PSES 100-02/03 KZN
Award  Date:

Case Number: PSES 100-02/03 KZN
Province: KwaZulu-Natal
Applicant: J M MTHIMKULU
Respondent: DEPARTMENT OF EDUCATION KZN
Issue: Unfair Dismissal - Constructive Dismissal
Venue: MADADENI
Arbitrator: A S DOROSAMY
IN THE ARBITRATION
CASE NO.: PSES 100-02/03 KZN
IN THE MATTER BETWEEN :-

NATU o.b.o MTHIMKULU J M APPLICANT

AND

KWAZULU NATAL DEPARTMENT
OF EDUCATION RESPONDENT
________________________________________________________

DATE : 13th OCTOBER 2003
TIME : 09H00
VENUE : NEWCASTLE DISTRICT OFFICE
9288 Section 5
MADADENI
ARBITRATOR : A S DORASAMY
ATTENDANCE/S : APPLICANT
MR N E MBATHA - NATU
MR J M MTHIMKULU
MR D NGWENYA
FIRST RESPONDENT
MR M B MASUKU
MR I T MAGUBANE
MR P SHABALALA
SECOND RESPONDENT
MR P GWAMANDA


ARBITRATOR'S AWARD
The arbitration proceedings commenced at 09h00.

ARBITRATOR'S SUMMARY

This matter came before me for conciliation on the 18th June 2003, and remained unresolved. The parties were provided with the framework of the pre-arbitration minutes to be completed and forwarded to me. They were advised that the matter will proceed to arbitration. There were sittings on the 16th July 2003, 3rd October 2003 and the matter concluded on the 13th October 2003. The Second Respondent was joined in the proceedings as she was the present incumbent at Mata Primary school, and had an interest in the matter. She was represented by Mr P Gwamanda of SADTU

HEARING AND REPRESENTATION
Mr N E Mbatha represented the Applicant, Mr JM Mthimkulu Z ( employee / applicant ) and Mr M B Masuku, represented the First Respondent, Kwa Zulu Natal Department of Education ( employer ) and the Second Respondent was represented by Mr P Gwamanda of SADTU..

All documents referred to had been made available to the parties at arbitration. The marking of the documents was standardised with the parties at the arbitration.



ISSUES NOT IN DISPUTE

The parties did not convene a pre hearing meeting and did not submit common cause issues / matters.

ISSUES FOR DECISION
The issues for decision in this matter are (i) whether the Applicant’s application was unfairly disqualified; (ii) if in the affirmative, what relief may be granted to the Applicant.

RELIEF SOUGHT

The Applicant seeks to be considered for shortlisting at Mata Primary School
( hereinafter referred to the school ) and the part of the process that follows.

SUMMARY OF THE APPLICANT'S CASE

The Applicant’s representative called Mr J M Mthimkulu who testified as follows:-

He is the applicant and the disputed post is Mata Primary School, Post No. 428. His grievance is centred on the fact that he submitted his application through the Newcastle office for further processing at Mata primary School. He was dismayed when he received a letter of Acknowledgement from the Newcastle office stating that his application was incomplete and would not be forwarded to the school.

He raised disagreement with this office by way of the Regional Grievance Committee ( RGC ) and was further disappointed that it was badly handled. Subsequently he referred the matter through his Union ( NATU ) to the ELRC for conciliation and arbitration. The Union handled the dispute from the grievance level.
He was aware that there was a kind of arrangement with regard to the date proposed for the handling of the processes.

Further that he was aware that his Union was not available because of their National Conference. The grievance committee went on with the cases and some matters were undefended because the representatives were not present.

CROSS EXAMINATION – MR MASUKU

Under cross examination by Mr Masuku the witness testified as follows:-

Currently he holds the post of Deputy Principal at Thubelihle High School. This is a post level three (3) post, same or equivalent to the post in dispute. The difference being that the disputed post is that of principal.

He conceded that the sifting process is an independent process undertaken by the District office. Further that the disqualified application forms do not go to the school advertised.
Mr Masuku referred to clause 21.2 of the promotion manual ( Exhibit 1) reads as follows :-

“ An aggrieved applicant may lodge a grievance on the attached Application Form through the Union directly to the superintendent of Education (Promotions ) in the Region in which the post is located.” And the response was as follows:-
Grievance was badly handled. It was supposed to be handled at grievance stage. The RGC went on with the case despite his representatives not being present.
He could not comment on the notices sent to and from his Union, nor could he shed light on the Union’s conference.

The Second Respondent chose not to cross – examine the witness.

The next witness, Mr Daubrey Ngwenya testified as follows:-

He is the chairperson of the NATU Newcastle branch. The notice of the meeting on the 5-7 May 2003 was received and attempts were made to seek a postponement. The invitation did not indicate the role of the representatives and their powers of intervention.

He stated that in the past telephonic negotiation were undertaken by the Department and the Unions. In the present case the Department was aware that the applicant’s grievance had to have representation. The relationship between the Union and the Department was good.

This matter was raised with the Department at a bi- lateral with the Department in June 2003. The Department response was that the matter was sub judice. A further meeting was held in September 2003, matter was on the agenda but was not attended to because of time constraints. The meeting was postponed to the 24th September 2003. The new RSM, Dr Mpofana postponed the meeting indefinitely.

Under cross examination the witness testified as follows:-

Mr Mbatha represented the Union at the meeting of the grievance committee at the Regional Level. He was sent to Ladysmith in April and he reported to the Union. Further the representative was instructed to indicate that the Union was not available on the 5-7 May 200.

The witness stated that a letter was sent requesting a postponement but could not furnish proof of receipt of the letter.

A representative was sent to the meeting on the 21st February 2003, the closing date for application. Natu and other Unions were preset. Exhibit 6 and 7 were canvassed with the witness and the role of Ms S E

Masonda was that of representative but she did not to interact with the Department

Exhibit 9 was put to the witness who responded that the Union representative, Mr Ndlovu was not given the mandate to bind the Union.

Exhibit 13 was put to the witness who stated that the Union representative, Ms L N Gigaba signed the register as observer.

The witness was asked to comment on Exhibit 1 , page 9, section 21. He stated that he was aware of the procedure as per the HRM document. Mr Mbatha did not sit in the RGC.

On cross examination by Mr Gwamanda the witness testified as follows:

When questioned on the presence of Union members at the various stages the witness stated that it does occur that the union responds to an invitation but in the specific case the Department acted beyond its powers.

The Applicant closed its case.



SUMMARY OF THE RESPONDENT'S CASE

The Respondent called Mr Phiwase Shabalala, who testified as follows :-
He is employed by the Department and was directly involved in the Sifting process.

The Union members were involved in the process on a voluntary basis and if they objected to anything it would have been proper for them to state their objections. Thereafter he testified on the documents submitted by the Department as follows:-
Exhibit 1: Post at Mata Primary School as advertised in the bulletin.
Exhibit 2: the RGC meeting scheduled for all grievances- HRM 4/2003.
Exhibit 12: attendance register.
Exhibit 3 List of all grievances registered, third row, applicant, incomplete form.
At the sitting of the grievance committee, the Department did not receive any communication. The chief SEM phoned the Union before the start and their response was that they were on a trip, had a commitment.

Exhibit 5: Letter sent to the Unions to come and be part of the closure and Sifting process.



Exhibit 7: Declaration reads as follows:-
“We the undersigned Union representatives were present at the time of closure of the applications for Promotion vide HRM 4 of 2003 on the 21st of February 2003. We hereby declare that the closing process was handled correctly and effectively and all the acceptable procedures adhered to “
Exhibit 9: After calling everybody to the process there was a need for a way forward. This was due to the different interpretations by the different people. A document was place before everyone and accepted as criteria for sifting.
Exhibit 10: all members happy before sifting. No persons were forced to sign the document nor did anyone object to the document.

Exhibit 12 list of all rejected applications because they did not meet the criteria agreed.
Applicant’s application form ( No 17) rejected in the same way as 18, criteria consistent applied. Everyone present from beginning to end.
Everyone was happy after the sifting process and they commented favourable on the process.

On being cross examined by Mr Mbatha the witness testified as follows:-
The sifting process involved the Unions and their involvement was legal. The decision to involve the Unions was as a result of the problems experienced in the past.

He confirmed that Ms Masondo had the right to object.

He referred to clause 12.4 and confirmed that the details of the accepted and rejected applications were provided to the Unions.

On being cross examined by Mr Gwamanda he testified as follows:-

He confirmed that the applicant was not the only form sifted out. Further that no person present indicated that they did not have a mandate not to represent their constituency. The applicant was not guaranteed a placement in the post. Sifting took place on more than one day.

The Respondent thereafter closed its case after submitting that it was aware of the single witness rule..
THE PARTIES CLOSING ARGUMENTS

APPLICANT
The wished to indicate in this hearing that the presence of Ms Gigaba should not be misconstrued, as she is a Union representative in the Dannhauser District. Her presence was only as a member of the I.C in another case.

Submit that NATU reps were not supposed to be there at the District level. The district is the department and not a combination of the Department and Unions. Hence in 12.4 had to make a report to the Union based on this, the grievance arose, when the report was made.

Furthermore indicate that the criteria and procedure followed were flouted in that fairness was compromised and this affected the applicant severely.

The Newcastle District unfairly disqualified the applicant’s application from reaching its destination, the school.

After the RGC was made aware of the problem at stake it became clear that the Union rep desired the opportunity of presenting its case.

Indicate that the Department denied receiving the referral form because it had a vested interest in the matter. This was one of the department’s methods to forestall fair labour practice.

We presented the referral form to the Department. We submit that the appointment was not stayed as per advisory ward. If it was stayed why did the Second Respondent make physical appearance at the school. Was the letter staying the appointment as per advisory award issued or not. We as a Union have not received any letter to that effect.

The arbitrator had advised the First Respondent to stay the appointment thereby advising the Circuit Management Centre of Dannhauser about the advisory award. .


We as a Union would like to impress upon the arbitrator that this is another one of the Departments common practice and tactic to undermine fair labour practice.

Lastly does the First Respondent have an overriding authority over the arbitrator in the advisory award is undermined and weakened. We submit that it is common practice that the arbitrator should help us out of this quagmire after all that has transpired in this case. .
.
FIRST RESPONDENT

The First Respondent’s prayed that the application be dismissed on the following grounds:-

It intends to unnecessarily derail the Department’s constitutional obligation that schools are properly managed and vacant management posts remain vacant and be delayed. The nature of this grievance is a sifting grievance. It is about a person whose application which would have undergone other processes which does not guarantee placement.

The Respondent is aware of the cautionary rule, evidence of Mr P Shabalala should be collaborated, consistent, documents submitted and not challenged. The evidence of the witness was well- collaborated and withstood challenge. The applicant and his witnesses failed to prove their allegations of unfairness against the Department. No documents were produced by the applicant to prove the unfairness by the Department. To me that should afford the arbitrator to draw an adverse inference.

Letters were sent to the Unions in respect of rejected applications. The Applicant’s form was not the only form rejected. As a consequence thereof my evidence must be accepted.

There was no guarantee that the applicant would be placed as principal.

An appointee is in place and it would pose a challenge to the employer and prejudice the respondent and there is no reason for changing the appointment

The witness Mr Shabalala indicated that at the sifting level the Unions were involved and the criteria were collectively arrived at and there were no objections to the document.

There were no evidence that the members were compelled to attend. No evidence that the reps signed under duress. The arbitrator is to presume that the reps signed willingly, voluntarily and with sober minds and represented their constituencies.

There was more than one sitting of the sifting committee. The criteria agreed were consistently applied to all applicants. The Unions had the right to object to the process if it was illegal. At subsequent meetings presumed everything in order.

The right to be represented is not an absolute right, grab the opportunity or forfeit it. The Notice was issued on the 30th April 2003 and was received by the Unions. Once the meeting convened, cannot postpone. The notice to postpone not traced, letter only produced today, is silent on the date of the activity. Apply that the request be dismissed as evidence.

The witness testified that the Union was contacted with regards to its absence.

This points to the Departments commitment, under pressure to fill the post as soon as possible and not wait indefinitely.

The Union failed to inform the Department and deliberately failed to attend the meeting and thereby failed to represent its member.

The advisory award was issued on the 16th July 2003. The letter of appointment to the applicant was issued on the 14th July 2003, during the holidays. The Department could not give effect to the award because of circumstances beyond its control.

The First Respondent prays that the application be dismissed as it is not based on :-
1. clear evidence.
2. the applicant presently occupies a post level 3 post and would not suffer monetary prejudice.
3. the applicant has the opportunity to apply for promotion to post level 4 and would be assisted in this regard.

In conclusion the following ruling of judge Zondo is submitted:
“ The arbitrator should not interfere with the decisions of the employer unless it makes him jump out his chair in amazement.”

Submit that there is no evidence that the First Respondent’s actions would make the arbitrator jump out of his chair in amazement.

SECOND RESPONDENT’S CLOSING ARGUMENTS

The appointment by the Department cannot be termed illegal. There was no guarantee of placement of the applicant to the post.

There was unanimous decision in terms of the Union involvement in the criteria and reporting formula. The appointment of Mrs Nene is legal.

It is our contested view that anyone absent after being invited, his absence cannot constitute an illegal process. All decisions of such a meeting are fair and binding.

Submit that the present incumbent enjoy her position and render service to the community.


SURVEY OF EVIDENCE AND ARGUMENT

The Applicant applied for the advertised vacancy in HRM 4 of 2003 bulletin in respect of post no 428, i.e the principal’s post at Mata Primary School. He completed his application form and forwarded it in terms of the requirements as contained in the promotion document. The committee at the Newcastle District office tasked with sifting the applications called a meeting of the stakeholders including the Unions to accomplish the task. At the meeting of the committee a set of criteria was arrived at to assess all the applications.

At the sitting of the committee the applicant’s forms were rejected and notice to the effect was forwarded to him. Upon receipt of the notice rejecting his application the applicant, initially personally and thereafter via his Union lodged a grievance.

The applicant contended that the rejection of his form was unfair, whilst the Respondents contended that it was fair and that the appointment should be confirmed.

ANALYSIS OF EVIDENCE AND ARGUMENT
The employer, the Department of Education and Culture – Kwa Zulu Natal, the first Respondent advertises promotion vacancies via bulletins, in this case HRM CIRCULAR NO 4 OF 2003 ( Exhibit 1 ). The employees, should they qualify are eligible to apply for the vacant posts.

The procedures and the criteria for filling the posts are arrived at after extensive consultations with the Employee sector in the Provincial Education Labour Relations chamber.

The dispute concerns the rejection of the applicant’s application form at the sifting stage. The stage in question is covered in the Employment of Educators Act 76 of 1998, the relevant sections read as follows:

3.2 Sifting
(a) The employing department shall acknowledge receipt of all applications by:

(i) informing all applicants in writing of receipt,
(ii) clearly indicating whether the application is complete or not, and
(iii) indicating whether the application meets the minimum requirements for the post and that such applications have been referred to the institutions concerned.

(b) The employing department shall handle the initial sifting process to eliminate applications of those candidates who do not comply with the requirements for the post(s) as stated in the advertisement.

(c) Trade Union parties to the Council will be given a full report, at a formal meeting, on :-

(i) names of educators who have met the minimum requirements for the post/s in terms of the advertisement;

(ii) names of educators who have not met the minimum requirements for the post/s in terms of the advertisement; and
(iii) other relevant information that are reasonably incidental thereto.

The promotion manual, HRM Circular No. 4 of 2003 in clause 12, SIFTING details the process of sifting as follows :-

12.1 The District Office shall acknowledge receipt of all applications by:
Informing all applicants in writing of receipt
Clearly indicating whether the application is complete or not: and
Indicating whether the applicant meets the minimum requirements for the post and that such applications have been referred to the institutions concerned.

12.2 The District Office shall handle the initial sifting process to eliminate applications of those candidates who do not comply with the equirements for the post(s) as stated in the advertisement.

12.3 The District Office will compile separate schedules of applications, which comply with the minimum requirements. These schedules must be submitted to the respective institutions together with the application forms.

12.4 The Departmental representative must ensure that a full report is given to the Unions’ party to the ELRC at a formal meeting on:

12.4.1 Names of educators who have met the minimum requirements in terms of the advertisement;
12.4.2 Names of educators who have not met the minimum requirements in terms of the advertisement; and
12.4.3 Other relevant information that is reasonably incidental thereto.

The Respondent is tasked with advertising vacant promotion posts. This was done and the procedure manual to accomplish this exercise is contained in the HRM Circular No.4 of 2003. The bulletin is issued o all stakeholders and is the result of negotiations with he stakeholders.

In terms of the practice and procedure for filling the vacant posts, the applicants are required to complete the application form and forward them to the relevant District Offices. The District Office is tasked with sifting of the application. This task involves the screening of applications, compiling a list of application that satisfy the requirements and a list of disqualified applications. Thereafter the lists, together with the applications are forwarded to the institution where the vacancies are situated.

Further the Department representative is expected to submit a full report to the stakeholders i.e. the Unions who are party to the ELRC at a formal meeting in terms of the requirements contained in clause 12.4 of the promotion bulletin.

The invitation to include stakeholders to the process of receiving and sifting the applications is at the discretion of the District Office.

In the present case and in order not to labour the findings with details that are contained in the bulletin and documents handed in as exhibits, only the necessary cross references would be undertaken.

It is clear from the evidence that the applicant applied for the post of Principal at Mata Primary School, Post No. 428 and his application did not meet the requirements and was disqualified. He subsequently received notice to that effect.

In assessing this matter, cognizance has been taken of the promotion documents, the responsibility of the Respondent ( Department ) in respect of the sifting process and the involvement of the stakeholders, amongst others the teacher unions.

At the closure of the application for promotions on the 21st February 2003, the teacher unions, NATU and SADTU, representatives of the Respondent, attended and confirmed that nothing irregular had occurred (refer exhibit 7 ).

On the 24th February 2003, invited stakeholder including teacher unions signed a declaration, refer exhibit 10. Clause c and d reads as follows:-
c) We shall apply consistency in all decisions taken concerning applications, regardless of whether we happen to know the applicant or not.
d) The decisions taken by the Sifting panel are binding; at no stage shall we be seen to go against them.

Thereafter, on the 5th March 2003 invited stakeholders, including the teacher unions were party to a sitting wherein the criteria for sifting was agreed ( refer exhibit 9 ).

The sifting process was undertaken and 12 + 14 + 25 = 51, applications excluding the deletions were eliminated.

The accepted applications numbered 12 + 12 +19 + 3 + 13 = 59

In terms of the agreed procedure for filling promotion posts, the Respondent was not compelled to involve the stakeholders in the sifting process. According to its witness Mr P Shabalala the decision to involve the stakeholders was to be transparent and to avoid problems experience previously at the stage.

The stakeholders were invited to a process that envisaged their active involvement and participation. They by their very presence indicated an intention to be part of the process and they had the right to abort their participation in the process at any stage. No evidence was led in this regard.

The mere fact that the sifting process was held over more than one sitting would have allowed the participants ample opportunity to canvass with their principals if they were not satisfied with the process. Further this door would have been shut had they voluntarily signed the declaration form.

I am satisfied that having taken into account that from the total number of approximately 110 applications, the exclusion of 51 applications as a consequence of them not meeting the agreed criteria, the applicant’s application was also eliminated by the application of the agreed criteria.

After considering this matter I find that there is no basis for the Applicant’s contention that the employer /respondent through its agent the Newcastle District (hereinafter referred to as the office ) unfairly disqualified the Applicant’s application form at the Sifting, claiming that it was incomplete.

Further the Respondent contention that the Applicant’s application was disqualified on agreed grounds and did not unfairly treat the Applicant must prevail.

AWARD
2. The application is dismissed and hence he is not entitled to any relief.
3. In view of the fact that neither of the parties has made an application at the arbitration for the award as to costs, I make no award in respect thereof.

DATED AT RESERVOIR HILLS, DURBAN ON THIS DAY OF 2003.

_________________________
A S DORASAMY
ARBITRATOR

EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

CASE NUMBER PSES 100-02/03 KZN
APPLICANT J M MTHIMKULU
RESPONDENT DEPARTMENT OF EDUCATION KZN
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR A S DOROSAMY
DATE OF ARBITRATION 13 OCTOBER 2003
VENUE MADADENI

REPRESENTATION:

APPLICANT MR N E MBATHA (NATU)
RESPONDENT MR M B MASUKU

AWARD:

1 The application is dismissed and hence he is not entitled to any relief.
2 In view of the fact that neither of the parties has made an application at the arbitration for the award as to costs, I make no award in respect thereof.

DATE OF AWARD 2003
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