Panelist/s: Kuvonakala Chavalala
Date of Award: 30 July 2024
In the ARBITRATION between:
Mamadise Mamodishe
(Union / Applicant)
and
Department of Education (Gauteng)
(First Respondent)
Lindeni Margaret Mashegoane
(Second Respondent
DETAILS OF HEARING AND REPRESENTATION
[1] This is the arbitration award between Mamadise Mamodishe (hereinafter referred to as “the applicant”) and Department of Education Gauteng (hereinafter referred to as “the first respondent”) and Lindeni Margaret Mashegoane (hereinafter referred to as the “second respondent”). The hearing concerned an alleged unfair labour practice dispute relating to promotion. It sat down on several occasions and was finalised on 03 July 2024 and parties were to submit written closing arguments on 10 July 2024.
[2] The applicant was represented by a SADTU official, Mr TR Nkosi. The first respondent was represented by Mr Peter Nkosi and the second respondent was represented by Ms Moloto.
[3] Before submission of the closing arguments, applicant made an urgent application to re-open her case, I suspended the submission of closing arguments in order to deal with the application. I declined the re-opening of the applicant’s case and directed that closing arguments be submitted on 19 July 2024 and all parties submitted. The arguments were considered in making this award.
[4] The applicant submitted a bundle of documents which was marked Bundle M. The respondents submitted a bundle which was marked Bundle A.
[5] The hearing was held in English and it was digitally and manually recorded.
ISSUES TO BE DECIDED
[6] I am required to decide if the respondent committed an unfair labour practice against the applicant in relation to promotion, if yes, the appropriate remedy.
BACKGROUND TO THE ISSUES TO BE DECIDED
[7] The applicant is employed by the respondent and stationed at Lesiba Secondary School. She is a Post Level 1 educator.
[8] A post was advertised at Lesiba secondary School (EN43D1036) of a deputy principal position (PL3) and the requirements were Leadership, Administration and Management skills related to the specific school type.
[9] The parties held a pre-arb meeting and filed minutes. Most of the factual matrix were common cause. The following issues were recorded in the minutes (as amended on record) as issues that are common cause:
a) The applicant and the second respondent applied for the deputy principal post at Lesiba secondary school.
b) Both the applicant and the second respondent were shortlisted and invited for interviews.
c) According to the interview minutes both the applicant and the second respondent were scored during interviews.
d) The applicant lodged a grievance on 31 August 2023 within the stipulated time frames as provided for in the grievance procedure. A notice of set-down was issued for the grievance hearing on 28 September 2023 and the applicant was invited.
e) On 28 September 2023 the applicant could not attend the grievance hearing due to ill health and medical certificate was submitted. No other set down was issued, and the appointment was affected by the department.
f) The grievance was not handled by the department in accordance with the grievance procedure.
g) The recommendation Submission Form (From C) was signed on 19 September 2023 by the district director.
h) The second respondent was appointed as deputy principal of Lesiba secondary school.
i) The appointment was based on scores only.
[10] The following were issues in dispute:-
a) The applicant was scored 36 out of 129 and the second respondent was scored 112 out of 129. The scores were irrational and unjustified.
b) The procedure was unfair and biased. The panel was not properly constituted.
c) The process was compromised and confidentiality was violated. The panellist had vested interest in the process.
d) The appointment was irregular and there is no indication of approval by the district director as per Form C.
e) Ms Mashegoane was the only recommended candidate as per interview and ratification minutes.
[11] The applicant initially sought to be accorded a Master teacher status with compensation from date of appointment of the second respondent. She later sought for the process to be redone.
SUMMARY OF EVIDENCE AND ARGUMENT
The testimony led by all the witnesses is fully captured on the record of proceedings and what appears in this award is only but a summary of the evidence relevant to the issues in dispute and for determination
THE APPLICANT’S CASE
The applicant testified and she issued subpoenas for three more witness.
First witness: Mamadise Mamodishe, the applicant
[12] On the date of the interview, she was informed that. She would have 30 minutes to answer all questions. She was not told how many marks each question carried and this would have assisted her because she would have apportioned her time in proportion to the marks allocated for each question.
[13] There is a procedure for dealing with grievances in terms of clause 17 of ELRC Collective Agreement 1 of 2021 -Recruitment and Placement Procedures for Educators at Schools. This procedure was not followed by the first respondent. Form C incorrectly states that there is no grievance lodged while she in fact had lodged a grievance.
[14] The district director signed Form C but did not make a selection of whether she approves or not.
[15] In terms of the minutes of the interview and the ratification minutes, the second respondent is the only recommended candidate and this does not comply with the collective agreement.
[16] The principal, Mr Tshabalala was the chairperson of the interviewing committee. This means that he could not have been the departmental representative. This is in conflict with provisions of PAM. Or the collective Agreement 1 of 2021 clause 8, 8.1.2 which requires a departmental representative to be present.
[17] During the interview, some panel members were not scoring and the results were wildly known immediately after the interview. It is true that she was scored 36 out of 129 but she denies the scores because that would mean she does not know the basics of her job. And to that she knows the basics of her job, she has been preforming well and qualifying for performance bonus. It was known before interviews that the second respondent will get the post because she is one of the principal’s favourites. She was aware of the fact that the second respondent is the principal’s favourite but she did not raise it to the interview panel because she was not asked.
[18] It was put to her that she does not even meet the requirement of the post and she stated that those who shortlisted her must answer to that. She conceded that her B Agric and Management is only a qualification and not experience. She conceded that the second respondent was a PL2 educator and had been acting on the PL3 position. She conceded that she was on position 5 in terms of the scoring. She conceded that in terms of form C, there are three recommended candidates and their preference is in terms of scores.
[19] She conceded that in her grievance and referral form, she never mentioned that the community was aware of the interview outcomes on the same date of interviews.
[20] It does not matter whether she is the best candidate or not, the process was flawed and subsequently unfair. If the procedure was followed correctly, anyone else would have gotten the post.
Second witness Nomceba Patience
[21] She was the District Director for Ekurhuleni North until May 2024.
[22] In terms of the recruitment and selection policy and PAM document, the School Governing Body (SGB) must recommend 3 candidates in order of preference to the HOD or District Director.
[23] In terms of minutes of the interview, the SGB mentioned that it recommended one candidate, the second respondent. It is however clear from the ranking or scores who the other two candidates are. Form C also stipulates the three candidates in line with the ranking and the scores that appear on the minutes of the interview. There is no requirement that the minutes recommends three candidates. What is important is consistency in the minutes and Form C. The criteria that was set by the panellists was that the recommendation would be based on scores. The motivation on Form C is to show why the panel score the candidates in a manner that they have.
[24] After the interviews and ratification, the school takes the file to the district, the sub directorate will go through all other processes of ensuring that all requirements are met, she then approves as the district director. She signed the Form C to show that she approved and appointed. She is delegated to appoint for PL1 to PL3. On Form C, there is a provision for one to make a selection between ‘approved’ and ‘not approved’. She did not make a selection but her signature at the end shows that she approved and appointed the second respondent. She was not aware of any grievance lodged in this matter but she notes that there was on lodged as per documents shown to her.
Third Witness: Barbara Marinda Bruyns
[25] She is the Deputy Director for Transversal Human Resources Services (THRS). She saw the interview minutes and only one person is mentioned as a recommended candidate. The selection was based on scores and the three people with the highest scores as per minutes are the same as per Form C. There is no requirement for the three candidates to be mentioned in the minutes, there is a requirement to mention them on Form C. The department focuses on Form C since it is a departmental form, minutes differ according to who the minute taker was. All that they check in the minutes is that there is collaboration between the minutes and the recommendation as per Form C.
[26] Motivation on Form C is also required even though the criteria was that selection will be based on scores. They must motivate why they reached the score, the motivation is not for an individual recommended but for the scores awarded. They would have reject the Form C if there was no motivation.
Fourth Witness: Thomas Khadi
[27] He was the chairperson of the SGB during the time of the interviews and subsequent appointment of the second respondent. As per interview minutes, Mr Tshabalala was a chairman of the panel, not of SGB. When a selection committee is nominated, the committee then appoints its own chairperson. He was not there during the interviews. He signed the minutes and Form C as the chairperson after they gave him feedback of what transpired. He signed because he trusts them.
Respondent’s case
The respondent called two witnesses as follows: –
First witness: Percival Nkosi, testified under oath as follows:
[28] He is the Chief Personnel Officer for circuit 3 which consist of a group of schools. He is the custodian of post establishment of those schools. He is in recruitment section and also does vetting of candidates.
[29] The recruitment file will be given to him from school and he checks it against the policies. He will check compliance with the four steps which are : – selection of the panel, shortlisting, interview, ratification. He then will check if Form C is properly completed. Its Compulsory for Form C to be signed by the chairperson of the SGB. Form C must have three recommended candidates and a motivation even if the criteria was based on scores only. At face value and as per pages 22 (selection of the panel), page 24 (minutes for shortlisting), 28 (minutes for interviews) and 33(minutes of ratification) of Bundle A , the four steps were complied with.
[30] He is the P Nkosi that appears on Form C, page 59 of bundle A. He stated that there was no grievance because he was not aware of such a grievance. Dispute section was supposed to inform him of the grievance but did not.
[31] The principal can be a chairperson of a subcommittee. He can also be a departmental representative at the same time, nothing says he cannot be both.
[32] He stated that Form C is the only form that must outline the recommended candidates, what appears on the minutes is not a recommendation according to him. The scores that are on the minutes are the ones that informed Form C.
Second witness: Kenneth Mthunzi Tshabalala
[33] He he is the principal of Lesiba Secondary school
[34] When the school has a vacant post, the department advertises. The school receives a vacancy list from the department. If the vacant post is on the list, they prepare a management plan for the entire recruitment process and timelines. They then select a panel; do the shortlisting; interviews; ratification and send the recommendations for appointment.
[35] His role in this specific recruitment process was that he was the one running the meetings since the chairperson of the SGB did not arrive. He represents the department but is an ex officio member of the SGB. The chairperson of SGB then had a very poor meeting attendance. Postponing the meetings would not be an option because it would affect the management plan.
[36] It is not correct that he dislikes the applicant, it is an allegation that he is hearing for the first time. The decision to recommend the candidates was based on scores only and the second respondent was the best as per scores. He is not aware of anyone having vested interest in the outcome of the interview.
[37] He disagreed that he is prohibited by South African School Act, Section 29 to run a meeting, all that is said by the section is that he cannot be a chairperson of the SGB (office bearer). Anyone can run a meeting. As per minutes for the selection of the panel (page 22 of bundle A) no one nominated him. He need not be nominated because he represents the HOD and he is an ex-offficio member of every committee in the school by virtue of his principalship. The GDE Recruitment and Selection Policy provides in clause 6.2.8 (page 103 of Bundle M) as follows:
The full complement of the SGB must after the briefing, convene a meeting where they will elect a selection panel/committee. The panel must comprise: –
a) A departmental representative (who may be the school principal) as an observer and a resource person (for post level 1 to 3)].
b) The principal of the school (if he or she is not a departmental representative), except in a case where he or she is the applicant (for post level 1-3)
[38] He stated that he was both (a) and (b) and nothing precludes him from acting in those two roles, it does not render the meeting unconstitutional.
ANALYSIS OF EVIDENCE AND ARGUMENT
[39] In terms of section 186(2)(a) of the Labour Relations Act (LRA), an employer commits an unfair labour practice if it commits any unfair conduct in relation to inter alia promotion.
[40] The applicant bears the onus to prove on balance of probabilities that the employer has committed an unfair labour practice. In order to discharge this onus, over and above proving that he or she has the minimum requirements for the post, the employee must prove that the decision not to appoint him or her was unfair. The employee discharges this onus by not only proving that she was the best candidate but also was denied a promotion based on arbitrary grounds.
[41] It is trite that there is no general right to promotion, employees do however have a right to be fairly considered when a vacancy arises. It is common cause that the applicant was considered together with the second respondent. The scoring according to the interview committee scored the second respondent the highest. It is also common cause that the applicant was position 5 according to the scores and she was not in the list of the three recommended candidates.
[42] In this case, the applicant could not show what she was challenging about the substance. This became clear when she stated that anyone else could have been appointed had the procedures been followed meticulously. She stated in her own words that it does not matter whether she is the best candidate or not, the process was flawed and subsequently unfair. She still insisted that she also challenged the substantive fairness of the second respondent’s appointment.
[43] In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle.
[44] In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held, with reference to the Aries case above, that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following:
• whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer; or
• whether the employer’s decision was arbitrary, or capricious, or unfair; or
• whether the employer failed to apply its mind to the promotion of the employee; or
• whether the employer’s decision not to promote was motivated by bad faith;
• whether the employer’s decision not to promote was discriminatory;
• whether there were insubstantial reasons for the employer’s decision not to promote;
• whether the employer’s decision not to promote was based upon a wrong principle;
• whether the employer’s decision not to promote was taken in a biased manner.
[45] The onus is on the applicant to discharge. It is my finding that the applicant did not prove any substantive unfairness on the part of the district director by appointing the Second respondent.
[46] I now turn to the question of procedural unfairness.
[47] The applicant alleged that the procedure was flawed and this rendered the promotion unfair. It must be noted that over and above alleging and proving procedural unfairness, the applicant also needs to prove the causal connection between that procedural defect and how the defect has actually prejudiced her.
[48] The employer argued that the applicant was actually favoured by being shortlisted to the post she did not qualify for. Further, even if it is found that the procedure was wrong, which is denied, mistakes in the process generally do not constitute unfairness justifying interference with the decision to appoint as per the ELRC Collective Agreement 3 of 2016 (Guidelines :Promotion Disputes).
[49] The applicant on the other hand alleged that process was unfair and biased. She stated that the panel was not properly constituted. Further that the process was compromised and confidentiality was violated. She alleged that panellist had vested interest in the process. The appointment was irregular because there is no indication of approval by the district director as per Form C.
[50] The applicant relied on South African School Act, Section 29 to argue that the principal had no powers to run a meeting. This section provides that only apparent member of a governing body who is not employed at a public school may serve as the chairperson of the governing body. All that is said by the section is that the principal cannot be a chairperson of the SGB (office bearer). Nothing in that section suggests that the principal cannot run a meeting of the subcommittee. This ground therefore must fail.
[51] The applicant argued that the selection panel was unconstitutional because the panel was not as comprised per the recruitment and selection policy of the department. The GDE Recruitment and Selection Policy provides in clause 6.2.8 (page 103 of Bundle M) as follows:
The full complement of the SGB must after the briefing, convene a meeting where they will elect a selection panel/committee. The panel must comprise: –
a. A departmental representative (who may be the school principal) as an observer and a resource person (for post level 1 to 3).
b. The principal of the school (if he or she is not a departmental representative), except in a case where he or she is the applicant (for post level 1-3)
[52] It was stated by Mr Tshabalala that he was both (a) and (b). It is correct as argued by the respondent that nothing in the above provision precludes him from acting in those two roles if he is not an applicant in the post. It does not render the meeting unconstitutional.
[53] The applicant also alleged that confidentiality was breached as results were wildly known just after the interviews. She alleged panellists had vested interest. This was not taken anywhere further beyond the allegation. No evidence was brought in support of these allegation and this version was not even put to the principal by the applicant. These allegations are therefore rejected as unproven.
[54] The applicant argued that Form C, which was indeed signed by the respondent did not make an election of ‘approved’ or ‘not approved’. It appears that the applicant went digging to find points to stymie the process of appointing the suitable candidate. The District Director confirmed she appointed the second respondent. The absence of that election between approved or not approved is neither here nor there.
[55] The respondent conceded that the applicant lodged a grievance about the process and that it was not dealt with as per the grievance procedure. While I bemoan the respondent’s failure to handle the applicant’s grievance in terms of the procedures in place, I find that such failure does not render the process unfair. The applicant had an opportunity in this arbitration to air her grievances, which she did. The applicant’s grievances as also raised in this arbitration did not render the process unfair.
[56] Nothing also turns on the argument that the minutes mention only the second respondent as the recommended/preferred candidate. The form responsible for submission of the recommendation (Form C) is clear who the three recommended candidates are. The recommendation as per Form C aligns with the scores or ranking that appear on the minutes. In terms of the scores and the Form C, the applicant was not recommended.
[57] I find that there is nothing unfair regarding the procedure that was followed by the respondent.
[58] It is my finding that the applicant failed to discharge on balance of probabilities that the first respondent committed an unfair labour practice by not promoting her.
AWARD
1. The first respondent did not commit an unfair labour practice towards the applicant by not promoting her to the position of a deputy principal (PL3) post number EN43D1036.
2. The case against the respondents is dismissed.
Signed and dated at Pretoria on this 30 day of July 2024
Kuvonakala Chavalala
Commissioner