Case Number: ELRC524-24/25 EC
Panelist: Lungile Matshaka
Date of Award: 23 March 2025

In the ARBITRATION between

NAPTOSA obo N Gobo-Jezile
(Applicant)

And

DEPARTMENT OF EDUCATION & 1 Other
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. This is an award emanating from an arbitration hearing held on the 5th & 6th of March 2025 involving the Applicant, Ms. .Nonkqubela Gobo-Jezile, represented by Mr. Aaron Mhlontlo, NAPTOSA Official, whilst Mr. Mlahleni, Labour Relations Official represented the First Respondent, the Department of Education of the Eastern Cape Province (EC), and Mr. Siyabonga Jonas, SADTU Official, representing, Mr. Litha Mbebe, the Second Respondent and incumbent.
2. The hearing was initially held on the 7th November 2024 at the premises of the First Respondent at its offices located at No. 14 Dundas Street, Cradock. Due to time constraints, it had to be rescheduled for two (2) days the following year (2025), 28 & 29 January and continued on the 5th of March and concluded on 6th March 2025.
3. The proceedings were digitally recorded, and the witnesses gave evidence under oath.
4. The parties requested and were enabled to submit closing arguments within 7 days. Both complied.

ISSUES TO BE DECIDED

5. I am required to decide whether or not the 1st Respondent committed unfair labour practice both procedurally and substantively in appointing the second Respondent, Mr. Mbebe to a vacant Deputy Principal’s post, at Ekuphumleni Senior Secondary School (SSS) within Chris Hani District in Middleburg. The said post was advertised in the Open Post Bulletin for Deputy Principals: Volume 2 of 2024, dated 10 May 2024.
6. As relief, the Applicant is seeking to have Mr Mbebe’s appointment set aside and the process be started afresh.

ISSUES TO THE BACKGROUND

7. In essence, the Department of Education of the Eastern Cape Province through its Open Post Bulletin for Deputy Principals Volume 2 of 2024 399, advertised the vacant deputy principal’s posts in the Chris Hani District of Middleburg Circuit, at Ekuphumleni Senior Secondary School. From the outset, it should also be pointed out that the requirement for the Deputy Principal’s post was Mathematics and Physical Science grade 10-12 i.e. the FET Band (Further education and Training Band).
8. Mr. Mbebe attended the interviews and was eventually appointed. According to his representative, he conducted himself well and professionally scoring high marks to the satisfaction of the panel.
9. Both the Applicant and Mr. Mbebe applied for the position. The Applicant is aggrieved by the fact that the interviewing committee was not properly constituted. Instead of 7 out of 12 panel members only 5 members constituted the interviewing committee. Further, the SGB meeting held on 18 July 2024 did the sifting as well as shortlisting on the same day. This also meant that that the panel was not elected in the SGM meeting meant for such purpose in terms of PAM. Further, the Chairperson as well as Secretary of the panel was also elected in the same meeting.
10. Further, as an observer, only SADTU official, responded to the invitation. With regards to NAPTOSA, its representative contends that they were never invited. On the other hand, the First Respondent stood by its position of invitation.
11. There were two ratification meetings, the first one was on the 18 July 2024 before the interviews were held and, in that meeting, there was no specific recommendation made by the SGB. The second one was held on 25 July 2024, where a specific recommendation was made.
12. The tribunal’s attention was also drawn to the fact that the Applicant has 28 years of experience whilst Mr. Mbebe has five (5) years of teaching experience. In the same breath it should be noted that the incumbent met the minimum requirement of the position.
13. It must also be spelt out that the Deputy Principal’s post is managerial and 2nd in command of the school of management. Further, the Applicant has an education management qualification at Master’s level, on the other Mr. Mbebe does not have such a qualification other than B Ed degree.
14. The Applicant thrives in tutoring and lecturing under graduate students in Physics and Mathematics in three (3) different universities (NMU, OFS & UFH) for a period (10) days. On the other hand Mr. Mbebe has not had such an exposure.
15. As relief, the Applicant seeks that the whole process be declared procedurally and substantively unfair and be set aside and started afresh in terms of section 22 of the South African School Act No. 84 of 1996, as amended.

SURVEY OF EVIDENCE & ARGUMENTS

16. The Applicant in her evidence-in-chief highlighted her teaching experience in various schools in the Eastern Cape (Mbodleni), Mount Frere and KZN, mainly in Kokstad, before she was transferred to Middelburg in Ekuphumleni SSS, where she is still teaching. She also brought to light that after a Diploma in teaching, she upgraded her qualification when she obtain a BA degree from UNISA as well as FDE (Further Diploma in Mathematics Education. In 2010 she graduated at Rhodes University with an Advanced Certificate in Science Education specializing in Physical Science.
17. She is currently a member of SMT (School Management Team) and also acting as a Departmental Head for Maths and Science Department. She is also an active member of SGB and coordinating School Music.
18. In cross-examination, the Applicant, in an as much she insisted that she was the best candidate, she however did not know how the other two candidates performed. What is not in dispute is her 28 years of teaching experience as well as other academic achievements and exposure obtained in no less than four (4) tertiary institutions in KZN and EC Provinces.
19. It also came to light that the Applicant participated as a full member of the SMT (School Management Team) at Ekuphumleni SSS, but for few days in December 2024.
20. Understandably, it makes sense that the Applicant felt hard done despite her achievements at tertiary level. In the same breath, the panel was within rights to opt for a candidate who is also qualified and meets the minimum requirement of the post as per the advert.
21. The 1st witness of the Respondent, Ms. Babalwa Mobo, confirmed her participation in the recruitment of the Deputy Principal of the Ekuphumleni SSS as soon as the Bulletin came out in May 2024. It did not take long when the Ms. Mobo brought to the attention of the tribunal that when the Applicant at one time gave her a lift, she further gave her R200 to share with others. The Applicant further made the point that she told her that she is the only teacher that is deserving the post of a Deputy Principal.
22. The process started off with training of SGB just for a day (10 or 11 July 2024). She further pointed out she was introduced to by the Principal to a SGB person.
23. It further came to light that Mr. Mondweni, SADTU representative, was the only person who availed for the training. There were 6 applications inside the envelope, but unfortunately, no academic record documents were attached to the CV’s respectively. It was further noted that the academic transcripts were also not included.
24. On the day of the interviews, they had to prepare all the questions an hour before the commencement of the interviews of the candidates.
25. The Applicant was ushered in when her moment came. Mr. Mahono was the timekeeper in this instance. The Applicant was afforded to read all the questions, before the process of the interviews was in full swing. The pattern was the same, e.g. the first candidate was ushered in and introduced to the panel. The last candidate to be interviewed was Mr. Mbebe. Ushering, formal introduction and time-keeping as done to the other two candidates was still the order of the proceedings. All the candidates were grateful for the opportunity offered to them respectively. At the end of this process scores were calculated and handed over to the Chairperson of the panel who then passed them on to the Department’s officer in charge the following morning.
26. In cross-examination Mr. Moeketsi Mondweni, confirmed under oath that he was invited as an observer after receiving an invitation in the morning of the 18th July 2024. He denied that it was norm to be invited on the day of interview as a union observer. He also denied that he participated in the process as an observer. He never interfered with the process at any stage.
27. In his turn to cross-examine by Mr. Mahono, he, confirmed that they were satisfied with his answers. At this point, Mr. Mondweni pointed out that he was not satisfied. He was only prepared to sign with the rest of the panel of SGB members when he came back they had already adjusted the scores.
28. It came out from Mr. Mahono that the school wanted somebody with Mathematics and / or Science. In response to another question regarding the Mr. Mbele’s suitability, they were satisfied with his answers. It also came to light that Mr. Mondweni made an objection first and when he came back the scores had been adjusted the scores.
29. The 2nd Respondent’s last witness, Mr. Theo Scam, testified to the fact that he was the Manager/Principal of the Ekuphumleni SSS. He had commenced his duties in January 2022. He was involved as a resource person in the recruitment process leading to the appointment of the incumbent.
30. As per the advert Mathematics and Physical Science were identified as key subjects with five (5) years of teaching experience. The said subjects must fit the profile or must appear at the matric certificate both of them, if not, must in both instances be teaching subjects with good results.
31. An issue came to light that the Applicant does not have both Mathematics and Physical Science at Matric level. Mr. Mondweni, the only observer from SADTU who attended appointment process, objected to the shortlisting of the Applicant because she did not fit the profile qualification.

ANALYSIS OF EVIDENCE & ARGUMENTS

32. As a point of departure, the Labour Appeal Court in “Monyakeni v SSSBC & Others (JA 64/13) [2015] ZALAC 17 pronounced that there are two components to a complaint regarding a failure to promote an Employee as an unfair labour practice. The one relates to the procedure followed by the Employer. The other relates to the substantive merits, and it concerns the candidate’s suitability for promotion to the post in question.”
33. In essence, the 1ST Respondent advertised a post through open bulletin Volume 2 of 2024 and both Applicant and incumbent applied for the position of the Deputy Principal which are all P3. The Applicant at the time of applying was employed as level 1 educator at Ekuphumleni SSS was shortlisted together with the incumbent, Mr. Litha Mbebe. They went for interviews and Mr. Mbebe was scored no. 1 and the Applicant was scored no. 3.
34. Mr. Mbebe was recommended by the panel and was appointed to the post in dispute. He later then received an appointment letter which is an official document dated 19/08/2024 signed by the District Director. He then assumed his duties as the Deputy Principal of Ekuphumleni SSS. He was later informed by the ELRC that his appointment has been disputed by one of the candidates for the post, Mrs. Gobo-Jezile.
35. The Applicant’s representative on behalf of the Applicant challenged both procedural and substantive unfairness of the process.
36. Procedurally, the representative alleged that sifting was not done by the 1st Respondent; that one union, NAPTOSA was never invited and only SADTU was invited to observe the process; that the selection was not properly constituted for both shortlisting and interviews; that the SGB meeting that elected the selection panel was not quorate as there were only 5 SGB members in attendance out of 12 members; and that the Chairperson and the Secretary of the Panel were never elected in the Panel meeting and they were elected in the SGB meeting.
37. On the substantive issues, it was alleged that the Applicant did not meet the minimum requirements of the post in that he never studied Physical Sciences at tertiary level and since his appointment he never taught such a subject.
38. The Applicant is better off than the 2nd Respondent in relation to four issues:

(a) The teaching experience wherein the Applicant has 28 years and the incumbent has 5 years;

(b) The Deputy Principal post is a managerial and second-in-charge in terms of commanding at school, the Applicant has a qualification in Education Management at Master’s level, and the second Respondent does not have such a qualification;

(c) The high qualification of an Applicant is Master of Education whereas the 2nd Respondent has a junior degree (B. Ed); and

(d) The Applicant has experience of tutoring/lecturing undergraduate students in Physics and Mathematics in three different Universities, UFH, UOFS, and NMU for a period of ten years whereas the 2nd Respondent never had such an exposure.

39. Without taking the matter too far and contrary to what the Applicant would have us to believe, it has to be accepted that the incumbent meet this minimum requirement as per the advert. However, in relation to the Applicant the two witnesses of the employer led evidence that the employee was a primary school teacher who was not eligible to teach in a secondary school.
40. Notably, it also came to light, that the observer of SADTU objected on her being shortlisted based on her teacher primary qualification. In addition, evidence was led that the Applicant misrepresented when she indicated in her CV that she did Physical Science and Mathematics on HG whilst the actual certificates indicate that those subjects were done at SG level.
41. The reasons just highlighted demonstrates the fact that the Applicant was not meant to have been shortlisted but the panel decided that she should be given a chance because she was part of the school. Admittedly, the Applicant is highly qualified and experienced than the incumbent though such is for a different stream (primary education) to that required by panel (FET) which was a senior phase (grade 10-12). The 2nd Respondent did a teacher qualification as bachelor of education (FET) which permits him to teach in senior phase and was teaching Mathematics at Ekuphumleni SSS.
42. Furthermore, the two witnesses of the employer indicated that they set the criteria looking for someone who was teaching the subjects Physics and Mathematics (Gr 10-12) or one who has done one of the subjects at tertiary and should have done the subjects at matric level. The incumbent met this criterion because he did Mathematics and Physics at grade 12 and was also teaching Mathematics at school.
43. In contradistinction, the Applicant does not have Mathematics and Physics at tertiary (i.e. FET) and was teaching Mathematical literacy not Mathematics. She did not have teacher’s qualification to teach at high school, and have questionable credentials in her grade 12 certificate. The two witnesses testified that the Applicant was shortlisted by the panel in spite of those challenges and the Applicant suffered no prejudice.
44. The Applicant submits that the 2nd Respondent did not meet the minimum requirements of the post in that he never studied Physical Sciences at tertiary level and since his appointment, he never taught such a subject.
45. In Observatory Girls Primary School & another v Head of Department of Education, Provicne of Gauteng, Case No 02/15349[2006] JOL 17802 (W) it was held that: “The question then arose whether the multitude of applicable laws and regulations which prescribe the procedure to be followed in the appointment of new teachers were peremptory or merely directory. In either event, the first question arose whether the exact compliance was required or whether substantial compliance was sufficient. Accepting for present purposes, that the prescribed procedure was peremptory, strict compliance was not necessary. All that that was called for was substantial compliance. Held further, that the procedure that the school had followed fully achieved the purposes of the legislation of ensuring that there was fair and transparent procedure in place for appointing teachers to fill vacancies”
46. This means that strict adherence in PAM documents stipulations is not necessary or may not render the process unfair.
47. It is trite law an applicant who does not comply with the minimum requirements for a job, cannot complain of any unfair conduct relating to promotion because he should in the first instance never even been shortlisted, let alone appointed. However, while an applicant in a promotion dispute needs to prove that he complied with the minimum criteria for the post, it is never sufficient for him to prove that he is qualified by experience, ability and technical qualifications, such as university degrees and the like, for the post.
48. Further, as reflected upon in PAWC (Department of Health & Social Services) v Bikwani (2002) 23 ILJ 761 (LC) 771 it is well-established principle that courts and arbitrators should be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process.
49. In the light of the above exposition, as a reasonable decision maker and on a balance of probabilities, in my own fair sense justice, I can only come to one conclusion that the Applicant has failed to discharge the onus that the conduct of the employer constituted an unfair labour practice both substantively and procedurally.

`AWARD

50. I make the following award:
51. I find that that the Applicant has failed to discharge onus that the conduct of the 1st Respondent has constituted an unfair labour practice by not appointing the Applicant in the post now occupied by the incumbent.
52. The matter has to dismissed Signature:

Commissioner/ Panelist : Lungile Matshaka