In the ARBITRATION between:

SADTU obo NOKHWEZI KREXE & 1 OTHER
(Applicant)

and

DEPARTMENT OF EDUCATION: EASTERN CAPE & 5 OTHERS

(Respondent)

Applicant’s representative: Ms Mboniswa
Applicant’s address: P O Box 190
BHISHO
5608
Telephone: 0605201447
Telefax: 040 639 3229

Respondent’s representative: Mr Hlekani
Respondent’s address: Private Bag X0032
BHISHO
5606
Telephone: 0826607369
Telefax: 040 608 4458, 0865690154

DETAILS OF HEARING AND REPRESENTATION

1 The dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the Education Leadership Institute in East London on 15 April 2016, 22 July 2016, 21 September 2016, 6 December 2016, 7 December 2016, 8 December 2016, 6 March 2017 and 7 March 2017. The proceedings were electronically recorded. The parties by agreement submitted written closing arguments on 17 March 2017.
o The Applicants, Nokhwezi Krexe and Nonzaliseko Stamper were represented by Ms Mboniswa, an official from the South African Democratic Teachers Union (SADTU).
o The Respondent, the Department of Education: Eastern Cape was represented by Mr Hlekani.
o The MEC for Education: Eastern Cape and the Superintendent General for the Department of Education: Eastern Cape also parties to this matter were represented by Mr Hlekani.
o The incumbents of the disputed posts, Nomthandazo Luphuwana and Mzoleli Rayi, were represented by Ms Ntongana, an official from SADTU.
o The School Governing Body (SGB) of Vukuhamber Special School was represnetd by Mr Hlekani, the Respondent’s representative.

ISSUE TO BE DECIDED

2. I am required to determine whether the Respondent, the Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2) of the LRA in not appointing the Applicants, Nokhwezi Krexe and Nonzaliseko Stamper to the posts of deputy principal Post level 3 at Vukuhamber Special School.

BACKGROUND

3. At the commencement of the arbitration hearing and arising out of the narrowing of the issues, the parties agreed on the following as common cause:

3.1 The First Applicant, Nokhwezi Krexe, commenced employment as an educator with the Respondent on 10 April 1991.

3.2 She is currently a post level 1 educator salary level 7.

3.3 When she applied for the position in April 2015 she earned a salary of R299 159.00 per annum.

3.4 She applied for the vacant post, post number 292, Deputy Principal: Intermediary phase, post level 3, salary level 9 at Vukuhamber Special School.

3.5 She was short-listed and interviewed for the advertised post. Her interview was held on 1 April 2015.

3.6 The shortlisting and interview processs were restarted with an independent panel being appointed in that the SGB did not ratify and make a recommendation to the district director and as a consequence thereto Ms Krexe was again shortlisted and interviewed for the position on 10 November 2015.

3.7 Ms Nomthandazo Luphuwana applied for the position of Deputy Principal: Intermediary phase. When the first interviews were held for the advertised post during April 2015 she was not shortlisted and therefore she was not interviewed. However after an independent panel was appointed she was short-listed and interviewed. She was appointed to the post on 26 January 2016.

3.8 Ms Luphuwana started working as an educator on 13 January 1986 and she had been a master teacher for more than 10 years.

3.9 The Second Applicant, Nonzaliseko Stamper commenced employment as an educator in 1994.

3.10 Ms Stamper applied for the position of Deputy Principal: Senior Phase (FET phase) Post Level 3, Salary level 9 with the learning subjects of mathematics and economics. She also applied for the position of HOD, post level 2 salary level 8. She was short listed and interviewed for both positions. The process was restarted with an independent panel being appointed because the SGB did not ratify and make a recommendation to the district director. Ms Stamper was again shortlisted and interviewed on 6 November 2015. She was thereafter appointed to the position for HOD on 26 January 2016.

3.11 When she applied for the position in April 2015 she earned a salary of R262 254.00 per annum.

3.12 Mr Mzoleli Rayi was appointed to the advertised post of Deputy Principal: Senior Phase (FET phase) on 26 January 2016. When he applied to be appointed to the deputy principal position he was a HOD, post level 2 salary level 8. He was not shortlisted and therefore not interviewed when the first interviews were held during April 2015.

4. As to relief, the Applicants seek that the appointments of Ms Luphuwana and Mr Rayi be set-aside and that the Applicants be appointed to the deputy principal positions as advertised. The Respondent and the incumbent seek that the status quo ante be maintained and the Applicants’ referrals be dismissed.

SURVEY OF EVIDENCE AND ARGUMENT

5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

APPLICANT’S EVIDENCE AND ARGUMENT

6 Ms Woko, Ms Stamper and Ms Krexe testified. Ms Thombizanele Woko testified to the following effect.

6.1 She is a post level 1 educator teaching grade 1 at Vukuhamber Special School and she is a member of the SGB. She was the secretary to the interview panel and also participated in the scoring of the candidates. She was trained to conduct interviews.

6.2 There were 4 posts advertised, 2 HOD posts and 2 deputy principal posts. The interviews were held during April 2015. They first interviewed candidates for the deputy principal’s post foundation and intermediate phase and then thereafter candidates for the deputy principal’s post FET phase.

6.3 During the process of the interviews for the deputy principal’s post FET phase, the chairperson of the SGB did not sign the recommendation form as she claimed that she was feeling cold. The person that “won” because of the marks awarded was Ms Stamper. Due to the marks awarded the other Deputy Principal’s post that post was “won” by Ms Krexe.

6.4 After the interviews were conducted, the Principal, Mr Mangaza took the interview documentation to his office. A SGB meeting was called in order to report back what occurred during the interviews. During the meeting with the SGB Mr Mangaza told them that the result had been leaked. The chairperson of the SGB indicated her unhappiness claiming that the whole process was a problem for her in that there was a lack of fairness. The principal informed the meeting that the results must be sent to the district director, Ms Twyala did not sign the recommendation form. She was under the impression that during that period that the results had been sent to the district director.

6.5 On 8 July 2016, Ms Swartz called the panel as well as the principal to the district office for a meeting. Ms Swartz read out a letter that she received from Ms Twyala. The letter stated that there was no confidentiality and results were leaked out. Ms Swartz enquired from Ms Twyala if there were any problems with the interviews. The response given was that the process was unfair because she (Woko) was a friend of one of the candidates. Ms Swartz’ response was that there was nothing wrong provided that they do not come from the same family. Ms Twyala was not prepared to identify the person who leaked the information. Ms Swartz’s response thereto was that they should disregard the letter. Ms Swartz enquired whether the panel reached consensus as to the preferred candidate. Ms Twyala stated that there was no consensus reached. Ms Swartz said that the interviews must then be started afresh and a new panel must be appointed. Mr Mnguni, the district director then entered the meeting and asked why they did not make a recommendation. Mr Mnguni said that they could not start the process afresh in that they must try and reach consensus and if no consensus is reached they must then use the scores. They were given until 20 July 2015 to reach consensus.

6.6 They could not reach consensus and the interview panel as well as SGB wrote a letter to the district director telling him that they had reached a deadlock and requested permission to use the scores.

6.7 On 28 October 2015 she wrote a letter to SADTU advising them what had transpired in that she had heard that there was going to be an independent panel that would be appointed to restart processes with the shortlisting to be done as from 30 October 2015. She advised the union that according to her understanding the process was done and there was nothing wrong with the interviews and in the last meeting with the district director he said that the SGB must be invited to sign the recommendations.

6.8 At a meeting between the SGB and the panel chairperson who was also the chairperson of the SGB, the SADTU representative was chased away.

6.9 Under cross-examination, she admitted that she is a friend of Ms Stamper in that they worked together and that she would get a lift with Stamper to work daily.

7 Ms Nonzaliseko Stamper testified to the following affect.

7.1 She is one of the applicants and was a candidate for the deputy principal’s post as advertised. She has a passion for learners with disability and is involved in this field for 22 years. She graduated in 1992 with a BA degree and in 1993 she received a higher diploma in education. She also has a B Degree in Education in Mathematics FET and an Honours Degree in Augmentative and Alternative Communication.

7.2 She qualifies in that she met all the requirements for the post.

7.3 After the interviews the principal was silent and he did not give them feedback. They were told that a ratification meeting would be held on either the 4th or the 5th of May 2015 and this was a month after the interviews. Mr Sabana, the deputy chairperson of the SGB told her that there were plans to change the scores and vote against her and that the chairperson of the SGB was not prepared to sign the recommendation forms. It was for that reason that she wrote a letter on 4 May 2015 requesting an outcome of the promotion process.

7.4 All the documentation (files) applicable to the promotion process was in the back of the principal’s car and he told her that he was taking the files to the district director’s office. She informed the principal of what Mr Sabana had told her. On 26 May 2015 she phoned the district director and enquired from him when she could expect a response to a letter she sent to the district office. He told her to re-submit the letter and handed it to Ms Swartz. Two months had elapsed and in terms of Section 6, Chapter 3 of the Employment of Educators Act, the district director could have made a decision.

7.5 On 29 May 2015 the principal submitted the results and on 8 July 2015 Ms Swartz invited the SGB and the panel to a meeting at the district office. On 14 September 2015, Mr Mnguni the district director invited all stakeholders from the school that included the panel and trade unions to a meeting. At that stage she was a site representative for SADTU.

7.6 Mr Rayi the incumbent in the post she is challenging did not possess the necessary requirements in that he did not have knowledge and experience in special needs schools and in special needs sports.

7.7 She agreed that the position of Deputy Principal is more of a managerial position.

8. Ms Nokhwezi Krexe testified to the following affect.

8.1 She applied for the position of deputy principal and she met all the requirements for the position and she has experience in special needs education. She has been teaching at Ikhwezi Lokusa special needs school in Mthatha.

8.2 On 6 November 2015 she received a telephone call from Ms Swartz enquiring from her where she was. She was informed that she was supposed to attend an interview. She informed Ms Swartz that she was in Mthatha and therefore could not attend the interviews. Ms Swartz informed her that there was a problem between the SGB chairperson and the principal of Vukuhamber Special School. After lunch she was called again and informed that the arrangements were made for her to attend interviews on 10 November 2015 at 12h00 in East London.

8.3 The problem with appointment of the incumbent was that he was not shortlisted in the first interviews and Ms Swartz told her that they would be interviewing the same people that were previously interviewed.

RESPONDENT’S EVIDENCE AND ARGUMENT

9. Sihle Mnguni, Estelle Swartz and Dirk Hanekom, testified for the Respondent. Mr Mnguni testified to the following effect.

9.1 He is the acting district director and has been acting since 2012. At the time when the incumbents were appointed he was acting in that capacity.

9.2 As a district director he is responsible for the general management and administration of the district including schools. He has to see that curriculum management takes place in line with government policy. With regard to appointments he has also to ensure that relevant policies and procedures are adhered to and that includes school governing bodies (SGB). The delegation for the appointment of principals, deputy principal and HOD’s do not lie with him and he only makes a recommendation to the chief director who has the delegated powers to make appointments.

9.3 Before making recommendations his duties were to ensure that the posts in question were advertised that there was a panel that conducted interviews and that the SGB had ratified the panel’s recommendation. The SGB has a final recommendation to make regarding who they recommend. He also has to ensure and check to see whether the requirements of the post had been adhered to when recommending individuals.

9.4 The district section of Institutional Development Support and Governance (IDS & G) and HR are responsible to do quality assurance before recommendations reach his office. Only after they have done a quality assurance will he append his signature to the recommendation document and make a recommendation himself. When complaints are lodged he would get IDS & G department to look into the complaint and sometimes, considering the gravity of complaints, he would get involved.

9.5 On 14 September 2015 he convened a meeting with the stakeholders at the school. This was after complaints were received from the school that the process relating to the appointment of the deputy principal posts could not go forward. During the meeting it was reported to him that the interview process was not fair. The chairperson of the SGB was not prepared to sign the recommendation form of the interviews. In his deliberations he discovered that the full complement of the SGB had not deliberated as to whom they recommended. He recommended that the matter be referred back to the SGB for the interview committee and the SGB to make a recommendation. During this meeting he realised that he was speaking to the interview committee and not the SGB.

9.6 He informed the SGB (in a meeting) of the importance of them making a decision as to whom they recommend to be appointed. He also told the SGB that if the chairperson does not want to sign and if there is a majority decision of the SGB someone else who is a member of the SGB could sign on behalf of the chairperson. Because there was no ratification by the SGB no appointments could be made at that stage.

9.7 The SGB requested the Respondent to appoint an independent panel. As a consequence thereto the SGB on 14 October 2015 was provided with a list of panel members identified by the Respondent to conduct short listing and interviewing. The SGB was requested to approve the list containing panel members. This list was approved by the SGB.

9.8 After the independent interview panel had interviewed the candidates that were shortlisted, the preference list was handed to the SGB who in turn ratified the panel’s recommendation.

9.9 As it relates to Ms Stamper’s challenging the appointment of Mr Rayi as the deputy principal because he does not have experience in special needs schools, it should be noted that the deputy principal post is a senior managerial post. The deputy principal assists the principal and what matters to him as a district director is curriculum management. What is preferred is a person with previous experience in management. The performance standards of deputy principals of all schools are the same.

10. Ms Estelle Swartz testified to the following effect.

10.1 She is employed as a chief education specialist in the section, IDS & G. The section deals with the management of schools and circuit managers.

10.2 When posts are advertised their role is to see that procedures are followed. When the SGB has completed short listing and interviewing and recommending candidates they check all documents relevant to the process before it goes to the district director.

10.3 What usually happens is they train SGB’s how to do short listing and conduct interviews and make recommendations. Not the entire SGB would conduct interviews and therefore an interview committee would be appointed to do the interviews. The problem with the first process was that the interview committee was unable to make a recommendation as well as the SGB. The SGB chairperson who was also the chairperson of the interview panel did not want to sign the recommendation forms.

10.4 She was thereafter instructed by the district director to compile a list of 4 interview panels and this would be done in conjunction with the SGB. The SGB was given this list of proposed panels and they agreed to the list of recommended panelists. She was the chairperson of the panel that sat on post number 292 for the deputy principal post. This is a post that Ms Krexe is challenging her non-appointment. They invited the union to monitor the process and it was agreed that the process would restart from re-doing the short listing and interviews.

10.5 The recommendation of the independent panel was based on consensus and scores. The recommended candidate who was appointed, Nomthandazo Luphuwana when interviewed was structured in her approach, was sure what was expected from management as well as organized curriculum. She received a score of 92 whereas Ms Krexe received a score of 71. She was viewed by the panel as the best candidate for the post. They shortlisted 4 candidates to be interviewed but only 2 candidates that is the incumbent and Krexe attended the interviews. The criteria as per advert as it relating to sports would serve as an additional advantage.

11. Mr Dirk Hanekom testified to the following effect.

11.1 He is employed by the Respondent as a circuit manager and was the chairperson of the interview panel that conducted the short listing and interviews for the position of deputy principal for post number 293.

11.2 The SGB approved the appointed panel. The successful candidate who they recommended was Mr Rayi. In terms of Pam F2 the inherent requirements for the position of deputy principal requires general administration and for a deputy principal to be able to step into the shoes of the principal. Sport is not a core function of the post. Mr Rayi met all the attributes of the key performance areas of a deputy principal. The highest scoring candidate based on consensus was the candidate that they recommended.

11.3 Mr Rayi arrived late for his interviews in that he went to the school and not the district office. After Ms Stamper was interviewed she received the highest score because Mr Rayi had not arrived as yet. But after Mr Rayi was interviewed he scored the highest score. He scored a mark of 78 and Ms Stamper scored a mark of 72. Mr Rayi at the time of the interviews was a HOD with 13 years service as an HOD and therefore he had 13 years school management experience whereas Ms Stamper did not have managerial experience.

11.4 Management experience is extremely important in that they have seen many schools fall because there is no management

ANALYSIS OF EVIDENCE AND ARGUMENT

12. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable.

13. There were very few issues that were in dispute. The Applicants unhappiness stems from the fact that they were not appointed during the first round where the SGB interview panel conducted interviews. Both Applicants scored the highest marks and they claim to have won those interviews. In order for appointment to take place, the interview panel must make a recommendation to the SGB who they view as their best candidate and the SGB must ratify the recommendation of the interview panel and make a recommendation to the Respondent who they want appointed. What happened during the first round is that the chairperson of the SGB who was coincidently the chairperson of the interview panel was not happy with the process that transpired. She considered the process to be unfair in that a certain panel member was a friend of one of the candidates who was awarded a higher score than other candidates. Ultimately because the SGB could not reach consensus in making a recommendation to the Respondent that process was abandoned. The SGB then requested the Respondent to appoint an independent interview panel consisting of experienced educators with managerial experience. The independent interview panel shortlisted both Applicants and therefore they were invited to the interviewed. The incumbents that were appointed were not shortlisted in the first round and a decision was taken to restart the process at the shortlisting and interview phase.

14. The evidence of the Respondent’s witnesses was that both incumbents, Ms Luphuwana and Mr Rayi were appointed because they were the strongest candidates. Ms Luphuwana was at the time of her interview a master teacher with more than 10 years’ experience as a master teacher who applied for the position not because of money but because she had a passion in dealing with special needs Mr Rayi did not have experience in a special needs school but had managerial experience because he was an HOD.

15. The fact that both incumbents were not initially shortlisted and having regard to the fact that they both possessed managerial experience in my view indicates that they were not shortlisted because they would have been competition for the Applicants. This must have been why the chairperson of the SGB was unhappy with the process as it relates to the first round. What is clear is that before there was a leak as to what occurred during the process, that this posed a problem to the SGB chairperson. It should be noted that the entire process until an appointment has been made is confidential and panel members who are involved in the process have to sign confidentiality forms undertaking not to disclose information. The Respondent in their written closing arguments have argued that Ms Stamper’s reliance on having “won” the interviews means that she had failed to understand that the process had not been finalised and therefore her claim was premature. The referral to the Bargaining Council was made after the incumbents were appointed and therefore the referrals were not premature.
16. In the mater of NAPTOSA obo Angela Peta Jones and the Department of Education: Eeastern Cape and Other (PSES 380-15/16EC) I referred to the matter of SAPS v Safety and Security Bargaining Council & others (LC Case no: P426/08; judgment date 27/10/2010). Cheadle AJ set down the following principles, which were interpreted to give a very wide discretion to employers in the selection / recruitment process. These are summarised below:
• 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 scrutinising 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.
• As a general rule the appropriate remedy is to refer the decision back in order to allow the complainant a fair opportunity to compete. The exception being where there has been discrimination or victimization and there are compelling constitutional interests at stake or if the applicant proves that but for the unfair conduct, he or she would have been appointed.

16. Quoting Professor PAK Le Roux writing in Cheadle Landman Le Roux and Thompson Current Labour Law 1991/1992 at 17: ‘The court should be careful not to intervene too readily in disputes regarding promotion, especially to senior management positions, and should regard this as an area where managerial prerogative should be respected unless bad faith or improper motives such as discrimination are present.’

17. Section 25 (1) of the South African Schools Act 84 of 1996 (SASA) provides that if the Head of Department (Superintendent General) determines on reasonable grounds that the governing body has ceased to perform functions allocated to it in terms of this Act or has failed to perform one or more such functions, he or she must appoint sufficient persons to perform all such functions or one or more such functions, as the case may be for period not exceeding three months.

18. Section 30 of the SASA provides that a governing body may establish committees, including an executive committee; and appoint persons who are not members of the governing body to such committees on the grounds of expertise, but a member of the governing body must chair each committee.

19. What transpired is that the SGB advised the District Director (Respondent) that they were not in a position to perform the functions of the interview committee and as a consequence thereto the District Director provided the SGB with a list of names individuals who would perform the functions of an interview panel that would conduct short listing and interviews. This interview panel was approved by the SGB and the panel made a recommendation to the SGB as to which candidate can be appointed. The SGB in turn ratified the recommendations of the interview panel (Independent) and made recommendations to the Respondent whom to appoint.

20. I can find no fault in the procedures adopted by the Respondent in appointing the incumbent and in hindsight considering the fact that the first interview panels appointed to conduct short listing and interviews that recommended the appointment of both Applicants I question whether that panel possessed the necessary skills to make an informed choice and recommendation. I say this especially when considering the posts of deputy principal were both managerial posts. The only educator on the panel was Ms Woko who is a post level 1 educator who teaches grade 1 and the other two panel members were parents who are members of the SGB. How is it possible to assess candidates especially for a managerial position where those conducting the assessments do not possess the necessary experience and knowledge of the post? I am satisfied that the independent panel after interviewing candidates recommended the strongest and the best candidates to the SGB and the best candidates were appointed to the post. The interests of the learners (children) are of paramount importance. To appoint a post level 1 educator as the deputy principal who possesses minimal to no managerial experience is a recipe for disaster. As testified by the Respondent’s witnesses management ability is what is required of a candidate to be appointed as a deputy principal and where there is no management a school will fall.

21. The question is whether the Applicants were denied a fair opportunity to compete for the advertised position. The Applicants were afforded a fair opportunity to compete. I can find no justifiable reason to interfere with the appointment of the incumbent.

AWARD

22. I find that the Respondent, the Department of Education: Eastern Cape did not commit an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA in not appointing Nokhwezi Krexe and Nonzaliseko Stamper to the advertised posts of deputy principal.

23. The applicants, Ms Nokhwezi Krexe and Ms Nonzaliseko Stamper, are not entitled to any relief.

Name: Jonathan Gruss
ELRC Arbitrator