Mpumalanga education ordered to appoint teacher after bypassing her as top-ranked candidate - IOL

Mpumalanga Education Department ordered to appoint top-ranked teacher.

The Mpumalanga Education Department has been ordered to appoint a teacher to a Departmental Head position after an arbitration found that it unfairly bypassed her despite her being ranked first in the interviews and recommended for the position by the school governing body (SGB).

Xolile Tsobolo applied for the Departmental Head position at Yedwa Primary School, was shortlisted and interviewed before being ranked as the best candidate.

The SGB subsequently recommended her for appointment to the Education Department, which deviated from the recommendation and instead extended a preliminary offer to another candidate.

This candidate never accepted the offer, leaving the Departmental Head position vacant.

In an arbitration award issued on September 10, Education Labour Relations Council commissioner Nicholus Sono found that the department had failed to provide a reasonable explanation for why Tsobolo was not appointed after the other candidate did not accept the preliminary offer.

The department’s witness, Thandiwe Chiloane, testified that the position remained vacant and that Amandla Trevor Mabunda was not employed by the department and had never participated in the interviews.

She said departmental records showed that the position had been reserved for the appointment of a S.M. Mabunda.

However, neither Amandla Trevor Mabunda nor S.M. Mabunda accepted the preliminary offer.

Chiloane said the preliminary offer did not constitute a confirmed appointment and that an appointment would only be finalised once the candidate accepted the offer and returned the signed document.

The arbitration found that Tsobolo met all the minimum requirements for the position.

The department conceded during cross-examination that she was qualified for the post, while it was also undisputed that she had been ranked first during the interviews and recommended by the SGB.

The SGB had recommended Tsobolo partly to address the school’s employment equity profile, as its senior management team consisted of three male educators.

Yedwa Primary School principal Lucky Richard Khoza testified that the SGB had asked the department to provide reasons for deviating from its recommendation and requested that the post be re-advertised or that Tsobolo be appointed.

According to Khoza, the department did not respond to the SGB’s letter.

He also told the arbitration that the Departmental Head position remained vacant and that the candidate to whom the offer had been made had never reported for duty.

The department argued that Tsobolo’s dispute had been referred prematurely because the appointment process had not been finalised.

He found that the department had already committed an unfair labour practice when it bypassed Tsobolo and formally extended a legal offer to another candidate.

“The first respondent failed to adduce any explanation why it has deviated from the school SGB recommendation,” Sono found.

The commissioner said the fact that the other candidate did not accept the offer did not erase the unfair conduct that had already occurred.

Sono also referred to previous Labour Appeal Court authority, which established that an unfair labour practice can occur during an appointment process even where that process is subsequently not completed.

The commissioner concluded that Tsobolo had proved, on a balance of probabilities, that the department’s decision not to appoint her was substantively unfair.

“I therefore find that the respondent’s failure to promote the applicant to the post of Department Head at Yedwa Primary School constituted an unfair labour practice,” Sono said.

The Mpumalanga Education Department was ordered to appoint Tsobolo as Departmental Head at Yedwa Primary School with effect from October 1.