Case Number: PSES NW
Province: North West
Applicant: M M SETATI
Respondent: DEPARTMENT OF EDUCATION NW
Issue: Unfair Dismissal - Constructive Dismissal
Arbitrator: BASHER VALLY
EDUCATION LABOUR RELATIONS COUNCIL
In the matter between:
M M SETATI APPLICANT
DEPARTMENT OF EDUCATION RESPONDENT
.1 The arbitration proceedings were held on 3 and 4 April 2000 at the offices of the Department. The Department was represented by Mr Jeff Thipe, while the union and the complainant were represented by Mr Anthony Swartz. I thank them both for their very able assistance in this matter.
1.2 The complainant is aggrieved about the fact that she was not recommended for a promotional post at Gordon Primary School. She raised her complaint in terms of item 2(1)(b) of Schedule 7 of the Labour Relations Act, 1995 (“the Act”). The Department agreed that the matter should be adjudicated in terms of this item of the Schedule. Item 2(1) of the Schedule reads:
“2. Residual unfair labour practices -
(1) For the purposes of this item, an unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving -
(b) the unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee”
1.3 The facts of the matter are very simple and straight forward.
1.4 The Department advertised various posts in or about the early part of 1999. The complainant applied for four of the posts advertised. These were:
1.4.1 Kwabhekilanga Secondary School: Deputy Principal;
1.4.2 Kwabhekilanga Secondary School: Head of Department: African Languages;
1.4.3 Kwabhekilanga Secondary School: Head of Department: Guidance;
1.4.4 Gordon Primary School: Deputy Principal.
1.5 As can be seen from the above, three of the posts she applied for was at the one school - Kwabhekilanga Secondary School (“Kwabhekilanga”). At the time of her application she was employed as an educator at Kwabhekilanga.
1.6 She was short-listed for the posts at Kwabhekilanga and interviewed on 6 March 1999 by the School Governing Body (“SGB”) of Kwabhekilanga. Sh was recommended for the post of Head of Department: Guidance. She was then given an offer of nomination for this post on 8 March 1999. The offer of nomination reads:
“I hereby offer you a nomination for the post of Head of Department: Guidance as advertised in the list of vacancies, post number 157B107. I hereby declare that you are the only candidate being nominated for this post. You must accept this offer within 7 days of date hereof by completing and signing the form beneath, and returning this letter to the above address. If this letter with the signed acceptance below is not received by me on or before 99/03/15 I reserve the right to offer the nomination to another candidated unless you have telephonically accepted the nomination before the date mentioned and confirmed the acceptance in writing. Please take note that you appointment is subject to confirmation by the Department. You must therefore refrain from taking any steps to assume duty until you have been notified that the appointment has been approved”.
1.7 The offer of nomination was signed by the Chairperson of the SGB.
1.8 The complainant accepted the offer of nomination. Her acceptance reads:
“I hereby accept the nomination offered to me in the OFFER OF NOMINATION. I declare that I will not accept any other offer resulting from the same vacancy list.” (Emphasis added).
1.9 Thereafter the complainant received a conditional letter of appointment. The conditional letter of appointment was dated 15 March 1999, but the complainant claimed that she received it much later. In my view nothing turns on when she received the conditional letter of appointment.
1.10 The complainant, in the meantime was short-listed for the post of Deputy Principal at Gordon Primary School (“Gordon”). She was interviewed for the post on 5 March 1999. She was recommended for the post by the SGB. An offer of nomination was given to her and she accepted it in the same way and on the same terms as she did with the offer nomination given to her by Kwabhekilanga. She did, however, not receive a conditional letter of appointment from the Department for the post at Gordon. In fact, the process of filling this post was interrupted by a grievance being lodged by a trade union. As a result of the grievance, the appointment of the successful candidate is stayed pending the outcome of the grievance. In this case, the outcome was that the process of interviewing all the candidates should begin afresh.
1.11 The complainant together with two other candidates was re-interviewed on 25 May 1999. The complainant achieved the highest score during the interview. Before the SGB decided to recommend her, an official of the Department brought it to the attention of the SGB that she was disqualified from accepting the post as she had accepted another post from the same vacancy list, i.e the post of Head of Department: Guidance at Kwabhekilanga. Consequently the SgHB decided to recommend another candidate. It must be said that the difference in scores between the complainant and the candidate that was recommended was not large. It was a difference of about four percent. In any case, the important point is that the complainant was not recommended because of her acceptance of the post at Kwabhekilanga.
1.12 The complainant claims that prior to going for the re-interview in May 1999, she withdrew her acceptance of the post at Kwabhekilanga. As she withdrew her acceptance, she was not disqualified from the post at Gordon. Hence, she should have been the recommended candidate as she received the highest scores during the interview.
1.13 Much evidence was received about this withdrawal. I do not propose to go into the details of this withdrawal, except to say that two employees of the Department, viz the Principal of Kwabhekilanga and the Deputy Director of the relevant district, acted irregulary by giving recognition to this withdrawal. Their conduct in this whole affair is, to put it mildly, not to be complimented.
1.14 The most important fact, in my view, is it is common cause that once the complainant had accepted the nomination and the conditional appointment at Kwabhekilanga, the only way she could escape from its restrictions was to resign this post at Kwabhekilanga. She did not do so.
1.15 Her withdrawal was irregular and, in my view, she knew it. The withdrawal was of no force or effect. The withdrawal was designed to allow her to have her proverbial cake and eat it. This, despite her attempts, she could not do then, and there is no reason why this arbitration should allow her to do it now.
1.16 Having regard to all the facts of this case, I have come to the conclusion that the Department did not commit an unfair labour practice as defined by item 2(1)(b) of the Schedule.
DATED: 5 APRIL 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES NW
APPLICANT M M SETATI
RESPONDENT DEPARTMENT OF EDUCATION NW
ARBITRATOR BASHER VALLY
DATE OF ARBITRATION 3 & 4 APRIL 2000
APPLICANT MR ANTHONY SWARTZ
RESPONDENT MR JEFF THIPE
It is found that the Department did not commit an unfair labour practice as defined by item 2(1)(b) of the Schedule.
DATE OF AWARD