Case Number: PSES 810 KZN
Applicant: MRS L BURGER
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 5 May 1998
Arbitrator: S D MC GLADDERY
EDUCATION LABOUR RELATIONS COUNCIL
In the matter between:
L BURGER (APPLICANT) and DEPARTMENT OF EDUCATION (RESPONDENT)
(KWAZULU NATAL PROVINCE)
1.DETAILS OF HEARING AND REPRESENTATION:
.1 This hearing entails the dispute post of the principalship of Biggarsburg Primary School. Two separate disputes were lodged in this regard, one by SADTU, under case number PSES 726 and one by APEK under case number PSES 810..
1.2 At the commencement of the proceedings both APEK and SADTU were present and SADTU made application to be joined in the proceedings. I was lead to believe that at the conciliation of the SADTU dispute an agreement was reached but that the parties had subsequently agreed to set aside that agreement on the basis that the parties be joined in a common dispute.
1.3 SADTU’s dispute however, entailed determining an issue of supercession and whether it was unfair or not, while on the other hand, the terms of reference of APEK’s dispute were significantly different, the dispute being in respect of allegations of undue influence by a union observer.
1.4 It was consequently illogical for the two unions to both be joined as Applicants as although the determination of their respective disputes each effectively determined the outcome of the other, their respective terms of reference were vastly different and they sought different relief. Because the relief sought by the respective disputee parties essentially arose out of the same set of facts, it was decided to combine the disputes and to join SADTU as a Respondent in order to defend their dispute.
1.5 This arbitration commenced on 26 November 2002 at Vryheid and was completed on 3 December 2002.
1.6 The Applicant was represented by Mrs R Govender, an APEK representative. The First Respondent was represented by Mr B A Zwane, a departmental official and the Second Respondent by Mr G Gwamanda, a SADTU official.
2. BACKGROUND AND ISSUES IN DISPUTE:
2.1 Applicant, Mrs L Burger, was recommended by the SGB of Biggarsburg Primary School for the Principal post of that school. At the conclusion of the interview process, Mrs L Burger was awarded 37 points and a certain Mrs Goba was awarded 40 points. Notwithstanding this, the interview committee placed Burger as their number one preferred candidate on the EC5, which was subsequently ratified by the SGB. Following Departmental intervention the appointment was not finalised, with SGB being urged to revisit the issue in terms of the scores. Applicant subsequently lodged a dispute, contending that there had been undue influence by SADTU, resulting in pressure being placed on the IC members to unfairly inflate the scores of Goba and consequently the score of 40 was not a realistic or true reflection of the outcomes of the interviews.
2.2 Following this development, SADTU had also lodged a dispute citing the unfair supercession of Burger over Guba, contending that both were females and criteria of affirmative action and representivity was not advanced, and more over that the relevant HRM circular did not provide for such supercession.
2.3 In the referral form of the Applicant, the dispute is summarised only in terms of the alleged undue influence by the observer. Whilst dispensing with the preliminary aspects of the dispute, the Second Respondent went to great lengths to submit that the APEK dispute is about nothing more than whether or not there was undue influence on the scores. Second Respondent is correct in this regard, and the issue is raised to place the matter in context - during the arbitration all parties spilled over in to the realm of arguing supercession, which is irrelevant for the purpose of making a finding in APEK’s dispute. That argument fails to be determined by Second Respondent’s matter vis dispute PSES 726, save for where it may impact on the relief sought by the Applicant, which may bare such comment.
2.4 The issue in dispute is mainly one of evidence in that it must be decided whether the SADTU observer exerted undue influence on the Interviewing Committee and forced the Interviewing Committee to change their scores in favour of Mr L Goba and secondly whether the SGB had applied unfair supercession.
3. APPLICANT’S OPENING STATEMENT:
3.1 Applicant submitted that she was prejudiced in terms of the recommendation by the Interview Committee, in that the Respondent did not accept it. Secondly, the process had been unduly influenced. The Applicant is currently the Deputy Principal at the school. Post number 992 was advertised, she applied for it and was recommended by the I.C. on the EC5. The SADTU observer noted his objection on the form.
3.2 The Regional office of the Respondent referred their recommendation to the GSB and advised them tor reconsider it in the light of the scores. Applicant contended that the SGB’s recommendation in the first instance was a correct and valid one. The relevant prescript provides that after the interviews, the interview committee shall rank the candidates in order of preference and then submit to the SGB for their recommendation. This had duly taken place.
4. FIRST RESPONDENT’S OPENING STATEMENT:
This disputed post is that of post number 992, advertised in HRM circular 16/2002. AT the culmination of the selection process, the SGB recommended Burger, who was placed second on the EC5. The motivation was based on suitability and the needs of the school. The SGB has a right to make its own recommendation, however it must consider alternative action reprensentivity and suitability. First Respondent submitted that the award in respect of Shiyane High School, PSES 745, should be taken into consideration.
5. SECOND DEFENDANT’S OPENING STATEMENT:
Second Respondent submitted that this case rests on a number of principals:
5.1 Regarding appointments it is incumbent on the employer department, in terms of the provision of the PAM, to make a final appointment, subject to agreed upon procedures having been followed.
5.2 HRH 16/2002 at paragraph 9.5.2 talks of the role of the observer. Although the observer is not directly involved, he or she had the ability to note that approved parctices are adhered to.
5.3 Paragraph 17 of the HRM 16/2002 provides for the rank order of preference of candidates and that, in doing so, the provisions of the Employment Equity Act, no 55 of 1998 must be taken into account.
5.4 Section 7 of the Employment Equity Act provided that due regard must be given to the equality, equity and other democratic values including the need to redress imbalances. Consequently, the need to redress imbalances is itself sufficient to show that the SGB was incorrect in its ranking. The recommendation of the SGB is not in line with the democratic values encapsulated in the Employment of Educators Act.
6. SUMMARY OF EVIDENCE AND ARGUMENT:
6.1 The first witness for the Applicant was Teresa Flynn, who testified that she was a member of the interviewing committee. Burger had been placed as the number one recommended candidate of the I.C. because she had got the highest score. Goba was reflected as such because the SADTU observer had interfered. The panelists had been forced to raise the scores they had agreed on because the SADTU representative had threatened a dispute. He was aggressive and in an endeavour to stop the arguments they had raised scores.
6.2 Burger had had the highest score before the intervention. The panel could justify Goba’s initial score only, and had increased it because of the aggressiveness of the SADTU observer and to put a stop to all the arguments.
6.3 The EC5 was a true reflection of the rank order of the interview committee.
UNDER CROSS-EXAMINATION SHE TESTIFIED THAT:
6.4 The scores had been arrived at through a process of consensus and agreement. The EC4 at page 18 of the bundle reflected the final mark given by the panel to Goba. The EC4 had been signed by the panelists. In normal circumstances the implications of endorsing a document with a signature is that one is confirming that the information is correct and was properly arrived at. She had signed and concurred that the score was correctly reflected. The minutes of pages 35 0 36 of the bundle accurately reflected the process, but not the issue of interference, reflecting only that there was an “argument”. Had she written the minutes, she would not have excluded what the argument was actually about, although, the last sentence would inform an outsider who might read the minutes that there was a problem. The reference to “comments” was put in a polite way in the minutes. It was beyond just “comments” being made - but was rather out and out aggressiveness. This behaviour was not displayed in respect of the other candidates. The panelists capitulated and raised Goba’s scores to appease the SADTU observer and because they believed they could supercede. After the candidates had left the interview room, each panelist gave in a score. The three union representatives had to record them. All the other observers accepted the scores , with the exception of the SADTU observer. As panelists they had advised him that they had scored in accordance to what they felt had been appropriate. The observer had insisted they raise the scores in respect of Goba, because to his mind, she had done well. The observer then threatened a dispute and persisted until they agreed to raise the scores.
6.5 She testified that they had acted incorrectly as a panel in giving heed to the observer’s demands and that their actions in this respect were unlawful. She denied that the SADTU observer had commented in respect of all the candidates. The panel had been forced in the sense that they had been threatened with a dispute. There was no physical manifestation or force, but rather it had been of a verbal nature.
6.6 She testified that supercession was provided for in terms of section 17 of HRM 16/2002. Despite SADTU’s version of there being no supercession clause, the I.C. followed the provisions of HRM 16/2002 although she could not identify a specific clause in this regard. Consequently the SGB had made an irregular recommendation on this basis.
6.7 The purpose of an interview, to her mind, was to identify the best candidate for the jobs. She conceded that representivity needed to be promoted at her school.
6.8 Under re-examination she testified that Goba’s score had initially been 35, but was raised to 40 under duress. In her opinion Goba was average and not outstanding, as argued by the SADTU observer. Goba had given a fuller response than candidates Langa & Strydom, but this was reflected in her score. She knew that increasing Goba’s scores, would lead to a dispute but they were desperate to stop the argument, which had gone on for over an hour.
6.9 The observer from SADTU, Mr Senyane said in the minutes that he was concerned with the final recommendation. In this regard, she testifed that he had said that he would sign the final recommendation on the EC5, whatever was put on it. At the ratification process he had said that he agreed with the recommendation.
6.10 Burger and Goba were the best two candidates but in terms of preference Burger had much more and the needs of the school had been considered. There were five males on the SGB. One was white, one coloured and the rest black. Race had not been an issue, only factors such as experience , ability and commitment. Regarding the relative quality of the candidates, Burger was considered to be the best.
6.11 The second witness for the Applicant was Mr S M Selepe, who testified that he was the chairperson of the SGB and the I.C. Burger had been placed first on the EC5 for one reason, that being the needs of the school. She had received the highest score. Although Goba’s score is reflected as being higher than Burger’s on the EC5, Goba’s actual score had been 35. The SADTU observer had forced the panelists to score Goba higher, under the threat that he would declare a dispute and the school would never get a principal. The panelists were forced to add an extra point to Goba’s scores in each category. It was getting late and they conceded. The scores were accordingly not a true reflection of Goba’s responses. The EC5 was subsequently submitted and ratified by the SGB. The recommendation was sent to the Department who wrote back to say the recommendation was not in line with HRM 16/2002. They were advised to consider the scores in marking a fresh recommendation. It was felt by the SGB that this was not possible because no clause in 16/2002 spoke of scores, it referred only to preference. Moreover, the scores had been tampered with.
6.12 The SGB had written to the Department (as per p49 of the bundle) advising of their concerns but had never received any response. They had also written to the RCD motivating their preference of Burger. Burger had 26 years experience, she was the Acting Deputy for six years in the school, whereas Goba’s experience was limited for 6 years as an ordinary teacher. A letter supporting these motivations was attached to the EC5.
6.13 They had been forced to increase the score through intimidation. As chairperson, he had asked the observer why it was only Goba that he was focussing on and had been advised that it was because he represented SADTU. They had argued for an hour and a half and had capitulated because it was getting late and they were in desperate need of a principal. The observer did not give then any motivation why the scores should be increased, save to say they were not a true reflection.
6.14 The secretary of the I.C. and the NAPTOSA observer had written to the Department advising that the I.C. had been forced to increase scores, but they had failed to investigate. The SE(M) nominee had done likewise, although he had euphemistically termed the aggressiveness of the observer as having “made comments”. The SE)(M)’s letter (p45 of the bundle) however, does not capture the source of the motivation in favour of Burger.
6.15 Under cross-examination he testified that panelists allocated a score for each of the five categories. The score was derived from the average of the three scoring panelists’ marks. The scores allocated were a product of an argument between the panelists, but only in so far as there was no undue interference. He had signed the EC4's as it reflected what happened, but where it was applied under duress, it was invalid.
6.16 He had signed all the EC4's (p 18 -21) and by implication he agreed with the contents, except for those of Goba (p18), as they were not a true reflection. He should not have signed and had no excuse for doing so, but he had been intimidated.
6.17 Someone not part of the process would still understand the distinction between page 18 and the others by referring to the other documents, which confirm that there had been intimidation.
6.18 Goba’s real score had been 35, although it was reflected as 40, but this was the result of intimidation by the SADTU observer. The I.C. did not agree to be coerced into increasing scores, they had just been intimidated to the point where they succumbed.
6.19 A procedure was never discussed in the event that irregularities unfolded. The I.C. had simply used their discretion to increase the scores, which was unlawul, Goba’s scores of 35 had been reflected in the scoring sheets but they had been forced to tear them up.
6.20 The active involvement of the observer had reported to the Department via the SE(M) who had indicated he would liaise with the district.
6.21 The observer had been aggressive and threatened to dispute the past. He had been afraid of the observer and considered that he could disassociate himself with what had been written if it was done under redress.
6.22 He had been workshopped in respect of HRM 16/2002. He could not show a score of 35 as being recorded for Goba.
6.23 In terms of the requirements of the post, the needs of the school having a person who is well experienced as a manager and who is well versed, someone who is competent to handle finances and manage in a crisis and who can be a teacher and a principal at the same time, but could not say which prescripts provide for such qualities as requirements.
6.24 The SGB was entitled to recommend Burger in terms of paragraph 17.1 of HRM 16/2002, which entitled them to make their own preference. He conceded that HRM 16/2002 does not refer to supercession but only refers to preference.
6.25 He had not endorsed the EC4 that he signed to the effect that it was under redress and denied that he was bound thereto because he had signed it. He also did not state thereon that the scores were changed, although this was reflected on the score sheets, which had been destroyed. This may have been unprocedural but was done on the assistance of the SADTU observer.
6.25 The purpose of the interview was to find a suitable candidate. He considered it fair to prefer a candidate with higher experience because it was fair to recommend someone seen as more suitable. Management of the school comprised of all races.
6.26 He could not show physically how he had been forced to change the scores but he had been threatened verbally in a load voice and threatened with a protracted dispute. Only the scores of the candidate Goba had been questioned.
6.27 Under re-examination he testified that the departmental representative on the I.C. sees to it that the process is fair and had signed the EC% indicating that the recommendations of Burge was fair. At no stage had they been advised not to look at preference but only at the scores.
7. FIRST RESPONDENT’S CASE:
7.1 First Respondent did not lead evidence through witnesses. It submitted with respect to the summary of issues raised in the respective referrals that two issues had to be decided, namely supercession, and secondly, the active involvement of the observer. It was submitted that the SGB has the right to make a recommendation in terms of its own order of preference, taking into account affirmative action and ability. However on award, submitted in p 12 - 17 of the bundle, which went against the Department, must be taken into account and that this, by necessity must inform the outcome of the dispute. As far as the active involvement issue is concerned, the First Respondent had allowed the process to unfold and evidence was tabled in th is regard to attempt to show that there had been coercion. In the light of that evidence, an order appropriate to that evidence must be given.
7.2 When questioned on his own version by the Applicant, he responded that: it is common cause that the Departmental representative has signed the EC5 indicating that the process was free and fair and conceded that the SGB was entitled to submit their recommendation based on their own preference and that the SGB has the right to consider preference and not just final scores.
7.3 The key issue in the arbitration award submitted that influenced the First Respondent not to accept the recommendation of Burger, is that the said Zulu referred to in the award was preferred by the SGB, whereas, someone else had gotten higher scores. A male had been preferred over a female. The key issues were not in terms of affirmative action and representivity as the SGB is not limited to these, but the Respondent had been proven wrong.
7.4 He testified that provisions did not exist for the SGB to give input at Regional Grievance Committee level, but was evasive when pressed as to whether the Respondent has a responsibility to investigate at that level. He conceded that the information contained on the EC4 and EC5 as well as the SBG’s letter of motivation pointed to the fact that the issue was one of preference and not supercession based on affirmative action.
8. SECOND RESPONDENT’S CASE:
8.1 Second Respondent presented its case through its witness, Mr R M Senye, who testified that he was the SADTU observer for the post in question, where his role was to check and note that fairness and consistency prevailed and that the process was devoid of prejudice as well as to check that agreed procedures had been followed. As part of the process, questions were set and expected answers developed. He monitored the situation to ensure that questions were asked consistently and whether the scores were consistent and informed. When there was a big difference in scores, he intervened and asked the scorer if the score was informed by the expected answer. He could recall the final scores as he had noted them down.
8.2 He was not aware that Goba has scored 35 points. That she had got 35 points could moreover not be reflected, as it never happened. He denied influencing that the scores should be torn up. Had this occurred he would have objected. He also denied using force. When he queried the scores, he had raised his hand and humbly reflected on the responses. He had not only qeuried Goba, but also the first candidate.
8.3 The last paragraph of the minutes indicate that he was advised to behave because he wanted to advise the members of the panel that they should use scores to mark the candidate as that is why interviews are held. Scores identify the best candidate. He had also advised them not to use the language being used and that their recommendation was unconstitutional.
8.4 He made a note on the EC5 to the effect that he did not concur with the ranked order of preference because the interviews identify that best candidates through scores. His advice was that scores should be used.
8.5 A record of the other candidate’s performance outside of the interview was not evident tot them. He testified that the chairperson of the SGB had said that Burger was their preference because they preferred a white person and that the parents would lose confidence if a black person be appointed, that Burger had received a professional award and had long service in school.
8.6 Under cross-examination he conceded that the fact that he felt that scores should be used to rank a candidate, was his opinion.
8.7 The recommendation of the SGB did mot capture the issue of preferring a white etc. These issues were discussed during the submission of the I.C. to the SGB. His understanding of section 17.1 of HRM 26/2002 is that when the entire interview is concluded ,scores are awarded. The I.C., including observers, rank the candidate in terms of preference. Brief motivation must accompany the preference to the SGB. The order of preference is located in the context of the process of the interviews. This is to identify the best candidates. The order of preference is informed buy the interview and the scorer.
8.9 The procedure manual is not explicit in its requirements that the I.C. is bound to rank in terms of scores. It does not specifically mention scores , but scoring is used to identify the best candidate. He conceded that the procedure manual requires candidates to be ranked in terms of preference, not scores. He concede that the I.C. has a right to rank in terms of an informed order of preference.
8.10 Apart from himself, no one else had indicated anything irregular in the proceedings, and conceded that only the SADTU observer had a problem with the ranked order. He concurred that the last paragraph of the minutes referred to a strong disagreement.
8.11 That the departmental nominee had indicated that scores were raised, as well as two other witnesses, meant they were all lying.
8.12 He concede that his concerns were not reflected in the minutes.
8.13 Under re-examination he testified that he denied prejudicing Burger or influencing the I.C. to change scores in favour of Goba. There were instances where he requested whether the scoring had indeed been informed by the expected answers.
8.14 He did not even enter scores or formal documents such as the EC5 as he was not doing the scoring.
8.15 Scores are an indication of performance. The better the performance, the better the score. Thus when candidates are ranked in order of preference, the context of scores must be considered. Nothing in the minutes had suggested undue influence. If there was, it would be reflected in the minutes.
9. APPLICANT’S CLOSING ARGUMENT:
9.1 Applicant submitted that her argument is based on the grounds that the undue influence by the SADTU observer with respect to the scoring of candidates in the interview process has prejudiced the acceptance of her recommendation to post 992 by the First Respondent. In not accepting her recommendation to the post of Principal, First Respondent has violated the provision of Chapter B, section 3.3 of PAM, thus committing an unfair labour practice. Chapter B, section 3.3 of the PAM entitles both the I.C. and the SGB to submit a ranked order of preference and it was submitted that the SGB duly did so and was correct in doing so.
9.2 That the First Respondent had reverted the SGB’s recommendation back to the SGB, it is in violation of section 17.1 of HRM 16/2002 and Chapter B, section 3.3 of the PAM.
9.3 Applicant submitted that the First Respondent’s contention that it could not accept the recommendation of the SGB on the basis of an arbitration award, which went against it, could not be accepted because of the following:
9.3.1 An arbitration award does not set legal precedent;
9.3.2 The law in respect of the role of the SGB is clearly indicated in PAM, Chapter B, section 3.3(i);
9.3.3 The First Respondent conceded that it has accepted recommendations based on preference before, and that this is in fact its position;
9.3.4 The facts of case PSES 2245 do not apply to the dispute of the Applicant.
9.4 Applicant further argued that it is clear from the EC5 and oral testimony of Fynn and Selepe that Burger was recommended by the IC as their preferred candidate, and that this recommendation was accepted by the SGB. First Respondent was not able to back up its assertion that scores should be used in the ranking of candidates, on the contrary it conceded that in terms of the legislative imperatives, the SGB has the right to exercise and independent choice.
9.5 No provisions exist precluding the IC and the SGB from superceding one sex over the other, as contended by the Second Respondent in its referral.
9.6 This choice is limited only by the considerations required by the Employment of Educators Act, 1998, which require that due regard be given to equality, equity and other democratic values, including factors such as:
9.6.1 the ability of the candidate; and
9.6.2 the need to address imbalances of the past in order to achieve broad representation.
9.7 Applicant submitted that the primary reason for advocating the recommendation of Burger was her ability and her experience in the advertised post as well as in the primary school sector, compared to Goba who only had 6 years experience in the secondary school sector. Burger on the other hand has 26 years teaching experience, approximately 7 years as a Deputy Principal and one year acting experience as a Principal. That due consideration was given to the above in respect of Burger in initially scoring her as the top candidate is a crucial consideration.
9.8 Applicant, in argument submits that the credibility of the witness Senye, must be seriously challenged in that:
9.8.1 He at first denied any interference or intervention on his part and testified that Goba’a scores were never raised. However, under cross-examination, he failed to respond to the SE(M) nominee’s report that indicated Goba’s scores were raised.
9.8.2 He initially testified that discussions were professional and cordial and that no disagreements occurred. Under cross-examination, with respect to the minutes, he conceded that there was strong disagreement.
9.8.3 He was evasive and relied on his notes.
9.8.4 He conceded that the IC and SGB had a right to rank in order of preference.
9.9 Applicant consequently submitted that she has discharged her duty of proving that there was undue influence on the part of the SADTU observer and that the First Respondent is in serious breach of its own procedures and practices as well as the legislative imperative in not accepting her appointment.
10. FIRST RESPONDENT’S CLOSING ARGUMENT:
10.1 First Respondent submitted that the witness Flynn, under cross-examination:
10.1.1 conceded that scores given to candidates were a result of consensus amongst the panelists;
10.1.2 the scores appearing in the EC4's were correct;
10.1.3 she signed all these documents thereby declaring their correctness;
10.1.4 she agreed that the question of coercion by the SADTU observer is not covered in the minutes of the interview;
10.1.5 she indicated that the scores for Goba were increased by the panel from 35 to 40, knowing that supercession would take place;
10.1.6 she failed to demonstrate how the panel had been coerced.
10.2 Selepe had testified under cross-examination that:
10.2.1 candidates were ranked in their order of preference;
10.2.2 all scores reflected on the individual EC4's were correct except Goba’s;
10.2.3 Goba obtained a score of 35 and not 40;
10.2.4 he indicated that his signature in all EC4 sheets except Goba’s meant he agreed with the information as reflected;
10.2.5 he testified that the IC did report coercion by the SADTU observer to the Department but no response was forthcoming.
10.3 First Respondent submitted that Selepe had failed to identify where the issue of coercion had been captured in the minutes of the interview. It submitted further that in respect of the issue of supercession, I am required to consider section 7 of the Employment of Educators Act, HRM 16/2002, the motivation letter of the School Governing Body, the EC5 and the arbitration award, and decide whether the preference of the SGB of Burger was fair. Applicant’s witness had testified that Goba has scored 35 and not 40, however this is not evidenced by the documents signed by that witness, consequently he concurred with the score of 40.
10.4 It was not true that the Department failed to respond to the reports of coercion. The Regional Grievance Committee had tekan a decision that the SGB should reconsider its recommendation, only then did the IC raise the issue of coercion.
10.5 Flynn and Selepe hd failed to demonstrate how they were forced to increase the scores.
11. SECOND RESPONDENT’S CLOSING ARGUMENT:
11.1 Second Respondent submitted that Applicant failed to present evidence that undue influence took place. There was no evidence of the EC4 and EC5 reflecting Goba had scored 35 points. The assertion that the documents, which did reflect the score of 35. were torn up, could not be substantiated.
11.2 Resolution 11/1997 indicates clearly how to allocate scores as a means of performance evaluation to identify the suitable candidate. Any order of preference recommendation by the SGB should have followed the contextualisation of the process on the day.
11.3 The Application for supercession by the SGB proves they were aware of this requirement however HRM 16/2002 wherein the post was advertised does not provide for such a clause, and the utilisation of superecession is consequently invalid. In the absence of an affirmative action policy in the Department and that HRM 16/2002 does not cater for supercession, it is clear that HRM 11/1997 must hold that the person who performed best in the interview through the scores is the candidate Goba.
12. ANALYSIS OF EVIDENCE AND ARGUMENT:
12.1 Given the respective terms of reference of disputes of the parties joined in this dispute, determination of it turns on two issues:
12.1.1 Whether the SADTU observer did force the interview committee to increase scores in favour of the candidate, Ms Goba; and
12.1.2 Whether the preference of a candidate with a lower score over a candidate with a higher score was fair.
12.2 Extensive evidence was heard in this arbitration and I have summarised the evidence of the witnesses called to testify in support of the respective parties’ cases, but shall refer only to those parts of the record which I deem applicable to the dispute before me.
12.3 Whilst is it accepted in our labour jurisprudence that the onus of proof rests with the Applicant in unfair labour pratice disputes, it is of equal importance to examine the defence of the Respondent in respect of matters pertaining to alleged unfair labour practices in respect of promotion.
12.4 I find that in the dispute in question, in respect of the first issue, is more a matter of evidence that argument, whilst the converse applies to in respect of the latter issue.
On whether there was undue influence:
12.5 Both witnesses for the Applicant testified that they had been placed under tremendous duress by the SADTU observer, a Mr Senye, to raise the scores of one of the candidates, Mr Goba. In this regard it is common cause that the candidate, Ms Burger, had scored 37 points as reflected on the EC4 and EC5 forms and that Goba’s score was reflected as 40. Both witnesses however testified that this was not the score initially given and as based on the panel’s assessment of her, but was as a result of undue influence by Senye. Selepe went as far as testifying that the influence was in the form of severe intimidation.
12.6 Significantly, both Flynn and Selepe, the witnesses for the Applicant, were consistent in their testimony regarding how they had been pressurised and intimidated. Both testified that the panel had been forced to raise Goba’s scores because the observer had threatened a dispute. Both also corroborated each others evidence when they each testified that Goba had been awarded an initial score of 35.
12.7 Under cross-examination neither witness contradicted each other’s versions and in all respects I am satisfied that their versions were consistent. It remains then to ascertain whether or not the influence alleged was such that the panelists were indeed intimidated or felt unduly pressurised to increase the score of Goba.
12.8 In this regard I find it necessary to mention that the witness Selepe impressed me as an honest and reliable witness in all aspects. He answered all questions truthfully and openly based on his evaluation and perception of events and did not try to exaggerate his plight at all. In fact, the witness struck me as a person who genuinely had the best interest of his school at heart as his primary concern, even over the aspirations of Burger. He did not waiver under cross-examination, despite conceding issues where he believed the other party had a valid point.
12.9 Both Selepe and Flynn also testified that they considered their actions in rasing Goba’s scores at the instance of the observer as unlawful. I believe these utterances are significant. To my mind it would be irrational for someone to believe their actions are unlawful if they had no real belief that they indeed were. Given their specific commissions as interview panelists, it is doubtful that they would knowingly and deliberately act in an unprocedural and irregular manner. The only logical explanation is that their actions were unnatural. Respondent parties moreover never challenged this particular evidence. AT this juncture, it bears mentioning that it was evident, that a number of aspects of the Applicants’ witnesses testimony went unchallenged, even under cross-examination. As regards this, the dictum of J in the case of Small v Small 1954 (3) SWA) at 483 is appropriate:
“It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness and if need be to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness’s evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.
Once a witness’s evidence on a point in dispute has been deliberately left unchallenged in cross-examination and particularly by al legal practitioner, the party calling that witness is normally entitled to assume, in the absence of notice to the contrary, that the witness’s testimony is accepted as correct. More particularly in this case if the witness is corroborated by several others, unless the testimony is so manifestly absurd, fantastic or of so romantic a character that no reasonable person can attach any credence to it whatsoever”.
12.10 Notwithstanding Flynn and Selepe’s evidence that Goba’s scores were raised, the departmental observer also reported in writing that her scores had been raised. In addition,t he NAPTOSA representative as well as the secretary of the committee also submitted written reports to this effect. Second Respondent contended that these documents were inadmissible. However, it only challenged the letters from the secretary and Ms Frazer, the NAPTOSA observer. These documents however formed part of the First Respondent’s bundle of documents submitted as evidence and on this basis, must be accepted.
12.11 Senye, the witness for the Second Respondent, himself testified in his own words that:
“I intervened to ask the scorer if what he has scored was influenced by expected answers”.
12.12 Under cross-examination he testified that this intervention was cordial and professional. This aspect of his behaviour is clearly what is in dispute. Selepe’s version is that he was loud and aggressive and harangued him as chairperson for an hour and a half, in doing so successfully threatening the panel to capitulate to his needs. Clearly, then it is not in dispute that Senye challenged the scores. What a scrutiny of the evidence fails to uncover though is, despite this challenge, there is no evidence of Senye substantiating why Goba’s scores should have been raised, other than his own subjective perception that they should have been. Notably, neither Respondent has challenged the validity of the score of 37 awarded to Burger.
12.13 When challenged under cross-examination regarding the validity of the minutes and whether they were an accurate reflection of what transpired, Senye concluded that there had been a strong disagreement. Second Respondent has alluded to a defence that there was no physical or forceful pressure placed on Senye and his committee. Selepe on the other hand testified that he was afraid of Senye and Senye had intimidated him and the committee, preying on the fact that they were desperate to appoint a Principal and he had threatened a protracted dispute, saying he would se that the school never got a principal. Contemptuous as such an utterance from a role player in education circles may be, this particular comment was never denied or challenged. There is no distinction between physical and verbal force for these purposes - if the intervention of Senye was proved as a threat, irrespective of in what guise it manifested itself, the threat exists as a real one. And it was in response to such a threat that the I.C. increased the score.
12.14 Respondent parties have also proferred the defence that Selepe and his committee signed the EC5 reflecting that Goba had scored 40 points. This is not in dispute, however Applicant contended that the forms of Goba were signed under duress.
12.15 I believe it has been established that there was such undue influence and no reliance can be placed on the scores as reflected on the official forms by the Respondent parties. It cannot be said that the actions of a man to whose head a loaded gun is held, can be said to be voluntary, nor in similar vein, can the recording of a score of 40 for Goba be accepted as the true reflection of the I.C.’s evaluation of her.
12.16 I accordingly find that the Applicant has discharged its onus in this regard and that there was undue influence by the SADTU observer. No evidence was heard that the scores of all the other candidates besides Goba were invalid or untoward in any way. The version of the Applicant that the scores of Goba were raised by one point for each category to obtain a final score of 40 is probable, and consequently then it must be found that true and proper score for Goba was 35.
On whether the preference of Burger over Goba was unfair:
12.17 Given the finding above, the determination in this respect of the dispute is somewhat academic, but I shall address it for the sake of clarity. This particular dispute is, in essence, one of law. The question which needs to be addressed is whether the interview committee is entitled to determine its preference list using considerations other than the final scores, in other words, was it entitled to place Burger on the top of the EC5 even though she only scored second highest points (viewing this aspect of the dispute in isolation, assuming Goba did indeed score 40 points).
12.18 It is common cause that the parties in dispute are bound by the two prescripts, those being Resolution 5/1998 (now PAM Chapter B.3.3) and HRM 16/2002. It is a fact that Resolution 5/1998 began life as a collective agreement, binding the parties in the provincial chamber of the ELRC, although it has subsequently been incorporated into the provisions of PAM document. Either way, the parties are compelled to abide by the stipulation therein.
PAM chapter 3.3(1) provides that:
“At the conclusion of the interviews the interviewing committee shall rank the candidate in order of preference, together with a brief motivation, and submit this to the School Governing Body for their recommendation to the relevant employing department”.
and subsection (j) provides that:
“The Governing Body must submit their recommendation to the Provincial Education Department in their order of preference”.
12.19 Significantly, these two provisions are taken up and incorporated into HRM circular 16/2002 as paragraph 17.1 and 17.2.
12.20 The wording of Chapter 3.3(i) and paragraph 17.1 of the circular is clear and unambiguous in both cases. The use of the words “in order of preference” clearly empowers the I.C. to decide on which candidate in preference to others that were interviewed it selects. There is nothing in either of the clauses compelling the I.C. to use scores as the exclusive measure to determine its preference.
12.21 Second Respondent submitted that HRM 16/2002 does not contain a clause providing for supercession, and presumably could not have preferred a candidate with a lower score. I disagree with this assertion. That it is silent as to supercession, does not preclude it from superceding. Paragraph 16.2 of MRM 16/2003 provides that:
“Each member of the Interview Committee will assess the Applicant according to the guidelines agreed upon by thep arties to the Provincial Chamber in accordance with the KwaZulu Natal Resolution 11 of 1997".
This particular Resolution contains a caveat to the effect that:
“On completion of all interviews , the rank order of the nominations for each post will be finalised taking into consideration the overall impression, experience and expertise of each candidate using the interview scores only as a guide”. (my emphasis)
12.22 This clearly gives the lie to the thrust of the Respondent’s argument that scores must be the only criteria on which the preference list is based. Clearly the provision in the Resolution is designed to give some measure of reference to the wishes of the SGB, as long as they exercise this discretion using valid, fair and objective criteria when making their preference and have no other spurious reasons for doing so. Moreover, if it were intended that the candidate with the highest score must be placed on top of the list irrespective of other considerations, then certainly this would have been provided for in the legislation. Chapter B.3.3(i) of the PAM would almost certainly have read differently and not provided for the concept of “preference”.
12.23 HRM 16/2002 provides that the employer must be guided by affirmative action measures and representivity. Clearly in this case Burger, a white female, superceding Goba, a black female, would do little to enhance either criteria, although this would depend on whether such demographics were being considered on a micro or macro scale. In any event though, it has been previously held that in the absence of a documented equity plan with set criteria, such measures cannot be implemented in a vacuum. To my mind, the interview committee’s salvation lies in the fact that Resolution 11/1997 guides them by requiring factors such as the overall impression, experience and expertise to be considered.
12.24 The evidence is that the SGB ratified the EC5 with Burger as the preferred candidate. Second Respondent’s referral from summarises the dispute as:
“... improper procedures followed by SGB, they used supercession wrongly - a female Applicant superceded by another female Applicant”.
12.25 It could be argued that Second Respondent’s referral form is defective - the SGB did not supercede, it simply ratified the EC5 as presented to it. Be that as it may, paragraph 17.2 of HRM 16/2002 expressly provides that the SGB:
“must submit their recommendation”. (my emphasis)
12.26 The use of the word “their” relates to the SGB and clearly empowers them to exercise and independent choice. Nowhere in 16/2002 does it require the SGB to simply fall in line with the ranked order of preference of its IC. That they did in this case is irrelevant, even if for example, Goba was on top of the EC5, the SGB could still have recommended Burger, or any other candidate for that matter, as long as it has a rational basis for doing so and utilised fair, valid and non-discriminatory criteria.
12.27 In this case it has been argued by Applicant that they only criteria considered by the SGB were the needs of the school, and in doing so considered that Burger had 26 years experience as a teacher, 6 of which were as a Deputy Principal and one as Acting Principal at primary school level, as opposed to Goba’s 6 years which are at secondary school level experience.
12.28 The post of a Principal is that of a head of an institution and accordingly a management post. It is a sound principal to consider management experience when recruiting for a management post. Moreover, no evidence was hard that Goba had found herself out of the running because of any discriminatory reasons or application of any other kind of unfair criteria. The race argument is debunked by Second Respondent’s own concession that affirmative action measures are not an imperative in the absence of an affirmative action policy. Consequently Burger could not be excluded on these grounds.
12.29 Save for the functional arguments that scores exclusively can be utilised for determining a preference list, no version was put rebutting Selepe’s version that experience was the predominant consideration and that Burger was evidently more experienced. The version of Senye that the SGB preferred a white person as parents would lose faith if a black person were to be appointed is hearsay and was never put to Selepe or Fynn under cross-examination.
12.30 Senye’s testimony that Burger was unfairly advantaged because of her experience as the experience and performance of other candidates was not shown, is, with respect, ludicrous.
12.31 Experience is the core of three of the five evaluation criteria used. The interviews should have exposed all the relevant and respective experience of all the candidates’ experience in the context of the interview and their respective responses, and would have manifested itself in the final scores, of which such score has been placed by the Respondent.
12.32 There is accordingly no basis to hold that the supercession of Burger over Goba is unfair.
13.1 That there was undue influence by an observer during interviews for post number 992, being the principalship of Biggardsburg Primary, and the dispute as referred to in case number PSES 810 is accordingly upheld;
13.2 The preference of Burger over Goba as per the EC5 and the subsequent ratification thereof by the SGB was fair. The dispute as referred in terms of case number PSES 726 is accordingly dismissed;
13.3 The recommendation of the SGB to promote Ms C Burger to the post of Principal of Biggarsburg Primary is upheld;
13.4 First Respondent is required to make the necessary appointment accordingly.
S MC GLADDERY
DATED: 7 MARCH 2003
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 810 KZN
APPLICANT MRS L BURGER
RESPONDENT DEPARTMENT OF EDUCATION
ARBITRATOR S D MC GLADDERY
DATE OF ARBITRATION 26 NOVEMBER 2002
APPLICANT MRS R GOVENDER
FIRST RESPONDENT MR B A ZWANE
SECOND RESPONDENT MR P GWAMANDA
11. That there was undue influence by an observer during interviews for post number 992, being the principalship of Biggardsburg Primary, and the dispute as referred to in case number PSES 810 is accordingly upheld;
2. The preference of Burger over Goba as per the EC5 and the subsequent ratification thereof by the SGB was fair. The dispute as referred in terms of case number PSES 726 is accordingly dismissed;
3. The recommendation of the SGB to promote Ms C Burger to the post of Principal of Biggarsburg Primary is upheld;
4. First Respondent is required to make the necessary appointment accordingly.
DATE OF AWARD 5 MAY 1998