Case Number: PSES GAAR3442 GP
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 12 May 1999
Arbitrator: IMRAAN HAFFEGEE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR3442 GP
In the arbitration between:
SOUTH AFRICAN DEMOCRATIC TEACHERS’ UNION APPLICANT
GAUTENG EDUCATION DEPARTMENT RESPONDENT
The arbitration was held on 18 November 1998, 4 December 1998 and 9 March 1999 at the offices of IMSSA and at the offices of the department. On 18 November Mr Marota represented the union. Thereafter, Mr Narian represented the union. Mr Thipe represented the department. I am indebted to them for their contributions. The parties agreed to submit written heads of argument. I received these during the latter part of April 1999.
1 . TERMS OF REFERENCE
.1 The terms of reference require me to determine whether the appointment of Mr NR Kobe as second deputy principal at Ikusasa School (“the school”) was procedurally fair an correct in terms of the following:
Resolution 1 of 1996;
Circular 5 of 1996;
The School Act No 84 of 1996;
The Labour Relations Act 66 of 1995; and
Gauteng School Education Regulations for Governing Bodies of Public Schools.
.1 During November 1996 a post for a deputy principal at Ikusasa Secondary School was advertised. The School Governing Body (“SGB”) interviewed applicants for the post and made its recommendations on order of preference on 9 March 1997.
.2 On 11 March 1997 the union lodged a grievance because the computer printout listing the applicants for the post contained the hand written insertion of Mr Kobe’s name. The grievance letter also complained that “the process of sifting and short-listing has not been properly followed”. The minutes of the Grievance Committee indicate, inter alia, that the grievance was withdrawn, as it had not been properly lodged.
.3 Because the first two candidates recommended had already accepted other posts, the third choice, Mr R Kobe, was appointed to the post at Ikusasa School.
.4 The Union alleges that the appointment of Mr Kobe was procedurally incorrect and unfair. Initially it placed much emphasis on the hand written insertion of Mr Kobe’s name to the computer list. Later, it focussed on the sifting and short-listing processes. Briefly, the union’s case is, firstly, that Mr Kobe did not meet the minimum requirements of the post and therefore ought to have been sifted from the list of applicants furnished to the SGB and, secondly, that the SGB ought to have conducted a short-listing exercise.
.5 The department contends that the sifting process was sound because Mr Kobe did meet the minimum requirements of the post. These, it argued, are set out in the Personnel Administration Measures (“PAM”). The minimum requirements are based on qualifications and experience. In terms of PAM, the former is a recognised three year qualification obtained after standard ten, called “REQV 13, which must include appropriate training as an educator. For the post of Deputy Principal, the minimum experience required is five years. The department’s case is that the appointee met these minimum requirements and therefore the sifting process was proper. The SCD did not shortlist the candidates. Instead, it afforded all candidates that were sifted the opportunity to be interviewed. The department contends that the short-listing process is not an obligatory.
3 . EVIDENCE
.1 Union’s case:
.1 Mr Mandla Cole attended the interviewing process as an observer on behalf of the union. The requirements for the post in question were, inter alia, science and maths. Mr Kobe’s name was hand written on the list of candidates. Mr Cele signed Form D, the recommendation for the appointment of a candidate because he was satisfied with proceedings. Ms Tshetlo was recommended for the post even though she had not obtained the highest score during the interviews. She was recommended because the panel preferred a woman in the post. He later learnt that she declined the appointment. He did not know of any other recommendations.
.2 During cross-examination, it was put to Mr Cele in terms of the departmental guidelines, no names may be added by ‘the governing body or the district office’ but that the department had done so. Mr Cele contended if that was so then some written circular ought to have made mention of this.
.3 The grievance against the Insertion of Mr Kobe’s name was lodged within three days of the date of the recommendations of the SGB. The grievance committee is comprised of nine members: three union members of NAPTOSA; three union members of SADTU and three members of the department. Mr Cele was a member of the committee. He conceded in cross-examination that the department could not act contrary to the findings fo this committee and was bound by its decision.
.4 In a letter dated 12 May 1997, Mr Cele mentions the hand written insertion of Mr Kobe’s name on the list of candidates and that his investigations revealed that a Mr Lourens of the department had made the insertion. He raised this point again at the interviews but allowed the process to continue because the principal confirmed that he too had learnt of the insertion. The last paragraph of this letter reads as follows:
“I hereby declare that the interviews conducted at the above school on 8 and 9 March 1997 were fair and just according my (sic) observation.”
.5 It was put to Mr Cele that the issue of whether the appointee met the requirements of the post was not referred to the grievance committee.
.6 Mr Cele strongly denied that when he signed Form D it contained a lost of recommended candidates in order of preference. He explained that the form he signed did not contain the page listing the recommended candidates two to five. Therefore, he implied, he was not familiar with the recommendation of Mr Kobe as third in order of preference. I find this highly improbable and Mr Cele’s evidence was wanting in this regard.
.7 Mr Makhubela is and was a member of the SGB. He testified that as staff member at the school, he knew that a technical section was required at the school. The person filling this post was identified as someone who had qualifications in maths, science and administration. Mr Kobe was appointed to the post despite his lack of qualification in maths and science. To date, the school did not have a technical section.
.8 According to Mr Makhubela, Mr Kobe ought to have been eliminated during the sifting process because he did not meet the requirements of the post. He confirmed that short-listing did not take place and added that Mr Kobe could also not be short-listed because he did not meet the requirements.
.9 During cross-examination, it was put to him that candidates only had to meet the minimum as opposed to the post requirements. The former, are set out in PAM are set out the minimum requirements in terms of qualifications and experience. He conceded that Mr Kobe did meet the requirements as set out in PAM but during re-examination persisted that the minimum requirements were the post requirements as advertised.
.10 The SGB does not appoint the successful candidate, instead, it makes recommendations that the candidate be appointed by the department.
It was common cause that the union was not invited to the short-listing process because this did not take place. Mr Makhubela was under the impression that the sifting process had taken place and the list of candidates that reached the SGB for short-listing (which did not take place) comprised only of candidates who met the requirements of the post.
.11 While Mr Makhubela did not complain about the lack of short-listing, he did do so regarding the insertion of Mr Kobe’s name to the list. According to him, this process served two purposes: to eliminate candidates who may have slipped through the sifting process and to make the list of candidates to be interviewed more manageable. Other members of the SGB decided to bypass the short-listing process due to lack of time.
.12 Mr Makhubela testified that a grievance was lodged during the stipulated period. He admitted, though, that the grievance made no mention of the qualifications of candidates. He also agreed that the grievance committee could not consider the appointment of Mr Kobe, as he had not been appointed then. He too stated that the grievance committee comprised of departmental and union representatives.
.13 The grievance committee was of the view that the grievance was not properly lodged. The department could not act contrary to the findings of the grievance committee.
.2 Department’s case:
.1 The department called only one witness, Corlette Clark, an Acting Director of Human Resources development. Labour Relations is one of the sub-directorates she is in charge of. In dealing with appointments, she is also in charge of interpreting national resolutions and collective agreements.
.2 In terms of Resolution 1 of 1996, the SGB or a delegated panel does short-listing of candidates. This is not obligatory, though, and no irregularity occurs if short-listing does not occur provided that no candidate is disadvantaged.
.3 Ms Clark distinguished between post and minimum requirements. While Resolution 1 referred to minimum requirements, this was different to those used by the department. The department used the minimum requirements as set out in PAM for the process of sifting. Mr Kobe met the minimum requirements in terms of PAM and could therefore be short-listed by the SGB. However, short-listing too was not imperative. The process of short-listing and interviewing could be collapsed into one.
.4 The department can not overrule any recommendations by the SGB unless:
The South African Council of Educators have de-registered a candidate for misconduct;
If undue influenced is used to get the recommendation of a candidate; or
A candidate does not meet the minimum requirements.
.5 Mr Kobe met the minimum requirements as per PAM and therefore would not have been eliminated by the sifting process.
.6 While she admitted during cross-examination that the purpose of sifting is to eliminate those who did not meet the minimum requirements, she was of the view that post requirements (which included maths and science in this case) were not the same as the minimum requirements. When pointed out to her that, inter alia, paragraph 6.1 of Resolution 1 referred to the requirements “as in the advertisement”, she said that the department confined itself to the minimum requirements as set out in PAM. The requirements set out in the advertisement could include additional requirements the SGB my prefer. These are over and above those stipulated in PAM.
4 . FINDINGS
.1 The appointment of a candidate comprises a number of processes. A post is advertised; candidates are sifted to eliminate those who do not meet the minimum or post requirements; short-listing further cuts the list of candidates to be interviewed and recommendations are made after interviews are conducted. An appointment is made based on the order of preference expressed in the recommendations and the availability of the recommended candidates.
.2 Initially, the union’s case was premised on the hand-written insertion of Mr Kobe’s name on to the computerised list of candidates. On 11 March 1997 the union lodged a grievance in this regard. Paragraph 1.2 of the department’s guidelines states that no names may be added by a district office or SGB. During cross-examination of one of the union’s witnesses, the department submitted that neither the district nor the SGB made the insertion. As the arbitration unfolded the union appeared to have accepted this and refocused its case. I will therefore not pursue this issue in detail other than to add that I do not find the hand-written insertion irregular in the absence of any direct evidence to support such contention. The grievance submitted by the union on 11 March 1997 concerned only this issue.
.3 The advertisement set out the requirements of the post to be maths, science and administration. The union referred to the curriculum vitae and certificates of Mr Kobe. This evidence suggests that Mr Kobe did not have qualifications in maths and science. The department did not challenge this evidence.
.4 Paragraph 4.1 of Resolution 1 states:
“The employing Department shall acknowledge receipt of applications and handled the initial sifting process to eliminate applications of those candidates who do not comply with the requirements of the post(s) as stated in their advertisement.”
.5 Paragraph 4.2 reads as follows:
“All applications that meet the minimum requirements shall be handed over to the Institution’s Governance Structure responsible for the specific institution, or in the case of a post outside an institution, to the head of the applicable office or such other official to whom the necessary powers have been delegated”.
.6 The union argues that the sifting process must take place. In doing so the department is to eliminate any candidates who do not meet the requirements as advertised. The department, on the other hand, concentrated on paragraph 4.2 and the use of minimum requirements which, it contended, are to be used during the sifting phase to eliminate candidates. These minimum requirements are those set out in PAM. The union’s view is that minimum requirements ‘as advertised’.
.7 Paragraphs 4.1 and 4.2 appear under the heading “Sifting”. In paragraph 4.1 it is abundantly clear what needs to be done. Thereafter, the department is to hand over all applications that meet the ‘minimum requirements’. But, just what are these minimum requirements? These minimum requirements must be those mentioned in paragraph 4.1. Both paragraphs relate to the sifting process. In context of paragraphs 4.1 and 4.2 it cannot be so that to find what is meant by ‘minimum requirements’ one has to rely on another document, namely, PAM.
.8 Even if this was so, I have no evidence before me on the nature and status of PAM. Questions regarding the nature of PAM, how PAM came about and, most importantly, its status in relation to Resolution 1, remain unanswered. Without any evidence, or argument, to the contrary, I have to accept that the provisions of Resolution 1 prevail insofar as the sifting, short-listing and interviewing process is concerned. The minimum requirements set out in PAM are not entirely irrelevant as they set out the qualifications and experience required for a post.
.9 Ms Clark testified that PAM was used to sift candidates. This was done in practice and therefore, an applicant who met the minimum requirements of REQV 13 and had the requisite number of year’s experience for the post applied for, would not be eliminated. The practise of the department cannot elevate the status of PAM and thereby ignore the provisions of Resolution 1.
.10 Can the sifting process be overlooked? The union argued strongly that the use of the words “must”, “shall” and “will”is imperative and does not give the department discretion.
.11 Therefore, the department had to sift candidates. In so doing, it had to eliminate any candidates who did not meet the minimum requirements, which, for the sifting process, are the same as the requirements as advertised and those stipulated in PAM. On the evidence before me, Mr Kobe did not fulfil these minimum requirements and therefore ought to have been eliminated.
.12 Had the sifting process taken place as described above, Mr Kobe would not have reached the next stage, namely, that of short-listing. It is common cause that short-listing did not take place. Unlike sifting, short-listing appears to be a more complex exercise. Criteria or indicators have to be extracted from the requirements, recommendations, and duties of the post as advertised.
.13 The short-listing process, including the extraction of indicators, is conducted by the SGB. The SGB can also add criteria for short-listing. However, this has to be done in consultation with the relevant employee organisations. In the absence of these indicators and/or criteria, it is difficult to speculate whether Mr Kobe would have passed this phase had he met the minimum requirements during the sifting phase. I am not going to make such speculation as the exercise is an academic one in light of my earlier finding that Mr Kobe ought to have been eliminated during the sifting stage.
.14 Again, the use of words such as “must” and “shall” indicate that the short-listing process was obligatory. The SGB could not simply “collapse” this procedure with that of interviewing as stated by Ms Clark.
.15 Two issues concern me: the grievance considered by the grievance committee and the statement by the union observer, Mr Cele, that the interviews were conducted in a fair and just manner.
.16 Resolution 1 provides a mechanism for resolving disputes that may arise during the appointment process. Grievances may be lodged within 3 working days after each of the short-listing, interviewing and/or ranking procedures. The union lodged a grievance on 11 March 1997 complaining about the hand written insertion on the computerised list of applicants. This grievance was considered by a grievance committee comprising of three union members (in addition to three members of another trade union) and three people representing the employer party.
.17 The relevant part of the minutes of the grievance committee dated 2 May 1997 read as follows:
.1 “This grievance has also been withdrawn because the staff of Ikusasa has not followed the correct procedure in lodging the grievance. It is also observed that the complaint is challenging the outcome and not the procedure.
.2 Head office was phoned in respect of the hand written applicant. The response from Head Office was that the inclusion is authentic. The observer however indicates that he was satisfied with the proceedings committee arrived at the decision that the application be forwarded to Regional office for appointment.”
.18 I do not know on what basis and for what reasons the grievance committee considered the referral of the grievance as incorrect. Paragraph 11.6 states:
“Grievances based on dissatisfaction with the outcome of correctly applied procedures will not be entertained.”
.19 This begs the question: were the procedures correctly applied? The grievance committee considered the grievance with regard to the hand written insertion. It did not and could not have considered the other procedural aspects of the appointment process. Therefore, its findings are limited to the issue of the hand written insertion. (Above I have found the hand written insertion not to be irregular).
.20 The department argued that it could not act contrary to the decision of the grievance committee and that the union formed part of that committee. In other words, the union cannot now complain if it was part of a committee that considered the grievance and dispensed with it. While this may be so, the grievance committee limited its enquiry as described above. Further, the department agreed to this arbitration and its terms of reference. While it is significant that the union was part of the grievance committee, by agreeing to arbitration, the department cannot now be heard to say that findings of the grievance committee already resolved the dispute.
.21 I now turn to the statement by the union member after his observation of the interviews. Mr Cele’s letter of 12 May 1997 inter alia states the following:
.1 “I hereby declare that the interviews conducted at the above school on 8 and 9 March 1997 were fair and just according my (sic) observation.”
.22 It is clear that Mr Cele observed the interviews and approved of that process. The present enquiry is a wider one. In terms of paragraphs 5.4 and 6.10 of Resolution 1, the union ought to have been invited to observe the short-listing process. As it is common cause that the short-listing process did not take place, it follows that the union was not invited to observe this process. Not only the short-listing process is imperative but also the opportunity to observe this process. By not engaging in the short-listing process the department also denied the union an opportunity to observe it. Mr Cele’s observation was of the interviewing process and, consequently, I find his declaration of fairness and justice is similarly limited.
.23 The department submitted that the union did not contest the correctness and fairness of another appointment at the same school at about the same time as that of Mr Kobe. It further submitted that the procedures followed in these two appointments were exactly the same. While some questions regarding the procedures in the appointment to the other post were allowed, I do not have sufficient evidence before me to conclude that the procedures were exactly the same. My terms of reference also do not permit me to find on the fairness and correctness of the processes employed in that appointment. The union has chosen to bring this dispute before me for reasons known to it. The fairness of one process cannot rest on whether a party has limited its complain to a single appointment. I accept the department’s contention that because one of its members was an unsuccessful applicant for the post to which Mr Kobe was appointed, the union’s case did not rest on a contention that its member, rather that Mr Kobe, ought to have been appointed. According to Mr Cele, the union would have been satisfied had Ms Tshetlo, the applicant at the top of the list of recommended candidates for the post, been appointed.
.24 The procedures set out in Resolution 1 are, inter alia, to ensure “that the filling of posts is (sic) perceived as objective, just and acceptable.” Various procedures are set out to safeguard against irregularities and to facilitate objectivity. An indifference to these procedures cannot be overlooked and be cast off as insignificant. More particularly, in this case, the failure to observe some crucial procedures has resulted in the appointment of someone who does not meet the requirements of the post. The department ought to have ensured that this did not happen. This is not an irregularity that can simply be brushed aside.
5 . DETERMINATION
5.1 My terms of reference require me to determine the procedural fairness and correctness of the appointment of Mr Kobe. I am to make an appropriate award with due regard to fairness. Based on the evidence before me, I determine that the appointment of Mr Kobe was not procedurally fair and correct.
5.2 I do not regard the absence of Mr Kobe as insignificant. The parties seemed to cast the duty to have joined Mr Kobe to the proceedings on each other. I cannot make an award that negatively impacts on a person who is not party to the proceedings. My findings as set out above already do that to some degree. However, I am not able set aside the appointment of Mr Kobe and order the re-advertisement of the post. This would not be appropriate and fair to Mr Kobe. He is not a party to this arbitration and had no say with regard to its terms of reference. While the parties to the arbitration have agreed that my decision is final and binding upon them, Mr Kobe has not had such opportunity. Setting aside his appointment may lead to an unfair labour practise (or dismissal) in terms of the Labour Relations Act. The parties ought to have foreseen this when agreeing to arbitration of the dispute.
5.3 My determination as set out above is the appointment of Mr Kobe as second deputy principal at Ikusasa School was procedurally not fair and correct.
Date: 12 May 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR3442 GP
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPOINTMENT / UNFAIR
ARBITRATOR IMRAAN HAFFEGEE
DATE OF ARBITRATION 18 NOVEMBER 1998, 4 DECEMBER 1998 AND 9 MARCH 1999
APPLICANT MR MAROTA & MR NARIAN
RESPONDENT MR THIPE
1 My terms of reference require me to determine the procedural fairness and correctness of the appointment of Mr Kobe. I am to make an appropriate award with due regard to fairness. Based on the evidence before me, I determine that the appointment of Mr Kobe was not procedurally fair and correct.
2 I do not regard the absence of Mr Kobe as insignificant. The parties seemed to cast the duty to have joined Mr Kobe to the proceedings on each other. I cannot make an award that negatively impacts on a person who is not party to the proceedings. My findings as set out above already do that to some degree. However, I am not able set aside the appointment of Mr Kobe and order the re-advertisement of the post. This would not be appropriate and fair to Mr Kobe. He is not a party to this arbitration and had no say with regard to its terms of reference. While the parties to the arbitration have agreed that my decision is final and binding upon them, Mr Kobe has not had such opportunity. Setting aside his appointment may lead to an unfair labour practise (or dismissal) in terms of the Labour Relations Act. The parties ought to have foreseen this when agreeing to arbitration of the dispute.
3 My determination as set out above is the appointment of Mr Kobe as second deputy principal at Ikusasa School was procedurally not fair and correct.
DATE OF AWARD 12 MAY 1999