Case Number: PSES WC
Province: Western Cape
Applicant: A V BUNYONYO
Respondent: DEPARTMENT OF EDUCATION WC
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 14 May 1998
Arbitrator: K E R KAMLESH
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES WC
In the arbitration between:
A V BUNYONYO APPLICANT
DEPARTMENT OF EDUCATION WC RESPONDENT
1 . THE HEARING
1.1 The arbitration was held in Cape Town on 6th May, 1998 and was finalised on 8th May,1998 in accordance with the annexed terms of reference. The grievant was represented by Ms N Jokazi and Ms Ralarala and the department was represented by Mr R Jansen.
1.2 The dispute concerned the department’s non-appointment of the grievant to a post at Injongo Primary School after he had been unanimously nominated by the governing structure. The details appear in his dispute letter lodged on 22nd October 1997.
1.3 The grounds for the alleged unfair labour practice were that he had been properly nominated to the post on the 14th March, 1997 but that the department failed to confirm the appointment without giving any reasons. After he ledged his dispute on 22 October 1997 the department did not address his dispute in terms of the agreed procedure but decided to re-do the interviews in order to address a dispute which was lodged by Ms Sibayi who also competed for the post. He believes that his dispute should have been addressed before the department decided to re-do the interviews. Ms Sibayi was nominated to the post at the re-interview but her appointed has not as yet been confirmed.
1.4 The Union requested that the Arbitrator declare that an unfair labour practice has taken place and that the nomination of Mr Bunyonyo stands until the department can beyond any reasonable doubt and with sufficient evidence, prove that the said nomination was unproccedural or based on improper influence. The issue in dispute are thereof whether the department’s failure to confirm the grievant’s nomination was unprocedural and whether the department’s omission to deal with the grievance timeously has unfairly affected Mr Bunyonyo’s employment opportunities or whether he was prejudiced thereby.
2 . EVIDENCE AND ARGUMENT:
2.1 The Department’s representative did not call any witnesses although the circuit inspector, Mr Mbekwa was present. However he presented extensive documentary evidence in support of his arguments which may be summarised as follows:
2.1.1 After the department received a letter from Ms Sibayi, Mr Mbekwa, the circuit inspecter, investigated the allegations and came to the conclusion that the interviews should be re-done as Ms Sibayi enjoyed a higher ranking than Mr Bunyonyo. In terms of the prescriptions, the governing structure provided reasons why Mr Bunyonyo was a suitable candidate.
2.1.2 No proper records were kept of the interview proceedings.
2.1.3 In terms of paragraph 4.5 of Resolution 13/95, the department may not confirm a nomination if a dispute has been lodged.
2.1.4 In the case of De Vries versus WCED (Case No. 12518/1996, Cape Provincial Division of the then Supreme Court), the Court held that the governing structure merely had the right to recommend a nominee but that the employing department was not legally obliged to accept the recommendation. The Court also held that the successful nomination of the governing structure does not give rise to legitimate expectation to be appointed to the post and that no right was created after nomination.
2.2 There are no prescriptions requiring the department to the nominated candidate that a dispute has been lodged and that his nomination is invalid.
3 . THE UNION
3.1 The grievance procedure provides that the head or structure as well as the grievant. In addition it presented extensive documentary evidence which may be summarised as follows:
3.1.1 The grievance procedure that the head or supervisor, as the case may be, shall confer with the grievance within three working days of receipt of a formal written grievance in order to resolve the grievance. At this meeting, the facts shall be presented and considered and an effort shall be made to resolve the matter to the satisfaction of all parties. The head or the supervisor shall communicate the outcome to the relevant office of the provincial department of education within five working days of the resolution or non-resolution. None of this was done.
3.1.2 Ms Sibayi’s complaint in her letter were as follows:
184.108.40.206 Some members of the panel were not known to her;
220.127.116.11 Some parents were co-opted on to the interviewing panel;
18.104.22.168 Some of the teachers on the interviewing panel had applied for the same post but had been eliminated during the sifing process and had a reason to be prejudiced.
3.2 Mr Mbekwa did not focus on the complaints lodged but focussed on the priority order. It is not the first candidate on the sifted list, governing structures must provide reasons why those candidates who enjoy a higher priority ranking on the sifted list are considered unsuitable to fill the post. The department could not state where this documenting was derived from. ELRC Resolution 12/96 is the only agreed applicable procedure and it states as follows:
“ The governing structure will then fulfil its role according to Resolution 13/95 bearing in mind the priority order in which applicants were forwarded, and forward its recommendations or decisions, as the case may be, to provincial education department.”
3.3 Resolution 13/95 further states:
“ The interviewing Committee must then rank the candidates in order of their preference and give brief motivation for their choice”
3.3.1 The South African Shools Act (No.84/96), schedule 2 Paragraph 4(3) states inter alia that the department is obliged to follow the recommendation of the governing structure unless sufficient proof exists that the recommendation made was based on improper influence.
3.3.2 In his letter dated 15 October, 1997, addressed to Mr Bunyonyo, Mr Mbekwa did not give reasons why the interviews would be repeated but merely stated that they were based on “a procedural flaw which was explained by me to the NEW GOVERNING BODY”, not the governing body who nominated Mr Buntonyo nor to Mr Bunyonyo.
3.3.3 the department failed to involve Mr Bunyonyo or the governing body, failed to consider all the relevant facts and made no effort to resolve the matter to the satisfaction of all parties.
3.3.4 Mr Mbekwa adopted an aggressive and impatient attitude towards the governing structure when he came to the school to investigate Ms Sibaya’s dispute. He “personalised ” the matter and took it upon himself to take issue with the Governing Structure about matters which were not raised by Ms Sibaya. He conferred privately with the principal who favoured the appointment of Ms Sibaya.
3.3.5 He did not give feedback to Mr Bunyonyo about his nomination. He wrote a threatening letter to the grievant on 15 October 1997 (seven months after this nomination ) informing him that the interviews are going to be re-done without explaining why.
3.3.6 A new governing structure was put in place when the re-interviews were conducted and the Unions were not invited to the interviews in terms of the agreement. Ms Sibaya was the only candidate who was interviewed and she was nominated.
3.3.7 Instead of playing a conciliatory role, he caused a division in the division in the school community.
3.3.8 Because of the way Mr Mbekwa handled the matter, due to the fact that he had received no official response from the Department regarding his nomination and the outcome of his dispute, he did not see why he should be re-interviewed and thereof chose not to attend. Had his dispute been addressed and had he been given an opportunity to make representation regarding the dispute lodged by Ms Sibaya, he would have been in an informed position which would have enabled him to make an informed decision about whether or not the proposed re-interviews were procedural and whether or not o proposed re-interviews were procedural and unfair labour practice by omitting to deal with his dispute timeously thereby prejudicing him in his job opportunities.
4 . DISCUSSION
4.1 First Issue: Department’s failure to confirm nominations.
4.2 On the issue regarding the priority order the parties quoted conflicting authority. None of the candidates were redeplyable. However, the relevant sections of Resolution 13 of 1995, Resolution 3 of 1996 (read with the Procedure Manual ), and Resolution 12 of 1996, do require the governing structure to give reasons why a higher rank candidates is found unsuitable in the circumstances of this case. As two of the short-listed candidates had withdrawn their applications, there were only two interviewees. The letter did make mention of the ranking even though one of the witness from the governing structure did not seem to know about it. I also accept the evidence regarding the absence of interview records, Paragraph 4.5 of Resolution 13/95 and De Vries judgement.
4.3 I am thereof unable to find in favour of the grievant’s request to confirm his nomination.
4.4 Second Issue:
4.4.1 Unfair Labour Practice - The manner in which the Department handled Mr Bunyonyo’s nomination, his dispute and Ms Sibayi’s dispute.
4.4.2 The department argued that this does not form part of the dispute lodged by Mr Bunyonyo. I am of the view that it does in fact form part of the dispute. As a result the manner in which Mr Mbekwa handled the Sibayi dispute whilst leaving Mr Mbekwa’s failure to address Mr Bunyonyo’s dispute whilst giving vigorous attention to Ms Sibayi’s dispute which was inextricably linked with his, and deciding on a procedure to deal with him with perception that the re-interviews were unprocedural, causing him to question the validity of the re-interviews and to absent himself those grounds.
4.4.3 I therefore find that the two disputes are inextricably linked and should have been addressed simultaneously.
4.5 It is clear that Mr Mbekwa did not follow the grievance procedure. An unreasonable delay ensured after the grievant’s nomination. Common courtesy dictates that he should have been informed about the reasons why his nomination could not be confirmed, ever if there are no prescriptions.
4.6 I therefore find that the department’s omission to address the grievant’s dispute timously is an unfair labour practice in that the grievant’s employment opportunities were prejudiced thereby.
5 . AWARD
5.1 The department’s failure to confirm the grieving’s nomination was not unprocedural.
5.2 The department’s omission to deal with the grieving’s dispute timeously is an unfair labour practise which has unfairly affected his employment opportunities.
5.3 The department should appoint a neutral interviewing committee to interview both Mr Bunyonyo and Ms Sibayi for post 2929, HOD-SP:Injongo Primary school.
DATE OF AWARD 14TH MAY 1998
K E R KAMLESH
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES WC
APPLICANT A V BUNYONYO
RESPONDENT DEPARTMENT OF EDUCATION WC
ARBITRATOR K E R KAMLESH
DATE OF ARBITRATION 6 MAY 1998
VENUE CAPE TOWN
APPLICANT MS N JOKAZI & MS RALARALA
RESPONDENT MR R JANSEN
1 The department’s failure to confirm the grieving’s nomination was not unprocedural.
2 The department’s omission to deal with the grieving’s dispute timeously is an unfair labour practise which has unfairly affected his employment opportunities.
3 The department should appoint a neutral interviewing committee to interview both Mr Bunyonyo and Ms Sibayi for post 2929, HOD-SP:Injongo Primary school.
DATE OF AWARD 14 MAY 1998