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 and 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. According to Yedwa Primary School principal Lucky Richard Khoza, 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.
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.
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.
The department argued that Tsobolo’s dispute had been referred prematurely because the appointment process had not been finalised. Sono rejected this argument, finding that the department had already committed an unfair labour practice when it bypassed Tsobolo and formally extended a legal offer to another candidate. 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.
Sono 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.
This ruling is not an isolated incident. Recently, an Eastern Cape teacher won a promotion battle after a school appointed a candidate with a lower score. The ELRC found that the teacher was unfairly denied a departmental-head post after scoring 92 points, while the appointed candidate scored 80. The Mpumalanga Education Department's decision to appoint Tsobolo to the position brings to a close a lengthy dispute that had left the Departmental Head position at Yedwa Primary School vacant.
Key points
- The Mpumalanga Education Department was ordered to appoint Xolile Tsobolo as Departmental Head at Yedwa Primary School with effect from October 1.
- The department had bypassed Tsobolo despite her being ranked first in the interviews and recommended for the position by the school governing body.
- The arbitration ruling is the latest in a series of cases where education departments have been found to have unfairly treated candidates in appointment processes.
