Case Number: PSES GAAR003980 NP
Applicant: MR N C MABOTJA
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 22 November 1999
Arbitrator: ADVOCATE G BARLOW
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 003980 NP
In the arbitration between:
NC MABOTJA APPLICANT
THE DEPARTMENT OF EDUCATION NORTHERN PROVINCE RESPONDENT
1 . This is an arbitration that takes place pursuant to the agreed dispute resolution procedure agreed between the Department of Education and various unions.
2 . It is common cause that a conciliation took place and that the parties were unable to resolve the matter at the conciliation.
3 . The issue in this arbitration relates to the allocation of a teaching post at the finishing centres in the are of Konekwena during April 1998.
4 . It is common cause that in 1996 the Northern Province Department of Education established finishing centres as an attempt to alleviate the high failure rate of the Grade 12 students. The Department discontinued with the finishing centre classes on 31 December 1998 and there are accordingly no longer any existing finishing centres.
5 . It is further common cause that teaching posts were created for the centres and persons appointed to those posts were appointed on a contract basis. The contracts in each instance were for a period of one year and expired therefore at the end of each year. The district/area office would in each year advertise posts for all finishing centres in the district. This was normally done at the beginning of the year and the contract in each instance would commence on or about February/March or even April.
6 . It is common cause that in the Konekwena district/area posts for three finishing centres were advertised in 1998 as follows:
6.1 Ga-Phago Finishing Centre: 7 posts;
6.2 Lonsdale Finishing Centre: 7 posts; and
6.3 Setumong Finishing Centre: 7 posts.
7 . It is common cause that Mr Mabotja (the Grievant) was one of the candidates who applied for the advertised finishing centre posts and was called for an interview in April 1998 together with other candidates who had applied for the advertised finishing centre posts. On the day of the interview, being 9 April 1998, subjects were grouped together in terms of the needs of the institutions. The interviewing panel was divided in terms of areas of speciality and the relevant area of speciality in this instance is that of English and History. Two educators who specialise in English and History interviewed all candidates who had applied for English and History posts at the finishing centres. The two persons who interviewed Mr Mabotja were Mr Joseph and Mr Manamele.
8 . Mr. Mabotja gave evidence and the crux of his evidence may be described as follows:
8.1 He alleges that the candidates were not short-listed.
8.2 Although two people were deputised to conduct the interviews for the History/English stream in the period 2 o’clock to 4.30 p.m., the interviews were conducted by one person only.
8.3 He protested to Mr Rasetsoke before he was interviewed about the manner in which the interviews were conducted. He alleges that Mr Rasetsoke told him that he already knew who he was going to appoint.
8.4 They were told that the results would be available on 14 April on the window of Konekwena School. He attended there on 14 April but the results were not there and Mr Rasetsoke was nowhere to be found. The results were also not available the next day.
8.5 He subsequently became aware that certain people had been appointed to the vacant positions at the finishing schools.
8.6 He alleges that he was prejudiced in that an alleged lightning strike incident was taken into account whereas same is not true and also because of an allegation that he had set a paper in 1996 which was outside the standard and syllabus. He alleges that a report which was subsequently complied essentially stated that he had failed in the interview for the post because of these aspects.
8.7 He admitted that he was on a contract which had expired on 31 December 1997. During 1998 he was not employed. He made various allegations of a cover-up by the Department.
8.8 He alleges that insofar as he had been seen as competent to hold a post in 1996 an 1997, he could see no reason why he could not be appointed to the post in 1998. By contrast he alleges that the persons appointed were in fact in many instances fresh from college.
9 . During cross-examination, it was put to the Grievant that he knew the result because in a letter dated 18 February 1998, being a letter of grievance, he had alleged that the results were “cooked”. The Grievant’s response was that he agreed that the results were furnished to him at that stage. He agreed in cross-examination that there had been a large number of applicants for the position in 1998 but did not agree that he could have been short-listed out for the post.
10. Mr Mabotja did not require to call any witnesses.
11 . Mr Joseph gave evidence that he was a member of a panel who conducted interviews on 9 April 1998. He conducted the interview with Mr Manamele, Mr Joseph asking questions for English and allocating marks for each candidate. He did not recall Mr Mabotja. He stated that no-one objected to the process and that there was a SADTU observer at the time of the interview. SADTU had required of them to minimise their questions in view of the large number of candidates. Mr Manamela also allocated marks and ranked candidates according to merits. Mr Mabotja had no cross-examination for Mr Joseph. In response the questions by myself, Mr Joseph did admit that he left a period of time on the day for approximately one hour. He conceded that certain of the candidates must have been interviewed for history in his absence.
12 . Mr Manamele testified that he was a member of the interviewing panel and that he conducted the interview of candidates for history. To his recall no candidate objected and there was no stage at which he interviewed candidates alone. He only interviewed candidates for history. Under cross-examination by Mr Mabotja, he stated that he could not recall that between the hours of 2 and 4.30 p.m. he had conducted interviews alone as Mr Joseph had left. He also testified that there was an observer, Mr Herbert Mpasha of SADTU and that there were no objections from the observer. The function of the observers had been to see that the interviewing process was conducted properly. He also denied that he had ever asked Mr Mabotja any questions about his clothing. He denied that he asked any questions “formality” as he stated this would be irrelevant.
13 . Mr Rasetsoke testified that he was the area manager of Konekwena in 1998 which incorporated the three finishing centres. Candidates who applied for the posts at the finishing centres were interviewed. Candidates were required to identify the posts for which they believed they could apply, to indicate their choices and to place them in the box of their choice. Panels of interviewers were chosen according to grouped subjects in which they had expertise. The criteria used was that the Department was looking for the three best candidates for each of the three finishing centres. He stated that no candidate complained about he procedure at the interview and denied that he had already chosen people that he wished to appoint. He alleged that candidates were subsequently informed of the results of the interviews. More particularly, those who had been successful were contacted immediately. The interviewing panellists’ results were furnished to his office and he denied that he had made any changes to the results. The recommended candidates were appointed.
14 . ANALYSIS OF EVIDENCE AND ARGUMENT
14.1 It is important to record that certain unchallenged documentation was handed in during the evidence as follows:
14.1.1 An advertisement of the teaching post at the finishing centres dated 28 March 1998;
14.1.2 A letter dated 8 September 1999 detailing the scores attained by each candidate during the interviews. It is apparent from this document that Mr Mabotja scored 44 points and accordingly ranked 7 amongst the top 15 of the 30 candidates who were scored.
15 . As is apparent from the evidence that was adduced, at the end of 1997 Mr Mabotja’s contract of employment came to and end. Accordingly, with effect from 1 January 1998, there was no employer/employee relationship between the Department of Education and Mr Mabotja. This does not of course suggest that the interviews could be conducted on a basis that was not fair. If regard is had to the Employment of Educators Act No. 76 of 1998, an “educator” is defined as meaning “any person who teaches, educates or trains other persons ... at any public school, further education and training institution, departmental office or adult basic education centre and who is appointed in a post on any educator establishment under this Act”. The definition of “employee” in Chapter 9 of the Education Labour Relations Council Constitution means an educator as defined in the Educators Employment Act.
16 . I am of the view that Mr Mabotja does not qualify to make use of the dispute resolution procedure as contained in the ELRC Resolution No. 7 of 1997 in that he was not, at the time of the dispute, an employee and in an employment relationship with the Department of Education. On this ground alone, I believe that the grievance of Mr Mabotja should not be upheld.
17 . In the event that I am in that regard, I am in any event of the view that the evidence adduced by the Department of Education demonstrates that the posts were advertised and the interviews conducted in a fair manner. Mr Mabotja was unable to identify any real areas of bias or prejudice to himself during those interviews. Mr Mabotja’s primary argument is that having been employed on a contract in 1996 and 1997, he would therefore automatically be a candidate of preference for 1998. In my view this reasoning is unsound in that, as is clear from the evidence, at the beginning of each year posts were advertised and any number of candidates could apply. It is therefore not inconceivable that in the year under consideration, being 1998, there were more suitable candidates than Mr Mabotja for the post. It is common cause that there were a large number of applicants for the posts. I am also of the view that even if Mr Mabotja was no advised at the outcome of his application for the post, this would not render the process unfair.
18 . In the circumstances I make the following award. The dispute lodged by Mr Mabotja is without foundation. The process of advertising and the allocation of posts in the various finishing schools situated in the Konekwena district/area was fair in all material respects.
DATED at JOHANNESBURG on this the 22nd day of NOVEMBER 1999
ADVOCATE G BARLOW
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR003980 NP
APPLICANT MR N C MABOTJA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPLICATION (FOR POST)
ARBITRATOR ADVOCATE G BARLOW
DATE OF ARBITRATION 12 NOVEMBER 1999
APPLICANT IN PERSON
RESPONDENT MR MANAGE & MR MODIPA
1 In the circumstances I make the following award. The dispute lodged by Mr Mabotja is without foundation. The process of advertising and the allocation of posts in the various finishing schools situated in the Konekwena district/area was fair in all material respects.
DATE OF AWARD 22 NOVEMBER 1999