Case Number: PSES WC
Province: Western Cape
Applicant: MR GN JONES
Respondent: DEPARTMENT OF EDUCATION WC
Issue: Unfair Dismissal - Constructive Dismissal
Venue: WESTERN CAPE
Arbitrator: DENISE RUDOLPH
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: PSES WC
In the arbitration between:
MR GN JONES APPLICANT
DEPARTMENT OF EDUCATION RESPONDENT
1 . REPRESENTATION:
1.1 This arbitration took place on 26 October 1998 and 30 October 1998. The Grievant was represented by. Mr R Larney of the Union and the Department was represented by Mr I Matthews and Mr W Wandrag.
2 . INTRODUCTION:
2.1 The Grievant is, Mrs GN Jones who was employed by the Department as a primary school teacher at Bonga Primary School, Gugulethu.
2.2 The dispute arose over the filling of Post Number 0791, which was advertised on the vacancy list 3*96, published on 15 November 1996
2.3 The Grievant had applied for the post, she was short-listed together with two other candidates, one of whom withdrew. She was interviewed on 15 March 1997, but was unsuccessful.
2.4 The Grievant lodged a grievance with the Department shortly after the interview. The Department instructed the Circuit Manager to investigate the grievance which she duly did. A report was filed by the Circuit Manager on, 27 May 1997, which stated that there were no grounds on which the Grievant could validly declare a dispute. The report stated that the union representative of the Grievant had been interviewed and had sated his approval of the interview process.
2.5 The successful candidate was formally appointed by the Department t on, 16 July 1997 and commenced work at the beginning of the third term. The Grievant had not been notified in writing that her grievance had been dismissed and on, 4 August 1997 she lodged a formal dispute with the Education Labour Relations Council (ELRC).
2.6 Following several conciliation meetings the matter remained unresolved and was referred to advisory arbitration.
3 . TERMS OF REFERENCE:
3.1 The terms of reference drafted specifically for the Education Department Settlement Week, apply to this matter, the terms of which allow for an expedited mediation/arbitration process culminating in an advisory award. The arbitrator’s powers are specifically set out “to determine whether or not an unfair labour practice as defined in Clauses 13 (3) and 13 (4) of the Constitution of the Education Labour Relations Council was committed”.
3.2 The remedial powers granted to the mediator/arbitrator in cases such as the present case were inter alia to:
3.2.1 decide to give no additional relief beyond the declaration of an unfair labour practice itself,
3.2.2 recommend, in non-appointment or right-sizing cases, that all or some of the selection processes be redone, or
3.2.3 make any other recommendation deemed reasonable to remedy the unfair labour practice in question that in no case may be the mediator/arbitrator recommend the appointment of someone to a post, or predetermine the outcome of a fresh selection process.”
4.1 The Grievant challenged the appointment of the successful candidate on the grounds that:
4.1.1 she had more teaching experience than the successful candidate;
4.1.2 she had better qualifications,
4.1.3 the fact that she had acted as the Deputy Principal was not considered,
4.1.4 the Chairperson had commented on her answers in the interview which she claimed had the result of unsettling her and was intended to discredit her,
4.1.5 that the Principal had spoken to the Chairperson shortly before the interview for the HOD post and had influenced the decision,
4.1.6 that the Department had not notified her of the result of her Grievance before the successful candidate was formally appointed
4.2 The Department conceded that as the post was an “open vacancy post”, the post was open to anyone who had the minimum qualifications, which the successful candidate had. The Department contended that the selection of the candidates is based on the interview and it is in and during the interview that the candidates merits are tested against one another. The emphasis on the interview process is to ensure that the selection is made publicly and transparently and that no external factors are considered. Resolution 13 of 1995 sets of to the procedures which have to be followed in the selection process.
4.3 The Department contended that these procedures were adhered to and that the process was fairly conducted. The Department further contended that the Grievant had performed very badly during the interview and had therefore prejudiced own chances for selection.
4.4 As regards the appointment of the successful candidate, the Department conceded that it was satisfied that a full investigation had been done of the Grievant’s grievance and on the basis of the report of the Circuit Manager the appointment was made.
4.5 The are two main issues in question, namely:
4.4.1 the fairness of the interview procedure,
4.4.2 the fairness of the investigation procedure following the grievance.
5 . THE EVIDENCE - THE INTERVIEW PROCEDURE:
5.1 It was common cause that the interviews were conducted by an interview panel consisting of parent members of the PTA, which was then the governing body of the school. An agreement had been reached within the PTA that none of the teaching staff would participate on the selection committee.
5.2 It was also common cause that some time before the posts were advertised, in July 1996, the staff had met and agreed that the acting positions which were to be filled, were to be filled by Mrs C Jonas (Principal). Mrs G Jones, the Grievant (Deputy Principal), Mrs V Nyatela (HOD) and Miss Mbatani (HOD). The proposed individual were duly appointed into these acting positions and performed as such until the posts were filled. In the case of the Principal’s and the one HOD post the acting staff members were permanently appointed. The other HOD post was not filled at that time.
5.3 The Grievant contended that this agreement was intended as a recommendation to the Department for the permanent filling of the posts and that she had a right in terms of this “prior arrangement” to have been appointed as the Deputy Principal. She conceded however that the post was advertised on the “open vacancy list” which by definition meant that it was open to any person who had the minimum qualifications (in this case five years teaching experience). The grievant concedes this and no evidence was produced to show that any further arrangement had been made with the Department subsequent to the advertisement of the post. Even if such arrangements had been in existence, they would have been illegal and invalid and of no force or effect.
5.4 The Grievant conceded that her union representative had discussed the existence of these “prior arrangements” with the Chairperson of the interview committee at the start of the interviews. This was denied by both the Chairperson and the union representative.
5.5 The Chairperson of the PTA at the time who had chaired the interviewing committee gave evidence. He stated that all the procedures were followed. He gave evidence to the effect that the Grievant had not really “sold herself” during the interview. He acknowledged that he had commented on her answers nut stated that he had done this in an attempt to help her. He had realised that her answers were not satisfactory and tried to assist her to come to more acceptable response. He acknowledged that he had not done the same for the other candidate. He testified that the union representative for CATU and SADTU were present during the interview process but had been asked to leave during the deliberations. He testified that the unions had agrees to this and had willingly left the room. He did not believe this affected the integrity of the process.
5.6 The Chairperson testified that the entire interview committee was disappointed that Grievant had fares so badly during the interview. He stated that they had all wanted her to succeed but could not in fairness choose her above the other candidate in view of the apparent result of the interview. The committee had also taken into account the fact that the selecting of an outside candidate would have resulted in an excess of teachers at the school which they had hoped to avoid. Even this could not be taken into account in view of the interview. The minutes of the meeting reflect this and state the committee took the decisions it did because “we would like to apply nepotism in front of observers”.
5.7 The minutes also reflect that the Grievant’s 29 years of experience was also considered but could not undo the poor performance in the interview. The minutes state “but that on its own is not enough”.
5.8 The Grievant testified that when she told the interviewing committee that she was strong headed and that this was one of her strengths, the Chairperson stated that on the other hand she was flexible. She testified that when she answered that she would find out from a group of standard fives who were refusing to enter the school why they were doing this, the Chairperson had commented that he would have investigated first. When questioned about disciplining teachers in the absence of the principal, the Grievant testified that she had answered that she would set up a disciplinary committee.
5.9 She testified that the chairperson had said this method as unacceptable and she had stated that this was the method used at the school. The Principal testified in the arbitration that some years before the school had used a teacher’s disciplinary committee but had abandoned it because it had not been successful.
5.10 The Grievant’s contention that she was undermined in the interview by the Chairperson was not proved. There was no dispute regarding the content of what the remarks were. The Chairperson agreed that he had made these remarks but none of them can be constructed as being negative or calculated to disrupt the candidate or influence the committee negatively.
5.11 The Grievant’s union representative was called by the arbitrator to give evidence at the arbitration. He stated that he had agreed to leave during the discussion but had observed the interviews of both candidates. He stated that “overall both candidates were treated in the same way”. He stated that the Chairperson had made “silly comments” but stated that he was satisfied that the process was fair and that the Grievant had not been prejudiced by these comments.
5.12 The union witness testified that the successful candidate had talked a length and had impressed the panel with his answers. He had come across confidently and based on the interview both he and the other union observer had felt that the successful candidate was
5.13 “ in the overall interest of the school, the best person for the school”.
5.14 He stated that he and the other observer had discussed this after the interview and had also been aware of the excess that would be created if the Grievant had not been selected, however they realised that this was the only fair choice.
5.15 The union witness also testified that as the selection procedures were set up at the time, the success or failure of a candidate depended entirely on the interview. This was also conceded by the Grievant’s representative at the arbitration.
5.16 The Grievant called two parent from the school to testify on her behalf. Both gave evidence regarding the capability and experience of the Grievant, which was not in dispute. Neither of the witnesses had been present at the interview and was therefore not able to testify to the fairness of this process.
5.17 The Grievant testified that the Principal had spoken to the Chairperson shortly before the interview for the HOD with regard to the necessary qualifications for that post. This was acknowledged by both the Principal and the Chairperson, however the nature of that discussion has no bearing on any influence which the Principal may have had over the Chairperson with regard to the Grievant’s appointment. There was no evidence to suggest that this was in fact the case.
6 .THE INVESTIGATION PROCESS
6.1 The Grievant’s main concern was that she was not properly informed of the result of the investigation. There was a dispute of fact between the Circuit Manager and the Grievant. The Circuit Manager testified that she had met with the Grievant and the other role-players and clearly stated her view that the Grievant did not have grounds for a dispute. The Grievant testified that this meeting had not taken place. Neither one could clearly state which meetings had in fact taken place and what was said. No minutes were produced of any of the meetings conducted. The Grievant contradicted her own testimony in that she initially stated that a meeting had been held with all the parties and that every time the Circuit Manager had heard the view of the interviewing committee, she had turned to the Grievant and reflected to her that she was wrong in her impression.
6.2 This would have been a clear indication of the Circuit Manager’s views. However, notwithstanding this, the Department conceded that it is correct procedure for the Grievant of have been notified in writing of the outcome of the investigation and that there was no evidence that this had been done. Under the circumstances the Grievant would have had a opportunity to lodge her formal grievance with the ELRC before the appointment was made and thereby a moratorium would have been placed on the appointment of the successful candidate. As the Grievant only became formally aware of the result of the investigation after the appointment of the successful candidate, her dispute was lodged ex post facto.
6.3 Further it transpired during the arbitration that the form which is meant to be filled in immediately after the interview and which confirms that the process followed was fair and transparent and that the candidates and the union representative were satisfied with the process, was not filled in at the time of the interview. The Chairperson admitted that this was not done. A form was produced by the Department, which the circuit manager stated, she had not seen during her investigation. Under cross-examination, the Principal admitted that she had filled in the form and had given it to the Chairperson to sing. She stated that she had been instructed by the Department that they could not make the appointment before the form was filled in and signed.
6.4 The chairperson acknowledged that it was his signature on the form but had no recollection of singing ti. He admitted, that such a form was not used after the interview. The date of the signature of the Chairperson is not filled in, however the Secretary’s signature appears next to the date, 18 July 1997. The union representative also could not recall signing the form, but acknowledged his signature which appears next to the date, 21 July 1997. The Principal initially claimed that the form had been filled in before, but had not been sent with the nomination forms, she was surprised by the fact that the date of the form is later than the date of the formal appointment of the successful candidate which was on, 16 July 1997.
6.5 The Principal conceded that she did not try to obtain signatures of either of the candidates as she knew that the Grievant had disputed the process and would not sign.
7 . ASSESSMENT OF THE EVIDENCE - THE INTERVIEW PROCESS:
7.1 There was no evidence produced by the Grievant, which was sufficient to prove that the interview process was unfair. The comment of the Chairperson, although unwarranted, could not have altered the situation. The Grievant did not come across as well in the interview as anyone would have expected and was totally overshadowed by the performance of the other candidate.
7.2 The evidence of the Grievant herself as to the type of comments made by the Chairperson indicate that his purpose was to dilute her apparently, inappropriate responses rather than to say something which would be to her detriment. This was confirmed by the Chairperson and the union witness.
7.3 The regulations which were put into practice 1995, regarding the selection process of candidates was intended to ensure that nepotism was prevented and that all candidates were given a fair chance of getting employment even if they were competing against “insiders”. This process, has the unfortunate result of making the interview the most important part of the selection process. Where two candidates have the minimum requirements and are selected for an interview, they have an equal chance of being given the post irrespective of their years of service or experience. When both candidates fare equally on the interview, then is appropriate to consider the additional factor, such as years of service and experience. Unfortunately, in this case, the Grievant fared so badly, that not even her considerable experience and 29 years of service could remedy her situation. Although the end result may seem difficult to accept, it is fair and there is nothing to suggest that any process other than that prescribed, was followed during the interview.
7.4 It is however, true that the form which is to be filled in by the Chairperson, the candidates and union representatives, was not filled in or signed at the time of the interview. The failure to fill in this form afterward, does not conform with the regulations, however, it does not negate the fact that the process was indeed handled fairly. The absence of the form does not per se undermine the fairness or otherwise of the interview. This is especially in view of the fact that the union representative testified that he was satisfied with the interview from the time it was conducted and that he asserted his satisfaction to the Circuit Manager during the investigation and during his testimony at the arbitration.
8 . ASSESSMENT OF THE EVIDENCE - THE INVESTIGATION PROCESS:
8.1 From the evidence of the Grievant, the Circuit Manager and the union representative, it is clear that a thorough and exhaustive process was followed by the Circuit Manger in investigation the grievance lodged by the Grievant;
8.2 However, the Department failed to discharge its responsibilities in two respects, namely:
8.2.1 The Circuit Manger and the Department official were aware of the fact that the form confirming the fairness of the process, was not on file at the time of the investigation, ignored this fact and then tried to remedy it after the appointment was made,
8.2.2 Neither the Circuit Manger nor the Department notified the Grievant in writing of the fact that her grievance had been dismissed and that the appointment of the successful candidate was to proceed.
8.3 The Department’s actions after the receipt of the Circuit Manger’s report, do not conform to the requirements. It was obliged to notify the Grievant, to give her an opportunity to lodge a dispute.
8.4 Had this occurred, the Grievant’s dispute would have presented the appointment of the successful candidate until the matter was resolved. The matter would have been referred to arbitration prior to the appointment of the candidate.
9 . CONCLUSION
9.1 It is concluded from the evidence, that no unfair labour practice was committed with respect to the interview process. It is however concluded that the Department was in brach of tow of the required procedures by proceeding with the appointment of the successful candidate in the absence of the prescribed interview form and without having notified the Grievant in writing of the result of the investigation. This breach constitutes an unfair labour practice on the part of the Department.
9.2 In determining the remedy, which is appropriate in such a situation, it is necessary to assess the effect which it had on the Grievant. In the present circumstances, the Grievant would have been able to lodge her dispute before the appointment of the candidate. The arbitrator would have made his/ her decision prior to the appointment and, after the arbitration, the appointment would either have been allowed to proceed or the Department would have been instructed to redo the selection process.
9.3 The evidence led in this arbitration, is the evidence which would have ben heard by the arbitrator at the earlier stag with regard to the conduct of the parties at the interview. There is no doubts that the arbitrator would have ha d to conclude that the process itself, was fair. The evidence of the union representative that he was satisfied with the process, would have made the need for a form to that effect, superfluous, so its non-existence at the time would have been immaterial.
9.4 The net result would have been, in my opinion, that the process would have been declared far. In that case the Department would have been fully justified in appointing the successful candidate formally and the unpleasantness, which has resulted from this case, would in all likelihood have been avoided.
9.5 It is therefore determined that the overall effect of the Grievant of the breach by the Department, is not material.
10 . ADVISORY AWARD:
10.1 It is determined that no unfair labour practice was committed by the interviewing committee with regard to the interviewing process. It is further determined that the Department committed an unfair labour practice by continuing to appoint the successful candidate, without the correct forms having been filled in and without notifying the Grievant of the result of the investigation in writing.
10.2 It is determined that this unfair labour practice had no direct effect on the overall result of the matter and that the only effect was that the resolution of the matter was prolonged and the conflict between the parties exacerbated.
10.3 In the circumstances, it is determined that this is a case where it is appropriate to decide to give no additional relief beyond the declaration of an unfair labour practice, itself.
DATED: 12 NOVEMBER 1998
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES WC
APPLICANT MR GN JONES
RESPONDENT DEPARTMENT OF EDUCATION WC
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR DENISE RUDOLPH
DATE OF ARBITRATION 26 OCTOBER & 30 OCTOBER 1998
VENUE WESTERN CAPE
APPLICANT MR R LARNEY
RESPONDENT MR I MATTHEWS AND MR W WANDRAG
1 It is determined that no unfair labour practice was committed by the interviewing committee with regard to the interviewing process. It is further determined that the Department committed an unfair labour practice by continuing to appoint the successful candidate, without the correct forms having been filled in and without notifying the Grievant of the result of the investigation in writing.
2. It is determined that this unfair labour practice had no direct effect on the overall result of the matter and that the only effect was that the resolution of the matter was prolonged and the conflict between the parties exacerbated.
3. In the circumstances, it is determined that this is a case where it is appropriate to decide to give no additional relief beyond the declaration of an unfair labour practice, itself.
DATE OF AWARD 36110