Case Number: PSES WC
Province: Western Cape
Applicant: MS EUNICE SERENE MANASSE
Respondent: CAPE EDUCATION DEPARTMENT
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 24 October 1999
Arbitrator: DENISE RUDOLPH
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES WC
In the arbitration between:
EUNICE SERENE MANASSE APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . INTRODUCTION
1.1 The Grievant, represented by the Public Service Association, is Eunice Serene Manasse who is employed by the Department as a Head of Department at Hillwood Primary School.
1.2 On 15 November 1996 two posts for Deputy Principal were advertised for Hillwood Primary School.
1.3 Six applicants were short-listed by the School Committee and four were interviewed for both posts on 24 April 1997.
1.4 It is common cause that the school was experiencing problems at the time and that shortly before the interviews took place a meeting at the school erupted into violence and the principal had to be taken away by the police for his own protection. As a result the interviews were conducted at another school.
1.5 The Grievant was nominated for one of the posts and a Mr R Williams for the other. The two unsuccessful candidates lodged a dispute with the Department regarding the nomination of these two candidates as did the SADTU representative who had attended the interview.
1.6 The Department investigated the selection procedure and determined that certain procedural defects existed. It advised the school committee to readvertise the post and redo the selection procedure. The two successful applicants, namely the Grievant and Mr R Williams lodged their protest against this decision.
1.7 The dispute procedure was bedevilled by changes in legislation and some dispute exists between the parties as to what dispute mechanism was followed. It is common cause, however, that in the case of the Grievant a conciliation meeting was held on 8 April 1998. No further correspondence was received by the Department from the Grievant or her union until 26 November 1998. On this date the union addressed a letter to the Education Labour Relations Council (ELRC) nothing that they had secured a positive result via arbitration for Mr R Williams and requested arbitration in the Grievant’s case.
1.8 Shortly before this letter was written, the staff establishment had been reviewed at the school and the number of Deputy Principal posts had been reduced from two to one. As the one for which the Grievant had applied was vacant it was automatically cancelled. The ELRC notified the Grievant’s union of this fact. The union thereafter applied for arbitration, which was granted by special concession of the ELRC.
2 . TERMS OF REFERENCE
The terms of reference which were agreed to between the parties at the commencement of the arbitration meeting were as follows:
“1. The parties agreed that Ms Manasse was the person recommended by the governing body as the most suitable person and that there is no dispute on substantive grounds relating to this dispute.
2. That the issues to be determined by the arbitrator are:
a) Whether or not there were procedural irregularities in the selection and nomination of the grievant by the governing body for the post of deputy principal specifically:
i) whether the fact that the principal voted was within the law;
ii) whether or not accurate minutes were kept of the process in accordance with paragraph 5 of Resolution 13 of 1995; and
iii) whether or not the union observers were given adequate notice in terms of paragraph 4.2 of resolution 13 of 1995.
b) In the event of this being proved, whether the Department was justified in its failure to accept the recommendation and it’s failure to ratify the appointment of the Grievant.
c) To determine whether or not an award which includes the ratification of the appointment of the Grievant is applicable and within the powers of the arbitrator in the particular circumstances.
The powers of the arbitrator include the power to make any award applicable in the circumstances including compensation save for the power to make an appointment which shall be determined in terms of 2(c) above.
3 . THE ISSUES
3.1 PROCEDURAL IRREGULARITIES
3.1.1 THE PRINCIPAL’S VOTE
18.104.22.168 It was common cause that the principal cast a vote during the selection process. The Department referred to this as a procedural irregularity at the time it refused to ratify the Grievant’s nomination for the Deputy Principal’s post.
22.214.171.124 The Department contended that the legislation at the time prohibited the principal from voting. It contended that the South African Schools Act, Act No. 84 of 1996 came into effect on 1 January 1997 and was amended by the Education Laws Amendment Act, Act No. 100 of 1997.
126.96.36.199 The South African Schools Act, as amended repealed sections 1(a).8-20 and 28-31 of the Coloured Persons Education Act of 1963 which was applicable to the school in question. The regulations, which had been promulgated in terms of this Act, were not repealed and therefore remained in existence.
188.8.131.52 The relevant regulations contain a clause, namely F1.4, which states that a principal is an ex officio member of a school committee and does not have the right to vote. It further contended that a governing body as envisaged by the South African Schools Act had not been established at the school at the time the interviews took place and that the committee, which conducted the interview, was operating as a school committee in terms of the regulations.
184.108.40.206 The union conceded that a governing body was not yet established but referred to section 54(3) of the South African Schools Act of 1996 which reads as follows:
“Any governing body, management council or similar authority of a public school, which existed immediately prior to the Act, continues to function until the day before the date on which the relevant governing body is elected and must perform all the functions it performed prior to the commencement of this Act which a governing body can lawfully perform in terms of this Act.”
220.127.116.11 The Act provides that the principal of a governing body established in terms of the Act has the right to vote.
18.104.22.168 The union contended that section 54(3) prescribed that the existing school committee should carry out the functions of the proposed governing body and in the manner which the governing body would carry out these functions. It referred to the award of Mr N van Zyl in the arbitration of Mr R Williams in which he found that the principal had voting rights.
22.214.171.124 The minutes of the interview meeting were submitted and the principal gave evidence to the effect that they were an accurate record of the proceedings.
126.96.36.199 Under cross-examination, the principal conceded that the minutes did not refer to any of the candidates other than the Grievant. He further conceded that the minutes do not reflect exactly who was present at the meeting. The minutes also did not refer to anything any of the other members of the school committee said but were mainly a record of the words and actions taken by the principal himself and those of the SADTU observer Mr Frans.
188.8.131.52 The minutes do reflect that after the voting sheets were opened, it was found that they showed changes or crossings out. On this ground the voting sheets were considered as spoilt ballots and the members of the committee voted again.
184.108.40.206 When questioned about this the principal denied that the voting was repeated and stated that voting only took place twice, once for the one post and then for the second. The minutes therefore do not accurately reflect this fact.
3.1.3 ADEQUATE NOTICE TO THE UNION OBSERVER
220.127.116.11 The Department stated that one of the reasons on which it based its decision to reject the nomination of the Grievant was that adequate notice in terms of paragraph 4.2 of Resolution 13 of 1995 was not given by the school committee to the union observer.
18.104.22.168 The minutes of the meeting refer to the fact that Mr Frans, the SADTU observer objected to the fact that he had only been notified that day that the meeting was to take place that evening.
The minutes further state that:
“Mr Adams (the principal) her vir hom die fakse van 7 Maart en die faksversending-strokie gewys. Mnr Frans het aanvanklik gesê dat hy tevrede is, maar hy het tog beklaenswaardig voorgekom en selfs genoem dat hy vanaand se vergadering se faks eers vroeër die dag ontvang het. Die hoof het hom pertinent laat verstaan dat die fout by SADOU lê en nie by ons nie”.
22.214.171.124 Under cross-examination the principal stated that the “faks” referred to in the minutes as for the meeting which had been originally scheduled for 7 March but which had to be postponed. He did not state when the notice for the meeting at which the interviews were done was faxed to the unions.
126.96.36.199 The union representative was not called to testify and no evidence was led by the Department to show that the late notice received by the representative was not a fault of his union as alleged by the principal. The minutes seem to indicate that a new fax was sent but no evidence is available as to when it was sent or why it only reached the union representative on the day of the meeting. The presence of the other union observers, without objection, would indicate that they had received notice timeously.
4 . DETERMINATION OF PROCEDURAL ISSUES
4.1 THE PRINCIPAL’S VOTE
4.1.1 The determination as to whether or not the principal had voting rights depends on the careful analysis of the provisions of Section 54(3) of the Schools Act No. 84 of 1996 which was in force at the time. It was accepted by the union that the regulations made in terms of the Coloured Persons Education Act No. 47 of 1963 were still in force and that in terms of regulation F1.4 the principal was servicing on the committee as an ex officio member and did not have voting rights.
4.1.2 The union however contended that section 54(3) should be interpreted as meaning that the school committee as to function as if it was a governing body and therefore the function of the principal would have to be viewed as if he was functioning in terms of the provisions of the Act and therefore would have had voting rights.
4.1.3 The union, having accepted that the two pieces of legislation were applicable, contended that they contradicted one another. The union representative argued that an Act of parliament would take precedence and therefore overrode the regulations. This was the view accepted by Mr N van Zyl in the Williams arbitration. It is my view however that the two provisions are complementary and not contradictory. A careful interpretation of the wording of Section 54(3) was not done in the Williams case.
4.1.4 Section 54(3) provides for the status of school committee during the interim phase from the time the Schools Act was passed to the time a new governing body is established in terms of the Act. The section clearly states that the school committee is to continue to function until such time as the governing body is established.
The section reads:
“Any governing body, management committee or similar authority of a public school, which existed immediately prior to the commencement of this Act, continues to function until the day before the date on which the relevant governing body is elected and must perform all the functions it performed prior to the commencement of this Act which a governing body can lawfully perform in terms of this Act.”
4.1.5 The provisions of the section are silent on the manner and functioning of the school committee during the transitional stage.
4.1.6 It is my view that the section provides that the school committee is limited in its functions in the transitional period to those functions which it previously performed and those which are lawful functions of a governing body.
4.1.7 In other words, the section provides that the school committee is not competent to perform any function, which it had not previously performed or function which it may have performed but which would not be lawful in terms of the Act. These functions must be functions which could lawfully be performed by a governing body as envisaged by the Act.
4.1.8 This must be interpreted as a further limitation on the type of functions which can be performed by the school committee. The union’s contention that the word “lawfully” refers to procedural lawfulness and determines the manner of functioning of the school committee cannot be accepted.
4.1.9 The fact that the regulations relating to the functioning of school committee remained unrepealed would indicate that it was the legislature’s intention to permit the committees to continue to function in their original structure and according to their own constitutions. Had the legislature intended to alter the structure and manner of functioning of these bodies it would have simply prescribed that they would function as if they were governing bodies in terms of the new Act. This is not what the Act has done.
4.1.10 The school committee was empowered to perform the lawful functions of a governing body to the extent that it had performed these functions in the past by the provisions of Section 54(3). It however performed these functions as a school committee, not as a governing body and functioned in accordance with the provisions of the regulations.
4.1.11 It is therefore determined that at the time the interview took place, the principal was an ex officio member of the school committee and did not have the right to vote.
4.2.1 The evidence of the principal contradicted his averment that the minutes were an accurate record of the proceedings at the meeting. He was forced to concede that there were material omissions to the minutes, inter alia, the lack of reference to the interviews of all the candidates other than the Grievant and a proper record of the members present.
4.2.2 The minute regarding the repeat of the voting as a result of spoilt ballots appears to have been contradicted by the evidence of the principal to the effect that voting only took place twice, once for each post.
4.2.3 It is therefore determined that the minutes did not accurately reflect what took place during the interviews and that the minutes do not meet the requirements of paragraph 5 of Resolution 13 of 1995.
4.3 ADEQUATE NOTICE
4.3.1 The evidence in this regard is that of a single witness which evidence was not contradicted by any other witness.
4.3.2 The evidence of the principal was that notice was sent prior to the meeting in question. The minutes make reference to the fact that the union representative acknowledged receipt of a fax on the day of the meeting. No evidence was led by the Department as to the reason for the fax only being received on the day and the principal’s contention that this was the union’s fault was not challenged.
4.3.3 In the absence of any evidence to the contrary, it must be accepted that notice was duly given as stated by the principal.
4.3.4 The presence of all the other union representatives who did not raise an objection to the fact that they had not received proper notice, would indicate that notice of the meeting had reached them in good time.
4.3.5 It is determined that on the balance of probability, notice was sent timeously although it may not have been received by the representative before the day in question. There is no evidence to support a finding that the delay was as a result of an act or omission on the part of the principal or school committee and without any evidence to the contrary the principal’s contention that it was a fault of the union must be accepted.
4.3.6 It is therefore found that adequate notice was given in terms of paragraph 4.2 of Resolution 13 of 1995.
5 . LEGITIMACY OF THE NON-RATIFICATION OF NOMINATION
5.1 The union contended that the Department could not lawfully reject the school committee’s nomination unless one of the three criteria prescribed by Section 4(3) of Schedule 2 of the South African Schools Act, No. 84 of 1996, had been met.
5.2 The Department stated that it was acting within the bounds of the law.
5.3 The determination as to whether or not the Department could lawfully refuse to accept the nomination of the school committee requires a review of the legislation applicable at the time.
5.4 The union argued that Schedule 2 of the South African Schools Act No. 84 of 1996 which amended sections 3 and 4 of Educators Employment Act of 1996 was relevant to the present case and that subsection 4(3) was particularly relevant. The subsection reads as follows:
“The authority to fill a post referred to in section 3(1) and 3(3) at a public school in terms of subsection (2) is exercised on the recommendation of a public school as represented by its governing body and the employer may only deviate from such recommendation if:
(a) the candidate does not have the required qualifications;
(b) the candidate has been found guilty of misconduct; or
(c) sufficient proof exists that the recommendation made by the school was based on improper influence.”
5.5 The union argued that the only grounds on which the Department would have been justified in refusing to accept the nomination of the school committee was if “improper influence” could be proved. This had not been done, therefore, in the opinion of the union, the refusal of the Department to accept the nomination was unlawful and an unfair labour practice.
Subsection 4(2) of Schedule 2 of the Schools Act, however reads as follows:
“Subject to the provisions of the Constitution, the Labour Relations Act, 1995 (Act No 66 of 1995), and agreements reached in terms thereof (my emphasis) posts shall be filled by appointment, transfer or promotion and the power to fill a post created under section 3 shall, subject to the provisions of the Act, vest in the employer, who shall exercise such power with regard to posts referred to in section 3(!) And 3(3) subject to the prior approval of the Member of the Executive Council of the Minister as the case may be.
5.6 Agreements reached in terms of the Labour Relations Act No 66 of 1995 would include Resolutions passed by the Education Labour Relations Council such as Resolution 13 of 1995 which has bearing on this case. Paragraph 4.5 thereof reads as follows:
“The employing department must then satisfy itself that procedures as agreed upon were followed and that the are no disputes from any of the parties involved before making the final decision.”
5.7 This Resolution amplified subsection 4(3) by virtue of the fact that the Department is empowered to reject a recommendation of a school committee or governing body in the event of there having been procedural defects in the nomination process. The procedural requirements are also set out in Resolution 13 of 1995 which provides inter alia that:
“4.3 The interviews must be conducted accordingly (sic) to guidelines agreed upon between the employing Department and the relevant employee organisations who are members of the ELRC.”
“5. The employer must ensure that accurate records are kept of proceedings dealing with the interviewing of candidates shortlisted as well as decisions relating to the nomination of the suitable candidate.”
5.8 The Department’s witness Mr E Southgate testified that having received disputes relating to the interviewing process in the present case, and having instituted an investigation, the Department found that certain procedural defects existed, namely:
5.8.1 Notification to the union was not sufficient;
5.8.2 The criteria for the different posts were not appropriate;
5.8.3 The interviews were conducted in Afrikaans only;
5.8.4 The principal had admitted to voting when he did not have a right to do so.
5.9 In addition to this, the Department had found that the principal exerted improper influence on the process. Not all of these grounds formed the subject of this arbitration by agreement between the parties and are therefore not dealt with here.
5.10 On the abovementioned grounds the Department considered the nomination of the Grievant by the school committee as invalid and therefore refused to accept the nomination of the Grievant. If directed the school committee to readvertise the post and redo the selection process.
5.11 At the arbitration two of three procedural defects, which had been put into issue, were proved namely that the minutes were not an accurate record of the proceedings as required by paragraph 5 of Resolution 13 of 1995, and that the principal did not have the right to vote.
5.12 It is my view that the provisions of subsection 4(2) of Schedule 2 of the South African Schools Act, No. 84 of 1996, read with Resolution 13 of 1995 regulate the selection process. In terms of this Resolution the Department was empowered to review the selection process and satisfy itself that there were no procedural defects.
5.13 It is therefore determined that the Department was justified in applying the provisions of the Resolution and was justified in not “making the final decision” to employ the Grievant on the grounds that certain procedural defects existed two of which have been proved during the arbitration.
5.14 The Department did not “deviate from” the recommendation as envisaged by subsection 4(3) of Schedule 2 of the Act in that it did not appoint another person, The Department simply recognised that the procedural requirements of Resolution 13 of 1995 had not been met and that the recommendation made in terms of that process was not valid.
5.15 It is true that the right to make a recommendation vests with the school committee, but the right to scrutinize the process and refer the decision back to the school committee in the event of procedural defects, vests with the Department. The right is embodied in the Resolution which is recognised by subsection 4(2) of Schedule 2 of the Act.
5.16 It is therefore determined that the Department acted fully within its rights and was justified in referring the nomination back to the school committee and directing them to redo the selection process.
6 . AWARD
6.1 The determination that the Department was justified in its actions at the time renders the determination of paragraph (c) of the terms of reference irrelevant as the Grievant would not be entitled to any remedy whatsoever.
6.2 The fact that the post in question was determined as having been in excess in terms of Resolution 6 of 1998 in the intervening period makes an award with respect to the filling of the post in question superfluous.
6.3 The question remains however, whether the termination of this post was possible at the time and whether the requirements laid down the Resolution were met.
6.4 This was not as issue which was covered in the terms of reference of this dispute and would have to be the subject of a further arbitration. In the event of it being found that the post in question should not have been declared in excess, then the post should remain vacant and be filled in the normal course and according to the current regulations. The Grievant would obviously be entitled to apply for the post.
24 October 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES WC
APPLICANT MS EUNICE SERENE MANASSE
RESPONDENT WESTERN CAPE EDUCATION DEPARTMENT
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR DENISE RUDOLPH
DATE OF ARBITRATION 13 OCTOBER 1999
VENUE CAPE TOWN
APPLICANT MR KOOS KRUGER
RESPONDENT MR S FAKIR & MR K PETERSEN
The determination that the Department was justified in its actions at the time renders the determination of paragraph (c) of the terms of reference irrelevant as the Grievant would not be entitled to any remedy whatsoever. The fact that the post in question was determined as having been in excess in terms of Resolution 6 of 1998 in the intervening period makes an award with respect to the filling of the post in question superfluous. The question remains however, whether the termination of this post was possible at the time and whether the requirements laid down the Resolution were met. This was not as issue which was covered in the terms of reference of this dispute and would have to be the subject of a further arbitration. In the event of it being found that the post in question should not have been declared in excess, then the post should remain vacant and be filled in the normal course and according to the current regulations. The Grievant would obviously be entitled to apply for the post.
DATE OF AWARD 24 OCTOBER 1999