PSES 356-03/04 GP
PSES 356-03/04 GP
Award Date:
Case Number: PSES 356-03/04 GP
Province: Eastern Cape
Applicant: MS S VINE (NUE)
Respondent: DEPARTMENT OF EDUCATION GP
Issue: Unfair Dismissal - Constructive Dismissal
Venue: JOHANNESBURG
Arbitrator: K DRISCOLL
EDUCATION LABOUR RELATIONS COUNCIL
Case number: PSES 356-03/04 GP
In the arbitration between:
NUE obo Ms. S Vine Applicant
And
GAUTENG DEPARTMENT OF EDUCATION Respondent
ARBITRATION AWARD
The above arbitration was held on the 10th and 13th of February 2004 at the offices of the Gauteng Department of Education (GDE), Johannesburg. Mr. Swartz of NUE represented the Applicant and Mr. Thipe represented the Respondent. No interpreter was required. I would like to thank both representatives for their assistance in this matter.
The Applicant submitted a bundle of documents to the arbitration and the Respondent agreed that the documents are what they purport to be.
After narrowing the issues, the parties agreed that the following are common cause:
1) That the Applicant applied for the posts in question.
2) That the Applicant submitted the applications to the District D9 office of the GDE.
3) That the applications were handed to the GSSC by the GDE.
4) That the some applications were delivered to the incorrect schools.
5) That meetings regarding the problems experienced with the processing of applications were held.
The parties agreed that the following remains in dispute:
1) Whether a complete application was submitted by the Applicant to the GDE.
2) Whether the application was tampered with subsequent to submission by the Applicant.
The relief sought by the Applicant is that her applications be forwarded to the School Governing Body for consideration for inclusion on the short-list of candidates to be interviewed for the posts.
Survey of evidence and argument
The Applicant testified that she had applied for two of the advertised posts (JE 13 C 151 and JE 13 C 152) and that she had submitted two complete applications. The Applicant testified further that she was certain that the applications were complete, as the Deputy Principal had assisted her, as she had not previously applied for a permanent position with the GDE. The Applicant testified that she had gone to deliver her applications with the Deputy Principal but stated that she had not received any form of receipt.
The Applicant stated that she had discovered that the school had not received her applications when the Principal had asked whether she had applied for the posts. The Applicant testified that she had first been told that her applications had been lost and then the Principal had told her that he had been informed that not all of the documents were attached to the applications, in that one of the applications did not have a copy of her ID and the other had a Photostat of her certified copy of her Higher Diploma. The Applicant stated that she had received two letters from the GDE (see pages 3 and 4 of Applicant’s bundle) but that they were confusing and she had still been unsure of what had happened with either of her applications. (The Respondent conceded that the post references on page 4 of the Applicant’s bundle are incorrect and that it should only have referred to post JE 13 C151). The Applicant was shown the original applications by the Respondent and agreed that these were consistent with what had been communicated to her in the letters from the GDE. The Applicant denied the possibility that she had only attached the required documents to one application as both the posts were at the same school stating that as they were two different posts, each required its own documentation. The Applicant further denied the possibility of her forgetting to attach the documents stating that as the breadwinner she could not afford to make such a mistake. The Applicant stated that she suspected that the documents had been tampered with but could not point to a specific person or motive. The Applicant testified that she and the Deputy Principal had attended a meeting at the GDE with Ms. Roborg-Coke. The Applicant testified further that she had said, when shown the original applications, that these were not the documents she had submitted. The Applicant stated that Ms. Roborg-Coke had said nothing at the meeting.
Mr. Kirschner testified that he had applied for a post level 3 post on the Vacancy List, and as there were three other educators also applying for posts he had offered to check their applications and submit them to the GDE when he went to submit his own application. Mr. Kirschner testified further that he had informed the Applicant that she should fill in the form and attach original certified copies, and that he had checked the Applicant’s applications and had found that all the relevant documents were attached and that they were original certified copies. Mr. Kirschner stated that he could not recall if the Applicant had told him she was unsure of how to complete the application, as it was the first time she had applied for a post with the GDE, as it was a conversation that had occurred a year ago. Mr. Kirschner stated that the Applicant had accompanied him to the EDUCON building and had been with him when he had placed the envelopes into the box. Mr. Kirschner stated further that he and two of the other educators had been short-listed and interviewed for the posts to which they had applied. Mr. Kirschner testified that he had attended a meeting with the Applicant at the GDE and that he had said to Ms. Roborg-Coke that the documents, which she had shown them, were not the documents which had been submitted to EDUCON and that it appeared that the staples had been removed and replaced. Mr. Kirschner testified further that he had undertaken, on the advice of Ms. Roborg-Coke, to write a letter on the same day, which he had done (see page 6 of Applicant’s bundle). Mr. Kirschner stated that he did not recall Ms. Roborg-Coke saying that she had gone to the GSSC to collect the applications.
Ms. Roborg-Coke testified that the boxes in which the applications were collected were sealed at each venue and transported by a private company to the GSSC offices where they were opened by officials of the GSSC. Ms. Roborg-Coke stated further that the GDE had nothing to do with the applications until the sifting was completed by the GSSC. Ms. Roborg-Coke however indicated that a receipt was received for each box, which was correlated with their records. Ms. Roborg-Coke testified that she had received a query from the Applicant regarding her applications and that she had requested and collected the applications personally from the GSSC. Ms. Roborg-Coke had then requested the Applicant to come in and view the applications. Ms. Roborg-Coke stated that the Applicant had come in and that Mr. Kirschner had accompanied her. Ms. Roborg-Coke testified that she did not recall exactly what she had said but that she said more or less the same thing to educators in a similar position to the Applicant and that was that they should view the applications and that if they were unhappy that they should lodge a grievance as the matter was out of her hands. Ms. Roborg-Coke stated that she could not recall if the Applicant had spoken to her but that she (Ms Roborg-Coke) had been directing her advice to both the Applicant and Mr. Kirschner. Ms. Roborg-Coke testified that the Applicant had been in an exceptionally emotional state at the time of the meeting and that the Applicant had said that the applications were not what she had submitted and that there were documents missing. Ms. Roborg-Coke stated that she had not questioned the Applicant regarding her statement that there were documents missing. Ms. Roborg-Coke stated that in her experience with working with applications, the volume was such that a person would not have the time or the inclination to search for one specific application form and it was therefore unlikely that someone had removed the Applicant’s documents in order to sabotage her application. Ms. Roborg-Coke indicated that in her opinion the volume of applications received meant that a high level of meticulousness needed to be maintained when dealing with the applications. Ms. Roborg-Coke stated further that the people working with the applications are not eligible to apply for the advertised posts.
The Applicant argued that in terms of section 3.2(a) and (b) of the Employment of Educators Act of 1998, it is clear that the responsibility of the sifting process resides with the Respondent. The Applicant argued further that the logical interpretation of section 3.2(a) was that the Respondent should have afforded the Applicant an opportunity to rectify the incomplete application. The Applicant argued that it is common cause that the process followed during the sifting of the Vacancy List in question did not go smoothly and that the Respondent had held meetings with school principals in order to sort out applications which had been forwarded to the incorrect schools.
The Applicant argued that Ms. Vine had followed the correct procedures and had submitted the correct documents when applying for the posts and her application had still not arrived at the school to which she had applied. The Applicant argued further that Ms. Vine had testified that she had submitted all the documents required and that these documents had been original certified copies and that Mr. Kirschner corroborated this. The Applicant contended that it was not the duty of Ms. Kirschner to show who had tampered with the documents as he had only assisted the Applicant in dropping the documents off and attended the meeting with the GDE.
The Applicant contended that the Respondent had not had any control over the applications once they had left the Respondent’s offices and were therefore in no position to state whether the applications were complete when they were deposited. The Applicant argued that Ms. Roborg-Coke had indicated that she could not say whether the documents that had been deposited were the same one that she received from the GSSC. The Applicant argued further that as Ms. Roborg-Coke had testified that Ms. Vine had been in an emotional state at the meeting it was possible that Ms. Vine had not heard what Ms. Roborg-Coke had said at the time. The Applicant contended that Ms. Vine’s actions since being informed that her applications had been excluded were those of a person who is responsible and who wishes to secure security of tenure, and that her testimony should be accepted as credible.
The Respondent argued that the Applicant had not established that the documents had been tampered with and had therefore not discharged its onus. The Respondent argued further that the referral was frivolous and vexatious and requested that costs be awarded against the Applicant.
The Respondent argued that section 3.2 of the Employment of Educators Act does not imply that the Respondent must allow those candidates who have not submitted a complete application to rectify any defects in their applications. The Respondent argued further that the requirements for an application to be considered are clear and that the Respondent could legitimately exclude applications that did not comply with the requirements as set out on the Vacancy List.
The Respondent argued that there were several inconsistencies in the versions put by Ms. Vine and Mr. Kirschner. Firstly, Ms. Vine had stated that as it was the first time she had applied for a post with the GDE she had requested Mr. Kirschner to assist her. Mr. Kirschner had however testified that he had only checked Ms. Vine’s applications once she had completed them. The Respondent argued that this did not amount to assistance in completing the forms, but merely to verifying that the documents were correct. Secondly, Ms. Vine stated that she had deposited the envelope in the box, but Mr. Kirschner testified that he had deposited the envelope. Thirdly, Ms. Vine testified that Ms. Roborg-Coke had said nothing at the meeting, but Mr. Kirschner stated that Ms. Roborg-Coke had said two things. The Respondent contended that Mr. Kirschner was an evasive witness and that the evidence of both Ms. Vine and Mr. Kirschner be found to be unreliable.
The Respondent argued that it was not true that there was no control over the boxes of applications as Ms. Roborg-Coke stated that a receipt was received for each of the boxes delivered to the GSSC. The Respondent argued further that monitoring does not of necessity have to be in the form of a person but may also be done through control forms and receipts. The Respondent contended that as the Applicant had not requested a receipt or included an inventory list with the application, that she had failed to prove that the documents were submitted. The Respondent requested that the matter be dismissed.
Assessment of evidence and argument
Section 3.2(a) of the Employment of Educators Act clearly states the manner in which the employing department, in this instance the GDE, should acknowledge receipt of applications for posts. This acknowledgement should include an indication of whether the application is complete or not and whether the applicant meets the minimum requirements of the post. I agree with the Respondent that there is no indication in this section that there is an obligation on the GDE to invite those candidates who have submitted incomplete applications to cure any defects in their application. The Applicant has however argued that such an obligation may be implied. Section 3.2(b) states that “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.” Whether this function was outsourced to the Gauteng Shared Services Centre (GSSC) is not relevant to this matter as it is clear that the Respondent is responsible for decisions made by the GSSC regarding the initial sifting process. What is of importance is whether incomplete applications could be eliminated at the initial sifting stage or whether there was an obligation to allow candidates an opportunity to cure any defects in their applications. Section 3.2(b) allows the Respondent to eliminate applications of those candidates who do not comply with the requirements of the post as stated in the advertisement. (Emphasis added) Section 3.1(a)(i) states that advertisements must include, amongst others, the “procedure to be followed for application.” In addition, Form GDE 2R states that an application will only be considered if this form has been completed in full. Taking into account section 3 of the Employment of Educators Act and the instruction included on Form GDE 2R, it is my view that no obligation on the Respondent to allow candidates to rectify defects on their applications can be implied. The Arbitrator in NUE obo RM Visagie and Department of Education (Western Cape), case number PSES 76-03/04, argued that the Respondent in that matter had a discretion as to whether to accept the late submission of an application form which was not submitted with the original application. I respectfully disagree with my learned colleague. On the face of it, it may appear that the exclusion of incomplete applications is unfair. However, the instructions to applicants are clear and unequivocal and their strict application is reasonable taking into account factors such as the number of applications received and the administrative burden that this would place on the Respondent should each candidate be afforded an opportunity to correct any defects. The Respondent was thus only obliged to inform Ms. Vine that her application was incomplete and thus eliminated.
This is not however, the main issue in dispute. The Applicant has alleged that Ms. Vine submitted all the correct documents for each of the posts she applied for, and that she was thus unfairly excluded for consideration for the posts by the Respondent. The central question therefore, is whether Ms. Vine did indeed submit complete applications. On this point the Applicant led the evidence of Ms. Vine and Mr. Kirschner who both testified that all of the correct documents were attached to the GDE 2R form when the envelope was deposited at the EDUCON building. The Respondent has argued that the testimony of both Ms. Vine and Mr. Kirschner is unreliable as they contradicted each other on material aspects. Whether Mr. Kirschner assisted Ms. Vine in the actual filling in of the forms or verified the documents for her is merely a matter of semantics. What is of importance is that Mr. Kirschner checked (or verified) that the correct documents were attached to Ms. Vine’s application forms. Who deposited the envelope into the box at the EDUCON building is also of little consequence to whether the documents were attached or not. On a balance of probability I believe that Ms. Roborg-Coke did in fact advise Ms. Vine to lodge a grievance at the meeting at the GDE. I nevertheless accept that Ms. Vine was in a highly emotional state, as testified by Ms. Roborg-Coke, and that she may well not have heard Ms. Roborg-Coke’s advice. The Respondent argued that Mr. Kirschner was an evasive witness, as he could not recall certain details under cross-examination. It is nevertheless true that these incidents occurred between six months and a year ago and even the Respondent’s witness, Ms. Roborg-Coke, admitted that she could not recall exactly what she had said to Ms. Vine and Mr. Kirschner at the meeting. I do not therefore agree that either Ms. Vine or Mr. Kirschner were unreliable as such inconsistencies that appear in their evidence do not relate to the material aspects of this matter. The essential question is whether Ms. Vine submitted two complete applications, and I believe that the Applicant has proven on a balance of probability that this was indeed the case.
What happened to the documents once they were submitted to the Respondent can only be a matter for speculation. The Respondent has argued that the Applicant bears the onus of proving that the documents were tampered with, and that it has failed to do so. I do not agree. That the Applicant has proved that complete documents were submitted is sufficient. Whether there was a specific person who tampered with the documents or that a motive for removing the documents existed, or that the problems experienced with the sifting process contributed to the disappearance of the documents, is irrelevant. The fact of the matter is that complete applications were submitted and when the applications were sifted, the documents were no longer attached. Ms. Vine was required to do no more than submit complete applications in order to be considered for the posts. There is no obligation on her to ensure that the documents remain attached during the sifting process, which was a process over which she had no control.
AWARD
The Respondent is therefore ordered to forward Ms. Vine’s applications to the School Governing Body of the school to be considered along with the other applications for the posts.
K.DRISCOLL
Arbitrator
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES 356-03/04 GP
APPLICANT MS S VINE (NUE)
RESPONDENT DEPARTMENT OF EDUCATION GP
NATURE APPLICATION FOR POST
ARBITRATOR K DRISCOLL
DATE OF ARBITRATION 13 FEBRUARY 2004
VENUE JOHANNESBURG
REPRESENTATION:
APPLICANT MR SWARTZ (NUE)
RESPONDENT MR THIPE
AWARD:
The Respondent is therefore ordered to forward Ms. Vine’s applications to the School Governing Body of the school to be considered along with the other applications for the posts.
DATE OF AWARD
Province: Eastern Cape
Applicant: MS S VINE (NUE)
Respondent: DEPARTMENT OF EDUCATION GP
Issue: Unfair Dismissal - Constructive Dismissal
Venue: JOHANNESBURG
Arbitrator: K DRISCOLL
EDUCATION LABOUR RELATIONS COUNCIL
Case number: PSES 356-03/04 GP
In the arbitration between:
NUE obo Ms. S Vine Applicant
And
GAUTENG DEPARTMENT OF EDUCATION Respondent
ARBITRATION AWARD
The above arbitration was held on the 10th and 13th of February 2004 at the offices of the Gauteng Department of Education (GDE), Johannesburg. Mr. Swartz of NUE represented the Applicant and Mr. Thipe represented the Respondent. No interpreter was required. I would like to thank both representatives for their assistance in this matter.
The Applicant submitted a bundle of documents to the arbitration and the Respondent agreed that the documents are what they purport to be.
After narrowing the issues, the parties agreed that the following are common cause:
1) That the Applicant applied for the posts in question.
2) That the Applicant submitted the applications to the District D9 office of the GDE.
3) That the applications were handed to the GSSC by the GDE.
4) That the some applications were delivered to the incorrect schools.
5) That meetings regarding the problems experienced with the processing of applications were held.
The parties agreed that the following remains in dispute:
1) Whether a complete application was submitted by the Applicant to the GDE.
2) Whether the application was tampered with subsequent to submission by the Applicant.
The relief sought by the Applicant is that her applications be forwarded to the School Governing Body for consideration for inclusion on the short-list of candidates to be interviewed for the posts.
Survey of evidence and argument
The Applicant testified that she had applied for two of the advertised posts (JE 13 C 151 and JE 13 C 152) and that she had submitted two complete applications. The Applicant testified further that she was certain that the applications were complete, as the Deputy Principal had assisted her, as she had not previously applied for a permanent position with the GDE. The Applicant testified that she had gone to deliver her applications with the Deputy Principal but stated that she had not received any form of receipt.
The Applicant stated that she had discovered that the school had not received her applications when the Principal had asked whether she had applied for the posts. The Applicant testified that she had first been told that her applications had been lost and then the Principal had told her that he had been informed that not all of the documents were attached to the applications, in that one of the applications did not have a copy of her ID and the other had a Photostat of her certified copy of her Higher Diploma. The Applicant stated that she had received two letters from the GDE (see pages 3 and 4 of Applicant’s bundle) but that they were confusing and she had still been unsure of what had happened with either of her applications. (The Respondent conceded that the post references on page 4 of the Applicant’s bundle are incorrect and that it should only have referred to post JE 13 C151). The Applicant was shown the original applications by the Respondent and agreed that these were consistent with what had been communicated to her in the letters from the GDE. The Applicant denied the possibility that she had only attached the required documents to one application as both the posts were at the same school stating that as they were two different posts, each required its own documentation. The Applicant further denied the possibility of her forgetting to attach the documents stating that as the breadwinner she could not afford to make such a mistake. The Applicant stated that she suspected that the documents had been tampered with but could not point to a specific person or motive. The Applicant testified that she and the Deputy Principal had attended a meeting at the GDE with Ms. Roborg-Coke. The Applicant testified further that she had said, when shown the original applications, that these were not the documents she had submitted. The Applicant stated that Ms. Roborg-Coke had said nothing at the meeting.
Mr. Kirschner testified that he had applied for a post level 3 post on the Vacancy List, and as there were three other educators also applying for posts he had offered to check their applications and submit them to the GDE when he went to submit his own application. Mr. Kirschner testified further that he had informed the Applicant that she should fill in the form and attach original certified copies, and that he had checked the Applicant’s applications and had found that all the relevant documents were attached and that they were original certified copies. Mr. Kirschner stated that he could not recall if the Applicant had told him she was unsure of how to complete the application, as it was the first time she had applied for a post with the GDE, as it was a conversation that had occurred a year ago. Mr. Kirschner stated that the Applicant had accompanied him to the EDUCON building and had been with him when he had placed the envelopes into the box. Mr. Kirschner stated further that he and two of the other educators had been short-listed and interviewed for the posts to which they had applied. Mr. Kirschner testified that he had attended a meeting with the Applicant at the GDE and that he had said to Ms. Roborg-Coke that the documents, which she had shown them, were not the documents which had been submitted to EDUCON and that it appeared that the staples had been removed and replaced. Mr. Kirschner testified further that he had undertaken, on the advice of Ms. Roborg-Coke, to write a letter on the same day, which he had done (see page 6 of Applicant’s bundle). Mr. Kirschner stated that he did not recall Ms. Roborg-Coke saying that she had gone to the GSSC to collect the applications.
Ms. Roborg-Coke testified that the boxes in which the applications were collected were sealed at each venue and transported by a private company to the GSSC offices where they were opened by officials of the GSSC. Ms. Roborg-Coke stated further that the GDE had nothing to do with the applications until the sifting was completed by the GSSC. Ms. Roborg-Coke however indicated that a receipt was received for each box, which was correlated with their records. Ms. Roborg-Coke testified that she had received a query from the Applicant regarding her applications and that she had requested and collected the applications personally from the GSSC. Ms. Roborg-Coke had then requested the Applicant to come in and view the applications. Ms. Roborg-Coke stated that the Applicant had come in and that Mr. Kirschner had accompanied her. Ms. Roborg-Coke testified that she did not recall exactly what she had said but that she said more or less the same thing to educators in a similar position to the Applicant and that was that they should view the applications and that if they were unhappy that they should lodge a grievance as the matter was out of her hands. Ms. Roborg-Coke stated that she could not recall if the Applicant had spoken to her but that she (Ms Roborg-Coke) had been directing her advice to both the Applicant and Mr. Kirschner. Ms. Roborg-Coke testified that the Applicant had been in an exceptionally emotional state at the time of the meeting and that the Applicant had said that the applications were not what she had submitted and that there were documents missing. Ms. Roborg-Coke stated that she had not questioned the Applicant regarding her statement that there were documents missing. Ms. Roborg-Coke stated that in her experience with working with applications, the volume was such that a person would not have the time or the inclination to search for one specific application form and it was therefore unlikely that someone had removed the Applicant’s documents in order to sabotage her application. Ms. Roborg-Coke indicated that in her opinion the volume of applications received meant that a high level of meticulousness needed to be maintained when dealing with the applications. Ms. Roborg-Coke stated further that the people working with the applications are not eligible to apply for the advertised posts.
The Applicant argued that in terms of section 3.2(a) and (b) of the Employment of Educators Act of 1998, it is clear that the responsibility of the sifting process resides with the Respondent. The Applicant argued further that the logical interpretation of section 3.2(a) was that the Respondent should have afforded the Applicant an opportunity to rectify the incomplete application. The Applicant argued that it is common cause that the process followed during the sifting of the Vacancy List in question did not go smoothly and that the Respondent had held meetings with school principals in order to sort out applications which had been forwarded to the incorrect schools.
The Applicant argued that Ms. Vine had followed the correct procedures and had submitted the correct documents when applying for the posts and her application had still not arrived at the school to which she had applied. The Applicant argued further that Ms. Vine had testified that she had submitted all the documents required and that these documents had been original certified copies and that Mr. Kirschner corroborated this. The Applicant contended that it was not the duty of Ms. Kirschner to show who had tampered with the documents as he had only assisted the Applicant in dropping the documents off and attended the meeting with the GDE.
The Applicant contended that the Respondent had not had any control over the applications once they had left the Respondent’s offices and were therefore in no position to state whether the applications were complete when they were deposited. The Applicant argued that Ms. Roborg-Coke had indicated that she could not say whether the documents that had been deposited were the same one that she received from the GSSC. The Applicant argued further that as Ms. Roborg-Coke had testified that Ms. Vine had been in an emotional state at the meeting it was possible that Ms. Vine had not heard what Ms. Roborg-Coke had said at the time. The Applicant contended that Ms. Vine’s actions since being informed that her applications had been excluded were those of a person who is responsible and who wishes to secure security of tenure, and that her testimony should be accepted as credible.
The Respondent argued that the Applicant had not established that the documents had been tampered with and had therefore not discharged its onus. The Respondent argued further that the referral was frivolous and vexatious and requested that costs be awarded against the Applicant.
The Respondent argued that section 3.2 of the Employment of Educators Act does not imply that the Respondent must allow those candidates who have not submitted a complete application to rectify any defects in their applications. The Respondent argued further that the requirements for an application to be considered are clear and that the Respondent could legitimately exclude applications that did not comply with the requirements as set out on the Vacancy List.
The Respondent argued that there were several inconsistencies in the versions put by Ms. Vine and Mr. Kirschner. Firstly, Ms. Vine had stated that as it was the first time she had applied for a post with the GDE she had requested Mr. Kirschner to assist her. Mr. Kirschner had however testified that he had only checked Ms. Vine’s applications once she had completed them. The Respondent argued that this did not amount to assistance in completing the forms, but merely to verifying that the documents were correct. Secondly, Ms. Vine stated that she had deposited the envelope in the box, but Mr. Kirschner testified that he had deposited the envelope. Thirdly, Ms. Vine testified that Ms. Roborg-Coke had said nothing at the meeting, but Mr. Kirschner stated that Ms. Roborg-Coke had said two things. The Respondent contended that Mr. Kirschner was an evasive witness and that the evidence of both Ms. Vine and Mr. Kirschner be found to be unreliable.
The Respondent argued that it was not true that there was no control over the boxes of applications as Ms. Roborg-Coke stated that a receipt was received for each of the boxes delivered to the GSSC. The Respondent argued further that monitoring does not of necessity have to be in the form of a person but may also be done through control forms and receipts. The Respondent contended that as the Applicant had not requested a receipt or included an inventory list with the application, that she had failed to prove that the documents were submitted. The Respondent requested that the matter be dismissed.
Assessment of evidence and argument
Section 3.2(a) of the Employment of Educators Act clearly states the manner in which the employing department, in this instance the GDE, should acknowledge receipt of applications for posts. This acknowledgement should include an indication of whether the application is complete or not and whether the applicant meets the minimum requirements of the post. I agree with the Respondent that there is no indication in this section that there is an obligation on the GDE to invite those candidates who have submitted incomplete applications to cure any defects in their application. The Applicant has however argued that such an obligation may be implied. Section 3.2(b) states that “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.” Whether this function was outsourced to the Gauteng Shared Services Centre (GSSC) is not relevant to this matter as it is clear that the Respondent is responsible for decisions made by the GSSC regarding the initial sifting process. What is of importance is whether incomplete applications could be eliminated at the initial sifting stage or whether there was an obligation to allow candidates an opportunity to cure any defects in their applications. Section 3.2(b) allows the Respondent to eliminate applications of those candidates who do not comply with the requirements of the post as stated in the advertisement. (Emphasis added) Section 3.1(a)(i) states that advertisements must include, amongst others, the “procedure to be followed for application.” In addition, Form GDE 2R states that an application will only be considered if this form has been completed in full. Taking into account section 3 of the Employment of Educators Act and the instruction included on Form GDE 2R, it is my view that no obligation on the Respondent to allow candidates to rectify defects on their applications can be implied. The Arbitrator in NUE obo RM Visagie and Department of Education (Western Cape), case number PSES 76-03/04, argued that the Respondent in that matter had a discretion as to whether to accept the late submission of an application form which was not submitted with the original application. I respectfully disagree with my learned colleague. On the face of it, it may appear that the exclusion of incomplete applications is unfair. However, the instructions to applicants are clear and unequivocal and their strict application is reasonable taking into account factors such as the number of applications received and the administrative burden that this would place on the Respondent should each candidate be afforded an opportunity to correct any defects. The Respondent was thus only obliged to inform Ms. Vine that her application was incomplete and thus eliminated.
This is not however, the main issue in dispute. The Applicant has alleged that Ms. Vine submitted all the correct documents for each of the posts she applied for, and that she was thus unfairly excluded for consideration for the posts by the Respondent. The central question therefore, is whether Ms. Vine did indeed submit complete applications. On this point the Applicant led the evidence of Ms. Vine and Mr. Kirschner who both testified that all of the correct documents were attached to the GDE 2R form when the envelope was deposited at the EDUCON building. The Respondent has argued that the testimony of both Ms. Vine and Mr. Kirschner is unreliable as they contradicted each other on material aspects. Whether Mr. Kirschner assisted Ms. Vine in the actual filling in of the forms or verified the documents for her is merely a matter of semantics. What is of importance is that Mr. Kirschner checked (or verified) that the correct documents were attached to Ms. Vine’s application forms. Who deposited the envelope into the box at the EDUCON building is also of little consequence to whether the documents were attached or not. On a balance of probability I believe that Ms. Roborg-Coke did in fact advise Ms. Vine to lodge a grievance at the meeting at the GDE. I nevertheless accept that Ms. Vine was in a highly emotional state, as testified by Ms. Roborg-Coke, and that she may well not have heard Ms. Roborg-Coke’s advice. The Respondent argued that Mr. Kirschner was an evasive witness, as he could not recall certain details under cross-examination. It is nevertheless true that these incidents occurred between six months and a year ago and even the Respondent’s witness, Ms. Roborg-Coke, admitted that she could not recall exactly what she had said to Ms. Vine and Mr. Kirschner at the meeting. I do not therefore agree that either Ms. Vine or Mr. Kirschner were unreliable as such inconsistencies that appear in their evidence do not relate to the material aspects of this matter. The essential question is whether Ms. Vine submitted two complete applications, and I believe that the Applicant has proven on a balance of probability that this was indeed the case.
What happened to the documents once they were submitted to the Respondent can only be a matter for speculation. The Respondent has argued that the Applicant bears the onus of proving that the documents were tampered with, and that it has failed to do so. I do not agree. That the Applicant has proved that complete documents were submitted is sufficient. Whether there was a specific person who tampered with the documents or that a motive for removing the documents existed, or that the problems experienced with the sifting process contributed to the disappearance of the documents, is irrelevant. The fact of the matter is that complete applications were submitted and when the applications were sifted, the documents were no longer attached. Ms. Vine was required to do no more than submit complete applications in order to be considered for the posts. There is no obligation on her to ensure that the documents remain attached during the sifting process, which was a process over which she had no control.
AWARD
The Respondent is therefore ordered to forward Ms. Vine’s applications to the School Governing Body of the school to be considered along with the other applications for the posts.
K.DRISCOLL
Arbitrator
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES 356-03/04 GP
APPLICANT MS S VINE (NUE)
RESPONDENT DEPARTMENT OF EDUCATION GP
NATURE APPLICATION FOR POST
ARBITRATOR K DRISCOLL
DATE OF ARBITRATION 13 FEBRUARY 2004
VENUE JOHANNESBURG
REPRESENTATION:
APPLICANT MR SWARTZ (NUE)
RESPONDENT MR THIPE
AWARD:
The Respondent is therefore ordered to forward Ms. Vine’s applications to the School Governing Body of the school to be considered along with the other applications for the posts.
DATE OF AWARD