Case Number: PSES CAR000253
Province: Western Cape
Applicant: M A WINDVOGEL
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 24 February 2000
Arbitrator: T MABUSELA
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR000253 WC
In the arbitration between:
M A WINDVOGEL APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . INTRODUCTION
The arbitration hearing was held at the offices of the Western Cape Education Department (WCED), Cape Town on 18 February 2000. Mr C Booysen of SADTU represented the Applicant and Mr K Petersen together with Mr C Esau represented the WCED.
2 . TERMS OF REFERENCE
I am asked to determine whether the selection process for HOD post 0425 at Holy Trinity Primary School was fair. Should I find that the process was fair then I must dismiss the Applicant’s case and should I find the process unfair then I must order that the current appointment be revoked and the process be redone.
3 . THE ISSUE
HOD post 0425 was advertised in vacancy list 3/98.The Applicant was short-listed and interviewed but was not nominated. The disputed issues are that the procedure was not in terms of Circular 80/96, that the School Governing Body did not endorse the nomination of the interviewing committee, and that the Applicant had obtained the highest score during the interviews.
4 . PRELIMINARY MATTERS
4.1 It is not in dispute that the Applicant did not fully qualify with the normal requirements of the post. His name appeared under the list of candidates who complied with the relaxed requirements. This list was complied by the office of the HOD during the sifting stage of the process. This list was sent to the school in a letter dated 11 November 1998 together with the application forms for the above post.
4.2 The minutes of the short-listing meeting of 24 November 1998 and interviews of 28 November 1998 were submitted at this hearing. It must be noted that though Holy Trinity is a Roman Catholic School, it falls under the administration of the WCED. All statutes, resolutions, regulations and circulars that govern public schools are also applicable to this school.
5 . EVIDENCE FOR THE APPLICANT
5.1 Mr Eric Hansen gave evidence for the Applicant. He was a parent member of the SGB at the time of this process. He admitted the contents of the minutes of the short-listing meeting. He struggled to remember all the facts of the events. He also testified that there was a prior meeting in Cape Town where the interviewing committee was established. The minutes of this meeting were not submitted and no other witness was called to elaborate. His understanding was that the candidate with the highest raking would be nominated.
5.2 Mr Hansen further testified that on the Saturday morning of the interviews the principal had mentioned to him privately that the would like Mr Visser to get the post. This Mr Visser was later nominated and has now been appointed to the post. At the stage of counting the points of each candidate, the principal gave an extra half point to Mr Windvogel, the Applicant.
5.3 Once candidates with the lowest points were eliminated, the contest was between the Applicant and Visser. There were deliberations over the two candidates and eventually Mr Visser was nominated.
5.4 Under cross-examination, he confirmed what he said in his evidence in chief that the criteria for short-listing and interview procedure were set up by the committee at the meeting of 24 November 1998.
6 . EVIDENCE FOR THE RESPONDENT
6.1 The WCED called the principal, Mr Gary Faulmann, to give evidence. He says he is familiar with the selection process. Unions were invited but did not attend. Candidates were asked the same questions. They used the point system to eliminate candidates and the consensus method to nominate. There were six candidates short-listed five of whom complied with the minimum requirements and one with the relaxed requirements. They followed the instruction on the letter of 11 November 1998 should they wish to nominate the candidate with the relaxed requirements. This letter had accompanied the applications received by the school from the WCED.
6.2 He says the teacher component of the school did not influence the parent component of the SGB during discussions. He denies that there was a conversation between himself and Mr Hansen about who should be nominated to this post. Only members of the committee were present during the nomination stage including Mr Hansen. At the next meeting of the full SGB, the nomination was announced. There was no objection from the other members. The SGB originally had nine members but by the time of this process two members had ceased their activities. There were effectively seven members. Six out of this seven formed the interviewing committee.
6.3 Under cross-examination, he said there was no question of qualification asked to any of the candidates. He is aware of the procedure in circular 80/96. He says the committee followed the procedure set out in this circular. He admitted that the Schools Act supercedes the circular. He admits that the nomination was made by the committee. It had been agreed in previous meetings that the committee would make the nomination and advise the nominee.
7 . ASSESSMENT OF THE EVIDENCE AND ARGUMENT
7.1 The argument for the Applicant was that the procedure as set out in clause 3.3 of Circular 80/96 was not followed by the SGB. The full SGB should have drawn the criteria and not the committee, as was the case at this school. I do not see how this has prejudiced the Applicant. According to the evidence of Mr Hansen, six members of the SGB attended the meeting held in Cape Town. It was at this meeting that the interviewing committee was established. I take into regard that this school had a total of seven SGB members and that six of them formed the Interviewing Committee. I do not see how the absence of one member of the SGB could have rendered the process unfair. There was more than 86% members present during the meetings.
7.2 The second point of argument was that section 20(1)(i) of the Schools Act supercedes the provisions of the circular. Mr Faulmann conceded with Applicant that the Act supercedes the Resolutions and circulars. The Act gives power to the SGB of a School to make recommendations for the appointment of educators. It was argued that the committee did not have power to nominate and inform the nominee before its decision has been approved by the full SGB at a later meeting in terms of the Act. The interviews were held on the 28 November 1998 and the next SGB meeting was held on 5 December 1998. Mr Hansen chose not to attend this meeting or any other meetings of the SGB. The WCED argued that the full SGB approved the decision of the committee to nominate Visser. I am satisfied that the SGB discharged its function to recommend to the HOD the appointment of an educator. It is the HOD that makes the appointment and not the SGB.
7.3 Another point raised in argument was that at a meeting of the full SGB in Cape Town it had been agreed that the point system would be used to nominate the successful candidate. Mr Hansen said this was his understanding. Mr Hansen throughout this arbitration relied on limited memory. There were no minutes of this meeting and the Applicant failed to put this issue to the witness of the WCED.
7.4 In terms of Section 30 of the Schools Act, a governing body may establish committees. It appears that the SGB had established a short-listing committee. Mr Hansen was part of this committee. Mr Hansen admitted that the minutes of the short-listing meeting of 24 November 1998 were correct. The agenda for this meeting, among other things, was over the process of short-listing interviewing and nominating. Point number 4 of the agenda reads :
Ratings and comments
Letting candidate know”
7.5 The minutes are very brief. There was no dispute on the validity of the minutes. Mr Hansen admitted the minutes as correct and they seem to be in line with his earlier evidence.
7.6 The final issue was the rating of the Applicant. It was argued that he received the highest score and therefore he should have been nominated. It was said the principal had given an extra half point to the Applicant. That the submissions of Mrs Kennedy were unfair. The code of dress of a candidate should not feature in consensus discussions. (None of the parties had called Mrs Kennedy to the stand). The WCED denied this. It argued that the point system was used to eliminate candidates with the lowest score. They further argued that the aim of the advertisement is to get the best candidate for the post. There was half-a-mark difference between the top two candidates. The committee had to discuss the remaining three candidates and motivate their choice. All three candidates were discussed and Mrs Kennedy, a teacher representative in the SGB gave her professional opinion. They had to find the best candidate for the post. It was argued further that consensus was reached before Mr Hansen excused himself from the discussions as he had another commitment that day at 15h00. He had actually testified that when it was announced who was ranked highest, it became very silent in the room where they held the discussions. Though the Applicant did not comply with the general qualifications for the post, the committee used its prerogative to shortlist him. The committee complied with Circular 80/96. The witness for Applicant was vague, inconsistent and could not remember most of the important issues of the process.
8 . CONCLUSION
The question I have to decide is whether the process was fair. I am satisfied that the process was fair and open. All candidates were treated equally. The committee acted within the powers granted them and followed the procedures agreed upon as tabled in their minutes of 24 November 1998. I cannot rely on the selective memory and evidence of Mr Hanse. He was ill prepared for this arbitration.
9 . AWARD
9.1 The Application is dismissed.
9.2 The cost will be borne by the Council in terms of Clause 10.2 of Resolution 7/1997.
Date : 24 February 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES CAR000253
APPLICANT M A WINDVOGEL
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR SELECTION PROCESS
ARBITRATOR T MABUSELA
DATE OF ARBITRATION 18 FEBRUARY 2000
VENUE CAPE TOWN
APPLICANT MR C BOOYSEN (SADTU)
RESPONDENT MESSRS K PETERSEN AND C ESAU
The Application is dismissed.
The cost will be borne by the Council in terms of Clause 10.2 of Resolution 7/1997.
DATE OF AWARD 24 FEBRUARY 2000