Award  Date:
9 December 1999
Case Number: PSES GAAR 004030 FS
Province: Eastern Cape
Applicant: SADTU
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 9 December 1999
Arbitrator: M JAJBHAY


In the arbitration between:






.1 This arbitration award is between the Department of Education - Free State, SADTU - Free State and Education labour Relations Council


.1 The Human Resources Circular No 2 of 1997 (“the circular”) sets out the guidelines for the filling of posts of CS Educators in a permanent capacity. The procedure for the filling of posts of CS Educators in a permanent capacity was approved in the Free Sate Education Labour Relations Chamber. This document also determines the general criteria/guidelines on short-listing of CS Educators as approved in the Free Sate Education Labour Relations Chamber

.2 Item 1.1 of the circular deals with the recruitment and selection of post level one posts. Paragraph A sets out the following:

2.2.1 “Candidates will submit their applications direct to principals of the school where the vacancies exist. After receiving all applications district officers/principals should acknowledge receipt of applications and the principals will facilitate the sifting process”.

.3 This document also deals with the sifting process, and determines the Sifting Committee, consisting of the principal of the school, representatives from the Management Council, and one representative from each recognised Teachers Employee Organisation in the ELRC.

.4 Thereafter, the circular determines the Short-listing Committee as well as the Interviewing Committee. The circular then goes on to set out the procedure to be adopted once a choice has been made. The particular item culminates in the appointment of a successful candidate whose appointment has been approved in writing by the department.

.5 The case set out on behalf of the aggrieved members of SADTU, was that the procedures set out in the circular were not strictly followed. The circular also makes reference to principal (all post levels) and other promotion posts. Item 1.2 of the circular set out the composition of a Sifting Committee as well as a Short-listing Committee consisting of certain defined persons.

.6 The aggrieved members did not personally testify. They relied on the evidence of three school governing board (SGB) members. The fundamental concern of the SGB members was that they were not informed about the vacant positions, regarding the deputy principal and two heads of departments. According to these individuals, they should have been informed by either the principal or alternatively the chairperson of the SGB with special mention to the vacant posts.

.7 Mr Lephuthing, the deputy chairperson of the SGB testified that she heard that the interview’s were completed, and she was not afforded an opportunity to participate in the interview or the procedures preceding the interviews.

.8 She was aware that SADTU had lodged a dispute on behalf of the aggrieved members. However, she stated that she was well informed of the interviews that had preceded these particular interviews. She further stated that she together with Mr Matlanyana, was elected to represent the parent component at the interviews.

.9 She was very concerned with the manner adopted by the chairperson and the principal at the Tlostlisong School with regard to the procedures of the filling of the posts referred to. The SGB was definitely not working as a coherent unit, and this was impacting on the performance and attendance of fellow SGB members. There were no formal workshops on the understanding and implementation of the circular. The attendance of the SGB members to meeting was irregular, many meetings were called off because the necessary quorum or attendance could not be secured. It was testified that the principal and the chairperson were not variances with some of the SGB members. The SGB was definitely divided.

.10 On once occasion, the chairperson agreed on the date and the venue of a meeting, with parents. However, on the day, she failed to attend. According to this witness, the principal would on occasions get angry, take his books and leave”.

.11 This witness could not recall discussing the vacant positions referred to any meeting in 1998. If the SGB had resolved on a particular decision, those absent members invariably accepted such a decision without any protest.

.12 The minutes of the meeting were kept but were not circulated.

.13 Thereafter, Mr D Khauoe testified. According to him, he attended all meetings religiously. He was not informed of the vacant posts nor did he have any knowledge of these. He did not know about the existence of the circular, but he understood the procedure with regard to the filling of posts. Under cross-examination, he sated that he was present when the parents had decided on the persons who were to attend the interviews. This was in direct contradiction to his earlier testimony. His name was nominated but owing to the work constraints, he was unable to attend the interviews.

.14 This witness emphatically stated under cross-examination that “We knew of and we planned who must attend the interviews”. He was very unhappy with the arbitrary manner in which the principal and chairperson dealt with fellow SGB members. There was no due consultative process with regard to many important members.

.15 I enquired from a certain Mokhoto, who was at all material times and in particular during 1998, the secretary to the SGB as to whatever Mr Khauoe had attended all meeting. Upon a proper construction of the attendance register, it transpired that he was not present at all meetings as was testified.

.16 Finally, Mr Mohlaping testified. She was not informed about the interviews. She admitted that she did not attend all the meetings of the SGB. That concluded the case on behalf of the aggrieved employees.

.17 Mr S Matlanyana and Mr Z Molosi, testified on behalf of the employer. Mr Matlanyana was a member of the SGB. He stated that he attended meetings regularly, however. When he did not attend meetings, he accepted the decisions adopted, as this was the norm. He participated in the sifting process as well as the interviews and according to him, there was absolutely nothing irregular with regard to the filling of posts that have been referred to hereinbefore. The vacancies were discussed at one meeting. The context in which ths was discussed was that the burden of managing the school and its administration was extremely onerous on the principal. The principal required assistance as a matter of urgency.

.18 SADTU was present at all times during the sifting and interview processes, and they did not register an objection at any of these phases. In fact there were “very happy” with the proceedings. This witness recalled that there was an investigation after the interviews under the auspices of the Department of Education: Free State with particular regard to the dispute lodged by the aggrieved employees.

.19 Mr Molosi testified that eh was not familiar with the circular, but he did not find the procedure adopted as being irregular. He attended the interviews for the two HOD positions.

.20 In addition to the aforesaid evidence, certain relevant documents were submitted during the course of the evidence. These documents included extracts from the minute book. At this point in time, I must state that these minutes were unhelpful in that they were very superficial notes taken, and also there were minutes in the Sesotho language, which I did not have the benefit of interpretation.

.21 On, 21 July 1998, the individual members of SADTU refereed a dispute to the Department of Education in Bloemfontein. In essence, the dispute can be explained as follows. I quote from the letter dated, 21 July 1998:

2.21.1 “SHORT-LISTING The panel parent component was first and foremost not mandated by the school governing body. One candidate as not short-listed but was
called for an interview on the same date when the interviews were held.

2.21.2 INTERVIEWS The candidates were not made aware or informed in time or not informed at all, some were informed by improper structures to attend the interview. Refer to point (sic)

22 This particular letter goes on to sate:

2.22.1 “We express unreservedly the lack of confidence to the panel more so that there are no-good relationship between the candidates and some members in the panel. We therefore feel that they could not judge us fairly and impartially. We request the Department of Education and Culture and specifically the human resource to reject completely the results and recommendations mad by the panel. (sic).”

23 On the 12th of November 1989, one of the grievant members of SADTU had communicated a letter to the Deputy Director Human Resources Department of Education Bloemfontein in terms whereof:

2.23.1 “in the meeting of the Governing Body, the deputy chairperson and all other members claimed not to known anything about the interview held at school. They were very surprised to be told about the lodged dispute without having been told about the beginning of the process. They even questioned the chairperson and one other member who conducted the interviews as to who gave them the mandate to do so.

24 This letter then restates the concerns in the form of a dispute that I have referred to in the letter dated, 21 July.

25 In terms of a letter dated, 10 December 1998, the Free State Provincial Government Department of Education communicated to the site stewart of SADTU at the school. It is stated in this letter that inter alia the concerns “has been noted and appreciated. The Department will make it a point in future, such errors do not occur”. This letter further states that:

2.25.1 “The process of short-listing and interviews cannot be revised.

2.25.2 There are no valid reasons for the re-advertisement of posts.

2.25.3 Therefore, the recommendations of the interviewing panel be accepted and this matter be regarded as closed.

26 In this matter clearly, there are mutually destructive versions that were tendered on behalf of each of the parties. The estimate of the credibility of a witness is inextricably bound up with a consideration of the probabilities of the case, and if the balance of probabilities favours the one party, then the arbitrator must accept its version as being probably true. In the present matter, I am not convinced that the evidence that was tendered on behalf of the aggrieved employees was done in a forthright or credible version. In my view, the evidence was punctuated by contradictions and a manipulation to meet the exigency of the situation. This goes to show how divided the SGB presently is. I am not able to say with total conviction that Mrs Lephuthing could not have been aware of the discussion of the vacant post at any particular point in time. In fact the contrary is true.

27 This may not have been discussed in an informal fashion, however in my view, the SGB members were given notice in some form, perhaps, during a discussion, with regard to the vacant posts and the potential of the sifting and interviewing that was in attendance. According to Mr Khauoe, he was nominated to attend the interviews. Surely a person in his position would not have blindly accepted the nomination, unless he knew want the interviews were about. He also contradicted himself in other fashions. I do not think that it is necessary in the light of the present circumstances to highlight each of these incidents.

28 On the other hand, Mr Matlanyana had the sophistication and fluency of a good witness, and I have no reason to regard him as being deliberately untruthful. He attempted in a forthright and honest fashion to set out the circumstances in which the vacant positions were discussed. He was satisfied that the members of the SGB had knowledge of the vacant post to be filed. The witnesses on behalf of the aggrieved employees, had an imperfect recall of some details, and they otherwise testified in a manner that as contradictory in fashion. I find that this form of testimony is generally to be self-serving, implausible and untrustworthy.

29 In the present situation at the Tlostlisong School, we are dealing essentially with people, who because of their mutual involvement and concern for the common food of the school, have been placed in a specific relationship with one another. The relationship formed is a human one, and as such will contain elements common to all other relationships such as friendship, marriage, business, partnerships, social, religious and political liaisons. What make this particular relationship works should also promote a sound industrial and labour relationship at the school. Consequently, it could be postulated that, like all other relationships, the relationship at the SGB as well as the relationships between the educators and the principal will be nurtured by mutuality of interest, reciprocity of support, understanding, trust, facilitative communication, shared goals and shared values, and that it will falter should one or more of these qualitites be absent. Also, as in the case of all other relationships, the relationship at the school is a dynamic and ever changing one, such change being dependent on the involving status, needs, attitude and perceptions of the parties concerned.

30 Th SGB, as an integral part of the administration of the school has been placed in an invidiously important position. If there is no coherent and concerted interest of learners at her, and where personal agendas are allowed to override the more important concepts, then the consequences that are presently prevalent at this particular school dominate the discussion and the arena. The main attention of the focus is lost sight of. With this is mind it is imperative, in my view, that the SGB members, as well as the educators together with the principal, ensure that at all times the human relationships at the workplace improve and that all of them remain committed to the best interests of the learners and are able to identify with its progress.

31 All societies, communities, organisations and interpersonal relationships, experience conflict at one time or another in the process of day to day interaction. The position at the Tlostlisong School is no exception. Conflict is not necessarily bad, abnormal of dysfunctional, it is a fact of life. Conflict and disputes exist when people are engaged in competition to meet a goal that is perceived to be, or actually are, incompatible. However, conflict may go beyond competitive behaviour and acquire the additional purposes of inflicting physical or psychological damage on an appointment even to the point of destruction. Is then harmful and negative dynamics of conflicts exact there full costs. On the evidence presented, I am afraid, that if some drastic measures are not taken, in order to improve the relationship at this particular school, at the levels that I have referred to, then the harmful and negative dynamics will begin to impact on the learners and thereafter the consequences will simply be too devastating even to contemplate.

32 The SGB is undoubtedly an extreme dived entity at this particular school. This was articulated in no uncertain terms by the members of the SGB who had tendered evidence. The complaints lodged by the grievants can only be measure in terms of the evidence that has been tendered. I am not satisfied that in the light of the present circumstances that there is much merit in the complaints of the grievants. Neither the short-listing process, nor the interview process was flawed. In my view, the SGB was aware of the vacancies that were in existence, as ell as the procedure that was to have been followed in the filling of such positions. Secondly, with regard to the interviewing of candidates, I have no doubt that this was also done in a conscientious and fair fashion. In fact, the employer is these circumstances had bent backward in order to accommodate one of the grievants for the interviewing process.

33 It is important to bear in ind, that all material time, SADTU was represented at the different process, and there was no concern raided with regard to the procedures adopted. This fact in itself is sufficient testimony of the articulation of a fair and bona fide process. In competing for a particular post, there will always be a loser, who will be dissatisfied. This is an understandable human trait. However, this in itself does not mean that the appointment of the successful candidate was flawed in one fashion or another. In this particular case, this has not been shown in any fashion whatsoever. A wind of change is blowing through the education sector, however, it is surprising that the parent component as well as the educators at this particular school, who should really be harnessing its power failed to understand what is really happening. The change should be in understanding and squaring up to the challenge of an increasingly competitive world. It is a change that has to do entirely with people, and in particular with the way that those in charge work with those that they need to lead. Flexibility, speed and a proper understanding of human nature are the characteristics of today’s winners in the education sector.

34 That, in turn, means that in order to get the best out of the learners, the SGB and the educators will have to set impeccable examples. In short, it is a matter of who cares that will win. The evidence that was presented to me, has indicated that mush has to be done at this particular school in order to foster the relationships at the SGB as well as that between the principal and the educators. I hope that the Department of Educations takes serious cognisance of these sentiments.

3 . AWARD:

1 In all of the above circumstances, I find that the appointment of the deputy principal and the two heads of department was regular, and the application by the grievant is accordingly dismissed.


DATED: 09 December 1999







1 In all of the above circumstances, I find that the appointment of the deputy principal and the two heads of department was regular, and the application by the grievant is accordingly dismissed.

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