IN THE MATTER BETWEEN: ELRC896-23/24LP

Mononyane Mmamolele Josephine APPLICANT

And

Education Department of Limpopo 1st RESPONDENT

Molapo Moyahabo 2nd RESPONDENT

1. DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged Unfair Labour Practice, referred to in terms of section 186(2) of the Labour Relations Act 66 of 1995, as amended was held and finalized at The Department of Education-Limpopo, Waterberg on 20 August 2024.
1.2. Both parties attended the proceedings. The 1st respondent was represented by M.K Masindi, its legal officer, while the employee was represented by advocate M.S Mononyane. The 2nd respondent, Molapo Moyahabo, defaulted and was not respondent.
1.3. The parties agreed that even though the 2nd respondent has defaulted, the arbitration must proceed since the relief sought, of compensation, by the applicant will not affect the 2nd respondent in any way.
1.4. The hearing was held in English and was digitally recorded.

2. ISSUES TO BE DECIDED
2.1. Whether or not the decision of the 1st respondent not to appoint the applicant was substantively fair. If not, I must determine appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.

3. BACKGROUND TO THE ISSUES
3.1. The applicant viewed her non-appointment to the position of principalship at Nelsonkop Primary School to substantively unfair and prays to be compensated for the period from 01 February 2024 until 31 August 2024.
3.2. The following issues are common cause to the parties:
a) That in this matter, the applicant bears the onus to prove her case.
b) That the position of principal at Nelsonkop Primary School was advertised. The applicant was shortlisted and invited to attend interviews.
c) During the interviews, the applicant was scored second, while the 2nd respondent was scored first. The 1st respondent appointed the applicant despite the SGB’s recommendation that the 2nd respondent be appointed to the position.
d) After the appointment of the applicant, Nelsonkop Primary School SGB and the Saviour Association of School Governing Bodies filed an application to the Court for an order that, inter alia, the HOD’s decision to appoint the applicant be declared unlawful, reviewed and set aside and that the HOD be ordered to reconsider the recommendations of the SGB. The application was opposed by the 1st respondent.
e) The Court declared the decision to appoint the applicant unlawful and set it aside. The matter was then remitted back the to the HOD for reconsideration and decision de novo. The Court never ruled that the 2nd respondent should be appointed.
f) The applicant occupied the position of principal at Nelsonkop Primary School immediately after her appointment during 2021 until 31 January 2024. On 01 February 2024, her appointment was revoked after the Court judgment, and she was made to revert to her previous position of deputy principal.
g) When her appointment as a principal was revoked on 31 January 2024, she was earning R56 058.88 per month. From 01 February 2024, her salary is R48 031.88 per month.
h) The applicant has since been appointed to the position of principal at a different school with effect from 01 September 2024.
3.3. Prior to the commencement of the proceedings, the 1st respondent submitted a bundle of documents marked “R”, while the applicant submitted a bundle of documents marked “A”.
3.4. The applicant closed her case after leading her own evidence, while the 1st respondent closed its case after the leading the evidence of one witness.
3.4. Both parties submitted oral closing arguments immediately after closing their respective cases.

4. SUMMARY OF EVIDENCE AND ARGUMENTS
4.1. The following is a summary of only relevant evidence submitted by both parties and which was taken into account in order to arrive at a decision in the matter.

5. THE APPLICANT’S CASE
5.1. The applicant, Josephine Mmamolele Mononyane, testified that during 2020, the 1st respondent issues a circular of its Employment Equity (EE) profile of principalship post. The circular was directed to all district directors, circuit managers and school governing bodies (SGB). The circular was to be utilized when shortlisting, recommending and when appointments are made to the principalship posts. The circular further recommended that principalship posts be filled by the underrepresented groups. According to the 1st respondent’s EE profile of principalship position, African males are overrepresented, while African, Coloured, Indian and White females are underrepresented. The 2nd respondent is African male.

5.2. The applicant further submitted that the Court judgement did not rule that the 2nd respondent was supposed to have been appointed but stated that the HOD is still entitled to exercise his discretion in terms of section 6(3) and 7(1) of the Educators Act. Her appointment was only set aside by the Court because the 1st respondent failed to follow the procedure/provisions set out in section 6(3) of the Educators Act. In its opposing affidavit to the Court application, the HOD submitted that it was fundamental to address the ills of the past such as lack of female representative in executive and/or decision-making positions when appointing educators and that consideration should be on a larger scale regarding the overall representation of female leaders occupying executive positions.

5.3. Under cross-examination, the employee testified that the HOD has a sole discretion to appoint educators. When making recommendations and appointments, the SGB and the HOD must consider the 1st respondent’s EE profile. The appointment of the 2nd respondent was only because he was scored number one after the interviews. Despite the fact that she is more experienced than the 2nd respondent, the 1st respondent’s EE profile gave her added advantage. Nelsonkop Primary School’s SMT (School Management Team) comprises of seven (07) members, her as a deputy principal, four female HODs and one male deputy principal. The 2nd respondent was not appointed to the school to balance the EE profile of the school.

6. THE 1ST RESPONDENT’S CASE
6.1. The employer’s only witness was Kedibone Songwane. The 2nd respondent was appointed after the committee considered the EE profile of the school. Nelsonkop Primary School only had one male in the school management team (SMT). The circuit manager appointed the applicant without consulting the SGB and she did not have the authority to deviate from the SGB recommendations.

6.2. Under cross-examination, Kedibone Songwane, testified that SGB only recommend and the HOD has a sole discretion to appoint. The circular that was issued addressing the issue of EE profile of the 1st respondent, does not mention that the composition of the school management team (SMT) should also be considered when appointing principals. If the applicant was appointed to the position, it was going to the change the 1st respondent EE profile in terms of African female representative. In terms of the HOD opposing affidavit, the 1st respondent EE profile applies to a larger scale regarding the overall representation. The appointment of the 2nd respondent was considered on a narrow scale.

7. ANALYSIS OF EVIDENCE AND ARGUMENTS
7.1 The circular issued by the 1st respondent during 2020, provides that the EE profile should be utilized when shortlisting, recommending and appointing principals and that posts advertised be filled by the under-represented groups including people with disabilities. It is undisputed evidence that African males are overrepresented and African females are underrepresented when it comes to the principalship posts.

7.2. It is the applicant’s arguments that she was supposed to have been appointed to the position despite being scored second after the interviews because she is more qualified than the 2nd respondent and that the 1st respondent EE profile give her first preference.

7.3. On the other hand, the 1st respondent argued that the 2nd respondent was appointed after considering the EE profile of the school management team and that he was scored number one after the interviews.

7.4. In De Nysschen v GPSSBC and others (2007) 28 ILJ 375 (LC), the Court held that although the incumbent does not enjoy a right to automatic promotion in an upgraded post, the discretion not to promote should be exercised in a way which does not constitute unfair labour practice and does not fall foul of the balanced approach called for by the Constitution, which provides for a balanced approach. On the one hand, fair labour practice and affirmative action must be observed. On the other hand, effectiveness, efficiency, high ethical standards and progressive human resources policies are crucial and the question at hand had to be interpreted in that context.

7.5. Although the onus was on the applicant to demonstrate that the failure to promote was unfair, the 1st respondent is in the same token, obliged to defend challenges on substantive and procedural fairness. The 1st respondent’s witness conceded during cross-examination that the committee applied the EE profile at a narrow scale when making the appointment. The committee’s approach falls foul of the 1st respondent EE profile which applies to a larger scale regarding the overall representation. That the 1st respondent EE profile applies to a larger scale was also submitted by the HOD in her opposing affidavit to the Court application lodged by the SGB.

7.6. It is highly questionable that during the arbitration, the 1st respondent argued against its submission made before the Court. The 1st respondent’s decision not to promote the applicant was based upon a wrong principle and insubstantial reasons. The respondent failed to observe its own Employment Equity profile.

7.7. In the circumstances, I conclude that the applicant has proved on balance of probabilities that the decision by the 1st respondent not to promote her was substantively unfair. The applicant prayed for compensation, and I find it to be an appropriate relief under the circumstances.

7.8. In determining the compensation, I took into account the period in which the applicant applicant’s appointment was revoked and the salary reduced. Also took into account the difference of her salary that she earned before her appointment was revoked and the salary that is currently earning (R56 058.88-R48 031.88=R8027.00). That the applicant has since been appointed to the position of principalship with effect from 01 September 2024. Therefore, I conclude that seven (07) months’ compensation at R8027.00 per month, to be just and equitable under the circumstances.

8. AWARD
8.1. The 1st respondent, Department of Education Limpopo, to compensate the applicant, Mmamolele Josephine Mononyane, with an amount of R56 189.00 (Fifty-Six Thousand One Hundred and Eighty-Nine Rands), calculated at R8027.00 per month.
8.2. The amount mentioned in 8.1. above should be paid to the applicant on or before 30 October 2024.

ELRC COMMISSSIONER: NICHOLUS SONO
DATE: 04 September 2024