Case Number: PSES NAR 000059 KZN
Applicant: S A CHUTURGOON
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 14 April 1999
Arbitrator: J KALIDEEN
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES NAR/000059 KZN
In the arbitration between:
S A CHUTURGOON APPLICANT
KWAZULU-NATAL EDUCATION DEPARTMENT RESPONDENT
1 . THE PARTIES AND THE HEARING
1.1 The arbitration concerns a dispute over an alleged residual unfair labour practice in terms of Schedule 7 Section 2(1). The arbitration was held at the Department of Education, Durban. The Department was represented by Ms N Thavar and the grievant by Ms R Budree.
1.2 The arbitration was conducted in terms of an agreement between the parties. I am required to determine :
1.2.1 Whether the non-appointment to the position of Division Head is fair.
1.2.2 Whether the conduct of the Department in failing to promote the employee was unfair.
1.3 The arbitrator shall have the power to make an award which she deems appropriate and which may prescribe a sanction or remedy excluding the promotion of the incumbent.
2 . BACKGROUND INFORMATION
The dispute was centred on whether the grievant was treated fairly and whether the conduct of the Department was fair. The incumbent was a senior lecturer employed by the Technical College, Pietermaritzburg.
3 . EVIDENCE AND ARGUMENTS OF THE PARTIES
3.1 The grievant testified that he was treated unfairly in the selection process at the interview stage. He had a legitimate expectation as he acted in the position for a period of time and was more highly qualified than the successful candidate. He also confirmed that there were other incumbents who rotated in the same position. It was argued that the Department failed to regard the objective criteria of qualification and experience and submitted that there was a total disregard in this respect. He also argued that there was no consideration for his experience or expertise.
3.2 It was also a contention that there was a failure to follow the agreed procedure at the interview. The consensus scores were ranked and the incumbent ranked first was appointed and the recommendation was ratified and was to be finalised by “considering the experience, expertise overall impression and suitability of each candidate using the interview scores as a guide. In this instance the interview scores were the sole determining factor and the panel failed to apply their minds when selecting the successful candidate.
3.3 It was also contended that the Department failed to follow up the Applicant’s objection to the appointee’s nomination. The Director finalised the promotion post notwithstanding an undertaking to pend the finalisation until the dispute had been resolved. The 14 day objection clause was being strictly adhered to when the Applicant responded in writing to the Director.
3.4 The grievant submitted that the conduct of the Department was unfair and pre-empted the conciliation process as well and contested that his non-appointment was both procedurally and substantively unfair. Some six days after the nomination, on 31 March the grievant notified the Director in writing of his intention to lodge a substantive objection to the appointment alleging an ULP and requested all relevant documentation and the reasons for being unsuccessful. This was required by 3 April 1998 because of severe time constrains in respect of Resolution 14 of ELRC. On 9 April 1998 the grievant referred his dispute for conciliation. In his dispute referral he mentioned his correspondence dated 31 March and informed him that this rights would be reserved to amend his referral on the receipt of the reasons for his non-appointment. It was also requested that the post not be finalised pending the resolution of the dispute.
3.5 Witness S Chaturgoon, testified that a candidate ranked 2nd was less qualified in terms of the minimum requirements, was interviewed and subsequently promoted to another position in the same institution. It was also claimed that this candidate was most familiar with the criteria for selection and the data bank of questions and responses that were also influencing factors at the interview.
3.6 The interview panel comprised 5 members and 4 others.
3.7 Under cross-examination Mr Chaturgoon confirmed that he acted in this position and was therefore an automatic choice and had no expectation and expected to compete with the external and internal candidates. He also maintained that the questions eliciting responses to the dimensions of professional development, educational experience and insight and leadership was not sufficient as both these dimensions were weighted higher than the other dimensions.
3.8 He also confirmed that the personally confirmed the interview questions with the successful candidate when he was asked if these were the questions. He referred specifically to the questions on the “NQF” and the “functions as the Head of Division” In fact all 5 questions were asked to be confirmed by the successful candidate who as interviewed after him.
4 . DEPARTMENT’S CONTENTION
4.1 The Director testified that he was a part of the panel and was elected as the chairman of the interview panel. Great care was exercised with the questions and the questions were only designed on the morning of the interview at 09h00 and the interviews commenced at 11h00. There was no opportunity for cell phones or a leakage by the panel. There were 7 persons scoring individually and consensus scores arrived at. Here were also no mechanisms for control measures outside of the interview by the panel and the interviews were held within one day to control the process.
4.2 Under cross-examination it was established that there were 5 members scoring including the chairperson who was a panel member and 6 score sheets were presented to the arbitrator. On further examination the Director confirmed that his sheet was not included in the exhibits of the actual scores for the 32 respective candidates. It was also confirmed that the interview scores were used to rank and appoint the candidates based on their scores.
4.3 Both Applicants met the minimum requirements and the qualifications of M+5 and M+6 was not an issue and not weighted more given the minimum requirements. Experience was also assessed accordingly at the interview in terms of the questions asked.
5 . ANALYSIS OF EVIDENCE AND ARGUMENTS
5.1 In their arguments, the grievant submitted that the Department appointed Mr D Naidoo despite the procedural and substantive unfairness. The grievant had lodged his objection and accordingly was not technically correct due to the delays by the Department. However, the grievant in spite of this continued to exercise his rights accordingly. The Department did not place a moratorium on the appointment.
5.2 I accept the argument of the qualifications and experience by the grievant but am included to accept the Department’s view that the minimum requirement was a pre requisite for the position as per the advertisement. There was no emphasis on qualification and there is also a shift away from more highly qualified candidates or more experienced and senior candidates being given preference as was traditional in the past. The shift is towards leadership in an institution. It may then raise the concern of whether the two questions on leadership and professional development put forward then adequately addressed the very dimensions that was weighted higher and therefore an greater impact on the scores. The professional development, educational experience and insight were assessed in terms of the question answered. There was no provision for quantifying educational experience in terms o years, or the professional development cited except for their verbal response to these questions. It therefore leaves it open for subjectivity based on the independent panel. Interviews on their own are not an ideal tool especially for leadership positions.
5.3 I am inclined to believe the witness that there was an exchange of information relating to the interview questions which therefore gave the successful candidate an unfair advantage over the others and not necessarily only the grievant. I accept the arguments of the Department that there was an effort to ensure the confidentiality of the questions by the panel to the extent that the questions were designed on the morning of interview. However, not enough control measures were put into place to prevent information slipping out the interview more especially where the candidates were colleagues in the same organisation and the fact that the dimensions were standardised in terms of Resolution 14 of 1997 within the province and for all the posts advertised. It was therefore common knowledge that those were the dimensions for all the posts advertised irrespective of the positions.
5.4 I also take note that the grievant himself was party to the information sharing by confirming the questions when asked and only after being unsuccessful decides otherwise.
5.5 I make no comment on the realistic expectation as the grievant and his representative presented contradictory evidence under the cross-examination.
5.6 I am not satisfied that the Department did not submit the scoring sheets f the chairman and therefore this is not a true reflection and therefore am inclined not to accept the consensus scores. There was also some confusion about how many members actually scored and the number of score sheets submitted and the missing score sheet not submitted.
5.7 In the circumstances, it is my finding that the grievant was prejudiced.
6 . AWARD
6.1 In light of the above findings, I accordingly make the following award:
6.1.1 The procedures followed prejudiced the grievant and the non-appointment of the grievant was therefore unfair.
6.1.2 The conduct of the Department in failing to promote the employee was unfair.
6.2 An Independent Selection Panel is constituted and the short-listed candidates are re-interviewed to repeat the interview process within 2 weeks of this award.
Date : 14 April 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES NAR 000059 KZN
APPLICANT S A CHUTURGOON
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR J KALIDEEN
DATE OF ARBITRATION
APPLICANT MS R BUDREE
RESPONDENT MS N THAVAR
The procedures followed prejudiced the grievant and the non-appointment of the grievant was therefore unfair.
The conduct of the Department in failing to promote the employee was unfair.
An Independent Selection Panel is constituted and the short-listed candidates are re-interviewed to repeat the interview process within 2 weeks of this award.
DATE OF AWARD 14 APRIL 1999