IN THE EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION
AWARD

Case Number: ELRC873-22/23EC

In the matter between

SADTU obo Siphokazi Ngceba Applicant

and

Eastern Cape Department of Education First Respondent

Nombulelo Momo Second Respondent

Appearances: For the applicant: Ms Cordelia Rhoyi (SADTU);
For the first respondent: Mr Lwando Jevu and later Mr Toto Tsheko;
For the second respondent: Mr Aaron Mhlontlo (NAPTOSA)

Arbitrator: Mxolisi Alex Nozigqwaba
Heard: 22 June 2023; 03 August 2023; 02- 03 October 2023; 29 November 2024;
19 April 2024; and 01 August 2024
Delivered: 31 August 2024
Summary: Labour Relations Act 66 of 1995, as amended, section 186(2)(a)-
Alleged unfair labour practice relating to promotion

DETAILS OF HEARING AND REPRESENTATION
1. This arbitration was held at Dr W.B. Rubusane District Offices in Mdantsane on 22 June 2023; 03 August 2023; 02- 03 October 2023; 29 November 2023; 19 April 2024; then 01 August 2024. On 02 August 2024 the applicant’s representative asked to be excused from attending as there was an important function at her school. It was then agreed that closing arguments be done in writing.

2. Ms Siphokazi Ngceba (applicant) was in attendance in all sessions and was represented by Ms Cordelia Rhoyi (SADTU official). Eastern Department of Education (1st respondent) was represented by its labour relations officer, Mr Lwando Jevu, and then later by its manager, Mr Toto Tsheko. The appointed incumbent in the contested position, Ms Nombulelo Momo (2nd respondent), was represented by a NAPTOSA official, Mr Aaron Mhlontlo.

3. At completion of the proceedings parties agreed to submit written heads of arguments by not later than 08 August 2024, and they all submitted as agreed. I have considered these heads in penning this award.

ISSUE TO BE DECIDED
4. I have to determine whether an unfair labour practice relating to promotion was committed when the 1st respondent appointed the 2nd respondent in the principal post at Fundisa Special School and overlooked the applicant. If unfair labour practice is proven I will issue an appropriate relief.

BACKGROUND TO THE ISSUE
5. This is a promotion dispute involving Fundisa Special School principal position (post level 3, P4) advertised as post no 64 in the 1st respondent’s Open Post Bulletin Vol 1 of 2022. Fundisa Special School is in King Williams Town under Dr W.B. Rubusane District. The requirements for the position as stated in the Bulletin are: English, Xhosa, all phases, management and administration, and experience in special and inclusive education. The post became vacant after the retirement of Mr Sowazi in January 2022.

6. After the post was advertised the applicant (deputy principal and acting principal at material times), the 2nd respondent (HOD at material times) and other candidates applied for the post. The applicant, 2nd respondent and three other candidates were shortlisted and interviewed on 09 November 2022. The 2nd respondent was the successful candidate and was appointed to the position with effect from 06 February 2023.

7. The applicant’s challenges to the post are as follows: (1) that the panel for shortlisting and interviewing of candidates was improperly constituted; (2) undue influence in the processes by SGB; (3) wrongful interference in the process by the observer and EDO; (4) ignoring and not attending to the applicant’s grievance with regards to the flaws in the process; (5) the incumbent (2nd respondent) was not worthy for consideration for appointment to the position as she was not adequately qualified and lacked requisite experience. The applicant is taking issue at the substantive part of the appointment, which is the actual decision to appoint the incumbent (2nd respondent) and is saying she should not have been shortlisted. The applicant is also taking issue with the process and is saying it was flawed.

8. The relief she is seeking is that the 2nd respondent’s appointment be reversed and the process be re-done by a different (independent panel).

9. The 1st and 2nd respondents dispute that an unfair labour practice was committed.

SURVEY OF THE EVIDENCE AND ARGUMENTS
10. The applicant’s case is that the process towards the appointment of the 2nd respondent was riddled with a myriad of procedural flaws, which include improper constitution of the shortlisting and interviewing panel; undue influence in the processes by the SGB; wrongful influence by the EDO who was supposed to adopt resource person and observer status; and the second respondent’s unwillingness to attend to the applicant’s grievance about the process before the appointment was confirmed. On substantive challenge the applicant is saying the 2nd respondent should not have been shortlisted and was not worthy to be ultimately appointed to the position as she was not adequately qualified and lacked requisite experience. She therefore seeks to have the 2nd respondent’s appointment reversed and the process restarted and be conducted by an independent or different panel.

11. The 1st respondent’s case is that the process towards the appointment of the 2nd respondent was properly conducted. The applicant was shortlisted and provided opportunity to contest her candidature. She was interviewed together with the other three candidates and was no 4 in candidates’ rankings. There is therefore no merit to the applicant’s claim of substantive and procedural unfairness pertaining to the appointment of the 2nd respondent.

12. The 2nd respondent’s case is that the shortlisting and interviewing panel was properly constituted. There was no improper interference by the EDO as she only rendered her observer and advisory role in course of the process in line with what is provided in chapter B of the PAM Document. She guided the panel on choosing questions for candidates. The applicant’s claim should therefore be dismissed, and 2nd respondent’s appointment be confirmed.

THE APPLICANT’S SUBMISSIONS
Applicant
13. The applicant testified that when she applied for the principal position she was a deputy principal at the same school and had the following qualifications: Junior Primary Teachers Diploma; B-Tech in Educational Management (pages 20 to 21 of applicant’s bundle B); and Diploma in Computer. She is currently busy with B-Ed Honours in Inclusive Education. She was also the acting principal of the school.

14. When she was appointed as deputy principal on 13 May 2021, she recalls that the 2nd respondent and other staff members did not receive her appointment very well. They publicly protested against her appointment. It was the parent component of the SGB that stood with her.

15. When the bulletin with the principal’s post was published SGB met for purposes of setting in motion recruitment processes for the post. There were divergent views as to who should conduct the process from shortlisting to interview. The teacher component of the SGB and one parent felt that the processes be conducted in by an internal panel taken from the SGB. The said parent (Ms Bester) had pushed for the processes to be held internally as she said they knew who they wanted. Most members of the SGB’s parent component (SGB Chair- N. Dambuza; Deputy Chair- M. Dabi and SGB parents L.P. Koti and Luse), on the other hand, pushed for the processes to be conducted by an independent panel from the District Office.

16. The panel was constituted internally, and representatives from SADTU and NAPTOSA were invited to be part of the panel with observer status.

17. On the day of interviews the applicant learnt that Ms Luse (SGB parent member) had been included in the panel even though she had not been appointed. She also learnt that the SGB meeting which appointed the panel had been chaired by a teacher component member, Ms Lucas.

18. Another anomaly observed by the applicant was that the SADTU observer was actively involved in the processes rather than only adopting observer status. He was involved in the printing of the questions. This compromised the credibility of the process as there was high risk that the SADTU representative would share the questions with his preferred candidate.

19. What was also problematic in the process was the shortlisting of the incumbent despite that she was only an HOD with no management and administration experience in special inclusive education. As HOD she only headed a phase and dealt with curriculum with teachers.

20. The grievance she had lodged about the shortcomings of the interview process was never attended to.

21. On cross examination she was asked to clarify the allegations of undue influence of the SGB. She testified that Ms Bester (parent component member of the SGB) was siding with the teacher component but couldn’t say for sure who actually did the influencing. Ms Bester had at some point said that they knew who they wanted. She was also referred to clause B.5.4.1 of the PAM Document where it is stated in peremptory terms that Interview Committee must be established at the institution where the vacancy is advertised. It was further put to her that the interview committee is just a subcommittee of the SGB and does not have to be constituted exactly as how the SGB is constituted, and she agreed.

22. It was put to the applicant that the meeting which selected or appointed the panel was properly constituted as it was chaired by the SGB deputy chair, Mr Dabi, and there was nothing wrong with that. The EDO had to be resource person as according to clause B.5.4.6 as the applicant was the candidate and could not be resource person. The applicant further testified that the resource person had to be part of the processes from the first meeting setting up the panel.

23. On the issue of the SADTU representative her concern was when the school clerk opened the office for him to print interview questions by himself. Risk was high for the questions being shared to his favourite candidates.

24. On eligibility of the 2nd respondent to be shortlisted it was put to the witness that it was because of the further criteria in pages 16 to 17 of B that she qualified to be shortlisted. She agreed that indeed she met what was on further criteria mentioned in pages 16 to 17 of B. She went further and said that what is of key importance is that the advert at page 11 of B required a candidate to have all subjects in grades 4 to 7 and not a qualification in senior, which is what the 2nd respondent (incumbent) had. The incumbent also did not have a qualification and experience in management as was required by the advert (page 11 of B). She conceded that the incumbent did have experience in special inclusive education. She had been an HOD for 6 years (part of SMT), dealing with phases under her division, but was never exposed to management and administration.

25. When probed further on requirement of management she conceded that the advert (page 11 of B) speaks only of management and not management qualification. When she applied for deputy principal’s position she got considered on the strength of her management qualification she had, which the incumbent does not have.

26. On the issue of her required relief of having the processes rerun by an independent panel she was asked as to what policy sanctions that arrangement. In reply she testified that such approach would guarantee fair selection of best candidate among properly qualifying candidates.

Mr Paul Papiso
27. Mr Paul Papiso testified that in the shortlisting and interview processes in the position concerned he was a SADTU observer. As an observer his role was to check if the process ran smoothly without undue influence from outside people, and that candidates were afforded fair opportunity to compete.

28. The questions for interview were crafted by the panel, guided by the resource person (the EDO- Ms Tyala) who provided a file with model questions and answers for interviews. Because there was no other person other than the witness who was computer literate he was be asked to type the crafted questions. He then went to print accompanied by SGB member, Mr Wakashe. They printed at the psychologist’s office, and the psychologist had been asked to leave her office for purposes of ensuring that questions would not leak.

29. The witness never participated in scoring during interview processes.

30. People with inclusive education, management experience and qualifications were to be given opportunity to compete.

31. On cross examination he was asked whether he witnessed any undue influence during the processes, and his answer was that he never witnessed such.
Ms Modie Luse
32. Ms Modie Luse testified that she was an SGB member when processes to fill the principal post got in motion in 2022. She recalls that she together with other SGB members (Ms Dambuza- chairperson; Ms Dabi- deputy chairperson; and Ms Koti- SGB parent component) had signed and sent a letter to the EDO, wherein they requested shortlisting and interviews to be done by the District Office (pages 17 and 18 of A). The reason for the request was to prevent the repetition of what happened when the deputy principal post was filled. The appointed deputy principal was not welcomed well when she was introduced as there were allegations that the SGB had not correctly conducted the recruitment processes. There was also a divergent view from mostly staff component members of the SGB (Ms Bester- SGB parent component; Ms Nomzanga- SGB Teacher component; Ms Lucas- SGB teacher component; Mr Malotana- SGB teacher component) who expressed their wish that the recruitment processes be conducted at the school (page 16 of A).

33. The first meeting held to set in motion recruitment processes for the position was chaired by Ms Lucas (teacher component member) even though the deputy chair was in attendance. The panel got to be appointed in that meeting and Ms Luse was not appointed. She only learnt later that she had been included in the panel. She participated in the processes even though she had not received any training on how the process should be conducted.

34. Ms Luse further testified that there was an instance, while the recruitment processes were still not complete, when the 2nd respondent visited her in her hawker’s stand and sought to influence her as a panelist to push for her appointment. She never conceded to such influence.

35. At shortlisting stage the panel took out the 2nd respondent’s application and other applications for want of management and management certificate as management and administration was one of the requirements for mentioned in the advert (page 13 of A reflected as candidate 8). Her application also had no signature (page 25 of A). The EDO later directed that the incumbent’s application be taken back and be considered. The incumbent, together with the applicant and the other three candidates were ultimately shortlisted.

36. The interviews were conducted in English, and with her not being conversant in English she was told by the EDO to score the candidates based on what she knows about them.

37. When asked on cross examination as to why she signed the declaration that the interviews were conducted well, her answer was that she did as she was told by the EDO.

THE 1ST RESPONDENT’S SUBMISSIONS
Ms Olive Akhona Magoxo
38. Mr Olive Akhona Magoxo testified that she commenced serving in Fundisa Special School SGB in 2021. Prior to the commencement of recruitment processes for the position there had been divergent views about how the processes should be held. One view was that processes be held internally at the school, while another view was that they be held at district level. The former won the day. On the date set for the appointment of the panel the chairperson, Ms Dambuza, had apologized and the meeting was held in her absence. A panel was elected, with Ms Dambuza elected in her absence.

39. On the first day scheduled for the panel to sit it was brought to the panels’ attention that Ms Dambuza would not be able to be a panelist as she had just got appointed on a new job. Ms Luse, and SGB member, was asked to be her replacement and she agreed.

40. As far as she can remember the panel had conducted its role and function without any undue influence from outside people or entities. The EDO who had been present throughout during the processes had been there as resource person and her contribution in the processes was to provide guidance on how the process should flow.

41. On shortlisting, minimum requirements in the advert together with further criteria, was the determining factor on who was to be shortlisted. STD and qualification in management were key. The applicant had been put aside as qualifying to be in the shortlist because she was already acting in the position. The incumbent and Ms Soka had been taken out because of not having STD and management qualifications. The incumbent’s application was signed at the bottom of the last page (page 74 of B).They were taken back after it was realized that candidates meeting the set criteria could not be found. Another reason for taking the incumbent back was because she has management experience in her HOD position.

42. The witness was asked to why the incumbent got to be the most preferred for shortlisting above candidates with higher management experience attributes than her. The candidates said to have higher attributes than her on management experience are candidates 14 and 22. Candidates 14 and 22 had no management certificate like the incumbent but candidate 14 had seven years’ experience as a principal, while candidate 22 had four years as principal. Ms Magoxo’s answer was that the candidate had no experience in special needs school. She was further asked about the overlooked candidate 5, a principal for six years in Ikwezi Lokusa Special School (a special needs school), who by virtue of being a principal had better attributes than the incumbent. Ms Magoxo could not come with the reasons for overlooking candidate 5.

43. The witness had also said that the incumbent had been considered for shortlisting because of her skill in swimming. She later changed and said it was because of special needs. She says she changed because she read the minutes and remembered that the other consideration was special needs. She denied that she had preferred the incumbent in exchange for her favouring her for appointment as Fundisa Meal Server.

44. On Mr Papiso’s involvement in drafting of interview questions Ms Magoxo testified that Mr Papiso, who was the SADTU observer on the day assisted because of his typing skills. A safeguard put in place to prevent the leaking of the question was to have him accompanied by Mr Wakashe when he went to print the questions.

45. On ratification meeting the panel’s recommendation on successful candidate was endorsed by the SGB, and successful candidate was the incumbent, followed by Ms Soka and the third best was Ms Mcitwa. The school would suffer if the appointment would be nullified and be directed to start from scratch.
Ms Lenah Bester

46. Ms Lenah Bester testified that she was a SGB member when recruitment processes for Fundisa principal were in motion. She got to be appointed as one of the panel members for shortlisting and interviews. She recalls that just before the start of processes there were two divergent views as to how to conduct processes. There were parents who held a view that the processes be conducted by an independent panel. The staff component’s view on the other hand, which she supported as only parent, was to have the processes held at the school. She supported this position because seeking assistance from the District Office would portray the SGB and parents as failures in running the affairs of the school.

47. When the panel convened it was brought to its attention that one of its elected member, Ms Dambuza would no longer be part as she had work commitments that would make it impossible for her to participate in processes. It was then agreed that Ms Luse be appointed as a replacement. She agreed and became part. She was never forced to be part of the panel.

48. On the day of the shortlisting, the panel first shortlisted the applicant. Hers was done deal as she was acting principal. There was another candidate from Mthatha who made it to the shortlist. The panel could not secure an additional three because the remaining candidates did not have a management certificate. The criterion was widened to consider candidates with management experience and experience in inclusive or special school environment. The applications of candidates who had been sifted out for want a of management certificate were reconsidered. The incumbent got to be considered and shortlisted because of experience in management by virtue of being an HOD and for her experience in special school environment.

49. The EDO came with interview questions guidelines and questions were compiled and agreed upon. On the issue of Mr Papiso (SADTU observer) the witness conceded that by typing the questions he participated in the process, even though he only had observer status.

50. When asked as to whether she did not see a need to have the recruitment processes done at district level noting the background of dissatisfaction by staff members on processes leading to appointment of the deputy principal, her testimony was that the posts were different with different requirements. By agreeing with staff to have processes held at the school she acted in the best interests of the school as they would have been seen as failures if they would seek District assistance in conducting processes.

51. The witness was then asked as to how the incumbent was later included in the shortlist after she had been taken out because of not having a management certificate, and her answer was that she was taken back by virtue of having management experience as HOD and experience in inclusive education. The witness got mum and could not explain how the incumbent (an HOD) got to be preferred, if the criteria was extended to management experience and special school experience, over candidates who were principals for years in special schools. The candidates overlooked for shortlist were: candidate 5 who had six years principal experience at Ikhwezi Lokusa Special School; candidate 20 who had five years’ principal experience at Thembalethu Inclusive School; and candidate 21 who had three years’ principal experience and had Inclusive education qualification.

THE 2ND RESPONDENT’S SUBMISSIONS
Ms Nombulelo Momo
52. Ms Nombulelo Momo testified that she commenced her profession as a teacher on 01 March 1995 in Nonzame Lower and Higher Primary School. In 2004 she volunteered for redeployment and was redeployed to Bisho Primary School and then to Fundisa Special School. As a young educator at Fundisa, upon her arrival, she got to be utilised mostly for administrative work. She saw a need to augment her skills in dealing with special needs learners. She took advantage of the respondent’s bursary scheme meant for Augmentative and Alternative Communication upskilling for purposes of being considered for subject advisor positions in this subject. In 2015 she applied for HOD post in Fundisa and was appointed. In her career she got exposure in dealing with learners with special needs. She also got assigned to the Autism Unit where she dealt with senior primary learners of ages between 14 and 24.

53. When she applied for the principal’s post she had 28 years’ teaching experience, and 19 of those years was in Fundisa Special School. Her tertiary qualifications are: Senior Primary Teachers Diploma; Bachelor of Education in Intermediate Phase; and Honours Degree in Augmentative and Alternative Communication. She regards herself as having six years management experience as HOD.

54. She recalls that the applicant arrived in 2010 at Fundisa, and when interviews were held, she would have had 13 years’ experience in special school environment. Before coming to Fundisa the applicant had taught at an ordinary school in Idutywa.

55. The witness denied ever going to the rank to persuade Ms Luse (who was a SGB member at material times) to push for her appointment.

56. On cross examination she was asked as to how did the panel select 5 candidates to be interviewed out of 21 candidates in line with clause B.5.4.9 of the PAM Document. Her answer was that the criteria would first be the one in the advert, and if there are still more qualifying as per advert criteria the panel would come with their own criteria in order to end up with 5 candidates.

57. It is argued for the applicant that the SGB meeting which elected the panel was improperly constituted as that meeting got to be chaired by Ms Lucas (staff component) instead of being chaired by the deputy chair, who was in attendance. Another discrepancy was the substitution of the panel member, Ms Dambuza, by another SGB member, Ms Luse, who had not been appointed by the SGB. There was Mr Papiso (SADTU observer) who spoiled the process by actively participating by typing interview questions and printing them, instead of assuming observer status. The call to have recruitment processes carried out by an independent panel was not heeded even though there was identifiable need for it. Some of staff members had previously expressed their dissatisfaction about the processes which led to the appointment of the applicant as deputy principal. Some were part of the SGB and would obviously not bring an impartial mind to the process where the resented incumbent would be competing for principalship. In SAPS v SSSBC and Others the principle laid down was that there is no right to promotion, and all that is needed is to give candidates the opportunity to compete fairly. The applicant was withheld that opportunity. The incumbent made it to the shortlist and ultimately got appointed even though she had no management certificate and experience. The applicant was overlooked for appointment even though she had a management certificate and 10 months’ management experience as deputy principal. The 1st respondent acted irrationally, capriciously or arbitrarily by show of actual bias against the applicant, who met the requirements of the position. It is therefore prayed that the 2nd respondent’s appointment to the principal’s position be nullified and the process be started afresh by an independent panel.

58. For the 1st respondent it was argued that on procedure there was no proven unfairness. The panel was properly constituted. On the chairing of the SGB meeting to elect the panel there is no policy or legislation proving that such meeting should be chaired by the resource person (EDO) or by SGB chair or deputy. There was also nothing untoward by substituting a panel member. The union member had not imposed himself. He acted upon being requested by the panel to assist with typing and printing as he was a computer literate person in the panel. He was accompanied by a panel member when he carried out the typing and printing exercise. The applicant had been automatically shortlisted even though she had not finished the requisite 12 months to qualify for such consideration (clause B.5.4.9 of PAM ‘An educator, who has been acting in the advertised post for 12 months or more and has applied for the post must be shortlisted). Her actual stint in acting from January October 2022 when processes commenced would have been about 9 months. No one can be said to have been prejudiced in the conduct of shortlisting. There is no right to be appointed, and all that has to be proven to render an appointment as unfair labour practice is that there was conduct that denied an employee a fair opportunity to compete. The undue influence of the panel was never proven. The allegation that Ms Luse was promised gratification if she were to appoint the incumbent was denied and was not proven. The incumbent did meet the set criteria and was the best candidate. The 1st respondent exercised its prerogative to appoint the best candidate fairly. There is no causal connection between the allegations and the decision to appoint the incumbent. The applicant could not prove, as is the principle in Ngcobo v Standard bank of SA that there was conduct that was arbitrary or motivated by unacceptable reasons. The 1st respondent’s decision is therefore not the one that can be readily interfered with if Arries v CCMA decision is to be considered. It has not been demonstrated that the discretion to appoint by the 1st respondent was not properly exercised, was capricious, based on unsubstantiated reason or on wrong principle. The applicant’s unfair labour practice claim therefore stands to be dismissed.

59. For the 2nd respondent it was argued that the applicant failed to discharge the onus of proving that there was substantive and procedural unfairness when the incumbent was appointed into the disputed principal’s position. Evidence adduced at arbitration proved that the process was fair and the actual decision by the 1st respondent to appoint the incumbent was substantively fair. The applicant, as the bearer of the onus could not prove what she alleged. The applicant, who was ranked candidate four in the interviews, cannot be said to have been the best of all the candidates. For her to get substantive relief, in terms of ELRC Collective Agreement 3 of 2016 paragraph 33, she should at least demonstrate that there was conduct by the employer that denied her a fair opportunity for the post or that there was conduct which was arbitrary or motivated by unacceptable reasons (Ngcobo v Standard Bank of SA and Others) . On procedure all witnesses confirmed that all candidates were allowed fair opportunity to compete. The incumbent outperformed the applicant after the two and other candidates were afforded a fair opportunity to compete. On substantive fairness the decision to appoint the incumbent was based on her having outperformed the applicant. The prerogative is on the employer to appoint or not to appoint, and such is to be exercised with fairness. The applicant is less qualified and less experienced as compared to the incumbent when it comes to teaching at special school. The applicant’s case therefore stands to be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENTS
60. The applicant got to be automatically shortlisted even though her acting stint had not been for more than 12 months. From January to October 2022, she would have had about 9 months experience as acting principal. Clause B.5.4.9 of PAM an educator who has been acting in the advertised post for 12 months or more and has applied for the post must be shortlisted. She should not have been automatically shortlisted. She should have been considered against the requirements in the advert and the set criteria, not distant from the advert requirements. The applicant has experience in teaching in special school environment but had no inclusive education qualification. The latter was not a prerequisite. What was required by the advert was to have experience in inclusive education which she had. Management was also mentioned as a requirement in the advert and in the criteria set by the panel a certificate in management was also included. The applicant would therefore have been eligible for shortlisting as she does have qualification in management. She also had been a deputy principal and had acted as principal, and that meant that she did have experience as well in management. She therefore deserves to be shortlisted.

61. On the shortlisting of the incumbent, the applicant’s case is that she should not have been shortlisted at all. From the proven facts the incumbent does not have a management certificate. She had been an HOD for some years. An HOD is more of a senior teacher than a manager. She can be said to exercise supervisory duties rather than management ones to post level 1 educators. Yes, an HOD educator would sit in a School Management Team (SMT) but cannot be seen in the same light as management experience of the principals and deputies. The incumbent had initially been taken out for want of a management certificate. The issue of her application having been unsigned was disproved as it is reflected as having been signed in the last page. The panel is said to have widened the criteria as there were no more qualifying candidates for consideration, after it had shortlisted the applicant and another qualifying candidate from Mthatha. The requirements were extended to seek a candidate with management and inclusive education experience. It has been proven that there were about three principals with between three to six years’ experience. The two principals were leading in special needs schools. Clearly these candidates were simply ignored for shortlisting, and much weaker candidate (the incumbent) got to be shortlisted. This was clear demonstration of bad faith. The panel demonstrated that its decision of lowering the fence was only meant to advantage the incumbent, as candidates with far better attributes got to be overlooked. Ms Bester could not come with a convincing explanation as to why better qualified principals in inclusive education space got to be considered less best than an HOD.

62. Ms Luse’s inability to converse in English put her in a position where she could not clearly understand and assign weight to each candidate’s answers to questions. Her unshaken version is that the EDO had advised that she allocate scores to the candidate on the basis of how she knew the candidate. This was bad advice as this meant candidates she did not know very well would be in a disadvantageous position. The scoring by panelists was therefore not above board.

63. The fear by the applicant and some of the parent component of the SGB that the processes stood a chance of being tainted cannot be said to have been far-fetched. The applicant’s appointment as deputy principal had not been welcomed by other fellow staff members and by some of the parents. There is no legislative prescript sanctioning the utilization of independent panel members, but there is also no legislation prohibiting it. In instances where circumstances point to the possibility of internally appointed panel members acting in a biased manner utilization of a panel from the District Office would have been a good decision. Arbitrators and Labour Courts have on several occasions ordered processes to be redone by panels other than the internal ones where inadequacies and unfairness was detected.

64. On substantive fairness considerations, the question is, was the incumbent the best candidate of all. I find that she was not, based on the fact that she should not have made it to the shortlist at all. There were principals with special school experience who should have been shortlisted. It cannot be said that there was absence of gross unreasonableness for the appointment to be interfered with (clause 32 of Collective Agreement 3 of 2016).

65. The applicant has not been proven to be the best candidate, the ignored principals had better attributes than her, experience wise, but did not have the management certificate she has. She was scored number four out of five candidates. The credibility of the scoring is also under question as it has been proven that one of the panelists was advised to score candidates in accordance with how she knew the candidates.

66. Bad faith in shortlisting the incumbent to the exclusion of far better qualified candidates has been established. Can the applicant be said to be standing a better chance of being successful candidate if the process was to be redone? With the scoring criteria for candidates proven not to be above board it would not be unreasonable for her to conceive a suspicion that the score she got might not have been the true reflection of how she performed. The applicant can therefore be said to be standing realistic chances of being appointed if she were to compete for her candidature before a panel other than the internal one.

67. On balancing of the interests of the special needs child learners with the one of setting aside of decisions arrived at on an unreasonable basis I find that intervention is warranted. There should be no beneficiary of unreasonably arrived at decisions, as such approach would be equated with rewarding unreasonably arrived decisions, which might have been informed by bad faith. In the circumstances I find that the decision to appoint the incumbent in the principal’s position stands to be reversed.

68. The process will have to be started from the shortlisting stage by an independent panel.

AWARD
69. I therefore make the following award:
69.1. The 1st respondent, the Eastern Cape Department of Education, committed an unfair labour practice as provided in section 186(2) of the LRA against the applicant, Siphokazi Ngceba, in that it acted in a substantively unfair manner when it wrongfully overlooked other candidates with better attributes than the incumbent, and ultimately appointed the incumbent.

69.2. The 1st respondent is ordered to reverse the appointment of the 2nd respondent, Nombulelo Momo, by not later than 31 October 2024 and restart the process from shortlisting, and ensure that the process is carried out in accordance with the Employment of Educators Act 76 of 1998 and PAM. No person who was involved in the initial flawed process should be part of this new process.

Signature:

Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRC