Case Number: PSES CAR 000233 WC
Province: Western Cape
Applicant: J LAVERLOT
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 13 December 1999
Arbitrator: D J G WOOLFREY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 000233 WC
In the arbitration between:
J LAVERLOT APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . HEARING AND REPRESENTATION
1.1 In order to expedite the rendering of this award, the parties agreed that I give brief reasons for my decisions. Should it become necessary, I may supplement these reasons at a later stage.
1.2 The arbitration was held at the Worcester Teacher Centre on 10 December 1999. Mr Esau represented the WCED, and Mr Laverlot appeared unrepresented.
1.3 According to the terms of reference agreed to at the commencement of these proceedings, I was asked to decide whether Mr Laverlot was given fair consideration for post number 0791 at Emil Weder. It was agreed that if I found that he was not, I should order a repeat of the process.
1.4 The dispute arises out of Mr Laverlot’s failure to secure the nomination for the post. Mr Laverlot believes that he was prejudiced because he had previously turned down a nomination for the same post, and because (at the time of the interview) he had accepted a nomination for the position of deputy principal at another school.
1.5 In support of his contention, Mr Laverlot cited a number of comments made by the members of the selection committee during their discussion of the candidates after the interviews. The chairman of the selection committee had said that he was ‘indecisive’. The principal had mentioned that the had been nominated at another school, and a member of the Governing Body (Rosenberg) had said that ‘loyalty is very important’. And, finally, at the beginning of the discussion, three of the members of the interviewing committee had said ‘Julies (the ultimately successful candidate) is our man’.
1.6 The two members of the selection committee who testified on behalf of the WCED tried to play down the effect that the loyalty issue had on their final decision. They went so far as to say that it had played no part whatsoever. Their evidence in this regard is simply not credible. All the evidence (eg their comments during the discussions) points the other way. Furthermore, Mr Laverlot had received their nomination during a pervious round (over and above Julies). No explanation was tendered for the change in heart. Clearly, Mr Laverlot’s perceived lack of loyalty played some part.
1.7 The question that I must decide is whether this rendered the decision unfair. I do not believe that it did. I have said in a previous arbitration (and I hold to this view) that it is not the role of an arbitration to decide whether the Governing Body has made the best decision, unless of course the terms of reference require it. Where an arbitrator is asked to decide whether a decision was fair, the arbitrator is in my view being asked to review the decision rather than to appeal it. This means that the arbitrator should not set aside the decision simply because the arbitrator disagrees with the decision, or with the criteria used to arrive at the decision. Of course, if criteria such as race or gender are used without justification, that will be a different matter. Moreover, application of totally irrelevant consideration would show that the committee had failed to apply its mind properly, and would open its decision to review. A grossly unreasonable decision, which cannot be justified by any objective criteria, may produce the same result.
1.8 But this is not such a case. The Governing Body may well have given too much weight to the loyalty issue. But the Governing Body did not act grossly unreasonably in doing so. Mr Laverlot had previously turned down the nomination in favour of a post at another school. At the time of the interview, he had been nominated for the position of deputy head at Hosten. The Governing Body was entitled to take a view on this, which I believe it did. As I have said, it may have given too much weight to this factor. Its decision may not have been the best (I leave this question open) but it was not unfair.
1.9 Mr Laverlot did not place in issue the procedures adopted by the Governing Body which, in any event, appear to have been in order.
1.10 For the above reasons, I find that Mr Laverlot was given fair consideration. Consequently, no order is made.
D J G WOOLFREY
Date : 13 December 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES CAR 000233 WC
APPLICANT J LAVERLOT
RESPONDENT DEPARTMENT OF EDUCATION
ARBITRATOR D J G WOOLFREY
DATE OF ARBITRATION 10 DECEMBER 1999
RESPONDENT MR ESAU
I find that Mr Laverlot was given fair consideration. Consequently, no order is made.
DATE OF AWARD 13 DECEMBER 1999