Case Number: PSES WC
Province: Western Cape
Applicant: MR SAAYMAN
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 10 May 1999
Arbitrator: KAMLESH KER
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES WC UNKNOWN
In the arbitration between:
MR SAAYMAN APPLICANT
DEPARTMENT OF EDUCATION RESPONDENT
1 . INTRODUCTION:
1.1 This arbitration, had been held on 5 May 2000.
1.2 The Applicant was represented by Ayesha Jacobs of the union (SADTU).
1.3 The Respondent was represented by Verna Collins and was assisted by K Petersen.
2 . ISSUES:
2.1 Whether the Employer committed an Unfair Labour Practice when the Governing Body (GB) of the Buckingham Primary School set additional criteria for the Deputy Principal post (Post No 2913 in vacancy List 3/99) resulting in Mr Saayman being excluded from being short listed as a candidate to be interviews for the post.
2.2 Whether the Governing Body made a conscious decision to exclude candidates from Buckingham Primary School, resulting in Mr Saayman excluded from the opportunity to compete for the post.
2.3 Whether the minutes of the “short listing” meeting were accurate and if not, whether this resulted in any unfair labour practice towards Mr Saayman.
3 . BACKGROUND:
3.1 Mr Saayman was one of some 24 candidates who applied for the Deputy Principal post at Buckingham Primary School, where he is currently teaching and where he was teaching at time. The selection process was again repeated for the third time as disputes had previously been successfully declared. In terms of the guidelines contained in Resolution 5 of 1998, the interview committee may determine additional criteria according to the curricular needs of the school before short listing suitable candidates and must also reduce the candidates to be interviewed to a manageable number.
3.2 The Union believed that the additional criteria set by the Governing Body at their meeting on 29 July 1999, were unfair and prejudicial to Mr Saayman. The additional criteria, i.e. in addition to all the minimum criteria which all the sifted candidates had already complied with, were as follows:
3.2.1 English (mother tongue) A/E
3.2.3 Xhosa - background
3.2.4 Administration experience, e.g. Finance and Human relations, whether the applicant acted as deputy principal before and the applicant’s initiative during the period as well as his knowledge of timetables.
3.2.5 Gardening/cultivation/landscaping/botanics, to help pupils with environmental skills.
3.3 At some stage prior to the Governing Body’s selection meeting, a staff meeting of the Buckingham Primary School was held. At this meeting, the staff gave their input on what they thought the school’s needs were. These criteria were fed into the Governing Body’s meeting held on 29 July 199 and the Governing Body accepted the suggestion from the staff.
3.4 The relief sought by the Union is that the process should be repeated.
4 . EVIDENCE AND ARGUMENTS:
4.1 The Union called four witnesses namely, Mr Willenburg, Mr Saayman. Ms Timotheus and Mr Kamaldien.
4.2 The WCED called two witnesses namely Ms Warden and Ms Meyer.
5 . UNION:
5.1 Mr Willenburg was sent by the Union to observe the short-listing process. He testified as follows:
5.1.1 It was the first time that he observed a short-listing process. His understanding of his role was to “observe and report”, which he did. He took the word observer in the literal sense of the word.
5.1.2 He was consulted by the governing body after the additional criteria had been set. At that stage he did not object.
5.1.3 He acknowledged that he was not aware of Paragraph 3.1.2 of Circular 15/99 which states inter alia”
184.108.40.206 “NB the union official has observer status for the duration of the entire process. But must be consulted should the governing body decide to utilise the criteria additional to those listed at 3.1.4 at any stage”.
5.1.4 He understood the difference between consultation and negotiation and acknowledged that the Union did not have a right to negotiate the additional criteria but had a right to be consulted regarding his observations of the fairness of the process.
5.1.5 At that stage he did not know any candidates, nor even Mr Saayman. At this stage he does not think that the criteria were fair.
5.1.6 He further testified under cross examination, that after the additional criteria had been set, the sealed envelope containing all the applications from sifted candidates was opened. All applications were calculated to all persons on the panel. A table was drawn on the board with each candidate’s name. Members of the panel called out five names which they had chosen as the candidates who met the criteria. The first five candidates with the most marks were short listed. Not all the short-listed candidates met all the additional criteria.
5.2 Mr Saayman, the applicant, testified as follows:
5.2.1 He teaches grade 7 and was teaching grade 6 at Buckingham Primary at the time he applied.
5.2.2 He speaks English and the medium of instruction at the school is English.
5.2.3 He does not have a problem with Xhosa learners.
5.2.4 He belongs to an environmental club.
5.2.5 He can teach mathematics from grade 1 to grade 8.
5.2.6 He did not act as deputy principal before because there is a roster system and his turn has not yet come up
5.2.7 He did not have an opportunity to study Botany but this was not a requirement to become an educator.
5.2.8 He believed that he qualified.
5.2.9 Mr Saayman also testified that the criteria alleged to have been agreed to by the staff were not an accurate reflection of those suggested by the staff.
5.3 Ms Timotheus testified as follows:
5.3.1 She is currently the Acting Deputy Principal at Buckingham Primary School.
5.3.2 She was also an applicant for the post but withdrew her application.
5.3.3 She did not believe that it was necessary to qualify for Botany as an operational requirement at the school.
5.3.4 The essence of the post is administration skills, extra mural activities, leadership skills, assisting principal and management skills.
5.3.5 To the best of her recollection, the additional criteria suggested by the staff did not correspond with those stated in the minutes of the meeting dated 29/07/1999.
5.4 Mr Kamaldien testified as follows:
5.4.1 He is the chairperson of the Governing Body.
5.4.2 He was aggrieved by the fact that the School principal suggested that he does not chair the meeting. Although he had been away on pilgrimage when some of the meetings had been held, he had acquainted himself with all the necessary progress that had been made in his absence. On account of this he had written out a resignation letter but did not actually proceed with it.
5.4.3 Under cross examination he conceded that in terms of Resolution 5/98, the governing body could select a person other than the chairperson of the governing body to chair the meeting.
5.4.4 Whilst the meeting was in progress, some members of the governing body were having a “side meeting” during which some of them said that they would not select any candidate from Buckingham Primary School. This not stated in the official meeting which was in progress.
5.4.5 He conceded that this was not the conscious decision of the Governing Body, but the views expressed by persons who were sitting near him.
5.4.6 It is common cause that the successful applicant was not from Buckingham Primary
6 . WCED (WESTERN CAPE EDUCATIONAL DEPARTMENT):
6.1 Ms Michell Warden testified as follows:
6.1.1 She is the secretary of the Governing Body. She described the selection process from the time the envelopes were opened in very much the same was as Mr Willenburg. She added that the five candidates who were selected did not comply with all the additional criteria, but complied with most of them. The reasons for the additional criteria were as follows:
220.127.116.11 English as a mother tongue (A/E) was regarded as an important criterion because Buckingham Primary is a dual medium school.
61.1.2 A background in Xhosa was considered an advantage because approximately 30 percent of the learners at Buckingham School were Xhosa speaking. Under cross examination she conceded that none of the classes were conducted in Xhosa but stated that Mr Saayman did not meet this criterion. His CV did not reflect this.
18.104.22.168 They did not highlight the importance of having acted as a Deputy Principal but this would have been an added advantage as part of the Leadership/Management skill’s requirement.
22.214.171.124 Mathematics was regarded as important because of the growing technological field
126.96.36.199 The Environment plays an important role in Outcomes-based Education (OBE). It is part of Buckingham Primary School’s vision statement.
6.1.2 Under cross examination she was challenged regarding the accuracy of the minutes of the meeting dated 29/07/1999, which states as follows:
188.8.131.52 :The disputers then gave the assurance that if additional criteria are used no disputes will follow.
184.108.40.206 The confusion was clarified when the minutes were read in context. This statement was made as part of a report at the meeting about an earlier meeting, which had taken place between the Union and WCED when it had been agreed that the previous process would be repeated.
6.2 Ms E Meyer testified as follows:
6.2.1 She is a teacher at Buckingham Primary School and is the teacher’s representative on the Governing Body.
6.2.2 She was present at the staff meeting when the teachers gave their input into the additional criteria.
6.2.3 She subsequently conveyed this to the Governing Body who accepted all the suggestions.
6.2.4 English was regarded as important by the staff because the school is a dual medium school with the majority classes being conducted in English. There was a shortage of teachers at Buckingham Primary with English as a first language. English as a first language would be an advantage to their learners.
6.2.5 She conceded that is the responsibility of the Governing Body to set the additional criteria and not that of the staff, but added that the Governing Body has staff component.
6.2.6 The staff meet during the day at school whilst the Governing Body meets at night. The staff meeting was a matter of convenience. She merely conveyed the views of the staff. The Governing Body was not obliged not accept the suggestions, but they did not reject any. The final decision was in th governing Body’s hands.
6.2.7 She conceded that not all the teachers were required to give their input. She stated further that four of the teachers were also applicants.
7 . CLOSING ARGUMENTS:
7.1 The Union argued as follows:
7.1.1 Tertiary Institutions no longer use the A/E language requirements at this are against the constitution. Mr Saayman had been marginalised on the basis of language. Language proficiency can only be determined in an interview
7.1.2 The Mathematics requirements has no bearing on the core functions of a Deputy Principal
7.1.3 If the short-listed candidates did not meet all the additional criteria, they should be eliminated.
7.1.4 Criteria must be fair, non discriminatory and in keeping with the constitution.
7.2 The WCED argued as follows:
7.2.1 The additional criteria were set in consultation with or without input from the various legs of the GB. The final decision was taken by the GB.
7.2.2 The Union observer was consulted after the criteria ere agreed. If he did not fully understand this role, the Governing Body cannot be held responsible. Because of knowledge of his role, he failed to give input at the relevant time.
7.2.3 The criteria were formulated to benefit the learners according to the curricular needs of the school’s learners.
8 . ASSESSMENT OF EVIDENCE AND ARGUMENTS:
8.1 I do not believe that it is my role to determine whether the additional criteria were in accordance with the curricular needs of the school. This is a function of the GB. My role is to determine whether there is any evidence to suggest that the criteria were not fair or that they were discriminatory or that they were not in keeping with the constitution of the country, or whether they were designed to exclude specific candidates, Mr Saayman in particular.
8.2 I will therefore confine myself to determine whether the GB followed a fair procedure and complied with the guidelines set by the various resolutions.
8.3 Mr Kamaldien’s allegation that candidates from Buckingham primary were excluded, was hearsay evidence and cannot therefore be given any wight. There was no conscious decision by the official meeting of the GB to exclude candidates from Buckingham primary.
8.4 The Union has not shown that the criteria were designed in such a way as to exclude Mr Saayman, or Buckingham Primary candidates, even though the end result was that none of the Buckingham Primary School applicants were short listed.
8.5 The minutes of the meeting dated 29/07/1999 were poorly worded. They make reference to an earlier meeting, which may convey the impression that certain matters were discussed in the meeting held on 29/07/1999. Although the minutes are ambiguous, I dot not find that Mr Saayman was in any way prejudiced by this.
8.6 The input by the teacher was not done in an ideal manner, it would have been preferable for only those GB members of the teacher’s component to have input. Even if the teachers did not actually agree on all the criteria as reported in the minutes, the GB was at liberty to reject any or all the criteria. The important thing however is that the Governing Body had an opportunity to propose its own additional criteria and had the final say but opted not to reject any of the suggestions. The Union and all the relevant stakeholders had the opportunity to observe and be consulted on the final list.
8.7 The Union may not agree that the additional criteria were in compliance with the school’s needs, but the time to object to that was on 29/07/1999. The Union’s observer himself conceded that he did not realise the full extent of his role. The opportunity was given to him and he failed to use it through no fault of the GB. The GB did not fail to consult him. It is possible that the criteria were not ideal or could have been different and that the views of some of the witnesses are valid. The views of witnesses are opinions which cannot be taken into account in the Arbitration. At this stage, the only inquiry, which can be made is whether the criteria were discriminatory, unfair or unconstitutional, resulting in the exclusion of Mr Saayman and none of this can be found. There is no evidence to show that Mr Saayman was singled out for different treatment or that the additional criteria were designed with the deliberate intention of excluding him from an opportunity to compete for the post. Nor did the Union lead any evidence to show that the criteria were designed in such a way as to unduly favour certain candidates.
8.8 The language requirement was deemed to be a relevant job requirement and does not infringe on any candidate’s language rights as envisaged by the Constitution.
8.9 Finally, the Union agreed that if any of the candidates did not meet all the additional criteria, they should be eliminated. The purpose of the selection process is to find the most suitable candidate, not a candidate who meets all the additional criteria. If none of the candidates meet all the additional criteria, then the best qualified candidates are still eligible, provided that they meet the basic requirements, which they all did by virtue of having been sifted by the WCED as being qualified to take the post, should they be selected by the GB.
9 . FINDINGS:
9.1 The minute taking was indeed flawed but I do not find that it was flawed to the extend that is substantially prejudiced Mr Saayman in his opportunity to compete for the post.
9.2 I do not find any valid evidence to show that candidates from Buckingham Primary School were deliberately excluded.
9.3 The additional criteria set by the Governing Body complied substantially with the requirements set by Resolution 5 of 1998.
10 . AWARD:
10.1 The application of Mr Saayman is dismissed as no unfair labour practice is found.
DATED: 10 MAY 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES WC UNKNOWN
APPLICANT MR SAAYMAN
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR KAMLESH KER
DATE OF ARBITRATION 05 MAY 2000
VENUE CAPE TOWN
APPLICANT AYESHA JACOBS
RESPONDENT K PETERSEN
1 The application of Mr Saayman is dismissed as no unfair labour practice is found.
DATE OF AWARD 10 MAY 2000