PSES GAAR003983 NP
PSES PSES GAAR003983 NPWC
Award Date:
10 February 2000
Case Number: PSES GAAR003983 NP
Province: Limpopo
Applicant: SOUTH AFRICAN DEMOCRATIC TEACHERS UNION
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: PIETERSBURG
Award Date: 10 February 2000
Arbitrator: PROF MZUNGULU MTHOMBENI
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR003983 NP
In the arbitration between:
SADTU APPLICANT
and
DEPARTMENT OF EDUCATION NORTHERN PROVINCE RESPONDENT
ARBITRATOR’S AWARD
1 . HEARING AND REPRESENTATION
1.1 The hearing took place on 28 October 1999 at the Department of Education, 101 Dorp Street, Pietersburg in the Northern Province. The Employer was represented by Mr. E. Managa and Mr. M. Maseko and the Union by Mr. A. Roskam.
2 . ISSUE AND POWERS
2.1 The issue concerns the fairness of the withdrawal of principalship posts of Mr. K. Makgeru, Mr. S. Ndlovu, Mr. P. Malatji, Mr. E. Sekgoka and Mr. M. Letsoalo (“the Grievant”) by the Employer. I am required to determine whether the withdrawal of the appointment as principals of the Grievants by the Employer was procedurally and substantively fair and am empowered to make an appropriate relief.
3 . BACKGROUND OF THE DISPUTE
3.1 The Union submits that the Grievants had been appointed by the Employer as principals at five (5) different schools. After interviews, they were given letters of appointment. Subsequently, they were, however, given letters of withdrawal. The withdrawal constitutes an unfair labour practice relating to the promotion as contemplated in Item 2 (1) of Schedule 7 of the Labour Relations Act No. 66 of 1995 (“the Act”).
3.2 The Employer submits that the withdrawal was not an unfair labour practice. The incumbent principals had been acting in the posts in question; had acquitted themselves admirably; and were entitled to a fair administrative process. The purpose of the withdrawal was to correct an administrative error.
4 . THE UNION’S CASE
4.1 The Union led the evidence of Mr. E. Makgeru, Mr. S. Ndlovu, Mr. J. Ndlovu, Mr. L. Letsoalo, Mr. P. Malatji, Mr. M. Sekgoka, Mr. M. Maponya and Mr. N. Moloto. Mr. Makgeru testified that he is a teacher of Photlake Secondary School. He had during February 1997 applied for a principalship post at Ntlaiseng Primary School. His application was in response to an advertisement in the Government Gazette. During 1997, he attended the interview for the post.
4.2 On 2 April 1998 he received a letter confirming his appointment as a principal at Ntlaiseng Primary School with effect from April 1998. On 4 April 1998 Mr. Mahapa, the Area Manager, took him to the school where he was introduced to Ms. N. Moraba, the Chairperson of the SGB. While he was at the school, he completed an application form for an educator’s post. Mr. Makgeru filled in the form himself, since Ms. Moraba was not well conversant with English. He, however, explained its contents to her before she signed the form.
4.3 Mr. Makgeru commenced his duties at the school on 4 May 1998. On that day he was introduced to the staff. On 21 May 1998 he attended a meeting with the SGB. The purpose of the meeting was to introduce him to the members of the SGB. Mr. Makgeru was welcomed by the SGB.
4.4 On 27 May 1998 another meeting was held with the SGB and the parents Mr. Makgeru was introduced to the parents. He was enthusiastically welcomed by them.
4.5 During July 1998 Mr. Makgeru received a letter of his appointment as a principal at Ntlaiseng Primary School. His salary notch was R84 423.00. On 5 October 1998 Mr. Makgeru received a letter of his withdrawal as a principal. The reason for his withdrawal was stated as the failure by the Employer to closely analyse the recommendations of the SGB when finalising his appointment. Upon receipt of this letter, Mr. Makgeru sought an explanation for his withdrawal from Mr. Mahapa. The latter referred him to the reason furnished by the Employer. In addition, Mr. Mahapa instructed him to hand over all documents to Mrs. Malatji, the new principal.
4.6 On 7 October 1998 Mr. Makgeru had a meeting with the SGB and informed them about the Employer’s decision to withdraw his appointment. The members of the SGB expressed their disappointment and surprise.
4.7 Mr. Makgeru had a BAED degree which he obtained in 1987 from the University of the North. He started teaching at Potlake Secondary School and had been acting as a head of department for five (5) years before his appointment to Ntlaiseng Secondary School.
4.8 Prior to his appointment as a principal, Mr. Makgeru was earning R64 000.00 per annum. After his withdrawal, his salary was R69 000 per annum.
4.9 Mrs. Malatji, the incumbent principal at Ntlaiseng Primary School, does not qualify to be a principal because she does not have a relative qualification value (“REQV 13") which was required for the post in the advertisement. She holds a Primary Teacher’s Certificate (PTC).
4.10 At the meeting of the SGB held on 10 December 1997, the SGB had recommended that Mrs. Malatji be appointed as a principal because she was well known in the community. Their second choice was Ms. Mamabolo, for she was well known in the community as well. Mr. Makgeru was their third choice. The SGB’s recommendations were in line with the interviewing panel’s reasons. Despite their recommendation, the SGB accepted the appointment of Mr. Makgeru as it had been made by the Employer. Mrs. Malatji was acting principal when Mr. Makgeru took over.
4.11 Mr. S. Ndlovu gave evidence that he holds a PTC, SPTD and a BA degree. He started teaching in 1976. He is currently a head of department at Mabongwane Primary School.
4.12 During November 1997 Mr. Ndlovu applied for a principalship post at Mahlathi Primary School in response to an advertisement in the gazette. During March 1998 he was interviewed for the post. In July 1998 Mr. Ndlovu received a letter confirming his appointment as a principal at Mahlathi Primary School.
4.13 On 30 July 1998 Mr. Sithole, the area Manager, took Mr. Ndlovu to the school and introduced him to the SGB and staff who welcomed him. At that time, Mr. Mnisi was acting principal.
4.14 At the beginning of August 1998, Mr. Ndlovu commenced his duties as a principal at Mahlathi Primary School. At the end of the following month he was presented with a letter withdrawing his appointment. The reason for the withdrawal was the Employer’s omission to closely analyse the recommendations of the SGB when finalising his appointment. No further explanation was given.
4.15 Mr. Ndlovu was not paid for the post of principalship during his tenure at Mahlathi Primary School.
4.16 Mr. Mdaka, one of the candidates for the post in question, had been appointed as a principal at Muchichi Primary School.
4.17 The incumbent principal is Mr. Mnisi who was one of the candidates. He does not qualify for the post, as he does not have the requisite REQV 13.
4.18 Mr. J. Ndlovu testified that he was the regional assistant secretary for the Union at Bushbuck ridge. He was present at the interviews for the principalship post at Mahlathi Primary School. He attended the interviews in his capacity as the Union observer. Mr. J. Ndlovu noticed that some of the candidates did not have the REQV 13. He raised his objection to this, but Mr. Mgiba, the Circuit Manager, informed him that there was a directive which allowed them to be interviewed and the Employer would make a final decision.
4.19 Mr. J. Ndlovu noticed, further, that Mr. Mnisi’s name had not been typed in like those of the other candidates, but was hand-written. Mr. Mnisi’s name was included on the day of the interview.
4.20 Mr. J. Ndlovu was not present at the inauguration of Mr. S. Ndlovu as the principal at Mahlathi Primary School. After his withdrawal, Mr. J. Ndlovu met with the SGB who expressed their surprise at the withdrawal. The SGB wanted Mr. S. Ndlovu as principal, for he had the qualifications for the post.
4.21 The appointment of Mnisi to the post was unfair, as he does not have the qualifications specified in the advertisement.
4.22 Mr. Letsoalo gave evidence that he holds an SPTD. He began teaching in 1987. During 1997 he applied for a principalship post at Mogaba Primary School in response to an advertisement in the Gazette. During March 1998 he attended an interview for the post.
4.23 On 22 September 1998 Mr. Letsoalo met with Mr. Thema, the Area Manager, at his office. Mr. Thema gave him a letter of the withdrawal of his principalship post. Mr. Letsoalo refused to take it because he had not been appointed as a principal. Thereupon, he was given his letter of appointment and, thereafter, his letter of withdrawal. The letter of appointment was dated 3 August 1998 and stated that his appointment was with effect from 1 August 1998. Mr. Letsoalo was never paid as a principal. At that stage he had never commenced duties at Mogaba Primary School.
4.24 During April 1998 Mr. Letsoalo saw Ms. Ramokgano, the incumbent principal, graduating at Vista University for her Secondary Education Diploma (“SED”). Ms. Ramokgano wrote her final examination in 1997 and, therefore, did not have this qualification at the time of the interviews. She did not have the REQV 13 to qualify for the post at that time.
4.25 Mr. Maponya, who was one of the candidates for the post at Mogabe Primary School, had been appointed as a principal elsewhere. He had the REQV 13.
4.26 Mr. Letsoalo referred the arbitration hearing to Resolution No. 13 of 1995 of the Education Labour Relations Council which states in Clause 2 that:
“The employing department shall acknowledge receipt of applications and handle the initial sifting process to eliminate application of those candidates who do not comply with the requirements for the post(s) as stated in the advertisement.”
4.27 If the sifting process had been observed, Ms. Ramokgano would not have been short-listed.
4.28 Mr. P. Malatji testified that he has a PTC and BA degree. He started teaching in 1986. During November 1997 he applied for the principalship posts at Morage, Powerline and Mapateletse Primary Schools in response to an advertisement in the gazette. At that time he had the REQV 13. Although he had not yet obtained his Ba degree, he had five (5) degree courses; viz. English II, History II, Political Science II, Public Administration I, Afrikaans I and Psychology I. These courses made him qualify for the REQV 13.
4.29 During February 1998 Mr. Malatji attended interviews. During July 1998 he received a letter confirming his appointment as a principal at Mapateletse Primary School with effect from 1 August 1998. On 27 July 1998 he attended his inauguration at the school. He was introduced to the Area Manager, inspectorate, staff, SGB, Union, tribal authority and community. The reception was good and the SGB welcomed him.
4.30 Mr. Malatji commenced his duties at the school on 3 August 1998. At the end of the following month Mr. Nkuna, the Regional Director, furnished him with a letter of withdrawal of his appointment as a principal. He asked for explanation. Mr. Nkuna told him that he was carrying out instructions and referred him to the paragraph in the letter stating that the withdrawal was due to the Employer’s omission to closely analyse the recommendations of the SGB when finalising his appointment.
4.31 Thereafter, Mr. Malatji met with the SGB and informed them about the withdrawal. The SGB staff invited him back to the school, organised a farewell party and he was given presents. Mr. Malatji was never paid as a principal for the period he worked at Mapateletse Primary School.
4.32 Mrs. Mogane, the incumbent principal, does not have the requisite REQV 13.
4.33 Mr. M. Sekgoka gave evidence that he holds BAED and BA (Honours) degrees. He began teaching in 1991. During November 1997, in response to an advertisement in the gazette, he applied for a principalship post at Dipone Secondary School. He attended an interview for the post during March 1998.
4.34 On 27 July 1998 Mr. Tshwale, an inspector, handed him a letter confirming his appointment as a principal at Dipone Secondary School with effect from 1 August 1998. His starting notch was R84 423.00.
4.35 On 28 July 1998 Mr. Sekgoka and Mr. Tshwale went to Dipone Secondary School. Mr. Tshwale met with four (4) members of the SGB. Thereafter, he informed Mr. Sekgoka that the SGB could not meet with him, for the other component of the SGB was not present on that day.
4.36 On 3 August 1998 Mr. Sekgoka commenced duties at the school. Mr. Moloto, the secretary of the SGB and a teacher at the school, introduced him to the staff and pupils. The latter gave Mr. Sekgoka a warm welcome. On the following day, Mr. Malepe, who had been acting as a principal, came to the school, handed the keys over to Mr. Sekgoka and left. On 5 August 1998 the parent component of the SGB came to the school, had a meeting with Mr. Sekgoka, and informed him that his safety could not e guaranteed and asked him to leave the school. Mr. Sekgoka and other members of staff went to the circuit office to report the matter, but Mr. Tshwale was unavailable.
4.37 On 11 August 1998 Mr. Tshwale informed Mr. Sekgoka to return to Rakgolokwane Secondary School, his former school. He returned to his former school as instructed. On 19 August 1998 Mr. Sekgoka received a letter of a temporary withdrawal of his appointment as a principal. During May 1999 he received a final letter of withdrawal.
4.38 Mr. Malepe, the incumbent principal, is related to more than four (4) members fo the SGB. The interviewing panel had recommended mr. Sekgoka. The SGB supported Mr. Malepe because they were related to him. Their conduct smacks of nepotism.
4.39 Mr. Maponya testified that he holds a BPAED degree. During 1997 he applied for a principalship post at Mogano Primary School and Xitsikixana Secondary School in response to an advertisement in the gazette. He was appointed as a principal at Xitsikixana Secondary School.
4.40 Mr. Moloto gave evidence that he is a teacher at Dipone Secondary School. Until 1999 he was the secretary of the SGB. After the interviews for the principalship post, the interviewing panel presented its report to the SGB. Mr. Sekgoka was the best candidate and Mr. J T Malepe was ranked second to him. Prior to the interviews, Mr. J T Malepe was acting principal at Dipone Secondary School.
4.41 Mr. B C Nonyane, the son of P F Nonyane who is the chairperson of the SGB, was a member of the interviewing panel.
4.42 After the interviews, the SGB held a meeting to consider the report of the interviewing panel. All members of the SGB, except Mr. Moloto, recommended Mr. J T Malepe for the post because he was the “son of the soil”. When Mr. Moloto objected to the act of nepotism, he was reprimanded and told that if he did not support their recommendation he would be barred from attending future SGB meetings. Thereupon, Mr. Moloto wrote the letter recommending Mr. J T Malepe for the post under pressure and in fear of his life. The words were suggested to him.
4.43 The vice-chairperson of the SGB is Mr. G. Malepe. The treasurer is S. Malepe. Ms. D. Malepe is a member of the SGB. All of them are related to Mr. J T Malepe. Furthermore, the younger sister of Mr. P F Nonyane, the chairperson of the SGB, is married to Mr. J Malepe who is Mr. J T Malepe’s brother. In addition, Ms. H Malepe, the vice-secretary of the SGB, is married to Mr. M. Malepe who is related to Mr. J T Malepe. Despite the SGB’s recommendation, the Employer appointed Mr. Sekgoka. His relationship with the staff was good.
4.44 At one stage the parent component of the SGB informed Mr. Sekgoka that he should leave the school, for his life was in danger. In response, Mr. Moloto and the staff reported that matter to the circuit office. Mr. Sekgoka, in fear of his life, returned to his previous school. Since the departure of Mr. Sekgoka, the SGB has not functioned properly.
4.45 As a result of this incident, the concerned parents authorised Mr. Moloto to write a letter to the education authorities in Northern Province demanding that Mr. Sekgoka be returned to the school.
5 . THE EMPLOYER’S CASE
5.1 The employer led the evidence of Mr. F. Nonyane and Mr. M. Mukhavhuli.
5.2 Mr. Nonyane gave evidence that he is the chairperson of the SGB of Dipone Secondary School. The SGB recommended Mr. J T Malepe for the post, but Mr. Sekgoka whom the SGB did not want, was appointed as a principal. After the arrival of Mr. Sekgoka the SGB wrote a letter to the Employer expressing its disapproval. Thereafter, the Employer replied that Mr. Malepe would be appointed as a principal in conformity with the SGB’s recommendation.
5.3 Mr. Nonyane conceded that the interviewing panel recommended Mr. Sekgoka as the best candidate. However, the SGB recommended Mr. J T Malepe because they knew him. Mr. Moloto refused to endorse this recommendation.
5.4 Mr. Nonyane is not aware of the relationship between Mr. G. Malepe and Mr. J T Malepe. They share the same surname. He does not know the relationship between Mr. S Malepe and Mr. J T Malepe. He admitted, however, that Hellen Seboyane lives with a certain Malepe as husband and wife. Furthermore, Mr. Nonyane’s sister was married to J. Malepe, but they are divorced.
5.5 Mr. Mukhavhuli testified that he is the Deputy Director-General in the Norther Province Department of Education.
5.6 Mr. Mukhavhuli suspended the appointments of the Grievants because of administrative errors, for the appointments were made contrary to the SGB’s recommendations. Following complaints by the SGBs, the Employer had to review the appointments. In consequence, the appointments of the Grievants were withdrawn and replaced by the candidates who had been recommended by the SGBs for the posts.
5.7 With regard to Ntlaiseng Primary School, the Employer had, initially, appointed Mr. Makgeru. Subsequently, Mr. Makgeru’s appointment was withdrawn because the SGB had recommended Ms. Malatji for the post. The SGB prevails, even where the Employer holds a different view.
5.8 Mr. Mukhavhuli conceded that an REQV 13 that was a minimum requirement for the principalship posts. A candidate without an REQV 13 should not have been short-listed for an interview, but the Employer made a concession for candidates who had been acting as principals and had no REQV 13. A number of factors, other than the REQV 13, were take into consideration. This concession was not stated in the gazette, but the Employer considered it to be reasonable.
5.9 However, Mr. Mukhavhuli admitted that in terms of Resolution No. 13 of 1995 of the Education Labour Relations Council, a candidate who does not meet the minimum requirements as stated in the advertisement should not be considered for the post. He conceded, further, that according to Resolution No. 2 of 1966 of the Education Labour Relations Council, Ms. Malatji should not have been short-listed. However, she was short-listed because she was acting as a principal.
5.10 In respect of Mahlathi Primary School, the Employer appointed Mr. Ndlovu, but his appointment was later withdrawn and Mr. Mnisi was appointed because he was recommended by the SGB. Mr. Mnisi was appointed, though he did not have the requisite qualifications.
5.11 Regarding Mapateletse Primary School, the Employer appointed Mr. Malatji. Later his appointment was withdrawn and Mrs. Mogane was appointed although she did not have the necessary qualifications. Mr. Mukhavhuli could not recall why Mrs. Mogane was preferred above Mr. Malatji.
5.12 Concerning Mogabe Primary School, Mr. Letsoalo was appointed by the Employer. Subsequently, his appointment was withdrawn and Mr. Ramokgano was appointed; though he did not have the requisite qualifications. Mr. Letsoalo’s appointment was withdrawn because he had not been recommended by the SGB.
5.13 Mr. Mukhavhuli did not know that J T Malepe was related to some of the members of the SGB. He conceded that they should have recused themselves from the matter involving Mr. J T Malepe and nepotism, if proven, would justify a deviation from the SGB recommendation.
6 . THE UNION’S CONTENTIONS
6.1 The Union contended that the withdrawal of the Grievants’ appointments constitute unfair conduct by the Employer relating to promotion or demotion as contemplated in Item 2 (1) (6) of Schedule 7 of the L.R.A.
6.2 Section 20 (1) (1) of the South African School Act No. 84, 1996 (“SASA”) provides that the governing body of a public school must recommend the Head of Department the appointment of educators at the school. Section 4 (3) of the Educator’s Employment Act, 1994 (“the 1994 EEA”) states that authority to fill a post is exercised on the recommendation of a public school, as represented by its governing body. The employer may only deviate from such recommendation if, inter alia, the candidate does not have the required qualifications.
6.3 The 1994 EEA was repealed by the Educator’s Employment Act No. 76, 1998 (“the 1998 EEA”). The 1998 EEA came into operation on 2 October 1998 and it does not, therefore, apply to the Grievants because their appointment and withdrawal of their appointments occurred before the commencement of the 1998 EEA. Section 6 3(a) of the 1988 EEA provides that any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school. The Head of the Department may only decline the recommendation of the governing body if, inter alia, the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer.
6.4 The Union argued, further, that Regulation 2 of the Regulations Regarding the Terms and Conditions of Employment of Educators published on 13 November 1995 provide that, for an educator to be appointed, he or she must have the required experience determined by the Minister and must be in possession of an approved qualification. If the educator is not in possession of the approved qualification, then he or she may only be appointed on a temporary basis for a specified period if the employer deems it necessary and in the interests of education.
6.5 According to the Personnel Administration Measures (“the PAM”), which reflects the collective agreements concluded between the Union and the Employer, candidates must have at least an REQV 13 in order to qualify for an appointment as an educator. If a candidate does not have an REQV 13 and it is essential to appoint him or her, then the educator must be paid according to the appropriate lower salary range. This can be done where there is no suitable alternative candidate.
6.6 Resolution 13 of 1995 of the Education Labour Council provides that the candidate’s applications must go through a sifting process in order to eliminate applications of those candidates who do not comply with te requirements for the posts as stated in the advertisement. The interviewing committee short-lists the candidates who have the necessary qualifications. Thereafter, interviews are conducted, the candidates are ranked and a report is submitted to the SGB which makes its recommendation. The recommendation is submitted to the Employer.
6.7 The Union contended that the withdrawal of the Grievants’ appointments was substantively unfair in that the Employer failed to comply with 1994 EEA, Regulations and the PAM. Furthermore, the withdrawal constitutes an administrative action which demands the person affected by it to be given an opportunity to be heard before the decision is taken. The Grievants were not given an opportunity to be heard in order to influence the Employer’s decision. For this reason, the withdrawal of the appointments was procedurally unfair.
7 . THE EMPLOYER’S CONTENTIONS
7.1 The Employer argued that the withdrawal of the Grievants’ appointments was due to administrative errors. The Employer failed to consider the recommendations of the SGBs.
7.2 Qualifications are part of the requirements, but other factors are taken into account. SGBs are entitled to make recommendations which differ from those of the interviewing panel. The withdrawal was aimed at effecting fairness, as the incumbent principals had executed their duties well while they were acting as principals. All administrative procedures were followed before the appointments were withdrawn.
7.3 It would be impossible to reinstate the Grievants. If reinstatement is ordered there would be chaos, which would not be in the interest of education. The SGBs will not accept reinstatement.
8 . ANALYSIS OF EVIDENCE AND ARGUMENT
8.1 It is common cause that the Employer advertised principalship posts in the Provincial Gazette, No. 219, 13 January 1997. It was a requirement for appointment that candidates should have an REQV 13. The Grievants applied for the posts, were appointed and, subsequently, their appointments were withdrawn. I am required to determine whether the withdrawal of their appointment was fair int the circumstances.
8.2 With regard to Mr. K. Makgeru, Mr. S. Ndlovu, Mr. E. Sekgoka and Mr. P. Malatji, the Employer confirmed their appointments and they assumed their duties at the schools. Mr. Letsoalo, on the other hand, was informed about the withdrawal of his appointment before his appointment was communicated to him. I must consider whether the appointments were in accordance with the legislation, regulations and collective agreements.
8.3 It is not in dispute that the SGBs are empowered to recommend candidates for consideration by the Employer. In the case in question, the SGBs made their recommendations, but the Employer deviated from and appointed the Grievants. No reasons were given for the Employer’s deviation in this regard. However, it is reasonable to infer that the Employer deviated because in terms of Section 4 (3)(a) of the 1994 EEA the candidates recommended by the SGBs did not have the required qualifications. Moreover, although the Union contended that the 1998 EEA is not applicable, Section 6(3) of the 1998 EEA states that the Employer may only decline the recommendation of the governing body of the public school if the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment. I am satisfied that the initial appointments were valid.
8.4 Subsequently, the Employer withdrew the appointments of the Grievants and replaced them with the candidates recommended by the SGBs. In this regard, I must consider whether the appointments of the incumbent principles were in accordance with the legislation, regulations and collective agreements.
8.5 Regulation 2 of the Regulations Regarding the Terms of Employment of Educators, published on 13 November 1995 states that no person shall be appointed unless he or she complies with the experience requirements determined by the Minister and is in possession of an approved qualification, provided that an employer may appoint a person who is not in possession of an approved qualification in a temporary capacity for a specified period if the Employer deems such appointment necessary and in the interest of education.
8.6 Furthermore, the PAM provides that if a candidate does not comply with the requirements of an REQV 13 and it is essential to appoint him or her, this may be done as and individual relaxation, but then the educator is paid according to the appropriate salary range.
8.7 In this connection, the Employer contended that the qualification requirement was waived in respect of the incumbent principals because they had performed admirably while they were acting as principals. This contention is absurd, for the regulations and the PAM do not make provision for this relaxation. I am, therefore, satisfied that the appointments of the incumbent principals were invalid.
8.8 Moreover, the ELRC’s resolutions No. 13 of 1995 and No. 2 of 1996 and the PAM provides that it is incumbent upon the Employer, upon receipt of applications, to go through a sifting process in order to eliminate application of those candidates who do not comply with the requirements of the posts as stated in the advertisement. In this regard, I am satisfied that the Employer failed to screen the candidates properly and let the incumbent principals, who lacked the necessary qualifications, through the safety net. I need to point out that the Employer failed to prove that Mr. Ramokgano had the necessary qualifications before the deadline.
8.9 The Union argued that the Employer failed to give the Grievants an opportunity to be heard before the decision to withdraw their appointments was taken. The Employer did not prove that such a hearing was given to the Grievants. In this connection, it is appropriate to refer to the decision in Administrator, Transvaal v Traub (1989) 10 ILT 823 (A), where Corbett C.J. stated that: “When a statute empowers a public official or body to give a decision prejudicially affecting an individual in his liberty or affecting an individual in his liberty or property of existing rights, the latter has a right to be heard before the decision is taken (or in some instances thereafter ...), unless the statue expressly or by implication indicates the contrary.” The Employer is authorised to make appointments and withdrawals. However, it cannot do so to prejudice the Grievants in respect of their “property or existing rights” without giving them a right to hearing. I cannot find a statute which divests them of this right.
8.10 Item 2 (1)(b) of Schedule 7 of the LRA proscribe unfair conduct by the Employer relating to the “promotion or demotion” of an employee. The legislature, when enacting this provision, contemplated a situation in which the Grievants find themselves. I find the Employer’s conduct to be capricious.
8.11 The “administrative error” serves to compensate the incumbent principals for the job well done when they acted as principals. Be that as it may, such a consideration cannot preponderate over legislation, regulations and collective agreements which were blatantly floated by the Employer.
8.12 Compensation or reinstatement is the only possible remedies in the circumstances. In this regard, I have no guidance to determine compensation. It follows that reinstatement is the most appropriate relief to the Grievants.
9 . DETERMINATION
9.1 In the light of the above reasons, I find that the withdrawal of the appointments of the Grievants by the Employer was unfair. I, therefore, order the reinstatement of the Grievants to the principalship posts, with retrospective effective, within seven (7) days of receipt of this award.
DATED at JOHANNESBURG on this the 10th day of FEBRUARY 2000.
________________________
MZUNGULU MTHOMBENI (PROF)
ARBITRATOR: INDEPENDENT MEDIATION SERVICES OF SOUTH AFRICA (IMSSA)
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES GAAR003983 NP
APPLICANT SOUTH AFRICAN DEMOCRATIC TEACHERS UNION
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR PROF MZUNGULU MTHOMBENI
DATE OF ARBITRATION 28 OCTOBER 1999
VENUE PIETERSBURG
REPRESENTATION:
APPLICANT MR A ROSKAM
RESPONDENT MR E MANAGA & MR M MASEKO
AWARD:
1 In the light of the above reasons, I find that the withdrawal of the appointments of the Grievants by the Employer was unfair. I, therefore, order the reinstatement of the Grievants to the principalship posts, with retrospective effective, within seven (7) days of receipt of this award.
DATE OF AWARD 10 FEBRUARY 2000
Province: Limpopo
Applicant: SOUTH AFRICAN DEMOCRATIC TEACHERS UNION
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: PIETERSBURG
Award Date: 10 February 2000
Arbitrator: PROF MZUNGULU MTHOMBENI
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR003983 NP
In the arbitration between:
SADTU APPLICANT
and
DEPARTMENT OF EDUCATION NORTHERN PROVINCE RESPONDENT
ARBITRATOR’S AWARD
1 . HEARING AND REPRESENTATION
1.1 The hearing took place on 28 October 1999 at the Department of Education, 101 Dorp Street, Pietersburg in the Northern Province. The Employer was represented by Mr. E. Managa and Mr. M. Maseko and the Union by Mr. A. Roskam.
2 . ISSUE AND POWERS
2.1 The issue concerns the fairness of the withdrawal of principalship posts of Mr. K. Makgeru, Mr. S. Ndlovu, Mr. P. Malatji, Mr. E. Sekgoka and Mr. M. Letsoalo (“the Grievant”) by the Employer. I am required to determine whether the withdrawal of the appointment as principals of the Grievants by the Employer was procedurally and substantively fair and am empowered to make an appropriate relief.
3 . BACKGROUND OF THE DISPUTE
3.1 The Union submits that the Grievants had been appointed by the Employer as principals at five (5) different schools. After interviews, they were given letters of appointment. Subsequently, they were, however, given letters of withdrawal. The withdrawal constitutes an unfair labour practice relating to the promotion as contemplated in Item 2 (1) of Schedule 7 of the Labour Relations Act No. 66 of 1995 (“the Act”).
3.2 The Employer submits that the withdrawal was not an unfair labour practice. The incumbent principals had been acting in the posts in question; had acquitted themselves admirably; and were entitled to a fair administrative process. The purpose of the withdrawal was to correct an administrative error.
4 . THE UNION’S CASE
4.1 The Union led the evidence of Mr. E. Makgeru, Mr. S. Ndlovu, Mr. J. Ndlovu, Mr. L. Letsoalo, Mr. P. Malatji, Mr. M. Sekgoka, Mr. M. Maponya and Mr. N. Moloto. Mr. Makgeru testified that he is a teacher of Photlake Secondary School. He had during February 1997 applied for a principalship post at Ntlaiseng Primary School. His application was in response to an advertisement in the Government Gazette. During 1997, he attended the interview for the post.
4.2 On 2 April 1998 he received a letter confirming his appointment as a principal at Ntlaiseng Primary School with effect from April 1998. On 4 April 1998 Mr. Mahapa, the Area Manager, took him to the school where he was introduced to Ms. N. Moraba, the Chairperson of the SGB. While he was at the school, he completed an application form for an educator’s post. Mr. Makgeru filled in the form himself, since Ms. Moraba was not well conversant with English. He, however, explained its contents to her before she signed the form.
4.3 Mr. Makgeru commenced his duties at the school on 4 May 1998. On that day he was introduced to the staff. On 21 May 1998 he attended a meeting with the SGB. The purpose of the meeting was to introduce him to the members of the SGB. Mr. Makgeru was welcomed by the SGB.
4.4 On 27 May 1998 another meeting was held with the SGB and the parents Mr. Makgeru was introduced to the parents. He was enthusiastically welcomed by them.
4.5 During July 1998 Mr. Makgeru received a letter of his appointment as a principal at Ntlaiseng Primary School. His salary notch was R84 423.00. On 5 October 1998 Mr. Makgeru received a letter of his withdrawal as a principal. The reason for his withdrawal was stated as the failure by the Employer to closely analyse the recommendations of the SGB when finalising his appointment. Upon receipt of this letter, Mr. Makgeru sought an explanation for his withdrawal from Mr. Mahapa. The latter referred him to the reason furnished by the Employer. In addition, Mr. Mahapa instructed him to hand over all documents to Mrs. Malatji, the new principal.
4.6 On 7 October 1998 Mr. Makgeru had a meeting with the SGB and informed them about the Employer’s decision to withdraw his appointment. The members of the SGB expressed their disappointment and surprise.
4.7 Mr. Makgeru had a BAED degree which he obtained in 1987 from the University of the North. He started teaching at Potlake Secondary School and had been acting as a head of department for five (5) years before his appointment to Ntlaiseng Secondary School.
4.8 Prior to his appointment as a principal, Mr. Makgeru was earning R64 000.00 per annum. After his withdrawal, his salary was R69 000 per annum.
4.9 Mrs. Malatji, the incumbent principal at Ntlaiseng Primary School, does not qualify to be a principal because she does not have a relative qualification value (“REQV 13") which was required for the post in the advertisement. She holds a Primary Teacher’s Certificate (PTC).
4.10 At the meeting of the SGB held on 10 December 1997, the SGB had recommended that Mrs. Malatji be appointed as a principal because she was well known in the community. Their second choice was Ms. Mamabolo, for she was well known in the community as well. Mr. Makgeru was their third choice. The SGB’s recommendations were in line with the interviewing panel’s reasons. Despite their recommendation, the SGB accepted the appointment of Mr. Makgeru as it had been made by the Employer. Mrs. Malatji was acting principal when Mr. Makgeru took over.
4.11 Mr. S. Ndlovu gave evidence that he holds a PTC, SPTD and a BA degree. He started teaching in 1976. He is currently a head of department at Mabongwane Primary School.
4.12 During November 1997 Mr. Ndlovu applied for a principalship post at Mahlathi Primary School in response to an advertisement in the gazette. During March 1998 he was interviewed for the post. In July 1998 Mr. Ndlovu received a letter confirming his appointment as a principal at Mahlathi Primary School.
4.13 On 30 July 1998 Mr. Sithole, the area Manager, took Mr. Ndlovu to the school and introduced him to the SGB and staff who welcomed him. At that time, Mr. Mnisi was acting principal.
4.14 At the beginning of August 1998, Mr. Ndlovu commenced his duties as a principal at Mahlathi Primary School. At the end of the following month he was presented with a letter withdrawing his appointment. The reason for the withdrawal was the Employer’s omission to closely analyse the recommendations of the SGB when finalising his appointment. No further explanation was given.
4.15 Mr. Ndlovu was not paid for the post of principalship during his tenure at Mahlathi Primary School.
4.16 Mr. Mdaka, one of the candidates for the post in question, had been appointed as a principal at Muchichi Primary School.
4.17 The incumbent principal is Mr. Mnisi who was one of the candidates. He does not qualify for the post, as he does not have the requisite REQV 13.
4.18 Mr. J. Ndlovu testified that he was the regional assistant secretary for the Union at Bushbuck ridge. He was present at the interviews for the principalship post at Mahlathi Primary School. He attended the interviews in his capacity as the Union observer. Mr. J. Ndlovu noticed that some of the candidates did not have the REQV 13. He raised his objection to this, but Mr. Mgiba, the Circuit Manager, informed him that there was a directive which allowed them to be interviewed and the Employer would make a final decision.
4.19 Mr. J. Ndlovu noticed, further, that Mr. Mnisi’s name had not been typed in like those of the other candidates, but was hand-written. Mr. Mnisi’s name was included on the day of the interview.
4.20 Mr. J. Ndlovu was not present at the inauguration of Mr. S. Ndlovu as the principal at Mahlathi Primary School. After his withdrawal, Mr. J. Ndlovu met with the SGB who expressed their surprise at the withdrawal. The SGB wanted Mr. S. Ndlovu as principal, for he had the qualifications for the post.
4.21 The appointment of Mnisi to the post was unfair, as he does not have the qualifications specified in the advertisement.
4.22 Mr. Letsoalo gave evidence that he holds an SPTD. He began teaching in 1987. During 1997 he applied for a principalship post at Mogaba Primary School in response to an advertisement in the Gazette. During March 1998 he attended an interview for the post.
4.23 On 22 September 1998 Mr. Letsoalo met with Mr. Thema, the Area Manager, at his office. Mr. Thema gave him a letter of the withdrawal of his principalship post. Mr. Letsoalo refused to take it because he had not been appointed as a principal. Thereupon, he was given his letter of appointment and, thereafter, his letter of withdrawal. The letter of appointment was dated 3 August 1998 and stated that his appointment was with effect from 1 August 1998. Mr. Letsoalo was never paid as a principal. At that stage he had never commenced duties at Mogaba Primary School.
4.24 During April 1998 Mr. Letsoalo saw Ms. Ramokgano, the incumbent principal, graduating at Vista University for her Secondary Education Diploma (“SED”). Ms. Ramokgano wrote her final examination in 1997 and, therefore, did not have this qualification at the time of the interviews. She did not have the REQV 13 to qualify for the post at that time.
4.25 Mr. Maponya, who was one of the candidates for the post at Mogabe Primary School, had been appointed as a principal elsewhere. He had the REQV 13.
4.26 Mr. Letsoalo referred the arbitration hearing to Resolution No. 13 of 1995 of the Education Labour Relations Council which states in Clause 2 that:
“The employing department shall acknowledge receipt of applications and handle the initial sifting process to eliminate application of those candidates who do not comply with the requirements for the post(s) as stated in the advertisement.”
4.27 If the sifting process had been observed, Ms. Ramokgano would not have been short-listed.
4.28 Mr. P. Malatji testified that he has a PTC and BA degree. He started teaching in 1986. During November 1997 he applied for the principalship posts at Morage, Powerline and Mapateletse Primary Schools in response to an advertisement in the gazette. At that time he had the REQV 13. Although he had not yet obtained his Ba degree, he had five (5) degree courses; viz. English II, History II, Political Science II, Public Administration I, Afrikaans I and Psychology I. These courses made him qualify for the REQV 13.
4.29 During February 1998 Mr. Malatji attended interviews. During July 1998 he received a letter confirming his appointment as a principal at Mapateletse Primary School with effect from 1 August 1998. On 27 July 1998 he attended his inauguration at the school. He was introduced to the Area Manager, inspectorate, staff, SGB, Union, tribal authority and community. The reception was good and the SGB welcomed him.
4.30 Mr. Malatji commenced his duties at the school on 3 August 1998. At the end of the following month Mr. Nkuna, the Regional Director, furnished him with a letter of withdrawal of his appointment as a principal. He asked for explanation. Mr. Nkuna told him that he was carrying out instructions and referred him to the paragraph in the letter stating that the withdrawal was due to the Employer’s omission to closely analyse the recommendations of the SGB when finalising his appointment.
4.31 Thereafter, Mr. Malatji met with the SGB and informed them about the withdrawal. The SGB staff invited him back to the school, organised a farewell party and he was given presents. Mr. Malatji was never paid as a principal for the period he worked at Mapateletse Primary School.
4.32 Mrs. Mogane, the incumbent principal, does not have the requisite REQV 13.
4.33 Mr. M. Sekgoka gave evidence that he holds BAED and BA (Honours) degrees. He began teaching in 1991. During November 1997, in response to an advertisement in the gazette, he applied for a principalship post at Dipone Secondary School. He attended an interview for the post during March 1998.
4.34 On 27 July 1998 Mr. Tshwale, an inspector, handed him a letter confirming his appointment as a principal at Dipone Secondary School with effect from 1 August 1998. His starting notch was R84 423.00.
4.35 On 28 July 1998 Mr. Sekgoka and Mr. Tshwale went to Dipone Secondary School. Mr. Tshwale met with four (4) members of the SGB. Thereafter, he informed Mr. Sekgoka that the SGB could not meet with him, for the other component of the SGB was not present on that day.
4.36 On 3 August 1998 Mr. Sekgoka commenced duties at the school. Mr. Moloto, the secretary of the SGB and a teacher at the school, introduced him to the staff and pupils. The latter gave Mr. Sekgoka a warm welcome. On the following day, Mr. Malepe, who had been acting as a principal, came to the school, handed the keys over to Mr. Sekgoka and left. On 5 August 1998 the parent component of the SGB came to the school, had a meeting with Mr. Sekgoka, and informed him that his safety could not e guaranteed and asked him to leave the school. Mr. Sekgoka and other members of staff went to the circuit office to report the matter, but Mr. Tshwale was unavailable.
4.37 On 11 August 1998 Mr. Tshwale informed Mr. Sekgoka to return to Rakgolokwane Secondary School, his former school. He returned to his former school as instructed. On 19 August 1998 Mr. Sekgoka received a letter of a temporary withdrawal of his appointment as a principal. During May 1999 he received a final letter of withdrawal.
4.38 Mr. Malepe, the incumbent principal, is related to more than four (4) members fo the SGB. The interviewing panel had recommended mr. Sekgoka. The SGB supported Mr. Malepe because they were related to him. Their conduct smacks of nepotism.
4.39 Mr. Maponya testified that he holds a BPAED degree. During 1997 he applied for a principalship post at Mogano Primary School and Xitsikixana Secondary School in response to an advertisement in the gazette. He was appointed as a principal at Xitsikixana Secondary School.
4.40 Mr. Moloto gave evidence that he is a teacher at Dipone Secondary School. Until 1999 he was the secretary of the SGB. After the interviews for the principalship post, the interviewing panel presented its report to the SGB. Mr. Sekgoka was the best candidate and Mr. J T Malepe was ranked second to him. Prior to the interviews, Mr. J T Malepe was acting principal at Dipone Secondary School.
4.41 Mr. B C Nonyane, the son of P F Nonyane who is the chairperson of the SGB, was a member of the interviewing panel.
4.42 After the interviews, the SGB held a meeting to consider the report of the interviewing panel. All members of the SGB, except Mr. Moloto, recommended Mr. J T Malepe for the post because he was the “son of the soil”. When Mr. Moloto objected to the act of nepotism, he was reprimanded and told that if he did not support their recommendation he would be barred from attending future SGB meetings. Thereupon, Mr. Moloto wrote the letter recommending Mr. J T Malepe for the post under pressure and in fear of his life. The words were suggested to him.
4.43 The vice-chairperson of the SGB is Mr. G. Malepe. The treasurer is S. Malepe. Ms. D. Malepe is a member of the SGB. All of them are related to Mr. J T Malepe. Furthermore, the younger sister of Mr. P F Nonyane, the chairperson of the SGB, is married to Mr. J Malepe who is Mr. J T Malepe’s brother. In addition, Ms. H Malepe, the vice-secretary of the SGB, is married to Mr. M. Malepe who is related to Mr. J T Malepe. Despite the SGB’s recommendation, the Employer appointed Mr. Sekgoka. His relationship with the staff was good.
4.44 At one stage the parent component of the SGB informed Mr. Sekgoka that he should leave the school, for his life was in danger. In response, Mr. Moloto and the staff reported that matter to the circuit office. Mr. Sekgoka, in fear of his life, returned to his previous school. Since the departure of Mr. Sekgoka, the SGB has not functioned properly.
4.45 As a result of this incident, the concerned parents authorised Mr. Moloto to write a letter to the education authorities in Northern Province demanding that Mr. Sekgoka be returned to the school.
5 . THE EMPLOYER’S CASE
5.1 The employer led the evidence of Mr. F. Nonyane and Mr. M. Mukhavhuli.
5.2 Mr. Nonyane gave evidence that he is the chairperson of the SGB of Dipone Secondary School. The SGB recommended Mr. J T Malepe for the post, but Mr. Sekgoka whom the SGB did not want, was appointed as a principal. After the arrival of Mr. Sekgoka the SGB wrote a letter to the Employer expressing its disapproval. Thereafter, the Employer replied that Mr. Malepe would be appointed as a principal in conformity with the SGB’s recommendation.
5.3 Mr. Nonyane conceded that the interviewing panel recommended Mr. Sekgoka as the best candidate. However, the SGB recommended Mr. J T Malepe because they knew him. Mr. Moloto refused to endorse this recommendation.
5.4 Mr. Nonyane is not aware of the relationship between Mr. G. Malepe and Mr. J T Malepe. They share the same surname. He does not know the relationship between Mr. S Malepe and Mr. J T Malepe. He admitted, however, that Hellen Seboyane lives with a certain Malepe as husband and wife. Furthermore, Mr. Nonyane’s sister was married to J. Malepe, but they are divorced.
5.5 Mr. Mukhavhuli testified that he is the Deputy Director-General in the Norther Province Department of Education.
5.6 Mr. Mukhavhuli suspended the appointments of the Grievants because of administrative errors, for the appointments were made contrary to the SGB’s recommendations. Following complaints by the SGBs, the Employer had to review the appointments. In consequence, the appointments of the Grievants were withdrawn and replaced by the candidates who had been recommended by the SGBs for the posts.
5.7 With regard to Ntlaiseng Primary School, the Employer had, initially, appointed Mr. Makgeru. Subsequently, Mr. Makgeru’s appointment was withdrawn because the SGB had recommended Ms. Malatji for the post. The SGB prevails, even where the Employer holds a different view.
5.8 Mr. Mukhavhuli conceded that an REQV 13 that was a minimum requirement for the principalship posts. A candidate without an REQV 13 should not have been short-listed for an interview, but the Employer made a concession for candidates who had been acting as principals and had no REQV 13. A number of factors, other than the REQV 13, were take into consideration. This concession was not stated in the gazette, but the Employer considered it to be reasonable.
5.9 However, Mr. Mukhavhuli admitted that in terms of Resolution No. 13 of 1995 of the Education Labour Relations Council, a candidate who does not meet the minimum requirements as stated in the advertisement should not be considered for the post. He conceded, further, that according to Resolution No. 2 of 1966 of the Education Labour Relations Council, Ms. Malatji should not have been short-listed. However, she was short-listed because she was acting as a principal.
5.10 In respect of Mahlathi Primary School, the Employer appointed Mr. Ndlovu, but his appointment was later withdrawn and Mr. Mnisi was appointed because he was recommended by the SGB. Mr. Mnisi was appointed, though he did not have the requisite qualifications.
5.11 Regarding Mapateletse Primary School, the Employer appointed Mr. Malatji. Later his appointment was withdrawn and Mrs. Mogane was appointed although she did not have the necessary qualifications. Mr. Mukhavhuli could not recall why Mrs. Mogane was preferred above Mr. Malatji.
5.12 Concerning Mogabe Primary School, Mr. Letsoalo was appointed by the Employer. Subsequently, his appointment was withdrawn and Mr. Ramokgano was appointed; though he did not have the requisite qualifications. Mr. Letsoalo’s appointment was withdrawn because he had not been recommended by the SGB.
5.13 Mr. Mukhavhuli did not know that J T Malepe was related to some of the members of the SGB. He conceded that they should have recused themselves from the matter involving Mr. J T Malepe and nepotism, if proven, would justify a deviation from the SGB recommendation.
6 . THE UNION’S CONTENTIONS
6.1 The Union contended that the withdrawal of the Grievants’ appointments constitute unfair conduct by the Employer relating to promotion or demotion as contemplated in Item 2 (1) (6) of Schedule 7 of the L.R.A.
6.2 Section 20 (1) (1) of the South African School Act No. 84, 1996 (“SASA”) provides that the governing body of a public school must recommend the Head of Department the appointment of educators at the school. Section 4 (3) of the Educator’s Employment Act, 1994 (“the 1994 EEA”) states that authority to fill a post is exercised on the recommendation of a public school, as represented by its governing body. The employer may only deviate from such recommendation if, inter alia, the candidate does not have the required qualifications.
6.3 The 1994 EEA was repealed by the Educator’s Employment Act No. 76, 1998 (“the 1998 EEA”). The 1998 EEA came into operation on 2 October 1998 and it does not, therefore, apply to the Grievants because their appointment and withdrawal of their appointments occurred before the commencement of the 1998 EEA. Section 6 3(a) of the 1988 EEA provides that any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school. The Head of the Department may only decline the recommendation of the governing body if, inter alia, the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer.
6.4 The Union argued, further, that Regulation 2 of the Regulations Regarding the Terms and Conditions of Employment of Educators published on 13 November 1995 provide that, for an educator to be appointed, he or she must have the required experience determined by the Minister and must be in possession of an approved qualification. If the educator is not in possession of the approved qualification, then he or she may only be appointed on a temporary basis for a specified period if the employer deems it necessary and in the interests of education.
6.5 According to the Personnel Administration Measures (“the PAM”), which reflects the collective agreements concluded between the Union and the Employer, candidates must have at least an REQV 13 in order to qualify for an appointment as an educator. If a candidate does not have an REQV 13 and it is essential to appoint him or her, then the educator must be paid according to the appropriate lower salary range. This can be done where there is no suitable alternative candidate.
6.6 Resolution 13 of 1995 of the Education Labour Council provides that the candidate’s applications must go through a sifting process in order to eliminate applications of those candidates who do not comply with te requirements for the posts as stated in the advertisement. The interviewing committee short-lists the candidates who have the necessary qualifications. Thereafter, interviews are conducted, the candidates are ranked and a report is submitted to the SGB which makes its recommendation. The recommendation is submitted to the Employer.
6.7 The Union contended that the withdrawal of the Grievants’ appointments was substantively unfair in that the Employer failed to comply with 1994 EEA, Regulations and the PAM. Furthermore, the withdrawal constitutes an administrative action which demands the person affected by it to be given an opportunity to be heard before the decision is taken. The Grievants were not given an opportunity to be heard in order to influence the Employer’s decision. For this reason, the withdrawal of the appointments was procedurally unfair.
7 . THE EMPLOYER’S CONTENTIONS
7.1 The Employer argued that the withdrawal of the Grievants’ appointments was due to administrative errors. The Employer failed to consider the recommendations of the SGBs.
7.2 Qualifications are part of the requirements, but other factors are taken into account. SGBs are entitled to make recommendations which differ from those of the interviewing panel. The withdrawal was aimed at effecting fairness, as the incumbent principals had executed their duties well while they were acting as principals. All administrative procedures were followed before the appointments were withdrawn.
7.3 It would be impossible to reinstate the Grievants. If reinstatement is ordered there would be chaos, which would not be in the interest of education. The SGBs will not accept reinstatement.
8 . ANALYSIS OF EVIDENCE AND ARGUMENT
8.1 It is common cause that the Employer advertised principalship posts in the Provincial Gazette, No. 219, 13 January 1997. It was a requirement for appointment that candidates should have an REQV 13. The Grievants applied for the posts, were appointed and, subsequently, their appointments were withdrawn. I am required to determine whether the withdrawal of their appointment was fair int the circumstances.
8.2 With regard to Mr. K. Makgeru, Mr. S. Ndlovu, Mr. E. Sekgoka and Mr. P. Malatji, the Employer confirmed their appointments and they assumed their duties at the schools. Mr. Letsoalo, on the other hand, was informed about the withdrawal of his appointment before his appointment was communicated to him. I must consider whether the appointments were in accordance with the legislation, regulations and collective agreements.
8.3 It is not in dispute that the SGBs are empowered to recommend candidates for consideration by the Employer. In the case in question, the SGBs made their recommendations, but the Employer deviated from and appointed the Grievants. No reasons were given for the Employer’s deviation in this regard. However, it is reasonable to infer that the Employer deviated because in terms of Section 4 (3)(a) of the 1994 EEA the candidates recommended by the SGBs did not have the required qualifications. Moreover, although the Union contended that the 1998 EEA is not applicable, Section 6(3) of the 1998 EEA states that the Employer may only decline the recommendation of the governing body of the public school if the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment. I am satisfied that the initial appointments were valid.
8.4 Subsequently, the Employer withdrew the appointments of the Grievants and replaced them with the candidates recommended by the SGBs. In this regard, I must consider whether the appointments of the incumbent principles were in accordance with the legislation, regulations and collective agreements.
8.5 Regulation 2 of the Regulations Regarding the Terms of Employment of Educators, published on 13 November 1995 states that no person shall be appointed unless he or she complies with the experience requirements determined by the Minister and is in possession of an approved qualification, provided that an employer may appoint a person who is not in possession of an approved qualification in a temporary capacity for a specified period if the Employer deems such appointment necessary and in the interest of education.
8.6 Furthermore, the PAM provides that if a candidate does not comply with the requirements of an REQV 13 and it is essential to appoint him or her, this may be done as and individual relaxation, but then the educator is paid according to the appropriate salary range.
8.7 In this connection, the Employer contended that the qualification requirement was waived in respect of the incumbent principals because they had performed admirably while they were acting as principals. This contention is absurd, for the regulations and the PAM do not make provision for this relaxation. I am, therefore, satisfied that the appointments of the incumbent principals were invalid.
8.8 Moreover, the ELRC’s resolutions No. 13 of 1995 and No. 2 of 1996 and the PAM provides that it is incumbent upon the Employer, upon receipt of applications, to go through a sifting process in order to eliminate application of those candidates who do not comply with the requirements of the posts as stated in the advertisement. In this regard, I am satisfied that the Employer failed to screen the candidates properly and let the incumbent principals, who lacked the necessary qualifications, through the safety net. I need to point out that the Employer failed to prove that Mr. Ramokgano had the necessary qualifications before the deadline.
8.9 The Union argued that the Employer failed to give the Grievants an opportunity to be heard before the decision to withdraw their appointments was taken. The Employer did not prove that such a hearing was given to the Grievants. In this connection, it is appropriate to refer to the decision in Administrator, Transvaal v Traub (1989) 10 ILT 823 (A), where Corbett C.J. stated that: “When a statute empowers a public official or body to give a decision prejudicially affecting an individual in his liberty or affecting an individual in his liberty or property of existing rights, the latter has a right to be heard before the decision is taken (or in some instances thereafter ...), unless the statue expressly or by implication indicates the contrary.” The Employer is authorised to make appointments and withdrawals. However, it cannot do so to prejudice the Grievants in respect of their “property or existing rights” without giving them a right to hearing. I cannot find a statute which divests them of this right.
8.10 Item 2 (1)(b) of Schedule 7 of the LRA proscribe unfair conduct by the Employer relating to the “promotion or demotion” of an employee. The legislature, when enacting this provision, contemplated a situation in which the Grievants find themselves. I find the Employer’s conduct to be capricious.
8.11 The “administrative error” serves to compensate the incumbent principals for the job well done when they acted as principals. Be that as it may, such a consideration cannot preponderate over legislation, regulations and collective agreements which were blatantly floated by the Employer.
8.12 Compensation or reinstatement is the only possible remedies in the circumstances. In this regard, I have no guidance to determine compensation. It follows that reinstatement is the most appropriate relief to the Grievants.
9 . DETERMINATION
9.1 In the light of the above reasons, I find that the withdrawal of the appointments of the Grievants by the Employer was unfair. I, therefore, order the reinstatement of the Grievants to the principalship posts, with retrospective effective, within seven (7) days of receipt of this award.
DATED at JOHANNESBURG on this the 10th day of FEBRUARY 2000.
________________________
MZUNGULU MTHOMBENI (PROF)
ARBITRATOR: INDEPENDENT MEDIATION SERVICES OF SOUTH AFRICA (IMSSA)
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES GAAR003983 NP
APPLICANT SOUTH AFRICAN DEMOCRATIC TEACHERS UNION
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR PROF MZUNGULU MTHOMBENI
DATE OF ARBITRATION 28 OCTOBER 1999
VENUE PIETERSBURG
REPRESENTATION:
APPLICANT MR A ROSKAM
RESPONDENT MR E MANAGA & MR M MASEKO
AWARD:
1 In the light of the above reasons, I find that the withdrawal of the appointments of the Grievants by the Employer was unfair. I, therefore, order the reinstatement of the Grievants to the principalship posts, with retrospective effective, within seven (7) days of receipt of this award.
DATE OF AWARD 10 FEBRUARY 2000