noticed the resource person dictating questions, clerk typing and Mr Mnisi was given paper to confirm questions as correct, which she viewed wrong conduct.
50. She stated that she did not object to the SADTU member when advising resource person to assist the panel with questions when the panel was stuck on question formulation, as panel managed to formulate two questions.
51. She testified that post interviews, she was called at Flagstaff circuit office where they were informed that the SGB was no longer interested to the process and better be started afresh and SADTU refused.

52. She further compared Applicant and Second Respondent where she confirmed that their qualifications are the same, but Applicant is better due to specialisation with management as a requirement in the post in question.

53. She testified during cross examination that an observer raises wrongs to be corrected in the process that was the reason she attended the process, so observers are supposed to correct wrongs at the interviews.

54. She further stated that she noticed the resource person helpful to the panel to assist the panel as was required panel being stuck.

55. She further confirmed during cross examination that the Second Respondent has minimum requirements of the post, although not having management as qualification and being a deputy principal has management as an advantage, which she further confirmed minimum requirements of the incumbent even at re-examination.

56. She further confirmed during cross examination that her phone was taken away by the resource person alleging her of not being attentive in the process, which she disputed.

57. She further stated that after identification of an error on the score sheets, score sheets were changed to new ones given to the two panellists and disputed that an error was made by one panellist.

RESPONDENT;S CASE
Witness: Nomvuyo Mtembu
58. She testified under oath that she was the Deputy Chief Educational Specialist for curriculum at OR Tambo Coastal during interviews at Mfundisweni circuit and was resource person during employment of Principal at Mdutshane Secondary School.

59. She stated that her role was to ensure that employment process go smoothly, guiding panel where necessary and supporting panel with resources.

60. She stated that she trained SGB on the process of shortlisting and interviewing of candidates, guide and support panel during interviews up to recommendation of candidate for approval by the First Respondent.

61. She stated that after training SGB, panel was elected by SGB and submitted to her in a departmental form that was signed by SGB chairperson and endorsed by the CMC of the district to prepare for shortlisting and interviews.

62. She submitted that as there were many candidates who applied for the post, they established a criterion which ended up with five shortlisted candidates for interviews to be held on the 20 October 2023 and both Applicant and Second Respondent were amongst the shortlisted candidates.

63. She submitted that on the day of interviews, Mrs Busuku, the panellist was reported absent due to being sick caused by passing on of her sister’s child and SGB reconvened their meeting to substitute Mrs Busuku in order to proceed with the interviews, as all SGB members attended with the panel at school, so gathered to substitute absent panellist with another member where Mrs Nkwinti was elected substituting Mrs Busuku.

64. She testified that the panel was looking for a candidate that suited the post based on leadership and management as per the stipulated requirements in the bulletin and a candidate with management was an added advantage.

65. She stated that during interviews they first met with the panel and unions to formulate questions where she gave panel criterion of formulating questions in order to make their question and panel managed to make two questions and got stuck, so was requested by another panellist to assist them with other question, in which she did assist the panel to make more questions to choose from or modify them and were accepted and interviews started well.

66. She submitted that the first candidate who was the Applicant was called to be interviewed and finished, but when Applicant left was alerted by SADTU union official that there was an error to panellist Nkwinti where she scored horizontally and not vertically, so must attend to that, in which she discovered the error and work shopped the panellist, gave her new score sheet to rewrite her scores and thereafter took wrong score sheet to destroy it, in which panellist did that correctly.

67. She disputed that SADTU member collected wrong score sheet from the panellist and emphasised that she was reported by SADTU member and corrected the error herself and not by SADTU member. She stated that during correction of the error by the panellist, the wrong score sheet was still with the panellist until she finished making corrections and took the wrong score sheet to herself.

68. She submitted that the raising of an error, correcting score sheet and taking wrong score sheet from the panellist happened in the presence of panel, union and herself with no objection in the room, which she viewed accepted by interview committee.

69. She disputed as not true that there was a similar error to Mrs Msuthu and raised that NAPTOSA official was busy with her phone during interviews and when reprimanding her, noticed to be restless and requested to be substituted as she requested to go to her business at Mthatha, so there was no other panellist who did an error during interviews except Mrs Nkwinti.

70. She submitted that the Second Respondent was number one with 412 score and Applicant was number four with 320 score since number 2 were two and difference on scores between Applicant and Second Respondent was 92 score.

71. She stated that panel was scoring based on candidate’s performance, so would not understand why Applicant would be scoring herself in this case, so was awarded scores she deserved by the panel and not herself giving scores, so she stated that she was satisfied with the scoring of the panel.

72. She admitted during cross examination that form constituting panel was supposed to be signed by herself and not by CMC.

73. She emphasised the importance of letter apologising for not attending interviews by Mrs Busuku as relevant since her apology was verbal during interviews in order to be used in HR processes.
74. She confirmed the meeting held post interviews at the departmental offices where the SGB wrote a letter raising concerns about employment process delay and NAPTOSA representative requested the process to start again, but SADTU refused.to be started again.

75. She further confirmed during cross examination that chairperson of the SGB was absent during election of Mrs Nkwinti, but was reported about the matter and secretary was present.

76. She confirmed during cross examination that the application form of the incumbent had some gaps which she felt fully completed as information given in the paragraph was enough.
77. She further disputed that Second Respondent was not qualifying based on qualification of management as had courses in her BED degree which she was still doing it, therefore made her qualify to have management and further stated that both parties had minimum requirement which made them to be shortlisted.

78. She further disputed that she was biased against the Applicant and further regarded employment processes to be fair for both parties.

79. She further confirmed during cross examination by the Second Respondent that SGB did not attend post interview meeting as only unions and CMC were invited into the meeting.

80. She further confirmed that post interviews meeting was about signing of the documents, but one member insisted that employment process to start afresh and was refused.

81. She further confirmed during re-examination that it is not compulsory to write a line or N/A on other spaces to make them full and further disputed that it is sure that candidates with higher qualifications will be automatically employed, but will also consider performance during the interviews determined by the panel.

82. She further identified blank spaces as not completed by the Applicant in her application form.

Witness: Pumzile Mnisi
83. He testified under oath that he was working at Hlwahlwazi Junior Secondary School as the Principal and member of SADTU.
84. He testified that he was an observer during interviews at Mdutshane Secondary School and was absent during shortlisting.

85. He stated that he signed attendance register and became part of the meeting that formulated questions for the interviews.

86. He testified that questions were formulated by the panel with the assistance of the resource person

87. He testified that the first candidate being the Applicant was called to be interviewed and after her departure noticed that one panellist scored incorrectly and notified the resource person to be corrected, in which was corrected and proceeded smoothly with other candidate’s interviews.

88. He disputed that he interfered with the process as he was aware of the rules and his role as an observer. He further stated that NAPTOSA representative was busy with her phone during interviews, so she was not listening, then lied to say interfered with the process except to correct the error he saw to the panellist by reporting it to the resource person.

89. He confirmed the meeting held post interviews that they were union representatives and departmental official who gathered for the allegations of documents not signed by chairperson of the SGB, but noticed that Mr Mdedelwa, chairperson of the SGB signed documents and did not remember which document he failed to sign. He further submitted that in the meeting NAPTOSA representative who was also candidate during interviews pushed for the interviews to be done again, which was refused in the meeting.

90. He stated that he signed documents confirming that interviews were free and fair and NAPTOSA member did not sign as she left early rushing to her business at Mthatha.

91. He disputed during cross examination that panel was not properly constituted as he referred to the panel in interviews as five with parents being three and educators two and referred to the bundle page 26 as minutes of the SGB electing panel.

92. He stated that on the attendance register signed by eight SGB members noticed Mrs Nkwinti as part of the panel and Mrs Busuku absent, which he viewed as normal for a panellist to be absent and substituted with another SGB member to be a panellist, so Mrs Busuku was replaced with Mrs Nkwinti as Mrs Busuku was absent and viewed meeting where Mrs Busuku was substituted by Mrs Nkwinti was proper and valid. He further stated when informed that there was no record indicating Mrs Nkwinti replacing Mrs Busuku that he was not recording as he was an observer. He further disputed that what was contained in page 27 of the bundle as not minutes and confirming sitting of the SGB to substitute absent member Mrs Busuku with Mrs Nkwinti as panellist in the employment process of Principal.

93. He confirmed that the replacement of Mrs Busuku was reported by resource person in the pre-interview meeting.

94. He further stated that he could not confirm whether wrong score sheet was supposed to be destroyed or not for future references.

95. He further disputed that signatures of the panellist are not the same as he viewed them similar in the documents.

96. He further confirmed during cross examination that score sheets and attendance register were compiled on the same day of the interviews and not sure of other documents, as was put to him that were completed on other days.

97. He further disputed that the meeting they had post interviews was for fraudulently signed documents as he signed himself in the documents and Ms Mbobo signed attendance register, so stated that the meeting was for reasons for the delay in the employment post as not all documents were signed by chairperson of the SGB.

Witness: Pelisiwe Msuthu

98. She testified that she was the panellist during the employment of Principal at Mdutshane Secondary School.
100. She testified that SGB was trained at Gcinilifu School and after that were given a chance to
elect panel and submitted panel to the circuit manager.
101. She stated that during election of the panel Mrs Busuku was elected as panellist and on the
day of interviews was absent and the SGB convened a meeting where Mrs Busuku was replaced with Mrs Nkwinti.

102. She submitted that shortlisting was done, but can’t recall names of shortlisted candidates to
attend interviews on the 20 October 2024.
103. She stated that the candidate that was recommended was Mrs Pezulu based on her
performance during interviews. She stated that she gave Second Respondent 100 scores
as per her answers and gave Applicant 84 based on her answers and concluded that Second
Respondent performed well compared to the Applicant.

104. She stated during cross examination that she confirmed panel as elected by the SGB in a meeting chaired by Mr Mdedelwa at Gcinilifu School.

105. She further confirmed during cross examination that shortlisting was done on the 13 October
2023 and on the day of the interviews being 20 October 2023 Mrs Busuku was absent due to her problem and was replaced with Mrs Nkwinti.

106. She further stated during cross examination that there were gaps in the application form of the
Applicant that were identified during shortlisting, but can’t recall them and were only informed
of criterion in the form and not gaps.

107. She further stated during cross examination that she understood questions asked and
expected answers during interviews and scored based on that understanding and disputed
knowing candidates before interviews as she stated that she met them at the interviews.
108. She further disputed that Mr Mnisi went to Mrs Mtembu for corrections to the error of one
Panellist, as Mr Mnisi was sitting down and notified Mrs Mtembu about the error as was next to the panellist who made an error.

109. She further confirmed during cross examination that post interviews the SGB wrote a letter to the circuit manager inquiring about the delay of their recommended candidate not reporting at
School and wanted answers from the department about the causes of the delay.

110. She further disputed that Ms Mbobo was harassed by Mr Mnisi and Mrs Mtembu as she was
busy in her phone and when asked requested to be released to go to Mthatha.

ANALYSIS OF EVIDENCE AND ARGUMENT

111. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section
186(2) of the Labour Relations Act (LRA) was committed by the Respondent. The Applicant has
to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice
as defined and distilled from applicable jurisprudence and as envisaged in the law.

112. I have considered the departmental guidelines for sifting, shortlisting, interview procedures,
post requirements, as well as the relevant case law.

113. Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee relating to the provision of benefits to an employee”. In this case unfair labour practice involves promotion.

114. I have to decide whether the First Respondent acted fairly or not in not appointing the Applicant
in the position of principal at Mdutshane Secondary school based on procedural unfairness with allegations that the First Respondent and SADTU representative interfered with the process, panel was not properly constituted and on substance that the panel was biased towards the incumbent as Applicant was better than incumbent on qualifications and experience.
115. I start by considering procedural fairness in the promotional process of the principal at Mdutshane Secondary School.

116. As this is a Principal promotional post, in terms of the Employment of Educators Act PAM Regulations, the role of the departmental officials as resource persons is to assist the school governing body towards the appointment of qualifying school management by giving control to manage appointment processes. The resource person will be responsible to ensure that capacity building sessions is conducted with the interview committee to enhance its understanding of the selection and interview processes.
117. In this case SGB members together with interview panel were trained by the First Respondent to conduct the employment process as per the prescripts of the employment policies of the First Respondent and the circuit manager, Mrs Mtembu was the resource person to assist and guide the panel on this employment process of the Principal at Mdutshane Secondary School.

118. Considering issue of panel not properly constituted, l find that the panel was properly established as was formed in the meeting of the SGB members by SGB members on the 13 October 2023 where five members were elected to form panel to employ principal of the school as was testified by panellist Msuthu corroborated by Mrs Mtembu and the minutes of the meeting.

119. Considering issue of amending the panel on the day of the interviews, l find that the changing of the panel was based on the absent member Mrs Busuku who had a problem not to attend interviews and led to the SGB to reconvene to replace her in an SGB meeting constituted of eight members in attendance as per the attendance register corroborated by panellist Msuthu and Mrs Mtembu. l view that the majority of the SGB members had resolved to replace Mrs Busuku with Mrs Nkwinti. I further view that the conduct of the SGB to elect replacement of Mrs Busuku as fair than to postpone the interviews or continue in the absence of the other panellist. So I conclude that the replacement of Mrs Busuku with Mrs Nkwinti was procedurally fair. I further view the issue of contravening the recruitment and selection policy was justifiable and fair as Mrs Busuku was absent and SGB was compelled by the circumstance to proceed with the interviews as majority of them were present. So l view absence of Mrs Busuku was the major challenge for the SGB and had to replace her more than the reason for her absence being sick due to passing on of her sister’s child.

120. Considering interference by SADTU member and resource person, l find that Mr Mnisi who represented SADTU in the interviews positively alerted the resource person about an error he noticed to one panellist of incorrectly scoring horizontally than vertically as was required and an error was corrected by Mrs Mtembu in the presence of the interview committee with no objection and interviews proceeded well up to finality as testified by Mrs Mtembu and corroborated by Ms Msuthu, Mr Mnisi and by Ms Mbobo in cross examination. I view Mr Mnisi’s conduct fair for smooth running of the employment process as panellist was corrected in the presence of all panellists and union representatives with no objection and finally the wrong score sheet was squashed in the presence of everybody. There was no evidence led on interference on the score sheet by the resource person and Mr Mnisi except destroying wrong score sheet by Mrs Mtembu. I reject evidence by Ms Mbobo that two panellists did an error of incorrectly scoring as her evidence was not corroborated and disputed by Mrs Mtembu, Mr Mnisi and Ms Msuthu saying it was one panellist who made a mistake. They further stated that Ms Mbobo was not attentive in the interviews as she was busy with her phone.

121. On Mrs Mtembu’s interference, l find that she performed her duty to assist the panel when stuck with formulating questions for the interview, as testified by herself that the panel was stuck after formulating two questions and requested her to assist them with other questions and indeed assisted them with various questions where enabled them to finalise their questions and interviews proceeded well. This was further corroborated by all witnesses including Ms Mbobo during cross examination. So l view that Mrs Mtembu did not interfere with the process, but assisted the panel as her duty that panel finalised formulating questions to start the interviews.
122. Considering substance and post requirements, l find that both parties were almost on equal footing as they were both post level three educators, with Applicant having 26 years teaching experience and incumbent with 21 years teaching experience, having STD and Ace, but Applicant has management qualification and incumbent had courses in management of her BED honours, so both have met minimum requirements of the post. I reject evidence that the Applicant is better qualified than the incumbent based on the above reasons.

123. Considering performance during interviews, l find that the incumbent has performed well than the Applicant as incumbent attained 412 scores than the Applicant that attained 320 scores as per the evidence of the panellist Msuthu corroborated by Mrs Mtembu and score sheets of the panel. I reject evidence of the Applicant that she had performed well than the incumbent as testified by Mrs Mtembu and corroborated by panellist Msuthu who testified that she was awarding scores based on performance of the candidate as she knew and understand questions with expected responses.

124. On the issue of non-completion of the application forms by both parties as testified by the Applicant and Mrs Mtembu, l find that both application forms were fully completed by both parties as per the information required and were not expected to fill points they don’t have for many spaces, therefore their forms were fully completed. l reject evidence that the incumbent had not fully completed her form, therefore was not supposed to have been shortlisted. I further reject evidence that the Applicant was supposed to have completed with N/A or scratch on the space as submitted by the Applicant’s representative.

125. .” To determine if the failure to promote the employee was unfair the court in Ndlovu v CCMA and others (2000) 21 ILJ 1653(LC) stated that: “it can never suffice in relation to any such question for the complainant to say that he/she is qualified by experience, ability and technical qualifications such as university degree and the like for the post, that is merely the hurdle. The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair”. In this case l view appointment of the Second Respondent was both procedurally and substantively fair as her application complied with the minimum requirement of post and further performed well in the interviews by scoring high scores than all other candidates, recommended and appointed as the principal of Mdutshane Secondary School.

126. Based on the evidence before me, I find that the Applicant failed to prove onus on a balance of probabilities that she was procedurally unfairly not appointed as Principal of Mdutshana Secondary School.

127. As a result l conclude that l confirm that the Second Respondent to remain the appointed Principal of Mdutshane Secondary School as approved by the First Respondent.

128. Regarding the issue of costs, I am guided by clause 64 of Annexure B to the ELRC constitution .64.1 “subject to clause 62.6 the council will pay the costs of conciliation or arbitration proceedings including the costs of venue (if any) the fee of the panellist and expenses incurred by the panellist in terms of the Councils fee. 64.2 Each party to the dispute must pay its own costs with regard to travelling, meals, legal representation (if applicable) and other related expenses. 64.4 If any time during the proceedings, the panellist is satisfied that: 64.4.1 a party or person who represented that party in the proceedings acted in a manner seriously compromising the proceedings, the panellist may make an appropriate order of costs against the party or person compromising the proceedings. Such order may also relate to the costs of the Council referred to in clause 64.1”

129. Clause 64 is very clear that each party must pay his or her own legal costs, unless there are exceptions provided for in clause 64.4.
130. I am satisfied that the Applicant, the First and the Second Respondents did not compromise the proceedings. Therefore, each party to the dispute to pay its own costs as provided by clause 64.2.
AWARD
131. I find that the First Respondent committed fair labour practice relating to promotion as intended in section 186 (2) (a) of the LRA and the Applicant failed to prove that the appointment of the Second Respondent as Principal at Mdutshane Secondary School was unfair.
132. The appointment of the Second Respondent being Noyise Tyabula Pezulu is confirmed and stand as was appointed by the First Respondent.
133. No order is made on costs.

Signature:

Commissioner: Bongani Mtati
Sector: Basic Education