Case Number: PSES GAAR004018 NP
Applicant: SOUTH AFRICAN DEMOCRATIC TEACHERS UNION
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 12 December 1999
Arbitrator: K. DRISCOLL
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR004018 NP
In the arbitration between:
NORTHERN PROVINCE DEPARTMENT OF EDUCATION RESPONDENT
1 . TERMS OF REFERENCE
.1 In a pre-arbitration meeting held on 25 November 1999, the Northern Province Department of Education (hereafter “the Department”) and SADTU (hereafter “the Union”) agreed to the following terms of reference :
“The arbitrator is requested to determine whether the procedure used in the filling of the Principalship of Mmata _ Ledwaba Secondary School has been fair and further that the Area Manager had influenced the process or not.”
.2 The following were common cause :
.1 Mr Hanyane applied for the Principalship post at Mmata - Ledwaba School as advertised in the Government Gazette No: 302 of 1997 and was subsequently called for the interview on 7 August 1998.
.2 Three candidates were interviewed and the results of the interviewing panel ranked in terms of merit, were :  Mr T S Hanyane,  Mr J Molema,  Mrs R C Malebana.
.3 The parties agreed that the Union would begin.
.4 The arbitration was held on 26 November 1999 at the Department of Education’s offices in Pietersburg. The Department was represented by Mr Managa and Ms Modipa and the Union by Mr Molope. I wish to thank the representatives for their assistance in this matter.
2 . THE UNION’S CASE
.1 MR R GALANE
.1 Mr Galane testified that he had chaired the interview panel, which had conducted the interviews for the post of the Principal at Mmata _ Ledwaba School. He further testified that there had been two observers representing SADTU and PEU respectively, and that there had been three observers from the School Governing Body (SGB), one of whom was the Chairperson of the SGB.
.2 Mr Galane indicated that the interview panel was guided, in terms of procedure, by Resolution 2 of 1997. Mr Galane stated that the panel had been constituted in terms of clause 4.1.2 of the Resolution.
.3 Mr Galane testified that on the day of the interviews, the panel had interviewed three candidates, Mr Molema first, Mrs Malebana second and Mr Hanyane last. Mr Galane testified that the panel had compiled a set of questions before the interviews and that each candidate had been asked these questions. This was done in terms of the requirements as set out in clause 4.2.7 of the Resolution.
.4 Mr Galane testified that immediately after the last interview was completed the panel had begun to rank the candidates according to their scores. The highest rank went to Mr Hanyane, the second place to Mr Molema and the third place to Mrs Malebana. Mr Galane further testified that after the panel had completed its ranking, they had given their motivations and had then given the SGB the opportunity to make their recommendation. Mr Galane testified that the SGB members, with the exception of one, had agreed with the ranking as proposed by the interview panel, that is, that Mr Hanyane should be recommended for the post. Mr Galane testified that initially one of the members of the SGB had been against the recommendation, but that after some discussion, that had agreed that the person who had the highest ranking should be recommended for the post.
.5 Mr Galane testified that he had been in the room while the SGB members had held their discussions, and that he had heard what was discussed. Mr Galane testified that no one had forced the SGB to make the recommendation. The SGB had then instructed him to recommend Mr Hanyane for the position of Principal, and he had written the recommendation for them. After Mr Galane wrote the recommendation, the chairperson of the SGB had signed the C.A.R 13 form (see page 89 of Union bundle) and Mr Galane had put all the documents into an envelope and had given it to the co-ordinator for safekeeping. Mr Galane testified that he had written the recommendation of the SGB on the C.A.R 13 form (see page 90 of the Union bundle).
.6 Mr Galane testified that the following day the co_ordinator had arrived at the school where he teaches, and had informed him that the Area office had requested that he write a report on what had occurred during the interviews. Mr Galane had told the co-ordinator that he could not write the report, as he would have to first consult with the other panel members. Mr Galane further testified that the co_ordinator had insisted that he write the report as the chairperson of the SGB had already submitted his report. Mr Galane had then told the co_ordinator to inform the Area office that he refused to write the report.
.7 Under cross-examination, Mr Galane admitted that he was not a member of the SGB and that he was not invited to attend meetings of the SGB. Mr Galane denied that the discussions, which had followed the ranking by the interview panel, did not constitute a meeting of the SGB. Mr Galane indicated that the reason he had written the recommendation for the SGB was that they (the SGB members) had told him that their writing was illegible. When shown the written recommendation os the SGB (see annexure B Department bundle), Mr Galane agreed that it was readable.
.8 Mr Galane denied that as a Union member he had wanted a SADTU member as principal and that he had therefore deliberately pushed the members of the SGB into making a decision directly after the interviews.
.9 Mr Galane agreed that the ranking process (see clause 4.4 of Resolution 2) and the recommendation process (see clause 4.5 of Resolution 2) were separate processes, and that the mandate of the interview panel ended at clause 4.4.
.10 Under my questioning, Mr Galane testified that as far as he knew there was no restriction as to the number of SGB members who should observe the interview process. The only requirement was that the interview panel should consist of no less than five members.
.2 MR R PHOOKO
.1 Mr Phooko testified that he had been present at the interviews for the Principalship post at Mmata Ledwaba Secondary School, as the representative for the Professional Educators Union (PEU). Mr Phooko indicated that the purpose of him observing the interview process was to ensure that it was fair. Mr Phooko testified that on the day in question, there had been three members of the SGB present.
.2 Mr Phooko testified that after the interviews had been completed the panel had added their scores and had ranked the candidates according to these scores. The panel had then given a motivation and for the allocated scores, and had then handed the documents to the SGB. The SGB members had then discussed the ranking and had then indicated to the chairperson of the panel that they agreed with the recommendation of the panel. Mr Phooko testified that the members of the SGB had requested the chairperson of the panel to write the recommendation for them. Mr Phooko further testified that the document had then been signed and handed to the co-ordinated. Mr Phooko indicated that the chairperson of the SGB had signed on the C.A.R 13 form, but that he had not signed where the motivation, as written by the chairperson of the panel, had been written.
.3 Under cross-examination, Mr Phooko agreed that the ranking process (see clause 4.4 of Resolution 2) and the recommendation process (see clause 4.5 of Resolution 2) were separate processes. Mr Phooko further agreed that observers should not sit in on the recommendation process, as they were not members of the SGB.
.4 Under my questioning, Mr Phooko indicated that he had previously sat on an interview panel, but he did not know if a quorum was required for an SGB to make a recommendation. Mr Phooko testified that as far as he knew, it was only required that the SGB be represented.
.3 MR L M LANGA
.1 Mr Langa testified that he had been present at the interviews for the Principalship post at Mmata Ledwaba Secondary School as a representative of the South African Democratic Teachers Union (SADTU). Mr Langa testified that on the day in question, three members of the school’s SGB had been present during the interview process.
.2 Mr Langa testified that after the interviews the panel had ranked the candidates and the chairperson of the panel had asked the SGB who they wanted to recommend. Mr Langa testified that the members of the SGB had sat and discussed the issue and had agreed that the person with the highest score should get the principal’s post. Mr Langa further testified that the members of the SGB had then requested the chairperson of the interview panel to write the recommendation for them. Mr Langa testified that the recommendation had been written on the document where the panel would normally write their motivation. The chairperson of the SGB had then signed the document.
.3 Under cross-examination Mr Langa indicated that he did not know why the SGB had requested the Chairperson of the panel to write the recommendation, only that they had asked him to complete the process. Mr Langa agreed that the ranking process (see clause 4.4 of Resolution 2) and the recommendation process (see clause 4.5 of Resolution 2) were separate processes.
.4 Under my questioning Mr Langa indicated that he knew of no regulation that stipulates the number of SGB members that should be present at the interviews.
3 . THE DEPARTMENT’S CASE
.1 MR M F TLADI - District Manager
.1 Mr Tladi testified that as District Manager it was one of his duties to recommend a candidate for a post to the Head of Department once he had received all the necessary documentation from the school in question. In order to do this, he first looked at the advertisement and then checked if the candidates met the requirements for the post. He would then check that short-listing had been done, and then accepted whomever the SGB of the school recommended. Mr Tladi testified that he did not receive the submission himself, but that the Circuit Manager handed the documents to him.
.2 Mr Tladi testified that he did not specifically recall the recommendation made by Mmata Ledwaba School SGB, nor the Circuit Manager bringing any problems regarding the recommendation to his attention.
.3 Mr Tladi testified that the C.A.R 13 form was intended for the use of the interview panel only, and that the SGB was required to meet and make their recommendation separately. Mr Tladi stated that when he trained members of a SGB, it was made clear that a separate recommendation from the SGB was required in order for the appointment for the chosen candidate to be made.
.4 Under cross-examination Mr Tladi stated that the Department did not interfere or change the recommendation made by a SGB as it was their prerogative to put forward the candidate of their choice. Mr Tladi stated that he did not remember why the documents had been returned to the school.
.5 Under my questioning Mr Tladi indicated that a quorum of a SGB was required for the recommendation of a candidate for a post. Mr Tladi could not however, tell me what the quorum for Mmata Ledwaba was.
.2 MR S MASHAO - Circuit Manager
.1 Mr Mashao testified that the C.A.R 13 form was to be used by the interview panel when ranking the candidates they had interviewed and that the motivation was the motivation by the interview panel of their ranking. Mr Mashao further testified that after the ranking and motivation had been completed by the interview panel, that the SGB had to hold a meeting during which a letter on behalf of the SGB had to be written wherein they made their recommendation. This letter and the other forms were then submitted together.
.2 Mr Mashao testified that he remembered the submission from Mmata Ledwaba School and that he had noticed that the recommendation from the SGB had been missing. He had then requested the co-ordinator to inform the chairperson that a recommendation from the SGB was required.
.3 Under cross-examination Mr Mashao admitted that the members of the various SGB’s were at different levels and that it was not uncommon for a SGB to submit the incorrect or incomplete documents. Should this occur, the documents were returned to the SGB in question so that they could rectify or complete the documents. Mr Mashao further admitted that it had happened that a SGB submitted their recommendation on the C.A.R 13 form. Mr Mashao admitted that clause 4.5 of Resolution 2 did not indicate where the SGB should write its recommendation.
.3 MS D G MABOKELA - Co-ordinator
.1 Ms Mabokela testified that on the day in question she had been appointed as co-ordinator of the interview process, but that she had not remained in the room during the actual interviews. Ms Mabokela further testified that after the interviews had been completed and the panel had left that she was under the impression that the SGB had met. The reason for this assumption was that while she was on her way to the Circuit office to submit the documents, she had received a call from the chairperson of the SGB who had informed her that he and other members of the SGB had decided to recommend Mrs Malebane for the post and that she should inform Mr Mashao of their choice.
.2 Ms Mabokela testified that she had handed the records of the interviews to Mr Mashao and had informed him of the SGB’s decision. Mr Mashao had then told her that the SGB was required to put the recommendation in writing. Ms Mabokela further testified that the SGB had written the recommendation the following day and that she had returned to the circuit office with the records and the letter from the SGB which, she had handed to Mr Mashao.
.3 Under cross-examination Ms Mabokela testified that she could not remember which SGB member had called her to inform her of the SGB’s recommendation of Mrs Malebane. Ms Mabokela stated that she had been present when the written recommendation had been made by the chairperson and the Secretary of the SGB and that the Secretary of the SGB had written it.
4 . THE UNION’S ARGUMENT
.1 The Union argued that the members of the SGB who had been present at the interviews had made their decision in the presence of the interview panel and that their recommendation was that Mr Hanyane should be appointed as Principal. Furthermore, the fact that the recommendation was made on the C.A.R 13 form did not negate this decision as nowhere did it state that the SGB’s recommendation could not be written on this form or that the SGB had to hold a separate meeting. The fact that this was not an uncommon situation was supported by the testimony of Mr Mashao.
.2 The Union argued further that all the witnesses testified that there was no coercion on the part of the interview panel and that the SGB willingly discussed their recommendation in front of the interview panel and voluntarily requested the chairperson of the interview panel to write their recommendation for them. The Union argued that the reasons put forward by the SGB for the appointment of Mrs Malebane (see annexure B of Department bundle) were not acceptable reasons from a SGB which had apparently been trained. The fact that the SGB had apparently changed its mind after their initial decision at the interviews indicated that there had been some form of interference by the Department. Furthermore, if a meeting of the SGB was required, the letter written by the SGB did not comply with this requirement, as there is no proof that a proper meeting was held.
5 . THE DEPARTMENT’S ARGUMENT
.1 The Department argued that only the SGB has the power to recommend a candidate for appointment in terms of the Schools Act. The Department argued further, that the witnesses testified that the C.A.R 13 form was to be used by the interview panel only. The fact that the SGB had signed the form did not prove that they had accepted the recommendations made by the panel. The union observers had also signed the form, but this had been done to show that they had found the interview process to be fair and consistent. The Department argued that the chairperson of the interview panel had no powers to request the SGB to make a recommendation, and he had therefore attempted to influence the outcome.
.2 The Department argued that the members of the SGB present on that day had been observers only, and that a recommendation required that the SGB committee hold a proper meeting. By apparently making a decision at the interviews, the members of the SGB had thus exceeded their mandate as observers.
.3 In terms of the allegation of undue influence, the Department argued that Mr Mashao had acted correctly in asking for a separate written recommendation from the SGB. The C.A.R 13 form was to be used by the interview panel only, and Mr Mashao could not forward the recommendation unless a letter from the SGB was included in the documents. By requesting this letter, Mr Mashao had not unduly influenced the process.
6 . ASSESSMENT OF EVIDENCE
.1 In terms of the arbitration agreement, I am required to decide whether the procedure used in the filling of the Principalship post was fair and whether the Area Manager influenced the process or not.
.2 I will deal with the question of whether the Area Manager influenced the process first.
.3 The Union’s allegation against the Area Manager is that he acted irregularly by instructing the co-ordinator that an additional written recommendation by the SGB be submitted with the interview panel’s recommendation. Furthermore, that by deliberately returning the original submission he had shown that he had an interest in the matter.
.4 The issue essentially revolves around the question of whether or not the SGB was required to submit a separate written recommendation. It is clear from the testimony given by the Union’s witnesses that it was understood that the recommendation which, the interview panel had made, was endorsed by the members of the SGB who had been present at the interviews. The Department did not challenge this and neither did the Department lead any evidence to prove the contrary. (Whether the members of the SGB had the mandate to make such a recommendation will be dealt with when I discuss the question of whether the procedure was fair.) It is also clear that the panel members and the SGB members had understood that their recommendation could be included in the C.A.R 13 form.
.5 Mr Mashao testified that it was not uncommon for a SGB to submit its recommendation on the C.A.R 13 form, but indicated that this usually occurred where the interview panel was made up of members of the relevant SGB. Although I agree that in terms of Resolution 2, there is no clear indication that the SGB should submit a separate written recommendation, it seems that the accepted practice is that a separate recommendation should be submitted by the SGB. Mr Mashao also stated that if a separate recommendation had not been submitted by a SGB, he would automatically return the documents and indicate to the SGB that a written recommendation from them was required in order for him to forward the documents to the Regional Office.
.6 Ms Mabokela testified that Mr Mashao had opened the envelope containing the records of the interviews in her presence and had told her that a separate recommendation was required from the SGB. Even though Ms Mabokela informed Mr Mashao that the SGB had apparently decided to recommend Mrs Malebana, Mr Mashao insisted that the SGB put its recommendation in writing. There was no evidence led that Mr Mashao had in any way interfered with the choice of candidate by the SGB by requesting that the recommendation be put in writing. In fact, Mr Mashao acted consistently with Department policy in this regard.
.7 I therefore find that there was no undue influence exercised by the Area Manager or the Department in requesting that the SGB put its recommendation in writing and the returning of the records until such recommendation was submitted.
.8 With regard to the second question of whether the procedure followed in the filling of the Principalship post was fair, it seems that there was no dispute regarding the procedure followed in the actual conducting of the interviews. The problem arises after the interviews were completed and the members of the SGB apparently made their recommendation.
.9 The testimony of Mr Galane, Mr Phooko and Mr Langa showed that a discussion by the SGB members present at the interviews, culminated in the recommendation of Mr Hanyane for the post. The Department did not effectively challenge the fact that this was the decision taken by these members. However, an apparently contradictory decision was then taken by the SGB to recommend Mrs Malebana while the co-ordinator was on her way to deliver the documents to the circuit office, and which was subsequently put in writing (see annexure B of Department bundle).
.10 The central question is whether the discussion taken at the interviews by the members of the SGB is a valid decision. Did the SGB members have a mandate to take the decision? And more importantly, did they constitute a quorum of the SGB? Neither of these questions was answered satisfactorily by any of the witnesses.
.11 Clause 4.5 of Resolution 2 requires the SGB, “after taking into account the ranking of candidates by the interviewing committee, make their recommendation with regard to the appointment of a possible candidate to the Department.” There is no mention of how many members of the SGB are required in order for their decision to be valid. It seems unfortunate that the Department has taken precautions to ensure that the recommendation of a SGB is submitted in writing so that there can be no dispute over the candidate appointed by the Department, but has failed to ensure that the initial decision by a SGB is taken properly. In this case, it seems that the chairperson of the SGB himself was involved in both the decisions, the first in which he agreed to the recommendation of Mr Hanyane and the second, where he agreed to the recommendation of Mrs Malebana.
.12 Which recommendation, if any, was valid? The Department has argued that clause 4.4 and clause 4.5 of Resolution 2 are separate processes, and that Mr Galane as chairperson of the panel did not have the authority to ask the members of the SGB to make their recommendation there and then. This may indeed be true, but there is nothing stopping the SGB, should they of course have proper mandate to do so, from making their recommendation at any time after the panel has ranked the candidates. The only requirement is that the SGB should make its recommendation within seven days after receiving the records of the interviews from the panel. Furthermore, the Department did not show that a proper meeting of the SGB was held after the records were given to the co-ordinator for delivery to the Circuit manager. Indeed, Ms Mabokela could not recall who had contacted her regarding the decision to recommend Mrs Malebana, only that it was a member of the of the SGB. Ms Mabokela also “assumed” that there had been a meeting of the SGB when she had received the call informing her that the SGB had decided to recommend Mrs Malebana. The written recommendation submitted by the SGB was signed by the chairperson of the SGB, but this was the very same person who had agreed to the recommendation of Mr Hanyane.
.13 It seems then, that the second recommendation, that of Mrs Malebana, complied with the requirement that it be a separate written recommendation. However, there is no evidence to show that this decision was taken at a meeting of the SGB or at least at a meeting of the quorum of the SGB.
.14 The Union argued that the members of the SGB present at the interviews had taken a decision and had requested Mr Galane to write the recommendation for them. The fact that Mr Galane, and it seems everybody else present, erroneously assumed that by writing the recommendation on the C.A.R 13 form, would constitute a valid recommendation, should not I believe, on its own negate the decision. However, and I return to my initial question, did the members of the SGB have a mandate to make such a decision? It is clear that the signatures on the C.A.R 13 form are intended to be proof that the observers of the interview process found the process to be fair, and not that they supported the ranking of the interview panel. However, and this was supported by Mr Mashao, it is also clear that, despite training, members of SGB’s do not necessarily have a good grasp of the procedures to be followed when making their recommendations. It is therefore understandable that an assumption such as the one made by Mr Galane and the members of the SGB that their recommendation could be included on the C.A.R 13 form, could occur. They might also therefore, have assumed that by signing the C.A.R 13 form, they were endorsing the recommendation made by the interview panel. Unfortunately none of the SGB members were called to testify at the arbitration. Furthermore, the original C.A.R 13 form was not submitted by the Department as evidence that a different decision was taken by the either the panel or the members of the SGB. It is required by the Constitution of South Africa that all relevant information should be disclosed in order to ensure a fair hearing. This is a fundamental right contained in Section 32(1)(b) of the Constitution in order to protect each individuals right to just administrative action. I am therefore obliged to accept the testimony of Mr Galane and the two union observers that a decision to recommend Mr Hanyane was taken by the SGB members and that they had requested Mr Galane to write the recommendation for them.
.15 Although the Union argued that the C.A.R 13 form does not contain any instruction that a separate recommendation from the SGB should be submitted with the documents, (see point 11 of C.A.R 13 form, page 89 of Union bundle), it is clear that the Department has established a practice whereby a Circuit or Area manager will not forward a recommendation to the Regional office without such a recommendation. I believe that this practice is necessary to ensure that the correct appointment is made and to safeguard both the Department and a SGB should a dispute arise. However, I am left with two “written” recommendations which contradict each other materially, and which were made by members of the SGB who may not have had the mandate to make either recommendation.
.16 It is on this point which I find that neither the Union nor the Department has proved that the members of the SGB had the mandate to make either of the recommendations. The position of Principal is an important one, and the decision of whom to appoint to such a position should not be taken lightly. Indeed, the concept of the SGB is such that parents should participate in the running of the school which their children attend, and should thus have a say in who the Principal is. It was important therefore, that the SGB either gave certain members the mandate to attend the interviews and make a recommendation or that a quorum of the members meet within a certain time period with the mandate to make a recommendation based on the ranking of the interview panel. It seems that neither of these options was exercised by the SGB. I must therefore find that the procedure followed in the filling of the Principal’s post at Mmata Ledwaba was procedurally unfair.
7 . AWARD
.1 The filling of the Principalship post was procedurally unfair.
.2 There was no undue influence exercised by the Area Manager of Polokoane Area.
.3 The interviews for the Principalship post are to be redone within a reasonable time.
.4 The School Governing Body is to appoint a committee from its members which shall attend the interviews and which shall have the mandate to submit a written recommendation to the Department, after taking into consideration the ranking of the interview panel, within seven days of the interviews.
DATE: 12 DECEMBER 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR004018 NP
APPLICANT SOUTH AFRICAN DEMOCRATIC TEACHERS UNION
RESPONDENT DEPARTMENT OF EDUCATION
ARBITRATOR K. DRISCOLL
DATE OF ARBITRATION 26 NOVEMBER 1999
APPLICANT MR MOLOPE
RESPONDENT MR MANAGA & MS MODIPA
1 The filling of the Principalship post was procedurally unfair.
2 There was no undue influence exercised by the Area Manager of Polokwane Area.
3 The interviews for the Principalship post are to be redone within a reasonable time.
4 The School Governing Body is to appoint a committee from its members which shall attend the interviews and which shall have the mandate to submit a written recommendation to the Department, after taking into consideration the ranking of the interview panel, within seven days of the interviews.
DATE OF AWARD 12 DECEMBER 1999