Case Number: PSES NAR000011 KZN
Applicant: APEK obo GORDON NICHOLLS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES NAR000011 KZN
In the arbitration between:
V APEK obo GORDON NICHOLLS APPLICANT
DEPARTMENT OF EDUCATION ANDCULTURE KWAZULU-NATAL RESPONDENT
1 . ARRANGEMENTS
The arbitration was held on 5 February 1999 at the APEK offices in Canwood Park, Anthony Road, Umgeni Park. The Department was represented by Sarie Lapping, the Director of Legal Services. The Union was represented by Advocate Paul Finden.
2 . TERMS OF REFERENCE
The dispute is referred a s a residual unfair labour practice in terms of item 2 (1) (b) of Schedule 7 of the Labour Relations Act, 1995. It erose as a result of the Department’s refusal to appoint the Applicant to the position of Rector at post level 5.
3 . BACKGROUND
3.1 The position of Rector at Edgewood College became available about the end of 1995. The Applicant was asked to act in the position while the Department proceeded to advertise to fill the post permanently.
3.2 In 1996 after having obtained approval for the position of Rector at the new post level 5, an advert was published. Dr Mbokazi, the Director: Teacher Education alleged that he had received several telephonic complaints about the advert not being published in the Ilanga Newspaper. It was not a prescribed requirement or practice to advertise posts in the Ilanga. Nor was Mr Fort, the Registrar of the College, instructed to place the advert in the Ilange. Nevertheless, the advertisement was allowed to stand and the process continued.
3.3 The Applicant applied. He was interviewed about the beginning of 1997 Although he was the most suitable candidate for the position, there was no consensus within the selection anel of the Council of the College about his appointment. He was questioned about his role in fomenting discontent and unrest at the college. The questions disturbed him as he felt that it was entirely inappropriate for him to be questioned along those lines. After a second interview, the outcome was the same. He inferred that the was unsuccessful when, whilst abroad, he learnt that the position had been advertised once again.
3.4 Immediately after he was advised the first time that he was unsuccessful, he was asked whether he would be prepared to continue to act in the position of Rector. He agreed. He was paid an acting allowance for 1997. However, in 1998 no acting allowances were payable in terms of the relevant collective agreement.
3.5 A delegation from the Council of the College met with the Minister of Education and Dr Mbokazi in January 1997. It was agreed that the post would be re-advertised as a C5 position and that the Department would carry the costs therefore. Dr Mbokazi was aware at the time that the position was not a C5 level post. Nevertheless he went along with the decision as it was the outcome of negotiations between the Minister and the delegation. Furthermore, he did not have the courage to point out to the Minister that the agreement would not, in his view, be authorised in terms of Government Gazette 1 July 1996, which prescribed the grading norms for colleges of education.
3.6 The second advertisement was published in March 1997. The Applicant applied again for the position. Interviews were conducted in July. In August 1997, the Council met and the selection panel unanimously recommended the appointment of the Applicant. The Applicant would have been appointed with effect from 1 October 1997. A recommendation to that effect was submitted to the Department on 26 August 1997. It was intercepted by Dr Mbokazi. There was a long delay and, as will emerge below, the appointment was eventually not made. The student enrollment was not given as a reason for the delay at the time.
3.7 The Council’s recommendation was submitted on 26 August 1997 with the request that the appointment be made effective from 1 October 1997. Mr J P O’Conner, the Chairman of the Council, sent a further letter on 10 October 1997 to the Minister enquiring whether he was able to conform the appointment of the Applicant. No reply was received to that letter.
3.8 About the 23 October 1997, Dr Mbokazi informed the Council that the selection was not done properly. Mr O’Conner disputed that the committee acted unprocedurally in a letter dated 10 November 1997 to the Minister. He also responded to the grounds on which Dr Mbokazi objected to the interviews. Dr Mbokazi’s objections were as follows :
3.8.1 Ten and not eleven questions should have been put to the interviewees.
3.8.2 The interviews should have been conducted in a “neutral” venue and not at Edgewood as this advantaged the candidates from Edgewood, namely the Applicant.
3.8.3 There were no guidelines to assist the interviewing panel in allocating marks.
3.8.4 The selection committee did not rank the candidates and provide a detailed motivation for the short-listed candidates.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES NAR000011 KZN
APPLICANT APEK obo GORDON NICHOLLS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
DATE OF ARBITRATION
DATE OF AWARD