Case Number: PSES GAAR004029 NP
Applicant: MR M S CHEPAPE
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 10 March 2000
Arbitrator: EBRAHIM PATELIA
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR004029 NP
In the arbitration between:
CHEPAPE MS APPLICANT
DEPARTMENT OF EDUCATION - NORTHERN PROVINCE RESPONDENT
This is a continuation of the arbitration that was held on 02 and 14 December 1999. The arbitration was reconvened by my direction as per my findings dated 30 December 1999. I saw a need to call on specific evidence to assist me in making a fairer award. My findings below and my findings in this matter dated 30 December 1999 must be read as one award. This matter resumed only on 29 February 2000 due the applicant being un_contactable and this date being the most convenient for all parties concerned.
1 . HEARING AND REPRESENTATION
1.1 For the sake of convenience The Department of Education - Northern Province will be referred to as “the employer” or “the department”. Mr MS Chepape will be referred to as the applicant.
1.2 Mr AE Mnaga and Ms MR Modipa represented the employer. The concerned educator is a member of SADTU, however he wished to represent himself.
2 . POWERS
2.1 In terms of the Arbitration Agreement as contained in the Education Labour Relations Council Resolution no 7 of 1997, I am required to:
[a.] Determine the issues in dispute, as reflected below, on the evidence presented to me.
[b.] Award any sanction that I consider to be fair and/or appropriate to settle this matter.
3 . SUMMARY OF THE EVIDENCE REQUESTED
3.1 As per my request the department presented the evidence of the HOD, Mr Nengwekhulu and the secretary of the SGB of Seketi.
3.2 The HOD testified that when he assumed office in June 1998, he found that a number of educators were placed into positions outside of the recommendation of the SGB. The SGB’s were also not consulted by the Chief Director, who had the power to appoint at the time, prior to the appointment of another candidate. It was the duty of the HOD to do this prior to appointing a candidate other that the recommended one.
3.3 The HOD testified that the chief director told him that he had made these appointments due to the recommended candidates not having the required M+4 qualifications. The Schools Act gave the HOD the power to exempt a candidate from the qualification requirement, if it was a recommendation made by the SGB. He therefore made the decision to accept all recommended candidates and remove the current educators from their positions.
3.4 He testified that he issued directives in this regard. All candidates serving in the positions we4re informed in writing that their positions were withdrawn due to the irregular appointments. The regional director had to also consult with each affected educator personally.
3.5 The secretary of the SGB testified that they had recommended Mrs SR Manthata for the position of principal. The department informed them on the day of the appointment of the applicant that they should not be surprised if another candidate was appointed as they had the prerogative to appoint. The SGB thus felt that they had to accept the applicant.
3.6 The witness testified that they wrote the recommendation of the applicant on the request by the circuit manager and the applicant. The content of the letter is very positive, as it was their culture not to speak ill of a person whilst he was present.
3.7 She also testified that the school was very happy with the performance of Mrs SR Manthata, she was competent and it was the person the SGB wanted. Should the applicant be reappointed it would disrupt the stability at the school. She stated that it was the wish of the SGB that the status quo remained.
3.8 She also testified that the circuit manager told them that Mrs SR Manthata did not have the required qualifications as contained in their recommendation of the applicant. At the time of the interviews and recommendation they did not know of Mrs SR Manthata’s qualifications. They made the recommendation based on her managerial experience and many other factors.
4 . FINDINGS
4.1 My reason for calling the above witnesses was to obtain clarity on how the applicant was appointed as principal and on what basis was he removed from the position.
4.2 The HOD testified that the chief director made the appointment of the applicant at the time. This appointment and others were reviewed by him and found to be irregular as they failed to take into consideration the first candidate recommended by the SGB. He testified that he knew that the chief director did not appoint the Mrs SR Manthata due to her lack of qualifications. He also testified that he exercised his discretion to exempt Mrs SR Manthata from the qualifications requirement and appointed her.
4.3 This is very important to this issue in this case. The appointment of the applicant was legitimately made but for what the HOD testified above to be irregular. I find that it is clear that the SGB must recommend certain candidates. In this case Mrs SR Manthata was recommended as first candidate and the applicant and another person were recommended as third and fourth candidate. The three persons were all recommended candidates.
4.4 The chief director exercising his delegated powers as employer at the time had to intelligently consider the recommendations. I find it impossible as mentioned previously for the employer to simply rubber stamp the recommendations made by the SGB. The department did not produce any document which stated this.
4.5 The department only produced Section 20 (1) (i) from the South African Schools Act of 1996. I find that the immediate purpose of this regulation is to make it a function of the SGB to recommend candidates to the HOD. The practical and subsequent effect of this regulation is that the SGB’s recommendations would have to be considered by the department prior to making an appointment. The recommendation in no way states or means that the department must simply accept the recommendations made by the SGB. To allow this would be to allow administrative injustice.
4.6 The HOD testified that the appointments were irregular due to the chief director not considering the recommendation and on appointing the applicant, failing to consult with the SGB. On the HOD’s own evidence he testified that the chief director made the appointment of the applicant after having considered the qualification issue. The secretary of the SGB testified that the circuit manager told them about the qualification issue being the reason for the appointment of the applicant.
4.7 The letter of recommendation of the applicant by the SGB clearly reflects their knowledge of the position. The SGB also clearly made the appointment without considering the issue of qualifications. It is clear that Mrs SR Manthata did not have the required qualifications for the position.
4.8 I find that it is clear that the chief director did consider the recommendations made by the SGB. How else could he have known of the applicant or known of Mrs SR Manthata? He used his discretion by considering the qualifications of the candidates, which the SGB failed to consider, and made an appointment of the applicant who was recommended by the SGB. The HOD could not produce any document that directed that it is a material requirement to consult with the SGB on making an appointment outside of their first choice. The fact is that the chief directors actions was in complete compliance of Section 20 (1) (i) from the South African Schools Act of 1996.
4.9 The HOD would have the authority to override a decision made a delegated agent of the department only if such decision was made ultra-vires. Neither the HOD nor the department could prove that the appointment was ultra-vires. The appointment of the applicant was accordingly valid and legal. The applicant’s position could only be removed then by following a fair process and for a valid reason. The department did not argue this.
4.10 The HOD testified that he had the power to exempt the qualification requirement. The HOD could not produce the basis of this power. However, even if we accept this, I find that this discretion can only be exercised at the time of considering the recommendations made by the SGB. The HOD had no basis for exercising this discretion after the valid appointments were made. The chief director had already considered the recommendations made by the SGB and intelligently appointed one of the recommended candidates. The HOD had no legal basis to consider the appointments again and appoint Mrs SR Manthata.
4.11 I accordingly find, the actions of the HOD acting on behalf of the department, by removing the applicant from his position as principal at the Seketi Primary School, to be unfair.
4.12 The secretary of the SGB argued that should the applicant be reinstated as principal at Seketi Primary School, it would cause a disruption. I find that the SGB neither challenged the competency of the applicant to manage the school nor elaborated on the type of disruptions expected. The applicant is legally entitled to the position at the school. It would be unfair to ask him to accept compensation and continue to be employed in an inferior position.
4.13 I accordingly find that the following sanction would be fair in the circumstances:
4.13.1 The employer reinstate the applicant at Seketi Primary School, with retrospective effect, on the same terms and conditions that applied at the time of his removal from the position.
4.13.2 The employer assist in any manner necessary to facilitate the smooth transfer of functions from Mrs SR Manthata to the applicant. The employer does whatever is necessary and reasonable to manage any disruptions at the school.
Dated at Johannesburg on 10 March 2000.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR004029 NP
APPLICANT MR M S CHEPAPE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR EBRAHIM PATELIA
DATE OF ARBITRATION 29 FEBRUARY 2000
APPLICANT IN PERSON
RESPONDENT MR A E MNAGA AND MS M R MODIPA
1 I accordingly find that the following sanction would be fair in the circumstances:
.1 1 1 The employer reinstate the applicant at Seketi Primary School, with retrospective effect, on the same terms and conditions that applied at the time of his removal from the position.
.1 1 2 The employer assist in any manner necessary to facilitate the smooth transfer of functions from Mrs SR Manthata to the applicant. The employer does whatever is necessary and reasonable to manage any disruptions at the school.
DATE OF AWARD 10 MARCH 2000