9 December 2022 – ELRC187-22/23LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD IN POLOKWANE ON 25 NOVEMBER 2022

In the matter between: –
SADTU obo Nchabeleng MJ Applicant
And

Limpopo Department of Education First Respondent

Mothiba MM Second Respondent

ARBITRATION AWARD

Nature of the dispute: Section 186(2) of the LRA: unfair labour practice relating to promotion.

DETAILS OF THE HEARING AND REPRESENTATION

1. The hearing was held in Polokwane on the 25 November 2022. The Applicant was represented by Mr. M S Tjia from the South African Democratic Teachers Union (“SATDU”) whereas the respondent was represented by Mr. M M Matlou, employed by respondent as the Labour Relations Practitioner.
2. Ms. Mothiba MM, who was joined into the proceedings as the second respondent attended, was represented by Mr. Ngobeni H.R. However, the second respondent played no active role in the proceedings.
3. Both parties submitted bundles of documents which were admitted as evidence and marked as “R1” and “A1” for the Respondent and the Applicant respectively. Bundle “R1” contained some 93 pages, while bundle “A1” contained 8 pages.
4. The proceedings were digitally recorded. At the end of the proceedings, parties requested an indulgence to file written closing arguments by 2 December 2022. The Respondent filed written closing arguments, which have been taken into consideration in arriving at the conclusions herein, while the Applicant did not submit same.

THE ISSUE IN DISPUTE
5. The issue for determination is very narrow. I must determine whether the School Governing Body (“SGB”) was correct in recommending for appointment to the Head of Department, the Second Respondent, Ms. Mothiba MM as opposed to the First Applicant, Ms. Nchabeleng, and whether the non-appointment of the applicant constituted an unfair labour practice for the purposes of section 186(2)(a) of the LRA. If so, I shall determine the appropriate relief.

BACKGROUND TO THE DISPUTE
6. The Respondent advertised several vacant positions under circular No.2 of volume 3/2021 calling suitable candidates to apply. Following the advertisement, the Applicant and the Second Respondent were shortlisted and interviewed. In the end, the SGB recommended for the appointment of Ms. Mothiba MM as the second preferred candidate, followed by Ms. Nchabeleng MJ as the third preferred candidate. It is common cause that the first preferred candidate was disqualified on the basis that he did not apply for the position in dispute at Montsoshaboshego Primary School.

SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT

7. Ms. Nchabeleng MJ testified under oath, and her evidence can be summarized briefly as follows. She applied for the advertised position in dispute for foundation phase, and was subsequently interviewed and recommended by the SGB at position number 3. She has a Primary Teacher’s Diploma qualification and Masters degree from the University of Pretoria. She worked has over twenty-seven (27) years as a senior foundation phase teacher, and has no qualification or teaching experience as a foundation phase teacher. She further testified that the interview panel ranked her at position number 2, while the SGB recommended her for appointment as the third preferred candidate. It is the conduct of the SGB that is the subject of her complaint in terms of section 186(2) of the LRA.
8. Ms. Silulwane NDF testified under oath in support of the Applicant. Her testimony briefly, can be summarized as follows. She is the Principal at Montsoshaboshego Primary School, and was part of the SGB. However, during the course of deliberations by the SGB, she was absent owing to a tummy bug. She testified that she lodged a grievance in that various other advertised positions were not treated similar to the post in dispute in this case, in that the SGB did not assess candidates’ qualifications after the interview panel recommendations.

SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT
9. The Respondent’s first and only witness, Ms. P Mageza, testified under oath that she was employed as a Deputy Director responsible for corporate services, and that her area of responsibility is Sekhukhune District. She further testified that her responsibilities encompass labour relations, recruitment and other related responsibilities. Her evidence, briefly, was that the interview panel which was appointed on behalf of the SGB, recommended Ms. Nchabeleng MJ as the second preferred candidate, and that the SGB, at its sole discretion recommended for appointment Ms. Mothiba MM as the second preferred candidate. Ms. Mageza testified that the SGB assessed the qualifications and the relevant experiences of both Ms. Nchabeleng and Ms. Mothiba MM, and came to the conclusion that Ms. Mothiba MM was the most suitable candidate of the two in that she holds a qualification for foundation phase over and above the Primary Teacher’s Diploma qualification. Further, Ms. Mageza testified that Ms. Nchabeleng MJ never taught foundation phase before nor holds any qualification for foundation phase, while Ms. Mothiba taught foundation phase and holds a special qualification for foundation phase.

ANALYSIS OF EVIDENCE AND ARGUMENT
10. Clause 3 (a) of the Collective Agreement 2 of 2020 sets out the powers of the SGB in respect of the appointment of educators. It provides that the SGB shall submit in order of preference to the Superintendent General a list of at least three (3) names of recommended candidates.
11. Further, clause 10.1 provides that the SGB shall at a formally constituted meeting where members form a quorum, rank candidates in order of preference.
12. It is this ranking in order of preference that is the subject of complaint from the Applicant.
13. According to the Ms. Nchabeleng, the SGB was not entitled to look beyond the ranking of the interview panel, and merely had to rubber stamp the interview panel’s assessment and ranking of the candidates. In my view, the Applicant’s complaint is misplaced.
14. Firstly, the interview panel is an extension of the SGB. They do the interview at the behest of the SGB.
15. The SGB, once formally constituted, and quorating, have the power to satisfy themselves of the suitability of the candidates taking into consideration all the factors, including the qualifications and experience.
16. It is common cause that the SGB preferred Ms. Mothiba MM ahead of Ms. Nchabeleng on the basis that Ms. Mothiba MM had the necessary foundation phase qualification plus the teaching experience at that level, while Ms. Nchabeleng had no formal foundation phase qualification nor prior teaching experience at foundation level. Ms. Nchabeleng also conceded to this fact under cross examination.
17. It is now trite that in unfair labour practice disputes relating to promotion, the onus is on the Applicant to first show that the conduct of the employer that constituted an unfair labour practice, and then proceed to show how such the conduct was unfair.
18. In Ndlovu v Commission for Conciliation, Mediation and Arbitration the court per the pen of Wallis AJ, as he then was, held that:-
“In my view, the questions which the Commissioner asked in the first paragraph of that quotation were wholly justifiable questions in relation to a dispute over a matter of promotion. It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.
The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else was unfair. That will almost invariably involve comparing the qualities of two candidates. Provided the decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise”.
19. To take the argument further in line with Ndlovu supra, it is not enough for Ms. Nchabeleng to say she too is qualified and/or met the minimum requirements of the advertised position in dispute.
20. That is merely the first hurdle according to the court in Ndlovu case supra. The second hurdle, is to show that the decision to appoint someone else was unfair, in this case that would be the appointment of Ms. Mothiba MM, the second respondent.
21. I have already mentioned that Ms. Mothiba was ranked higher than Ms. Nchabeleng, the Applicant, by the SGB. Further, comparatively speaking, Ms. Mothiba MM has a foundation phase qualification, while Ms. Nchabeleng does not have one. Ms. Mothiba has prior teaching experience at foundation phase level while Ms. Nchabeleng only has senior phase teaching experience.
22. It is common cause that the SGB recommend for appointment to the Head of Department, who has since delegated that function to the District Director. The HOD and/or the District Director appointed Ms. Mothiba MM on the strength of the SGB recommendation. The SGB acted within their scope, and their recommendation, when assessed against the evidence before me, cannot be faulted.
23. In the circumstances, I find no basis for the unfairness in the process followed. I therefore find that the Respondent did not commit an unfair labour practice towards the Applicant, and that the Applicant’s non-appointment did not constitute an unfair labour practice relating to promotion.
AWARD
24. The Applicant’s unfair labour practice claim in terms of Section 186 of the Labour Relations Act 66 of 1995 is dismissed.