Case Number: PSES 0382 WC
Province: Western Cape
Applicant: MR DN JONES
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Cape Town
Award Date: 28 December 1999
Arbitrator: WR KERFOOT
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 0382 WC
In the arbitration between:
MR DN JONES APPLICANT
DEPARTMENT OF EDUCATION RESPONDENT
1 . HEARING AND REPRESENTATION:
1.1 This matter was heard in Cape Town on, 8 December 1999, after being postponed from September 1999, when there was no appearance by the Grievant or by his Union. The matter was heard in accordance with the terms of reference agreement between the parties to the Education Labour Relationship Council (ELRC), set out in resolution 7 of 1997.
1.2 The Grievant represented himself and the WCED was represented by Mr S Fakir, assisted by Mr Pietersen. I am grateful to both sides for their very competent assistance.
2 . DISPUTE:
2.1 Mr Jones conceded that he had been unfairly treated in not having been short-listed for the Principal’s post at Harold Cressy High School which had been advertised as Post No 114 on List 198 of 2 April 1998.
2.2 He contended that the school’s Governing Body had proceeded to shortlist in violation of the criteria set out in its own advertisement and that the Board’s procedure had been a violation of the practice of Resolution 13, particularly in respect of the minimum requirements set up by the Board prior to short-listing.
3 . EVIDENCE:
3.1 Mr Jones, testified on his own behalf;
3.2 He pointed out that the advertisement provided for a Principal’s post in which the successful applicant would be able to teach Geography and Mathematics from Grades 8 to 12. He pointed out that he fulfilled those requirements together with all other requirements for a post at level 4.
3.3 He questioned the powers of the Board to change these requirements which it did prior to the short-listing.
3.4 The further criteria set by the Board are annexed hereto, marked “A”. The most important provision as far as this case is concerned is that of Experience under which heading the following is provided:
3.4.1 “Leadership skills and experience, as evidenced by at least 15 years service, including at least 5 years service in a promotion post.
Previous experience and formal appointment as Deputy Principal is desirable.
Added weight will be accorded to substantial continues period of service at the same institution.
Teaching experience, experience in other fields and positions held will be taken into account”.
3.5 Mr Jones further testified to his qualifications and experience which are impressive and which are conveniently set out in the Governing Body’s evaluation of candidates document a copy of which is annexed hereto marked “B”.
3.6 He emphasises his qualifications and experience in management and pointed out that at the relevant time he had been a Deputy Principal for approximately six months.
3.7 He testified that had been short-listed he would have been given the opportunity to reveal his qualifications and skills to te Board and possibly be appointed to the Principal’s post.
3.8 Mr Fakir submitted that of the six candidates who applied for the post, Mr Jones had the least experience.
3.9 For the sake of the record, I should point out that all Mr Fakir’s factual submissions were later substantiated by the Chair of the Governing Body, Mr Soudien.
3.10 Mr Fakir, further submitted, that in terms of paragraph 3.3 of Resolution 13 of the Governing Body, was entitled to formulate additional criteria in consultation with the relevant employee’s organisations. In the present case the Trade Unions had been invited to participate bu had failed to do so. Accordingly in terms of paragraph 3.4, the Board was entitled to proceed.
3.11 It was common cause that the Department had proceeded to appoint the Board’s nomination for the post prior to the lodging of the dispute by the Grievant. The dispute was in fact lodged nine days before the 90-day period expired.
3.12 He submitted that the action of the Grievant amounted to a process of extortion.
3.13 Resolution 13 provided in paragraph 4.5 that “the employing Department must then satisfy itself that procedures as agreed upon were followed, and that there are no disputes from any of the parties involved before making the final decision”.
3.14 It is clear that this provision was not complied with by the Department.
3.15 Further cross-examination dealt with the Grievant’s non-appearance on, 30 September 1999 and with the right of the Board to set up additional criteria.
3.16 The Grievant then closed his case.
3.17 The sole witness for the Department was Mrs Soudien, the Chief of the Governing Board.
3.18 Like, Mr Jones, who also represented himself extremely well, Mrs Soudien was a very good witness.
3.19 She testified that as far as the Board as concerned it tried to make the appointment in terms of the criteria set out in Resolution 13, the School’s Act and Departmental Circular 80 plus various handbooks.
3.20 She testified that teaching was not the major function for the Principal and that the Board had looked very seriously at other criteria.
3.21 The Board also wanted the person appointed to conform with the “vision” of Harold Cressy High School and the Board wanted to see a lengthy record at a school to indicate stability and commitment on the part of the appointee.
3.22 She testified that the only reason for Mr Jones’ elimination was his lack of experience. She conceded that other criteria than those set out in the advertisement were considered at the short-listing and at the interview.
3.23 She testified that Mr Jones had shortly before applied for a Deputy Principalship at Harold Cressy. His non-appointment on this occasion was also according to her, only on the grounds of experience. It was felt that he need not be re-interviewed for the Principal’s post as the same disadvantaged relating to experience would tell against him.
3.24 She testified that since her appointment to the Governing Body, no promotion posts had been allocated to applicants who were not already at the school. She further testified that there had been no change in circumstances in the school between the placing of the advertisement and the drawing up of the criteria for the shortlist.
3.25 In the present case, she tried to justify the appointment of candidates without Maths or Biology or both to the shortlist on the basis of the other criteria.
3.26 In argument, Mr Jones submitted that his non short-listing had been unfair and that the approach of the Board had been inconsistent.
3.27 Mr Fakir submitted that the Resolution 13, process had been followed, that Mr Jones had no right to be short-listed, he had not been discriminated against and that he was the least experienced educator amongst all the applicants. The short-listing had been done in line with the ELRA.
3.28 Mr Fakir, further submitted that the grievances should be rejected and further requested the costs of the wasted hearing on, 30 September.
4 . DISCUSSION:
4.1 Mr Jones clearly had to prove on a balance of probabilities that the Governing Board committed an unfair labour practice in not short-listing him for the position which was ultimately allocated to, on the face of it, a highly qualified person who effectively satisfied all the requirements of the original advertisement and of the additional criteria set out by the Governing Board.
4.2 There was nothing wrong with the original advertisement.
4.3 The procedure whereby the Governing Board drew up additional criteria in terms of paragraph 3.3 of Resolution 13, could not be faulted in the evidence.
4.4 Mr Jones, who seemed to me a thoroughly decent, intelligent and committed educator, fell foul of only one of the provisions of the additional criteria, that of length of experience.
4.5 It may well be that emphasis on experience deprives a school of creative and dynamic staff in promotion posts, but provided the criterion is applied fairly, it cannot be said to be improper.
4.6 Again, the fact that recent appointment to promotion posts at Harold Cressy, including this one, were those of longstanding teachers at the school, may deprive it of “new blood”, but in the absence of proof of nepotism of favouritism, it is not unfair.
4.7 The only evidence which came to light where the process may be vulnerable is that of the premature confirmation of the nomination and the short-listing of ceratin candidates who lacked at least one of the competencies set out tin the original advertisement.
4.8 The Department’s confirmation of the post prior to the expiry of 90 days is unfortunate. If provision is made for a 90-day period within which to object, the Department should abide by it. If it leads to problems, legislation or change in regulations should provide for a shorter period within which to object.
4.9 However, after considerable thought, I do not find that this procedural irregularity vitiates the process, nor did it have any bearing on the non-short-listing of Mr Jones.
4.10 The short-listing on non Maths of Biology teaching candidates seems to me unfortunate. However, given their qualifications by reason of experience, which excluded Mr Jones, I do not thin that the emphasis on the additional criteria rather than the original advertising criteria amounted to discrimination against him or to an unfair labour practice given the paucity of applicants. Clearly it would have been better had the two or three appropriately qualified and experienced applicants only been short-listed.
4.11 I accordingly do not find that the Department committed and unfair labour practice towards Mr Jones. However, he raised objections to the process and cannot be said to have embarked on a campaign of extortion.
4.12 As far as the costs issue is concerned, I accept Mr Jones’ evidence that he was given no warning by the Union or by the Department about 30 September. It may well be that the Union was at fault but in the absence of any evidence abut its non-appearance, I do not make an order for costs against it.
5 . DISCUSSION:
5.1 I find that there was no breach of Resolution 13 of 1995, read with circular 80 of 1996.
DATED: 28 December 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 0382 WC
APPLICANT MR DN JONES
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR WR KERFOOT
DATE OF ARBITRATION 08 DECEMBER 1999
VENUE CAPE TOWN
APPLICANT MR DN JONES (HIMSELF)
RESPONDENT MRS S FAKIR & MR PIETERSEN
1 I find that there was no breach of Resolution 13 of 1995, read with circular 80 of 1996.
DATE OF AWARD 28 DECEMBER 1999