Case Number: PSES EAR000005(a) EC
Province: Eastern Cape
Applicant: T MHLETYWA
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 23 July 1999
Arbitrator: W P SCHEEPERS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES EAR000005(a) EC
In the arbitration between:
T MHLETYWA (Presented by CATU) APPLICANT
EAST CAPE EDUCATION DEPARTMENT RESPONDENT
1 . HEARING AND REPRESENTATION
.1 The Employer party, East Cape Education Department, was represented by M/s T Poswa, and the Union on behalf of the Grievant by Mr Mgxaji. The arbitration hearing took place on 09 July 1999 at the Regional offices of the Employer party, Second Floor, Mayekiso Building, Main Street, Butterworth.
2 . ISSUE AND POWERS
.1 The issue concerns the non-appointment of the Grievant to the post of principal at Mloneleni Junior Secondary School in the Tsomo District of the Eastern Cape. The Grievant further contended that the Regional office of the Department failed to exercise properly its discretion on the recommendation made by the Governing Body and therefore the non-appointment of the Grievant occasioned the dispute. The Employer party however contended that the Grievant did non qualify for appointment to the post of principal.
.2 The terms of reference applicable to this arbitration are that I was empowered in terms of clause 2 of Resolution No 7 of the 1997 of the EDUCATIONS LABOUR RELATIONS COUNCIL (ELRC) to award a remedy which is considered fair and/or appropriate in order to settle the dispute.
.3 I am further empowered to determine the procedure which shall be followed at the hearing.
3 . BACKGROUND
.1 It is common cause that:-
3.1.1. the Grievant applied for the post of principal of Mloneni JSS;
3.1.2. the Grievant was interviewed for the post together with other candidates;
3.1.3. the Governing Body of the school recommended the Grievant for the post;
3.1.4. the Grievant scored the highest points as allocated by the interview panel;
3.1.5. that a recommendation to appoint the Grievant was forwarded by the Governing Body to the District Manager in the following order:
[a] Mr Mhletywa
[b] Mr Kalimashe
[c] Mr Mkhulu
3.1.6. the Grievant fell four months short to complete the five year period of experience needed to be appointed to the post;
3.1.7. the interviews for the post took place on 08 August 1996 and the recommendation to appoint the Grievant was made on the same day;
3.1.8. the appointment of the present incumbent was made on 07 October 1996.
4 . EVIDENCE
.1 The Grievant did not call any witnesses, neither did he testify himself. I however draws no negative inferences from this.
.2 the submission of the Grievant are that the Governing Body were empowered by Resolution 6 of 1996 of the ELRC and circular 10 of 1995. The Grievant however did not submit these documents as evidence. After taking into account the circumstances of the school, the needs of the community, the Governing Body recommended the Grievant for appointment to the post of principal of Mlondleni JSS.
.3 The appointment made by the department was made contrary to the recommendations of the Governing Body of the said school. Taking into account the above considerations, it was submitted that the shortfall of four months should not have been taken into account when making the appointment and that the department should have exercised it’s discretion in appointing the Grievant. The Grievant met all the other requirements of the appointment, save for the four month period of experience required.
.4 The department called Mr Theophilus Kwedinana Tshwentshwe, the District Manager for the Tsomo District of the Department as its only witness who outlined on great detail the steps followed in the appointment of the principal.
.5 The department further submitted into evidence Circular 10 of 1995, marked “A”.
.6 On behalf of the Department it was submitted that the Department agrees as to the outline of the procedures followed and that the authority in place in respect of appointments in this regard was circular 10 of 1995. The witness further testified that he workshopped the process of appointments with all schools in the district.
.7 Representatives of the Department attended the interview process. Upon receipt of the recommendations of the Governing Body, it was recommended by the District office to appoint Mr Mkuhlu, since the other two candidates failed to meet the minimum requirements of education. Under cross-examination the witness testified that at no stage were the Governing Body approached to clarify their recommendations made and that he was aware that the Grievant acted in the post as principal for one year prior to his non-appointment.
.8 The Department called no further witnesses.
.9 In closing the Grievant submitted that Circular 10 of 1995 lists the qualities which should be looked at, which includes the period of experience, it does not single out the period of experience as a major factor.
5 . ANALYSIS OF EVIDENCE AND ARGUMENT
.1 At the outset, it must be stated that the only witness. Mr Tshwentshwe’s evidence was in no way disputed and I therefore accept his evidence as a true account of what transpired.
.2 The evidence produced at the hearing is set out in some detail above. It is quite clear that the only issue in dispute is whether the relevant departmental officials properly applied its mind in making an appointment contrary to the recommendations of the Governing Body.
.3 Although certain allegations were made by both parties insofar as the appointment are concerned, neither party produced any evidence to that effect, i.e. the Grievant alleged that similar appointments were made, not taking the period of experience into account while the department alleged favouritism on the part of the interview panel.
.4 No evidence was placed before me to show in what manner the departmental officials did not apply its mind in making an appointment and/or recommendation to appoint.
.5 The Grievant’s contention is that although he does not have the requisite experience, he had suitable experience to be appointed. In the same way it cen be argued that the appointed person have suitable as well as required experience. It was paced before me by the department and not disputed by the Grievant that the appointee was deputy principal at the time and had suitable experience as well as the required years of experience to be appointed. The Grievant in no way contested the suitability of the appointee to be appointed to the post.
.6 It is therefore clear that the Grievant did not process the necessary qualifications for appointment to the post of principal and I agree with the submission of the Education Department that it would therefore have been un procedural for the department to make an appointment of a person not qualified for the post so applied for.
6 . AWARD
In the exercise of my mandate to make an award which I deem appropriate and correct, my determination are as follows:
I find in favour of the Employer party, the Eastern Cape Education Department who acted within their power not to appoint the Grievant to the post of principal of Mlondleni Junior Secondary School.
DATED AT PORT ELIZABETH THIS 23 DAY OF JULY 1999.
W P SCHEEPERS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES EAR000005(a) EC
APPLICANT T MHLETYWA
RESPONDENT DEPARTMENT OF EDUCATION
ARBITRATOR W P SCHEEPERS
DATE OF ARBITRATION 9 JULY 1999
APPLICANT MR MGXAJI
RESPONDENT MS T POSWA
1 In the exercise of my mandate to make an award which I deem appropriate and correct, my determination are as follows:
1.1 I find in favour of the Employer party, the Eastern Cape Education Department who acted within their power not to appoint the Grievant to the post of principal of Mlondleni Junior Secondary School.
DATE OF AWARD 23 JULY 1999