PSES CAR 001377 WC
PSES CAR 001377 WC
Award Date:
4 October 1998
Case Number: PSES CAR 001377 WC
Province: Western Cape
Applicant: SADTU re A Z BERMAN PRIMARY
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 4 October 1998
Arbitrator: S D RAUBENHEIMER
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 001377 WC
In the arbitration between:
SADTU re A Z BERMAN PRIMARY SCHOOL APPLICANT
and
WESTERN CAPE EDUCATIONAL DEPARTMENT RESPONDENT
ADVISORY ARBITRATION AWARD
1 . INTRODUCTION
1.1 This is an advisory arbitration award by agreement between the union and the Education Department. SADTU represents three members, namely L Pretorius, N Isaacs and E Malgate. The matter concerns the appointment of the deputy principal at A Z Berman Primary School. The union on behalf of the three members, who were all applicants for the aforesaid post, argued that the appointment of the incumbent, Ms Kahn, is invalid for various procedural reasons.
1.2 The facts are simple: the incumbent was acting in the position at the time when the position was advertised for a permanent appointment. The incumbent and 32 other persons applied for the post. The governing body determined that it should shortlist the applicants to a list of 6, whereafter it would follow further processes in order to come to a final recommendation to the department, which would then formally make the appointment. The question at issue in this matter is whether the governing body followed a fair process when it recommended that Ms Kahn should be appointed in the post. Two aspects of the process are in dispute, namely the screening process in the first instance, during which Pretorius was eliminated, and the recommendation process in the second instance, when the other two applicants were eliminated from the shortlist.
1.3 The process is captured in a series of minutes of meetings held prior to the recommendation. These minutes are not a verbatim reflection of the proceedings, but serve as a general guideline. To some extent the accuracy of the minutes has been attacked by the union, and in fact one of the governing body members has done so as well. However, I do not believe that this creates major problems in this instance, and the matter can be decided on those issues which are common cause.
2 . PROCEDURAL FAIRNESS : THE SCREENING PROCESS
2.1 The union contends that the screening process was unfair by virtue of three irregularities. These are :
2.1.1 The involvement of the incumbent in the process.
2.1.2 False information given by the incumbent.
2.1.3 The splitting of the applications for screening purposes.
2.2 I shall deal with each of these issues below.
3 . PROCEDURAL FAIRNESS : THE RECOMMENDATION PROCESS
3.1 The union contends that the recommendation process was unfair by virtue of a further irregularity. This is
3.1.1 The final process on recommendation.
3.2 I will do with this issue below. In addition to the above it is common cause that one of the governing body members, who was involved in both the screening and the recommendation process, was a learner at the school in the eighth grade. It is therefore common cause that a minor of 14 years age, took part in the entire process.
3.3 It is worthwhile that this stage to point out to that the governing body agreed to a set of rules which would apply for the process, and in particular for the interview stage. I would like to point out that this set of rules is not really adequate and unambiguous. The rules do not for example point out exactly how the governing body as a group should eliminate those applicants not short-listed, nor are they particularly clear regarding the final stage of the recommendation process. In regard to the latter issue, one of the governing body members who gave evidence in fact disputed the rules regarding the final stage. This rule states that voting will only take place in the case of a tie, where two candidates achieve the same score, otherwise the candidate obtaining the highest score is to be nominated for appointment, this to be preceded by an “open consensus discussion”. With respect this set of rules is hardly adequate and clear and I recommend that the department set up an appropriate set of guidelines for the process in order to ensure that disputes do not arise over breakdowns in the process. I agree with the witness who contended that the final recommendation proceeding is not clear. Exactly what is meant by an open consensus discussion when in fact the rule requires an automatic recommendation of the highest scoring candidate, is not clear.
3.4 In this instance it is clear that the highest scoring candidate in fact was awarded the recommendation leading to the appointment. The evidence for the union contended, however, that the open consensus discussion would have permitted the governing body member to raise the issue of false information allegedly given by the incumbent, and, so it is contended, in this way automatic recommendation would not necessarily have followed. I will deal with this matter under the appropriate heading below.
4 . THIS STATUS OF MINORS ON GOVERNING BODIES
4.1 It is common cause that of 14 year old girl was involved in both the screening and the interviewing process in this case. Before reverting to the appropriate provisions in legislation, I question in the strongest terms the wisdom of this approach. Firstly seen from the learners point of view, her capacity to evaluate applications according to factors such as managerial experience, knowledge of the curriculum, knowledge of the education system, communication skills, and so forth, is highly questionable. She is, I would imagine, simply given a task that she does not fully understand, and in this dis-empowered state she is open to undue influence. How can one expect an objective decision from this child when faced with her current principal competing with applicants unknown to her? This is nothing short of ridiculous to expect the learner to feel empowered, objective, and free of influence in such circumstances. Seen from the point of view of the applicants, I simply cannot understand how adult applicants who are concerned with their careers would tolerate such decisions being influenced by a 14 year old child. I made these observations during the arbitration process, and I repeat them now simply to highlight the inequity of the approach followed, in my opinion.
4.2 However, I am required to refer to what the law provides in the governing of this issues. The relevant provision is contained in the Schools Act no 84 of 1996. Governing bodies are required to make place for learners in the eighth grade and above as members of the committee. I can understand that there are advantages in doing so and in certain respects the intention of this provision is laudable.
4.3 The Act quite correctly attempts to restrict the application of the clause, to ensure the limited involvement of minors on governing bodies. It is the restriction clause however, namely section 32, which is an example of appalling draughting and limited foresight. I am required to interpret this clause with the reference to the plain English it contains. Firstly it provides that no minor may contract with teachers in the sense of entering into an employment contract with them, and the governing body is purely there to eliminate applicants and recommend the person with whom there should be contracted, it can hardly be said that the governing body is contracting on behalf of the school in this instance.
4.4 Secondly the clause provides that a minor may not vote on resolutions of a governing body which impose liabilities on third parties or on the school. Strictly speaking there was no voting in the process which resulted in the recommendation currently in dispute. However this is an academic approach. Through scoring of applicants, and elimination towards a shortlist, one has to concede that the minor is exercising a process of choice-making akin to vote. However this choice-making process is only disallowed where it imposes liabilities on the third parties or on the school. The liabilities that are imposed only arise once the contract of employment is entered into, and this as I have pointed out is between the recommended applicant and the department. Once again a restrictive application of section 32 does not seem to disallow the minor from her involvement in the recommendation process. One has to ask, however, if the legislature intended this result.
4.5 Did to legislature really intended learners at schools, who in any event are in the vast majority minors, to sit on committees and the judge the relative merits and demerits of applications by adult career educators who will, and in some cases are, exercising tremendous person influence over these minor? I doubt this. I would recommend that one should interpret the plain meaning of the clause to mean that minors cannot be involved in any decision-making proceedings which will eventually lead to contracts being entered into between the department and third parties.
4.6 My recommendation is accordingly that the legislature could not have intended the consequences which necessarily result, and accordingly that learners should be excluded from processes where applicant teachers are screened, interviewed, and recommended. In the present instance it is common cause that a minor was involved in all the processes and my view is that this is fatal to the fairness of the proceedings.
5 . THE INVOLVEMENT OF THE INCUMBENT IN THE PROCESS
5.1 I do not wish to traverse the evidence in this regard, but it is common cause that the incumbent was present for portions of the first and second meetings held by the governing body.
5.2 There is some dispute as to whether the incumbent was present when in fact the issue of the filling of the post was concerned, but on balance I take the view, that in the absence of proper minutes, there is not a sufficient clear indication that the governing body was not influenced by her presence and that there was the possibility that her presence may have influenced the process in her favour.
6 . FALSE INFORMATION GIVEN BY THE INCUMBENT
6.1 Once again without reference to the evidence, I do not agree with the view that the particular information given by the incumbent in regard to her involvement in a particular extra curricular activity, has a material bearing on the end result. The governing body member who gave evidence complained that he alone had knowledge of the omission in the information given by the incumbent, but could not raise this issue due to the shortcomings in the rules.
6.2 He is being rather formalistic here: he could simply have told the remaining governing body members at the end of the interview of his concerns, and at that point they could have chosen either to recall the incumbent and question her on the issue, or to deal with the matter in another way.
7 . THE SPLITTING OF THE APPLICANTS FOR SCREENING PURPOSES
It is in dispute whether the applicants were screened by individual members of the governing body without reference to the governing body at large. The two governing body members who gave evidence gave contradictory versions in this regard. One stated that each member (including the minor learners) was given a pile of approximately five applications with the task of eliminating a number of them. Those applications that remained would then be reduced to the shortlist of 6 by the entire governing body. The other witness stated that the individual screening process was in fact monitored on the basis that another governing body member would check his colleague’s choice. Nothing in the minute correctly reflects what occurred in this regard. Without making a credibility finding, I question whether the process followed is fair. even though the number of applicants was fairly large, the governing body as a whole should act in the elimination of the losing applications in order to ensure that a common standard is imposed when doing so. This did not occur on either version of the evidence and I believe that this amounts to procedural unfairness in the result.
8 . THE FINAL RECOMMENDATION
The union contends that the final recommendation was unfair due to the ambiguity of paragraph 7 of the rules set up by the governing body. Although I agree that the rule is not clear and unambiguous, in this particular instance the inadequacies of the rule did not cause the prejudice complained of, and accordingly I do not believe that this ground for complaint has merit. I do however repeat my contention that a proper set of rules is necessary to guide governing bodies through this process.
9 . CONCLUSION
9.1 On balance, and for the reasons given above, my advisory award is in favour of the trade union in this particular instance. I agree that there was procedural irregularity, and agree that regularity may very well have brought about a different result.
9.2 The union requires me to make an order granting relief. As this is an advisory award I am reluctant to do so. If the department is to agree with the advice given in this award I expect that it would take such steps as are appropriate to reverse the decision in appointing Ms Kahn to the post in question and repeating the screening and recommendation process by the governing body according to appropriate rules. Should it be necessary to put this issue to advisement, this hearing can be reconvened.
_______________________
ARBITRATOR
S D RAUBENHEIMER
Date : 4 October 1998
EDUCATION LABOUR RELATIONS COUNCIL
ADVISORY ARBITRATION AWARD
CASE NUMBER PSES CAR 001377 WC
APPLICANT SADTU re A Z BERMAN PRIMARY
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPLICATION (FOR POST)
ARBITRATOR S D RAUBENHEIMER
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT
RESPONDENT
AWARD:
On balance, and for the reasons given above, my advisory award is in favour of the trade union in this particular instance. I agree that there was procedural irregularity, and agree that regularity may very well have brought about a different result.
The union requires me to make an order granting relief. As this is an advisory award I am reluctant to do so. If the department is to agree with the advice given in this award I expect that it would take such steps as are appropriate to reverse the decision in appointing Ms Kahn to the post in question and repeating the screening and recommendation process by the governing body according to appropriate rules. Should it be necessary to put this issue to advisement, this hearing can be reconvened.
DATE OF AWARD 4 OCTOBER 1998
Province: Western Cape
Applicant: SADTU re A Z BERMAN PRIMARY
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 4 October 1998
Arbitrator: S D RAUBENHEIMER
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 001377 WC
In the arbitration between:
SADTU re A Z BERMAN PRIMARY SCHOOL APPLICANT
and
WESTERN CAPE EDUCATIONAL DEPARTMENT RESPONDENT
ADVISORY ARBITRATION AWARD
1 . INTRODUCTION
1.1 This is an advisory arbitration award by agreement between the union and the Education Department. SADTU represents three members, namely L Pretorius, N Isaacs and E Malgate. The matter concerns the appointment of the deputy principal at A Z Berman Primary School. The union on behalf of the three members, who were all applicants for the aforesaid post, argued that the appointment of the incumbent, Ms Kahn, is invalid for various procedural reasons.
1.2 The facts are simple: the incumbent was acting in the position at the time when the position was advertised for a permanent appointment. The incumbent and 32 other persons applied for the post. The governing body determined that it should shortlist the applicants to a list of 6, whereafter it would follow further processes in order to come to a final recommendation to the department, which would then formally make the appointment. The question at issue in this matter is whether the governing body followed a fair process when it recommended that Ms Kahn should be appointed in the post. Two aspects of the process are in dispute, namely the screening process in the first instance, during which Pretorius was eliminated, and the recommendation process in the second instance, when the other two applicants were eliminated from the shortlist.
1.3 The process is captured in a series of minutes of meetings held prior to the recommendation. These minutes are not a verbatim reflection of the proceedings, but serve as a general guideline. To some extent the accuracy of the minutes has been attacked by the union, and in fact one of the governing body members has done so as well. However, I do not believe that this creates major problems in this instance, and the matter can be decided on those issues which are common cause.
2 . PROCEDURAL FAIRNESS : THE SCREENING PROCESS
2.1 The union contends that the screening process was unfair by virtue of three irregularities. These are :
2.1.1 The involvement of the incumbent in the process.
2.1.2 False information given by the incumbent.
2.1.3 The splitting of the applications for screening purposes.
2.2 I shall deal with each of these issues below.
3 . PROCEDURAL FAIRNESS : THE RECOMMENDATION PROCESS
3.1 The union contends that the recommendation process was unfair by virtue of a further irregularity. This is
3.1.1 The final process on recommendation.
3.2 I will do with this issue below. In addition to the above it is common cause that one of the governing body members, who was involved in both the screening and the recommendation process, was a learner at the school in the eighth grade. It is therefore common cause that a minor of 14 years age, took part in the entire process.
3.3 It is worthwhile that this stage to point out to that the governing body agreed to a set of rules which would apply for the process, and in particular for the interview stage. I would like to point out that this set of rules is not really adequate and unambiguous. The rules do not for example point out exactly how the governing body as a group should eliminate those applicants not short-listed, nor are they particularly clear regarding the final stage of the recommendation process. In regard to the latter issue, one of the governing body members who gave evidence in fact disputed the rules regarding the final stage. This rule states that voting will only take place in the case of a tie, where two candidates achieve the same score, otherwise the candidate obtaining the highest score is to be nominated for appointment, this to be preceded by an “open consensus discussion”. With respect this set of rules is hardly adequate and clear and I recommend that the department set up an appropriate set of guidelines for the process in order to ensure that disputes do not arise over breakdowns in the process. I agree with the witness who contended that the final recommendation proceeding is not clear. Exactly what is meant by an open consensus discussion when in fact the rule requires an automatic recommendation of the highest scoring candidate, is not clear.
3.4 In this instance it is clear that the highest scoring candidate in fact was awarded the recommendation leading to the appointment. The evidence for the union contended, however, that the open consensus discussion would have permitted the governing body member to raise the issue of false information allegedly given by the incumbent, and, so it is contended, in this way automatic recommendation would not necessarily have followed. I will deal with this matter under the appropriate heading below.
4 . THIS STATUS OF MINORS ON GOVERNING BODIES
4.1 It is common cause that of 14 year old girl was involved in both the screening and the interviewing process in this case. Before reverting to the appropriate provisions in legislation, I question in the strongest terms the wisdom of this approach. Firstly seen from the learners point of view, her capacity to evaluate applications according to factors such as managerial experience, knowledge of the curriculum, knowledge of the education system, communication skills, and so forth, is highly questionable. She is, I would imagine, simply given a task that she does not fully understand, and in this dis-empowered state she is open to undue influence. How can one expect an objective decision from this child when faced with her current principal competing with applicants unknown to her? This is nothing short of ridiculous to expect the learner to feel empowered, objective, and free of influence in such circumstances. Seen from the point of view of the applicants, I simply cannot understand how adult applicants who are concerned with their careers would tolerate such decisions being influenced by a 14 year old child. I made these observations during the arbitration process, and I repeat them now simply to highlight the inequity of the approach followed, in my opinion.
4.2 However, I am required to refer to what the law provides in the governing of this issues. The relevant provision is contained in the Schools Act no 84 of 1996. Governing bodies are required to make place for learners in the eighth grade and above as members of the committee. I can understand that there are advantages in doing so and in certain respects the intention of this provision is laudable.
4.3 The Act quite correctly attempts to restrict the application of the clause, to ensure the limited involvement of minors on governing bodies. It is the restriction clause however, namely section 32, which is an example of appalling draughting and limited foresight. I am required to interpret this clause with the reference to the plain English it contains. Firstly it provides that no minor may contract with teachers in the sense of entering into an employment contract with them, and the governing body is purely there to eliminate applicants and recommend the person with whom there should be contracted, it can hardly be said that the governing body is contracting on behalf of the school in this instance.
4.4 Secondly the clause provides that a minor may not vote on resolutions of a governing body which impose liabilities on third parties or on the school. Strictly speaking there was no voting in the process which resulted in the recommendation currently in dispute. However this is an academic approach. Through scoring of applicants, and elimination towards a shortlist, one has to concede that the minor is exercising a process of choice-making akin to vote. However this choice-making process is only disallowed where it imposes liabilities on the third parties or on the school. The liabilities that are imposed only arise once the contract of employment is entered into, and this as I have pointed out is between the recommended applicant and the department. Once again a restrictive application of section 32 does not seem to disallow the minor from her involvement in the recommendation process. One has to ask, however, if the legislature intended this result.
4.5 Did to legislature really intended learners at schools, who in any event are in the vast majority minors, to sit on committees and the judge the relative merits and demerits of applications by adult career educators who will, and in some cases are, exercising tremendous person influence over these minor? I doubt this. I would recommend that one should interpret the plain meaning of the clause to mean that minors cannot be involved in any decision-making proceedings which will eventually lead to contracts being entered into between the department and third parties.
4.6 My recommendation is accordingly that the legislature could not have intended the consequences which necessarily result, and accordingly that learners should be excluded from processes where applicant teachers are screened, interviewed, and recommended. In the present instance it is common cause that a minor was involved in all the processes and my view is that this is fatal to the fairness of the proceedings.
5 . THE INVOLVEMENT OF THE INCUMBENT IN THE PROCESS
5.1 I do not wish to traverse the evidence in this regard, but it is common cause that the incumbent was present for portions of the first and second meetings held by the governing body.
5.2 There is some dispute as to whether the incumbent was present when in fact the issue of the filling of the post was concerned, but on balance I take the view, that in the absence of proper minutes, there is not a sufficient clear indication that the governing body was not influenced by her presence and that there was the possibility that her presence may have influenced the process in her favour.
6 . FALSE INFORMATION GIVEN BY THE INCUMBENT
6.1 Once again without reference to the evidence, I do not agree with the view that the particular information given by the incumbent in regard to her involvement in a particular extra curricular activity, has a material bearing on the end result. The governing body member who gave evidence complained that he alone had knowledge of the omission in the information given by the incumbent, but could not raise this issue due to the shortcomings in the rules.
6.2 He is being rather formalistic here: he could simply have told the remaining governing body members at the end of the interview of his concerns, and at that point they could have chosen either to recall the incumbent and question her on the issue, or to deal with the matter in another way.
7 . THE SPLITTING OF THE APPLICANTS FOR SCREENING PURPOSES
It is in dispute whether the applicants were screened by individual members of the governing body without reference to the governing body at large. The two governing body members who gave evidence gave contradictory versions in this regard. One stated that each member (including the minor learners) was given a pile of approximately five applications with the task of eliminating a number of them. Those applications that remained would then be reduced to the shortlist of 6 by the entire governing body. The other witness stated that the individual screening process was in fact monitored on the basis that another governing body member would check his colleague’s choice. Nothing in the minute correctly reflects what occurred in this regard. Without making a credibility finding, I question whether the process followed is fair. even though the number of applicants was fairly large, the governing body as a whole should act in the elimination of the losing applications in order to ensure that a common standard is imposed when doing so. This did not occur on either version of the evidence and I believe that this amounts to procedural unfairness in the result.
8 . THE FINAL RECOMMENDATION
The union contends that the final recommendation was unfair due to the ambiguity of paragraph 7 of the rules set up by the governing body. Although I agree that the rule is not clear and unambiguous, in this particular instance the inadequacies of the rule did not cause the prejudice complained of, and accordingly I do not believe that this ground for complaint has merit. I do however repeat my contention that a proper set of rules is necessary to guide governing bodies through this process.
9 . CONCLUSION
9.1 On balance, and for the reasons given above, my advisory award is in favour of the trade union in this particular instance. I agree that there was procedural irregularity, and agree that regularity may very well have brought about a different result.
9.2 The union requires me to make an order granting relief. As this is an advisory award I am reluctant to do so. If the department is to agree with the advice given in this award I expect that it would take such steps as are appropriate to reverse the decision in appointing Ms Kahn to the post in question and repeating the screening and recommendation process by the governing body according to appropriate rules. Should it be necessary to put this issue to advisement, this hearing can be reconvened.
_______________________
ARBITRATOR
S D RAUBENHEIMER
Date : 4 October 1998
EDUCATION LABOUR RELATIONS COUNCIL
ADVISORY ARBITRATION AWARD
CASE NUMBER PSES CAR 001377 WC
APPLICANT SADTU re A Z BERMAN PRIMARY
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPLICATION (FOR POST)
ARBITRATOR S D RAUBENHEIMER
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT
RESPONDENT
AWARD:
On balance, and for the reasons given above, my advisory award is in favour of the trade union in this particular instance. I agree that there was procedural irregularity, and agree that regularity may very well have brought about a different result.
The union requires me to make an order granting relief. As this is an advisory award I am reluctant to do so. If the department is to agree with the advice given in this award I expect that it would take such steps as are appropriate to reverse the decision in appointing Ms Kahn to the post in question and repeating the screening and recommendation process by the governing body according to appropriate rules. Should it be necessary to put this issue to advisement, this hearing can be reconvened.
DATE OF AWARD 4 OCTOBER 1998