IN THE ELRC ARBITRATION
BETWEEN:
SADTU obo KENNETH A. D “the Applicant”

And

THE HEAD OF DOE KwaZulu Natal “the 1st Respondent”

And

NGOBO G. H “the 2nd Respondent”
ARBITRATION AWARD

Case Number: ELRC973-22/23KZN

Dates of arbitration: 22 May 2023, 20 July 2023, 17 October 2023, 20 November 2023, 19 January 2024, 19 March 2024, 19 June 2024, 17 July 2024 & 02 August 2024.

Date of award: 26 August 2024
Lungisani Mkhize
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearings were held at the Respondent’s Circuit Offices in number 169 Hoosen Haffejee Street in Pietermaritzburg at the dates mentioned on the first page of this award except on 22 May 2023 and 20 July 2023 where it was held online.

2. The Applicant, Mr. Aldrin Donavon Kenneth was present and represented by Mr. Vishnu Naidoo, a South African Democratic Teacher’s Union (SADTU) Official. The 1st Respondent, the Head of Department of Education in KwaZulu Natal, was represented by Mr. Sinethemba Daniso, its Employment Relations Officer from the Human Resource Management and Development Section. The 2nd Respondent, Mrs. G. H. Ngcobo chose not to attend all the proceedings even though invited.

3. The parties provided documentary evidence and called witnesses to testify. On 17 July 2024, the Applicant was represented by Mr. B Khan as Mr. Vishnu Naidoo was absent. On 20 November 2023, the 1st Respondent was represented by Ms. N. P Nkosi when Mr. S Daniso was absent.

4. The proceedings were held in English and digitally recorded.

5. The services of an interpreter were not requested.

ISSUE TO BE DECIDED

6. I am required to determine whether there was procedural and substantive unfairness in appointing the 2nd Respondent for the position of Deputy Principal (Post Number 1827) advertised in HRM 17 of 2022. The Applicant sought the setting aside of the appointment made for the position and that the interview process be redone by another School Governing Body (SGB) other than the newly appointed School Governing Body of the affected school. The Applicant argued that the School Governing Body and consequently the Interviewing Committee was not properly constituted, as found by the District Grievance Committee set up for the Principalship post 785. A grievance was lodged by Mr. N. P. Zuma.

BACKGROUND

7. The Applicant is employed on full – time basis by the Respondent on persal number 13339095, as a post level 1 Educator. Two recommendations for appointments, namely,one of Principalship and the other of Deputy Principalship were made by the Woodlands Secondary School Governing Body. A grievance was lodged relating to the Principalship post 785 and the District Grievance Committee ruled that the SGB that conducted the interviews and the recommendation for the appointment was not properly constituted ; and therefore, a new one had to be formed to conduct interviews and to make a recommendation for the appointment. This was done for the Principalship position 785 as per the outcome of the grievance lodged. The Deputy Principalship post 1827 appointment continued. Aggrieved by what he considered an unfair labour practice, the Applicant then referred an unfair labour practice dispute to the ELRC on 12 March 2023.

8. The ELRC then scheduled the matter to be conciliated on 30 March 2023 but it remained unresolved. The matter was then scheduled to be arbitrated before me on 22 May 2023 but was postponed and a ruling to that effect issued. The ELRC then scheduled the matter to be arbitrated on 20 July 2023 but could not proceed as the 2nd Respondent was not present as she was not notified on her email address. She provided her email address to use in future.

9. The ELRC then scheduled the matter to be heard before me on 17 October 2023 but there were challenges where the 1st Respondent could not send documentation electronically as it exceeded the email size limit. Moreover, the Applicant Representative had to attend another matter at the CCMA at 12:00 on the same day. Thus, the matter was adjourned.

10. The ELRC then scheduled the matter to be heard on 20 November 2024 but it was postponed as the Respondent”s Representative, Mr. Daniso was not well and provided a medical certificate to that effect.

11. The ELRC then scheduled the matter to be heard on 19 January 2024. The parties addressed me on opening statements and the Respondent Representative raised a point in Limine that the ELRC did not have jurisdiction to entertain the matter but needed more time to make further submissions. The Applicant Representative made his intentions to oppose the point raised in writing as well. However, no written submissions were made by the Respondent Representative by 02 February 2024, as had been agreed. A determination could not be made without submissions. Thus, jurisdiction continued for the ELRC as it was not challenged anymore.

12. The ELRC then scheduled the matter to be heard on 19 March 2024. On 18 March 2024, the ELRC sent a notice of set down confirming the arbitration hearing on 19 March 2024 and stating that the Respondent Representative’s application for postponement was refused as there was no evidence for submissions made. On 19 March 2024, another postponement application was made but was refused as there was still no evidence.

13. The Applicant party presented their case until finalization. No cross – examination took place from the 1st Respondent even though the Representative was given an opportunity to do so. The 1st Respondent’s case did not start on 19 March 2024 as no witnesses were available and a plea had been made to send the required evidence by end of the day. Thus, the matter remained part- heard.

14. The ELRC then set the matter to be heard on 19 June 2024 but it was postponed on 18 June 2024. The ELRC set the matter to be heard on 17 July 2024. The 1st Respondent called their 1st Witness Mr. M. A. Mncwabe who testified under oath until completion. The 1st Respondent’s 2nd Witness could not testify on that day as she was attending the National Teacher’s Awards.

15. The ELRC then set the matter to be heard on 02 August 2024. The 1st Respondent called their 2nd Witness, Mrs. T Ngidi who testified under oath until completion. The parties then requested to send written closing arguments on or by 12 August 2024 and this was granted.

SUMMARY OF EVIDENCE AND ARGUMENTS

16. The Applicant’s Union Representative called 2 witnesses, namely, the Applicant and Mrs. S Pillay who testified under oath. He submitted two bundles of documents named Exhibit A and B. The 1st Respondent’s Representative also called two witnesses, Mr. M. A Mncwabe and Mrs. T Ngidi who testified under oath. The 1st Respondent submitted a bundle of documents referred to as the Respondent Bundle (HRM Circular No. 5 of 2022). I only summarized evidence which I regarded to be relevant to the dispute and which helped me to reach my decision, as guided by section 138 of the LRA as amended.

The Applicant’s Case

17. In his opening statements, the Applicant’s Union Representative, Mr. Vishnu Naidoo submitted that this case was referred due to the unfair labour practice that took place at the Woodlands Secondary School. The Grievance Committee of the Department of Education ruled that the School Governing Body was improperly constituted when the recommendations for the appointment for the Principal and the Deputy Principal were made. The Department directed the school to go back and re – form its SGB. As a consequence, the Interviewing Committee was declared improperly constituted. After it was re-formed, a new Interviewing Committee(IC) was created Unfortunately, the SGB did not redo the interview for the Deputy Principalship.

18. The SGB was tainted at the time. SADTU contended that all processes advertised in HRM 5 of 2022 ought to have been redone by the new IC. The Department set a precedent that indeed it had jurisdiction to declare an SGB to be improperly constituted. Thus, the process must be redone. The Applicant prayed for relief for a new SGB to re-interview for the post of Deputy Principal.

19. Mr. Vishnu Naidoo called the Applicant, Mr. Aldrin Donavon Kenneth who testified under oath as follows: The dispute concerned the appointment made in relation to HRM 17 of 2022 for the Deputy Principalship post 1827 for which a Grievance Panel declared that the IC/SGB that made the recommendation for the appointment was not properly constituted.

20. On 11 October 2022, the District Grievance Committee found that with regard to the grievance lodged by Mr. P. M Zuma concerning post number 785 HRM Circular No. 05/17 of the 2022, the SGB was not properly constituted and recommended that the process from the interview stage be redone with a newly formed IC. . This was done for the Principalship position but not for the Deputy Principalship position. All processes should have been redone. He did not know why the Deputy Principalship post process was not redone and was disappointed that it resulted from an improperly constituted SGB.

21. He sought relief that the Deputy Principalship post process be redone from the interview stage as he could have been appointed as a Deputy Principal. The 1st Respondent delayed the arbitration proceedings purposely.

22. Under cross – examination by Ms. N Nkosi, Mr. Kenneth testified that he did not know if he was the recommended candidate and if he was prejudiced by the improper constitution of the SGB. He did not lodge a grievance with regards to the Deputy Principalship post 1827. Once he received the results of the Principalship post 785, he expected the Deputy Principalship post 1827 interview process to be redone as well.

23. There was no re-examination.

24. Mr. Vishnu Naidoo called his 2nd witness, Mrs. Shinaz Pillay, the suspended Chairperson of the Woodlands Secondary School who testified under oath: She was part of the SGB that elected the IC in relation to the HRM 5 of 2022 position process. She was part of the new SGB and IC. On 15 October 2022, two members were co-opted into the SGB. On 17 October 2022, a new SGB Executive and new IC were elected.

25. The new IC was briefed to redo the interview processes for the Principal and the HOD positions. She argued for the redoing of the Deputy Principalship position process but was informed that no grievance was lodged for it. The Applicant and 5 others would have had a fair opportunity to be interviewed.

26. There was no cross – examination and re-examination.

27. In his closing arguments, the Applicant’s Union Representative, Mr. Vishnu Naidoo submitted as follows: He re- told what each witness testified according to his notes or recollection. He then summarized his arguments in point form as follows:
● The District Grievance Committee found that the SGB/IC was improperly constituted.
● It directed that the processes of HRM 5 of 2022 be redone.
● A new SGB/IC was constituted for the purpose.
● Subsequently, the Principalship was redone.
● In evidence-in-chief the applicant’s witness confirmed that the Departmental Head post was redone as she was directly involved in that process.
● The Deputy Principalship post was not redone.
● Evidence was led that HRM 17 of 2022 was an addendum to HRM 5 of 2022.
● As such, they were one and the same document with the same procedures

28. Mr. Naidoo further submitted that the Applicant sought relief that the appointment of the Deputy Principal be declared unlawful and that it be set aside and that the process of interviews be redone by an independent IC made up members other than that of the present SGB.

The 1st Respondent’s Case

29. In his opening statements, the 1st Respondent Representative, Mr. Sinethemba Daniso submitted that the Respondent believed the matter was not an unfair labour practice dispute in relation to promotion since the Applicant cited a different post number, description and circular. Thus, the Applicant cannot rely on a decision of a District Grievance Committee (DGC) for a different post. The decision of the DGC cannot apply for a different post. The Respondent intended to defend this case. He raised a point inl imine that the ELRC could not adjudicate on the issue of the constitutionality of the SGB. This was the first of its kind. He would like to address the Council fully in writing citing the relevant laws and prescripts.

30. The 1st Respondent’s Representative, Mr. Sinethemba Daniso called his first witness, Mr. M. A Mncwabe, the Chief Education Specialist for the Msunduzi CMC under Umgungundlovu who testified under oath as follows: He had 30 years’ service with the 1st Respondent. He chaired the District Grievance Committee that found that the SGB that had made recommendations for the appointment to the Principalship position in response to HRM 5 of 2022, was improperly constituted and recommended that the interviewing process be redone. The District Grievance Committee is constituted by District Directors to hear evidence from parties and adjudicate on grievances as received. This was done as per the promotion post – bulletin. The Committee was established by the Director- General on behalf of the Education Department.

31. The grievance was lodged against Post No 785, a Principalship position at Woodlands Secondary School. Mr. P. M. Zuma was the aggrieved party. With regards to post number 1827, the Deputy Principalship position no grievance was lodged. A dispute that emanated from HRM 5 of 2022 could not affect an appointment from HRM 17 of 2022 as the merits of the case would be different and might have been dealt with by two teams and circumstances could be different.

32. The grievance indicated and proved that during the period in question, the SGB was made up of members who were not members of the SGB. It would prejudice Mr. Zuma if we ruled against him as the SGB that elected the IC was not properly constituted. SGB membership had expired due to a learner leaving the school and by elections had to be done.

33. Had a grievance been lodged for the Deputy Principalship position, it would have also been entertained, analyzed and ruled on accordingly. Based on the Principalship post recommendation, it did not follow that all the posts recommended must be redone by a newly appointed SGB and IC. They needed a grievance to be lodged so that they would know the circumstances that existed at the time.

34. The Department of Education advertised posts at different times; hence each bulletin had a different post number. Each time, the matter was taken by the GRC to review whatever stipulation required to be reviewed. Then the SGB recommends a candidate to a post through the IC. A properly constituted SGB appoints an IC who shortlists and interviews and sends recommended candidates to the SGB who either accepts or recommends a re-ranking and then sends a final recommendation to the Department.

35. Chief Education Specialists sat with Circuit Managers, guided and gave support in the processes. Upon conclusion, a responsible person would write a report to say whether there were irregularities or that proceedings went well. In this case, they received a grievance from Mr. Zuma. With regards to the other position, no issue was raised. Thus, the process was not subjected to any scrutiny.

36. The 1st Respondent had a duty to consider other SGB tasks and conducted workshops to assist SGBs on financial issues and other tasks. A workshop was conducted in June 2022. HRM 5 of 2022 was issued on 08 February 2022. HRM 5 of 2022 general principles in 2.1 meant that practices were developmental in nature. They became obsolete and new ones came into play so that the new ones had authority. Thus, new ones had to be expressed.

37. Under cross -examination by Mr. B Khan, Mr. M. A. Mncwabe testified under oath that post numbers were shown at the end of the circulars. Ideally, if the District Grievance Committee ruled on matters of this nature, they were limited by the relief that was sought by the grievance. By implication, the issue had to be resolved prior to the interviews.

38. When it was put to the witness that the Principalship position was also in HRM 17 of 2022, he testified that they were not dealing with all the matters. They dealt with the HRM 5 of 2022 grievance. His belief was that the process was redone within the ambit of HRM 5 of 2022.

39. There was no re-examination.

40. The 1st Respondent’s Representative, Mr. Sinethemba Daniso called his second witness, Mrs. T Ngidi, the Northdale Circuit Manager who testified under oath as follows: Woodlands Secondary School was under her supervision. The Deputy Principal post 1827 from HRM 17 of 2022 was in her school. She did not receive any grievance with respect to that post. The Deputy Principalship post was the only one on HRM 17 of 2022. There were two other posts at Woodlands Secondary School in 2022 and were from HRM 5 of 2022. One was a Departmental Head in Commerce post number 784 and the other a Principalship post number 785 for which she received a grievance.

41. The grievance outcome was that the interviews for the post had to be redone by the IC. She did not apply the findings of HRM 17 of 2022 elsewhere as there was no grievance lodged for the Deputy Principalship post.

42. The Applicant could not lodge a dispute on another post relying on an outcome of a grievance from another post and it had never been done before and could not be legally correct. It would be odd to use on Deputy Principalship post 1827 when it was for Principalship post 785. The Principalship post 785 was not advertised in HRM 17 of 2022. Only the Deputy Principal post was advertised on HRM 17 of 2022.

43. Under cross examination by Mr. Vishnu Naidoo, Mrs. T Ngidi testified under oath as follows: She agreed that the same procedures for conducting the sifting/ shortlisting and conducting of interviews of candidates for HRM 5 and 17 of 2022 were the same. She disagreed that it was the same IC that conducted interviews for post 785 and post 1827.

44. Considering that the DGC ruled that the SGB/IC was not properly constituted, she did not find it prudent to apply the same outcome on other posts in HRM 17 of 2022 as it was never done before. The Deputy Principalship post process was not redone.

45. In re-examination, Mrs. T Ngidi testified that only the post 785 interview processes were redone as it was the only post to be reviewed. The decisions of the DGC were applied as given and not open to interpretation by others. The post 784, Departmental Head position from HRM 5 of 2022 was not subjected to the DGC outcomes for post 785. Hence post 784 processes were not redone.

46. In his closing arguments, the 1st Respondent Representative, Mr. Sinethemba Daniso submitted as follows: The Applicant (Mr D Kenneth) applied for post number 1827 : Deputy Principal from HRM 17 of 2022, and the selection process was concluded by the Interview Committee. The Applicant was not recommended by the School Governing Body to be considered for the appointment by the Head of Department. The post did not attract any grievance and was therefore processed accordingly.

47. He further submitted that the school had other vacancies on HRM 05 of 2022 (Post no 784 – Departmental Head and post no 785 – Principalship). There was no grievance for the Departmental Head post which was processed as per the recommendations of the School Governing Body.

48. There was a grievance against the Principalship post, which was entertained by the District Grievance Committee, and subsequently an outcome was issued taking into consideration HRM 05 of 2022 Procedure Manual, page 15, Section 24: Grievances / Disputes.

49. The grievance outcome was communicated to interested parties and was implemented as per the directive of the District Grievance Committee. Refer to Exhibit B1, B2.

50. The Applicant lodged a dispute with ELRC in terms of Section 186(2): Promotions. The grounds of his dispute were that the District Grievance Committee outcome should also apply to post 1827: Deputy Principal, for which he was an Applicant. .
ANALYSIS OF EVIDENCE AND ARGUMENT

51. Section 186(2) (a) of the LRA stipulates that an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.

52. This is a dispute relating to promotion and therefore, my determination will focus on whether there was unfair conduct by the first Respondent against the Applicant concerning procedure of appointing the second Respondent to post 1827 of Deputy Principalship at Woodlands Secondary School in response to HRM Circular No 5 and 17 of 2022.

53. In Buffalo City Public FET College v CCMA and others (P372/12) [2016] ZALCPE 18 (handed down on 4 November 2016) it was held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the Employee to prove that he/she is a suitable and better candidate for the position in question. In this case, the Applicant’s relief is to have the appointment made in relation to post 1827 set aside and the interview process be redone, as he alleged that the SGB/IC that conducted the interview process was improperly constituted, relying on the DGC finding of the same and a recommendation that the interview process be redone for another post 785, a Principalship position in the same school. Thus, he then had the burden of proof and started leading evidence.

54. The Applicant argued that the decision of the DGC should have been extended to the other post that he applied for so that he could possibly stand a better chance under a different SGB than the current one at the Woodlands Secondary School. Mr. Mncwabe testified that the DGC was limited by the relief sought in the grievance. In National Commissioner of the SAPS v SSSBC and others [2005] 26 ILJ 903 (LC), the Court held that the complainant must prove that there is a causal connection between the unfairness complained of and the prejudice suffered.

55. HRM 17 of 2022 is an addendum of HRM 5 of 2022. Thus, the procedures reflected in HRM Circular No 5 of 2022 applied to HRM Circular No 17 of 2022. All positions advertised in both circulars closed on the same date of 22 April 2022. According to the HRM Circular No 17 of 2022 Management plan, applicants that met the minimum requirements for post 1827 were released on 03 May 2022. The SGB had from the 3rd of May 2022 to 20 May 2022 to complete shortlisting, interview applicants and do ratifications. The SGB had until the 23rd of May 2022 to submit recommendations to the UMgungundlovu District.

56. The Applicant submitted that the Principalship post 785 and the Deputy Principalship post 1827 interviews at Woodlands Secondary were conducted on the same day by the same IC. It then follows that if it was found that the SGB/IC that conducted the Principalship interviews was improperly constituted, then the same improperly constituted SGB/IC conducted the interviews for the Deputy Principalship post 1827. This is in contravention of clause 10.1 of the HRM Circular No 5 of 2022 which states that an SGB constituted in terms of the South African Schools Act No. 84 of 1996 must establish an interview Committee from its members.

57. For the 1st Respondent to be aware of the improper constitution of the SGB/IC, a grievance was lodged by an aggrieved applicant as per clause 24.2 of HRM Circular No. 5 of 2022 in relation to the Principalship post 785. The recommendation of the DGC applied to the post cited only and not all the posts for which processes were conducted by the same SGB/IC. The current 1st Respondent grievance process allows for aggrieved parties in respect of the other affected positions to lodge individual grievances per post. However, the Applicant did not use this opportunity and no reasons were given. The Applicant did not argue and show how he was prejudiced by the 1st Respondent’s current procedure and action of only redoing the post 785 interview process. The interview process was not redone for the Departmental post 784 as well as no grievance was lodged thereof. Mrs. Shinaz Pillay testified that post 784 interview processes were redone by the newly formed SGB/IC but this was disputed by the 1st Respondent and no evidence led by the party that bore the burden of proof, the Applicant.

58. To me, had the Applicant been significantly prejudiced by the conducting of interviews by an improperly constituted SGB/IC, he would have also lodged his complaint in respect of the Deputy Principalship post 1827 as per clause 24.2 of HRM Circular 5 of 2022, since HRM Circular No. 17 of 2022 was its addendum but this was not done. This prevented the 1st Respondent to act according to an existing process to grant the Applicant his relief. The Applicant is an Educator in the same school where the SGB/IC conducted processes and should have done his own due diligence to ensure that his rights were protected in pursuance of an application for the Deputy Principalship post 1827. Expecting the 1st Respondent to change its procedures to accommodate him when a process is already there to deal with a grievance he had was not proper.

59. The steps to be followed to appoint an SGB and IC are stipulated in South African Schools Act No. 84 of 1996. On 15 and 17 October 2022, Mr. Sewpersad conducted meetings at Woodlands Secondary School to ensure that the SGB was properly constituted. Thus, the relief sought that another SGB redo the post 1827 interview process could never be granted even if unfairness was to be found in the conduct of the 1st Respondent.

60. In this matter, the Applicant failed to prove how he was prejudiced by the 1st Respondent by not redoing the interview process for post 1827. He did not lead evidence that had the interview process been redone; he would have been the best candidate before the newly constituted SGB/IC. Instead, the Applicant sought relief of being interviewed before another SGB/IC other than the current one at the school (no jurisdiction for the ELRC to do such) and no reason for that was given.

61. The 1st Respondent did subject candidates for affected positions at Woodlands Secondary School to being interviewed by an improperly constituted SGB/IC between 03 and 23 May 2022 if the HRM 17 of 2022 Management Plan was followed. However, the grievance process did allow for a grievance and investigation so that a determination could be made to correct the SGB constitution. This was done to remedy the situation for the aggrieved party. There was also no evidence led to suggest that the 1st Respondent went out of its way to keep an improperly constituted SGB/IC at Woodlands Secondary School. It is thus my finding that no unfair labour practice was committed by the 1st Respondent.

62. A properly implemented system ensuring that schools keep up with changes in the constitution of their SGB’s, resulting from learner moves or SGB member deaths or resignations allowing for by-elections within a reasonable time, would ensure that SGBs are properly constituted. This would be especially necessary when complex and important tasks like Educator recruitment are conducted and would eliminate a situation when it is discovered through the outcome of a DGC based on a lodged grievance, that an SGB was improperly constituted. A preventative approach would be more effective and a reactive one should be left for rare occasions or emergencies. The 1st Respondent is urged to find a better way to self-correct on the constitution of SGBs, so as not to leave correction to the chance of an aggrieved applicant lodging a grievance as had happened in the case of the Principalship post 785.

63. Based on the evidence before me, it is my finding that the Applicant failed to prove that the 1st Respondent committed an unfair labour practice by not redoing the interview process for the Deputy Principalship post 1827 after a GDC finding that the SGB/IC for the Woodlands Secondary School was improperly constituted when interviews for the Principalship post 785 were conducted.

AWARD

64. I hereby find that the 1st Respondent, Head of DOE-KwaZulu Natal did not commit any unfair labour practice against the Applicant, SADTU obo Kenneth A. D by appointing the 2nd Respondent, Ngcobo G.H

65. Accordingly, the Applicant’s Case is dismissed.

66. There is no order as to costs.

L Mkhize

Arbitrator 26 August 2024
ELRC973-22/23 KZN