IN THE ARBITRATION
Between
NAPTOSA obo FEZEKA MTANDABUZO APPLICANT
AND
DEPARTMENT OF EDUCATION – EASTERN CAPE 1ST RESPONDENT
VUYOKAZI VAVA 2ND RESPONDENT
ARBITRATION AWARD
DATE/S OF HEARING 11 APRIL 2024- 12 JULY 2024
DATE AWARD SUBMITTED 30 JULY 2024
NAME OF PANELIST BONGANI MTATI
PRELIMINARY ISSUE BY THE FIRST RESPONDENT
1. The First Respondent raised a concern that the Applicant’s representative interfered with their bundle of documents when he was in the office to be assisted with documents, he requested to prepare for the arbitration case.
2. He submitted that the Applicant’s representative took their original document of the Applicant and inserted information at paragraph 12 of the Applicant’s application form which was blank during the employment process.
3. He submitted that such interference must be regarded as fraud as the Respondent would not allowed him to insert anything in their document and his conduct could potentially prejudice their case.
RESPONSE BY THE APPLICANT’S REPRESENTATIVE.
4. He disputed interfering with the documents of the First Respondent and confirmed requesting documents from the First respondent to prepare for the arbitration, went to the office but submitted that he did not interfere with documents in the office.
RULING
5. I ruled that this concern requires evidence to be led to determine its effect on the outcome of the case.
6. l decided that this issue would be dealt with and decided after hearing the evidence from both parties on the merits of the case.
DETAILS OF THE HEARING AND REPRESENTATION
7. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act no 66 of 1995 (as amended) (LRA) at Batandwa Ndondo Education Centre offices in Queenstown on the 12 April, 31May, 11 and 12 July 2024 at 09h00. Mr A. Mhlontlo from NAPTOSA represented the Applicant. Mr T Mlahleni an official, represented the First Respondent, (Department of Education Eastern Cape) and Ms. B Wolela from SADTU represented the current incumbent in the post and Second Respondent, Ms Vuyokazi Vava.
ISSUES TO BE DECIDED
8. I am required to determine whether an unfair labour practice relating to promotion was committed. Further, depending on my finding, l am required to determine the appropriate relief.
BACKGROUND OF THE DISPUTE
9. This is a promotion dispute involving post volume 3/2023-161 in the Eastern Cape being the principal post for Siyavuya Primary School.
10. Applicant was teaching in this school since 2015 as post level one educator and Second Respondent being Ms V. Vava was the principal of Uitkyk Primary School prior to her appointment as principal at Siyavuya Primary School.
11. After the post was advertised, the Applicant, Second Respondent and other candidates applied for the post.
12. The Second Respondent’s appointment was approved by the Department of Education on the 20 November 2023 to assume duties as principal of Siyavuya Primary school.
13. The Applicant initiated her dispute by first lodging a grievance which was set down for hearing and her claim was not resolved.
14. Applicant alleged that she was not shortlisted despite meeting all the requirements of the post advertised.
SURVEY OF EVIDENCE AND ARGUMENT
Employee’s case
Witness: Fezeka Mtandabuzo
15. She testified under oath that she was an educator of the Department of Education challenging the principals post at Siyavuya Primary school.
16. She submitted that she started teaching in 2003 as temporary educator and was permanently employed in 2007.
17. She testified that in 2015 she went to Siyavuya Primary School through redeployment.
18. She testified that she applied for the principal post advertised in 2023 where she submitted her application form to the Human Resource section and signed a register confirming submission of her application form fully completed.
19. She read the control sheet from Human Resources where it was stated that she had no transcript attached and the form was incomplete at number 12, which she disputed as was written “African” in paragraph 12.
20. She testified that she submitted her application with her CV, senior certificate, diploma in education, advanced certificate in education, honours in management and no transcript was required and felt that she was the most qualified candidate amongst the other candidates.
21. She testified that she was not informed by Human Resources that her application form was incomplete and whether she meets minimum requirements and was surprised by not being shortlisted for the position.
22. She further submitted that she suffered prejudice as was denied an increase in her salary and being a part of the management of the school.
23. She submitted that she filed a grievance for not being sifted in and shortlisted by the Respondent.
24. She compared herself with other shortlisted candidates and felt that she was more qualified than other candidates that had applied in terms of the requirements of the post.
25. She testified during cross examination that she completed paragraph 12 in her application form when it was put to her that she did not complete paragraph 12 herself since the handwriting was different. It was put to her that paragraph 12 had been completed by another person. She further stated that she used a different pen to fill in paragraph 12 and had completed it on a different date.
26. When asked about paragraph 29.1 not being completed, did not answer and on paragraph 29.2 confirmed to have not completed it in her form.
27. She finally admitted during cross examination that she did not fully complete her application form as required.
28. She further testified during cross examination that the incumbent was more experienced than her with 30 years and being in management as a post level 4 principal as per the incumbent’s CV and that the incumbent was more qualified for the post considering his experience.
RESPONDENT’S CASE
Witness Thamsanqa Pongolo
29. He testified under oath that he was the circuit manager of Siyavuya Primary School and knew the Applicant as an educator at Sivuya School and knew the 2nd Respondent being Ms Vava during the recruitment process at Siyavuya Primary School.
30. He testified that his role during the employment process was as a resource person and he to facilitated, give support and guided the panel on procedures and rules of employment of principal.
31. He testified that he received all application form for candidates that had applied for the post together with a master list from the Human Resource section indicating which candidate would be shortlisted for interviews or sifted out by human resources.
32. He submitted that the Applicant’s application form was sifted out by Human Resources indicating reason being that she did not complete paragraph 12 and on verification of application forms further found that paragraph 29.1 And 29.2 were also not completed and confirmed sifting out her application form for exclusion by the Human Resources section. He further submitted that paragraph 12 of the Applicant’s form was not completed during shortlisting and it was alleged to have fraudulently been completed after the Second Respondent was appointed to the Principal’s post at Siyavuya Primary School.
33. He submitted that the application form of the Second Respondent was fully completed and sifted in to proceed to interviews.as he qualified in terms of the criterion set as being 30 years teaching experience, 8 years being s post level 4 principal, SPTD and a B. Tech in Management.
34. He submitted that interviews proceeded well in the presence of unions who declared that he interview process was free and fair as they had signed a declaration form confirming such.
35. He further testified that the Second Respondent was more qualified than the Applicant as Applicant had no management experience and disputed that the Applicant was involved in school management team at school, as she was a post level one educator and it did not appear in her CV that she was part of the SMT at Siyavuya Primary School.
36. He further testified that the School Governing Body with its executive was properly constituted to constitute the panel that successfully decided on the employment of the principal at Siyavuya Primary School.
37. He disputed during cross examination that the Applicant was co-opted to the school management team and confirmed with Ms Ruga that was co-opted in the school management team (SMT) as was informed by the former principal that Ms Ruga was co-opted onto the SMT and not the Applicant.
38. He further disputed that in the absence of the SGB minutes there was no SGB executive as an executive was elected in January 2023 at school.
39. He further confirmed during cross examination that the Applicant was not given written note acknowledging her application and being informed that her form was incomplete but stated that the Applicant signed the register of receipt of her form and the reason for sifting out candidates stated in the master list notes. He further disputed that a report was not done at the sifting meeting, since the report was compiled informally during the sifting process.
40. He further confirmed during cross examination that the total number of candidates that applied were 21 with 12 candidates sifted out and 9 candidates sifted in and the Applicant was among those sifted out candidates as her application form was incomplete.
41. He further accounted for all candidates that were sifted out with reasons as put to him to give reasons for non-sifted candidates
42. He further confirmed during re-examination that sifting was done by Human Resources and the panel verified forms and shortlisted candidate for interviews.
Witness: Mbulelo Mcimbi
43. He testified under oath that he was the School Governing Body member of Siyavuya Primary School since 2021 up to March 2024.
44. He testified that he knew the 2nd Respondent during their employment period when he was involved in her employment process as a panellist member of the SGB.
45. He submitted that as the SGB were trained by the department on how to conduct recruitment employment processes up to finality.
46. He explained further that the panel selected a date for shortlisting where panel received 21 candidates’ application forms with 12 candidates being shortlisted out by the Human Resource section and 9 sifted in for shortlisting and the Applicant’s form was amongst those sifted out application forms.
47. He submitted that as the panel verified all the application forms from the Human Resources section, they further find that in Applicant’s form was not fully completed at paragraph 12 with notes on the control sheet indicating paragraph 12 not completed and no transcript attached. He further stated that even paragraph 29.1 and 29.2 found during verification were also not completed, thus resulting in sifting out of Applicant by Human Resources department.
.
48. He outlined that during shortlisting where they verified all application forms, the Applicant’s form was not filled in at paragraph 12 and he was surprised to see paragraph 12 completed during the arbitration stage as alleged to have been completed when Applicant’s form was at the office of the circuit manager in possession of the intern employee.
49. He stated that they set criterion to select candidates to be interviewed where qualifications, experience, SACE, subjects taught, grade, management qualification and practice were considered and phoned them to come for interviews, where the 2nd Respondent was recommended for the post and reported in December 2023 as principal at Siyavuya Primary School.
50. He finally testified that an executive of the SGB was elected in 2023 before the retired principal left the school for retirement.
51. He testified during cross examination that he had a child at Siyavuya School who left the school in October 2023 due to medical reasons.
52. He further explained different codes used for shortlisting candidates with reasons for being shortlisted up to the last four candidates they had shortlisted and unfortunately fourth candidate could not be located to attend the interviews.
53. He finally explained his position in the SGB as an ordinary member who was elected as a panel chairperson and Mr Sikepe was the chairperson of the SGB.
ANALYSIS OF EVIDENCE AND ARGUMENT
54. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act (LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
55. I have considered the departmental guidelines for sifting, shortlisting, interview procedures, post requirements, as well as relevant case law.
56. Section 186(2) of the LRA reads as follows: “unfair labour practice involving any unfair act or omission that arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee relating to the provision of benefits to an employee”. In this case the alleged unfair labour practice dispute relates to promotion.
57. I have to decide whether the Respondent acted fairly or not in not appointing the Applicant to the position of the principal at Siyavuya Primary school.
58. I start by considering procedural fairness in the promotional employment process of the principal at Siyavuya Primary school.
59. As this is a principal promotional post, in terms of the PAM regulations the role of the departmental officials as resource persons is to assist the school governing body, towards the appointment of qualifying school management by giving control to manage the appointment processes. The resource person will be responsible to ensure that capacity building sessions are conducted with the interview committee to enhance its understanding of the selection and interview processes.
60. In this case SGB members together with interview panel were trained by the First Respondent to conduct the employment process at Siyavuya Primary School as per the prescripts of the employment policies of the First Respondent.
61. I find that this procedure was almost complied with, except the failure to notify the Applicant on not fully completed her application form, as 21 forms where 9 sifted in and 12 sifted out at Human Resource section of the Respondent, verification of application forms was also done to confirm 9 sifted in and 12 sifted out application forms by the interview committee where they found that the Applicant did not complete her form in full as per the requirements of the candidates applying for the principal post in the application form. The panel found that number 12, 29.1 and 29.2 in the application form of the Applicant were not completed by the Applicant which led her to be sifted out of the race of principal post. This was testified by Mr Pongolo, the circuit manager corroborated by Mr Mcimbi and control sheet report of the Applicant from Human Resource section and at cross examination Applicant finally admitted to have not fully completed her application form, so was the reason for not proceeding to shortlisting stage.
62. I reject the evidence of the Applicant that she completed paragraph number 12 to her application form before the interviews as testified to by Mr Pongolo, Mr Mcimbi that Applicant’s application form was blank during employment stage until such time that application form was interfered with post-employment stage at Respondent’s offices. I further base my rejection of the Applicant’s evidence that she completed paragraph 12 on her response during cross examination that she used s different pen and completed it on another day, so further viewed her demeanour was expressed as an afterthought response. Therefore, I find that paragraph number 12 was not completed by the Applicant during sifting and shortlisting stages.
63. In terms of PAM regulations of Employment of Educators Act on sifting, the sifting committee must inform candidates of receipt of their application forms and whether candidate had properly completed their forms. In this case l find that the Applicant was informed of the receipt of her application form through the signing of the register of receipt as the Applicant testified and not informed that her form was not fully completed as per Applicant’s evidence, which l view negatively affected her with possible chances of correcting her error on condition that she submitted her form on time and not on the due date. There was no led evidence to determine when the Applicant submitted her form.
64. Considering the legitimacy of the School Governing Body as SGB executive not elected in 2023 and panel chairperson had no legal standing as he had no child at school as per School’s Act, I find that the SGB was properly constituted with its executive as the SGB was elected in 2021 and expired in 2024.
65. I further find that the SGB executive was properly constituted as was elected in January 2023 as testified by Mr Mcimbi and corroborated by Mr Pongolo and I reject the evidence that the SGB executive was not elected in 2023 based on Applicant’s evidence not corroborated and not justified with proof.. I further find that the chairperson of the interview committee Mr Mcimbi was a legitimate member of the SGB as he had child admitted in 2021 and dropped out of the school at around the end of October 2023 due to medical reasons as per Mr Mcimbi’s evidence.
66. So, l view Mr Mcimbi as legitimate SGB member in 2023 as his child was not known then whether will come back to school or not since the process was already in progress.
67. Considering the criterion used by the Human Resources section in sifting and shortlisting by the panel find that it was fair, except the failure to inform the Applicant that she had not fully completed her application form as was testified to by Mr Pongolo and Mr Mcimbi that 12 candidates were sifted out by Human Resources based on not fully completed application forms including the Applicant after verifying all application forms from the Respondent and their criterion of shortlisting which considered qualifications, experience with the Respondent, management experience on qualifications and or practise in the field of work, SACE, completeness of the application form as they shortlisted from sifted 9 candidates and shortlisted 4 candidates, which was not disputed, but alleged to be inconsistent which l find consistent and not biased as Respondent and panel were open, applied criterion and accountable with their criterion in the employment process of the principal at Siyavuya Primary School, which l find fair up to the recommended candidate stage.
68. Considering substantive fairness, I find that the Second Respondent’s appointment was fair as she qualified to be appointed in the post of principal based on her qualifications with SPTD and B.Tech Management, experience with the First Respondent being 30 years, management experience at post level 4 being 8 years as post level 4 school principal as testified by Mr Pongolo corroborated by Mr Mcimbi, Second Respondent’s CV and admitted by the Applicant during cross examination that the 2nd Respondent is more experienced than herself as she (the Applicant) had 17 years’ experience with the First Respondent and being post level 1 educator than the 2nd Respondent being a post level 4 principal.
69. Therefore, l find that there are no biased and insubstantial reasons based upon any wrong principle in the employment process of the Second Respondent and further find that the Applicant has not proved that she was the best of all the candidates that had applied for the principal post at Siyavuya Primary School.
70. .” To determine if the failure to promote the employee was unfair the court in Ndlovu v CCMA and others (2000) 21 ILJ 1653(LC) stated that: “it can never suffice in relation to any such question for the complainant to say that he/she is qualified by experience, ability and technical qualifications such as university degree and the like for the post, that is merely the hurdle. The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair”.
71. In this case l view the appointment of the incumbent as being substantively fair as her application complied with all the requirements as testified to by the witnesses of the Respondent and confirmed by the Applicant during her cross examination of the Second Respondent.
72. The Applicant bears the onus to prove that the Respondent committed an unfair labour practice relating to promotion and that there was some form of unfair conduct on the part of the First Respondent during the promotion process.
73. Based on the evidence before me, I find that the Applicant failed to discharge the onus on a balance of probabilities placed on her to prove that she was the best candidate for the principal post.
74. I find that the Applicant did not properly complete her application form and there was no obligation on the First Respondent to give her an opportunity to correct a defective application form.
75. In any event the Applicant was never a viable candidate for shortlisting for the position of principal due to her lack of experience in a management position.
76. I find that the current incumbent in the post was fairly appointed in a process that was carried out in a procedurally fair manner.
AWARD
77. The Applicant’s dispute referral is dismissed.
78. No order as to costs is made.
Signature:
Commissioner: Bongani Mtati
Sector: Basic Education