Case Number: PSES CMA 001072 WC
Province: Western Cape
Applicant: CTPA obo E R BOYCE
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 1 May 1998
Arbitrator: L J BOZALEK
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CMA 001072 WC
In the arbitration between:
CTPA obo E R BOYCE APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . THE HEARING
1.1 The arbitration hearing was held in Cape Town on 8 May 1998, in accordance with the comprehensive med-arb terms of reference agreement between the Education Labour Relations Council, the Western Cape Education Department, the South African Democratic Teachers’ Union and the Cape Teachers’ Professional Association.
1.2 The grievant was represented by Mr D A Van Wyk of the Union and the Department by Mrs H Ward assisted by Mrs P Demas.
1.3 The issue in dispute, lodged by the grievant on 25 March 1997, concerned her non-appointment as Deputy Principal of Helderberg Primary School.
1.4 The grounds for the alleged unfair labour practice, as set out in the grievant’s dispute letter (there being no statement of case filed on her behalf) related to the merits of her candidacy as opposed to the successful candidate, alleging inter alia that the successful candidate’s qualifications did not measure up to those set out in the advertisement for the post.
1.5 As a remedy the grievant sought a re-holding of the selection and interviewing process.
1.6 The parties discussed the dispute informally in an attempt to mediate the matte in accordance with the terms of reference. When it became apparent that a settlement of the dispute would not be forthcoming, a non-settlement certificate was duly completed and the matter resumed as an expedited arbitration in terms of the collective agreement.
2 . THE ISSUES IN DISPUTE OF THE EVIDENCE
2.1 Although Mr Van Wyk stated on behalf of the grievant that they were contesting only the result of the process and not the fairness of the proceedings, one of the two legs of his case was that the decision to nominate the successful candidate had not been unanimous but in fact had involved a deadlock on the Governing Structure which had falsely been portrayed as being unanimous. This second leg the first being that the grievant was the better candidate and should have been nominated, considerably widened the ambit of the dispute as initially declared in the dispute letter. The Department objected to the widening of the ambit of the dispute but in view of the decision which I have reached I propose to deal with this procedural point in the interest of resolving the dispute as a whole. In different circumstances as arbitrator might well rule that there is a definite limit beyond which the grievant cannot expand the terms of the dispute as initially declared in the letter of dispute.
2.2 On behalf of the grievant Mr Van Wyk relied on her 23 years of experience, various merit awards, her qualifications and the fact that she had acted as principal for 21 months as evidence that she should have received the nomination from the Governing Structure rather than the successful candidate. The Department demonstrated however that the successful candidate also had lengthy service and had the same if not superior qualifications to the grievant. In these circumstances it cannot be the function of an arbitrator to override the choice of the Governing Structure as to who was the better candidate. To do so would be to undermine the rationale for and the functioning of the Governing Structure or its Selection Committee in the selection and interviewing process for the filling of educators posts.
2.3 The remaining point to be dealt with concerned the allegation that there was no unanimity concerning the choice of the successful candidate for nomination, but instead a deadlock with an even number of votes on the side of two candidates. The Department relied inter alia on the official minutes of the proceedings to support its contention that the nomination was the unanimous choice of the Governing Structure. The relevant portion of the minutes reads as follows :
“Bestuur besluit eenparig omMej C S Davids as Adjunk-Prinsipaal van Helderberg Primêr te benoem. Bestuurslede teken brief hieroor. Brief as bewys.”
2.4 The letter in question was signed by the chairman and all members of the Governing Committee and stated that it had unanimously nominated Ms Davids as Deputy Principal of the school on 18 March 1997. Mr Adams called three members of the committee, Mr Cleophas and Mesdames Gertse and Marinus to testify. All testified that there had been a deadlocked vote with the committee evenly divided on whom to nominate. They also testified that after deadlock the school principal and secretary of the Governing Structure, Ms Behr, had motivated strongly for the successful candidate. Thereafter one of the members of the committee, a Mr Prinsloo, was asked by Ms Behr what she should record and responded by saying that she should record that the committee unanimously recommended Ms Davids as the successful candidate. As I understood their evidence none of the apparently dissenting members of the committee had recorded their objection to this course of action and the meeting had ended upon this note. When questioned as to why the alleged dissentients had apparently meekly accepted this state of affairs various answers were given. They included the fact that people were exhausted since this point had been reached at the end of a long meeting late at night and because they had not understood the import of the word “eenparig”. I find it very difficult that any of these three members did not know what the word meant or the import of what Mr Prinsloo was suggesting.
2.5 The same members were taxed with their signatures on the document effected two to four days after the meeting and their explanations therefor were even less convincing. They amounted to the claim that the document had been put in front of them by the secretary and they had had no choice but to sign. None of these witnesses truck me as persons who would have been unable to understand the significance of the resolution proposed by Mr Prinsloo or the import of the document which they were asked to sign several days later. Indeed Mrs Marinus was a business person co-owning and running an undertaking business with her husband and certainly not an unsophisticated person who would allow her judgement or independence to be so thoroughly subverted.
2.6 Over and above these factors was the evidence of Mrs Demas, the departmental official who was also the circuit inspector for the school. She testified that after the decision she had spoken to Mesdames Marinus and Gertse and although Mrs Gertse indicated that she had not been entirely happy with the decision, she had intimated that she had eventually gone along with it. Mrs Demas testified furthermore that Mr Marinus had not indicated opposition to the decision when she had telephonically discussed the matter with her after the dispute had been declared. She had been unable to get hold of Mr Cleophas to sound out his views.
2.7 Mr Prinsloo also testified on behalf of the Department. He confirmed that he had suggested to the secretary that she record that the successful candidate was unanimously recommended for nomination. Although there had been a deadlock earlier amongst members of the committee it was his evidence that after a re-evaluation and after everyone had been asked to express further motivation for their candidate, those who had initially voted for the grievant had changed their decisions.
2.8 Unfortunately, there were no independent union observers to testify concerning the proceedings or to have certified that procedural fairness had been observed. Nonetheless on the balance of probabilities, I find that the three witnesses called on behalf of the grievant, although they were initially opposed to the nomination of the successful candidate, eventually acceded thereto albeit that this may have been with inward reservations. Thereafter, it would seem to me, for reasons which I can only speculate about, they had changed their minds and thrown their support behind the grievant. Only such an about turn can explain why they raised no objection to the motion proposed at the end of the Governing Structure’s meeting on 18 March1997 and why they had signed the letter some days later certifying that Ms Davids had been unanimously recommended for nomination by the committee.
2.9 Accordingly there is no convincing evidence that the grievant was the subject of an unfair labour practice arising but of the procedure as followed by the Governing Structure in the selection and interviewing process.
3 . AWARD
For the reasons stated above, I find that the grievant has failed to prove an unfair labour practice on the part of the Department. The grievant’s claim is accordingly dismissed.
L J BOZALEK
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES CMA 001072 WC
APPLICANT CTPA obo E R BOYCE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR L J BOZALEK
DATE OF ARBITRATION 8 MAY 1998
VENUE CAPE TOWN
APPLICANT MR D A VAN WYK (CTPA)
RESPONDENT MRS H WARD AND MRS P DEMAS
I find that the grievant has failed to prove an unfair labour practice on the part of the Department. The grievant’s claim is accordingly dismissed.
DATE OF AWARD MAY 1998