Case Number: PSES GAAR009985 GP
Province: Eastern Cape
Applicant: KGOSIEMANG AND KHUMALO
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 2 March 2000
Arbitrator: MUHAMMED DOLLIE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR009985 GP
In the arbitration between:
KGOSIEMANG and KHUMALO APPLICANT
DEPARTMENT OF EDUCATION GAUTENG RESPONDENT
1 . HEARING AND REPRESENTATION
1.1 The Gauteng Department of Education was represented by Mr. Jeff Thipe and Mr. David Mogoane. The applicants were represented by Mr. Maisela of PEU. The matter was heard under the Education Labour Relations Council and the jurisdiction for arbitration was found therein.
2 . THE ISSUE AND POWERS
2.1 The issue to be arbitrated on was whether the applicants were treated unfairly in the selection, interview and subsequent appointment process. My powers are to hear the case and make a ruling that will ensure that equity is restored to the employment relationship at the Mamelodi High School.
3 . BACKGROUND TO THE CASE
3.1 The applicants had each applied for a different post that was advertised in December 1998. A panel of five members were chosen from the School Governing Body to short-list and interview the candidates.
3.2 Interviews were held on 30 March 1999 and a list of candidates was drawn up. Recommendations were the submitted to the Department for appointment on 5 April 1999.
3.3 On 7 April 1999 the School Governing Body (SGB) met to discuss the appointments. On that day the Chairperson of the SGB stated that all interviews conducted on 30 March 1999 were nullified and the recommendations to the Department will be made by means of voting of all the members of the SGB.
3.4 Candidates different to those were then chosen that had been recommended from the interview process and their names were then submitted to the Department as the nominated applicants.
3.5 A grievance was then lodged with the Department as to the second list of recommendations. The Department through the district office representatives convened a meeting on 19 May 1999 to break the deadlock that had existed and proposed that another meeting be held.
3.6 The second time the Department representatives had met with the SGB certain ground rules were explained and endorsement forms were circulated for the SGB to rank candidates according to their preference. After this meeting a third list of recommendations were drawn up for the same posts. The Department appointed according to this third list as at 1 July 1999.
3.7 The applicants had submitted their grievances on 26 May 1999 and again through their attorney on 27 May 1999. The Department had responded to this on 27 May 1999. Unfortunately the matter was not resolved and it was referred to conciliation. The parties could not reach a settlement and the matter was then referred to final and binding arbitration.
3.8 The issue before me is twofold. There are three sets of recommendations. I must decide which set will apply and also decide on the time frame that will have to be applicable to the relevant set of recommendations.
It was as established as common cause between the parties that the first set of recommendations would not be applicable at all.
4 . THE CONTENTIONS OF EACH PARTY
4.1 The applicants content that the second set of recommendations were the valid ones and that the third set should be declared null and void. This implies that the incumbents in the posts under question will have to vacate the posts for the applicants.
4.2 The respondent argues that the third set was the product of the SGB and that those recommendations were duly implemented and therefore they should apply.
5 . EVIDENCE PRESENTED
5.1 The first witness for the applicant was the chairperson of the governing body Mr Mapheto. Under his brief examination in chief Mr Mapheto testified that the second set of recommendations were a product of the SGB, duly signed and therefore the valid recommendations. Further that it was expected of the Department to comply with those recommendations.
5.2 On the question on the third set of recommendations the witness testified that the Department intervened out of its own accord as the process of recommending the incumbents had already been completed. Further the SBG was never informed of what the Department had done with regard to the third set of recommendations and also as a response as to why the second set of recommendations had not been implemented had not been received.
5.3 The following aspects of the testimony and other evidence was elicited from the witness under cross examination.
It was established that the witness had not attended a workshop for chairpersons of governing bodies as arranged by the Department.
5.4 When cross examined as to why the first set of recommendations were not signed the witness testified that the documents were removed by force and that the forms had not been completed through the proper channels. The witness stated that he did not refuse to sign the forms however, refused to support the recommendations that surfaced at the end of the interviews on 30 March 1999.
5.5 Further the witness stated that he had refused to give up the documents as it was the responsibility of the chairperson to ensure that they were safe.
5.6 On being questioned about the grievance that was lodged with the Department by some members of the panel of the SGB that was mandated to recommend the applicants for each of the vacant posts, the witness said that he was not aware of the grievance however, became aware of it when the District Grievance Committee sat for the first time on 14 May 1999. This grievance related to the irregular procedure that was adopted at the meeting on 7 April 1999.
5.7 The witness stated that the purpose of the meeting on 7 April 1999 was to finalize the selection of the candidates and to make recommendations to the Department.
5.8 What actually happened was that the parent component of the SGB asked for a report on the interview process. This report was delivered together with motivations from the panel for the nominated candidates.
5.9 It was then proposed by the witness who was the chairperson of the SGB that the scores be nullified and that the process was to be restarted.
5.10 The witness did state that this was an irregular step as it was not contained in the guidelines of the procedure to be followed. Further, the observers to the process did not raise any objections. It was also stated that the process did not make allowances for the scores to be nullified after interviewing, yet the witness maintained that the process was complied with.
5.11 When the grievance was brought to the attention of the Department it had replied by stating that a second process of validation was to be addressed to a full meeting of the SGB. This was not objected to by the SGB and requested that a meeting scheduled for 14 May be postponed to 19 May 1999.
5.12 On 19 May 1999 the District representative had introduced a process that was to be followed for the ranking and motivating of candidates from the interview process. Certain ground rules were introduced and the use of the endorsement forms was explained.
5.13 On being questioned as to whether the meeting of 19 May 1999 did take place or not the witness was unable to provide a clear answer. When that fact was established the witness was asked as to the purpose of that meeting. The witness agreed that the purpose of the meeting was to nullify the meeting of 7 April 1999.
5.14 This clearly showed that all that the witness had tried to establish at this arbitration had been discounted. His sole purpose was to ensure that the second set of recommendations, those that emanated from the meeting of 7 April 1999, were in fact valid and should have been implemented. By agreeing that the meeting of 19 May 1999 did in fact invalidate the meeting of 7 April 1999 the witness admitted that the recommendations from 7 April 1999 should not be implemented.
5.15 The witness was then questioned with respect to the mechanisms proposed to break the deadlock between the members of the SGB. The witness stated that there was a misinterpretation of the ground rules that had been laid down and agreed to.
5.16 However, it was stated that at the time the SGB did not raise any objections to the process or the ground rules itself. On being presented with a copy of the ground rules, the witness was questioned as to whether the ground rules excluded any participation of the SGB. The witness answered in the affirmative which flies in the face of reason as four of the seven points specifically mentioned the participation of the SGB and the positive roles that would be played by the SGB.
5.17 The witness’ answers here were inconsistent and could only further convince me that there was little merit in the version the witness expected me to believe.
5.18 The witness also stated that the purpose of the meeting on 19 May 1999 was to resolve the conflict of the promotional posts. However, disagreed with the version put to him that the purpose was to ultimately come up with the recommendations to present to the Department.
5.19 According to the witness the problem was created by the Department, for entertaining an unsigned set recommendations and then taking up the matter only when the signed set was later delivered.
5.20 On the question as to who recommended the candidates it was clearly established that the Department representatives on the meeting of 24 May 1999 did not score or rank or even tally up the scores of the candidates.
All these functions were performed by members of the SGB.
5.21 On being questioned as to whether the witness would sign the recommendations of 24 May 1999 he had clearly indicated that he would do so in front of all members of the SGB and that he was not approached on 24 May 1999 to do so.
5.22 The second witness to testify was the second applicant Ms Khumalo. Ms Khumalo stated that the reason she had referred the case to the Education Labour Relations Council for resolution was because she had felt that she was unfairly treated. An expectation was created that she would be appointed as nomination forms were provided to her immediately after the meeting of 7 April 1999. She based this expectation on the fact that she was nominated for the post and that no communication was received stating that the post was allocated to another person or that she would not be appointed.
5.23 It was only when she had been informed by the observers of the meeting of 24 May 1999 that she had realised that the post was given to other candidates.
5.24 In a grievance letter addressed to the Department the basis for the grievance was that gender equality issues were not being addressed and that she was being discriminated against because she was a woman. Not one point in the grievance stated that she had been unfairly treated and that only a formal appointment by the Gauteng Department of Education was lacking.
5.25 Under her examination in chief the witness stated that she was a given a letter of appointment. This in fact transpired to be a letter of nomination and it was conceded by the witness that a right to a formal appointment was not contained therein either expressly or by implication.
5.26 The third witness was Ms Kgosiemang, the first applicant in this case. The witness stated that she had signed forms of nomination, accepting the nomination and that after some delay, was informed that there was a problem.
5.27 According to a Department representative, as a result of the problem experienced with the two sets of recommendations, interviews were going to be held again.
5.28 After a while she had heard that other people had been appointed. This was when she had brought the grievance forward.
6 . EVIDENCE FOR THE RESPONDENT/EMPLOYER
6.1 The employer introduced one witness, Mr Magolego who is a member of the SGB as part of the parent component. The witness was on the original panel who had conducted interviews of the short-listed applicants. After the interviews were completed on 30 March 1999 an agreement was reached with the chairperson to submit the recommendations to the Department for appointment.
6.2 Later some members of the interviewing panel and the witness discovered that the chairman had not submitted the recommendations as agreed to. When the chairperson was approached he said that he was requested by some members of SADTU not to submit the recommendations.
6.3 The chairperson also refused to return the forms on which the recommendations were recorded. The chairperson on the enquiry of the members of the panel was called by a Department representative, Mr Makofane. He was then asked to release the documents to the members of the panel. This the chairperson did under duress, and some documents were already missing.
6.4 The remaining documents were then delivered to the Department representatives who then treated them as a set of recommendations for appointment.
6.5 The recommendations of the panel was not signed by the chairperson as he had not agreed with the outcome.
6.6 On 7 April 1999 the SGB met to finalise the process. At that meeting the chairperson cancelled the outcome of the interview process and suggested that the process be decided by voting of all members of the SGB. Motivations of each of the recommended candidates were not asked for and the interviewing panel recommendations were ignored. The witness further said that he was not happy with the process and abstained from voting.
6.7 The witness then said that he had informed the district officials of the irregular steps of the meeting.
6.8 At this point the district representatives decided to investigate the grievance and proposed a meeting with the SGB and others to break the deadlock. The meeting was held on 19 May 1999 where certain ground rules were proposed and the use of the endorsement forms were explained.
6.9 The SGB adopted the ground rules and the endorsement forms after their use was explained and no objections were recorded thereto. There was also no indication from the SGB members that they did not understand the forms and the rules.
6.10 The meeting was postponed and later reconvened on 24 May 1999. The purpose of the meeting according to the witness was to recommend the best applicants and therefore would override the recommendations of 7 April 1999. The Department observers only observed the process and the tallying of the scores was performed by the SGB members themselves.
6.11 The interview panellists were asked to motivate for the candidates that were interviewed and the SGB was given the opportunity to ask questions of the panellists which they did.
6.12 All members of the SGB except the chairperson accepted the outcome of the exercise.
6.13 Under cross examination a version was put to the witness that at the meeting on 7 April 1999 that was observed by a department official, Mr Moripe, who had commented that the process was well done and offered to take the recommendations to the Department could not be confirmed or denied.
7 . CLOSING ARGUMENTS FOR THE APPLICANTS
7.1 As agreed the first of recommendations are to be ignored. Where the Applicants disagree with the Respondent is that the second set should be applied and the third declared null and void.
7.2 Furthermore even if the third set of recommendations should apply Ms Kgosiemang outscored Mr Sebata and should be appointed.
7.3 The candidates had legitimate expectations to be appointed which should now be honoured and even after the third set of recommendations were implemented the applicants were not given an opportunity to respond thus the audi alteram partem principle was not applied.
7.4 The appointments of the other candidates should be set aside as the Department interfered with the functioning of the SGB. It seems as though the Department had made the recommendations and not the SGB.
8 . CLOSING ARGUMENTS FOR THE RESPONDENT
8.1 The third set of recommendations should apply. It is common cause that the interviews were conducted without any problems. The present dispute relates to the outcome of the interviews which created the conflict.
8.2 The Department solved the grievance through the District Grievance Committee. The proposal of how the grievance was going to be resolved was addressed to the Chairperson of the Governing Body which was agreed to.
8.3 It was already stated in evidence that the meeting of 19 May 1999 had overridden the recommendations of the SGB of 7 April 1999. This was done by agreement with the SGB on 19 May 1999 and again on 24 May 1999.
8.4 The duty to inform those that were recommended rested with the SGB and not the Department therefore there was no obligation created by the Department when it decided to assist in the process and resolve the rift between members of the SGB.
8.5 The offer of nomination that was presented to each of the applicants does not create the expectation to be appointed as it clearly states that the offer is subject to Departmental approval. The power to appoint rests with the Head of Department.
The applicants’ claim that they were treated unfairly was unfounded as offers of nomination were also made to other candidates that had to be withdrawn due to problems with the process.
8.6 With respect to the role of the chairperson of the governing body at the school it was clear that of the members of the governing body he was the only one to differ with the first and third set of recommendations and therefore the conclusion can be drawn that he had a vested interest in the appointments. Further the unreasonable refusal to sign the recommendation forms do not in any way invalidate the process.
8.7 On the credibility of the first witness for the Applicant the Respondent argued that the witness was evasive in his answering and seemed argumentative. One specific point that was highlighted was that, from the evidence presented, the witness did say that he would sign the recommendation forms even now, as long as it was at a meeting of the SGB. The representative for the Applicant had rejected the answer of the witness.
8.8 However, when he was approached on the day he had refused to sign the forms. This inconsistency reflects on the credibility of the witness.
8.9 It was also intimated that the witness was subject to undue influence and that he was simply dissatisfied with the outcome of the process and tried to unduly influence it as a chairperson of the governing body.
8.10 In rebuttal the Applicants claim was that scores are not outranked by preference and that even if the successful candidates scored higher the preference of the SGB was to have the applicants appointed to the respective positions they had applied for.
9 . DISCUSSION OF THE EVIDENCE PRESENTED
9.1 There were three sets of recommendations :
9.1.1. The ones that emanated from the interviews on 30 March 1999.
9.1.2. The ones that emanated from the meeting of 7 April 1999.
9.1.3. The ones that emanated from the meeting on 24 April 1999.
9.2 It was agreed as a matter of common cause that the first set of recommendations, those that emanated from the interview process on 7 April 1999, are not to be followed and thereby will not apply. These recommendations were however, submitted to the Department.
9.3 The Applicant contends that the second set of recommendations should apply. The process of them come into being should be examined.
9.4 The initial purpose of the meeting of 7 April 1999 was to confirm the interview process that took place on 30 March 1999 and ask for the panel to provide motivations as to why the candidates have been nominated.
9.5 The chairperson unilaterally changed the purpose of the meeting and declared the interviews null and void. The chairman stated that the process of recommendations should be by voting of the members of the SGB which took place with an abstention.
9.6 No motivations for the selection of the candidates were required and the process was not agreed to and therefore irregular. A grievance was then laid with the Department. At this point the recommendations were presented to it.
9.7 On receipt of the second set of recommendations relating to the same posts with different candidates the Department decided to investigate.
9.8 A deadlock breaking mechanism was suggested to which all parties agreed. The SGB on receipt of the Department request did not object to the intervention proposed.
9.9 The following must be noted.
9.9.1 The process was restarted with an agreed procedure albeit irregular. The agreement of the process allowed the Department to continue and reach finality. Certain ground rules were explained and from the evidence presented these rules were clear enough and understood. At this juncture I must mention that the evidence of the Respondent should be preferred. The evidence of the Applicants is not clear and contradictory in certain aspects.
9.9.2 Further the use of certain forms were explained and the again no objections to the use of the forms were reflected on in the evidence. Furthermore all members of the SGB present actively participated in the meeting. This to me indicated that the process had received the blessing of the SGB.
9.9.3 Also it must be noted that the Department only played the role of an observer as the scores allocated and tallied were the sole responsibility of the members of the governing body.
9.9.4 At the end of the process when the names of the candidates were made known it was noted during unchallenged evidence of the Respondent that the only objection came from the chairperson of the SGB.
During his evidence however, the chairperson of the SGB stated that he would sign the recommendations of the SGB at a meeting at the school convened for the purpose. This seems to indicate a change of heart by the chairperson of the SGB and thus an endorsement of the process.
10 . AWARD AND FINDING
10.1 The unilateral decision of the chairperson of the SGB that nullified the results of the interview process was unreasonable and without substantiation. The Applicant’s contention that the recommendations of that process be enforced is therefore without merit and should be rejected.
10.2 The third set of recommendations I find were irregular however, did not contravene any of the provisions of the Employment of Educators Act and the regulations that the Minister has set for the functioning of the SGB in making recommendations.
10.3 The third set of recommendations are therefore to remain in force and the status quo regarding the current incumbents to remain as well.
DATE: 2 March 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR009985 GP
APPLICANT KGOSIEMANG AND KHUMALO
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR MUHAMMED DOLLIE
DATE OF ARBITRATION 28 AND 29 FEBRUARY 2000
APPLICANT MR MAISELA
RESPONDENT MR J THIPE AND MR D MOGOANE
1 The unilateral decision of the chairperson of the SGB that nullified the results of the interview process was unreasonable and without substantiation. The Applicant’s contention that the recommendations of that process be enforced is therefore without merit and should be rejected.
2 The third set of recommendations I find were irregular however, did not contravene any of the provisions of the Employment of Educators Act and the regulations that the Minister has set for the functioning of the SGB in making recommendations.
3 The third set of recommendations are therefore to remain in force and the status quo regarding the current incumbents to remain as well.
DATE OF AWARD 2 MARCH 2000