Case Number: PSES KZN
Applicant: SOUTH AFRICAN DEMOCRATIC TEACHERS UNION
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 13 April 2000
Arbitrator: M R CHETTY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES KZN
In the arbitration between:
SOUTH AFRICAN DEMOCRATIC TEACHERS UNION APPLICANT
DEPARTMENT OF EDUCATION KZN RESPONDENT
1 . INTRODUCTION
1.1 The Applicant is SADTU a registered trade union, representing the interests of its members at Olwasini Junior Primary School, in the Scottburgh district on the lower South Coast. In terms of an agreement concluded at the Education Labour Relations Council, this matter was referred to an expedited dispute resolution procedure conducted under the auspices of the Independent Mediation Society of South Africa (IMSSA). The matter was referred to conciliation by the Union on 21 February 2000. At a conciliation process conducted on 8 March 2000 the conciliator failed to resolve the dispute between the parties. The Union referred the matter to arbitration, which process was conducted on 31 March 2000 at the premises of the Durban College of Education. The Union was represented by Mr. Ramcharan and Mr. Singh and the Department by Mr. Mdletshe and Mr. Viljoen of the Department’s Port Shepstone region. Other than one witness for the union, the parties agreed to present their cases on the basis of oral submissions and reference to certain documents which are not in dispute.
2 . BACKGROUND
2.1 In terms of an agreement concluded at the KwaZulu-Natal Education Labour Relations Chamber (Resolution 13 of 1995) the Department and the employee sectors agreed on certain procedures pertaining to the Short-listing and Interviewing of School Based Post. This document, commonly referred to as Practices and Procedures Manual was reduces to writing and published on 21 October 1997. There is no dispute between the parties that such procedures have been adopted and must be implemented.
2.2 The relevant sections of the agreement, for this purpose of this award, are the following:
9.1.1 The Education Labour Relations Act in general and Resolution 13 of 1995 in particular provides for Teacher Organizations to play a participative role in the promotion process.
9.1.2 In consequence of the foregoing all recognized teacher Organizations in the province have the right to appoint one representative as an observer to each of the Staff Selection Committee.
9.1.3 The role of the observer is important in terms of transparency as well as in addressing disputes that might arise.
9.2 Role of the Observer
9.3.1 The observer will be present at all meetings of the Staff Selection Committee during the short-listing and interviewing process. The observer will facilitate the smooth and efficient functioning of the committee.
9.3.2 The observer will not be directly involved in the process of the short-listing and interviewing but will note that approved procedures and practices are adhered to in a fair, consistent and uniform manner.
9.3.3 The observer has the right to intervene in terms of the procedures if he/she deems that there is an infringement.
12.1 At the beginning of each day stress the provisions concerning Recusal.
12.2 A member of the Staff Selection Committee must recuse himself / herself from the interview process in respect of applicants in whom he / she has a vested interests.
16.E EC 5 : interview Assessment
• each member of staff selection committee must access the applicant in respect of each of the 5 criteria by scoring on form EC 5 and providing the necessary motivations in the Remarks Column.
19 Notification of Scheduled Meetings
19.2 Notification to teacher Organizations
• Chairpersons of the Staff Selection Committees must give at least 3 working days written notice to the registered office of each of the recognized Teacher Organizations to enable them to arrange for observers.”
2.3 On 3 February 1998 the Acting Principal of Olwasini Junior Primary School addressed a letter to SADTU, which states the following:
“INTERVIEWS: ADVERTISED PRINCIPALSHIP POST - OLWASINI J P
You are invited to represent your union an at the Interviewing session of applicants in the Advised Principalship Post at Olwasini J P on the 12/02/98 at 9h00.
Your presence will be highly appreciated
(signed) Acting Principal
3 . THE ISSUES
3.1 The parties were in agreement that two issues were to be determined at the hearing:
3.1.1 Was the union notified of the meeting on 12 February 1998; and
3.1.2 Was the union affected by the non-attendance, or was there any prejudice as a result of the non-attendance.
3.2 The Union contends that it did not receive the letter inviting it to the process. The Department contended that it was not responsible for sending a letter of invitation to the unions, and if it was responsible, the letter was in fact sent. The Union in turn contends that in terms of the Practice and Procedures manual, this obligation rests with the chairperson or the Staff Selection Committee. This would be the acting principal in the above matter. The union went further and argued that in the context of the staff selection committee, the principal is an appendage of the Department. Whilst I am not be entirely in agreement with this contention, it is clear that the agreement concluded between the parties place certain duties on either of the two parties - that is the employee and employee sectors. The onus to notify teacher unions in terms of Clause 19.2 rests with te employer, represented in the schools by an agent, being the principal. The ‘employer’ in the final context it the Department, through its agents, the principal, was responsible for informing the teacher organizations to attend the selection process.
3.3 The union contends that it did not receive the letter of 3 February 1998. Was the letter sent? The Department did not call any witnesses to testify on its behalf regarding the posting of the letter. As such there was no evidence before me from the person who wrote or mailed the letter or when this was done. I was advised by Mr Mdletshe for the Department that the letter was sent by regular post. After noting that the letter contains no address, I was informed that an address was written on the face of the envelope. According to a letter placed before me at the hearing, at a meeting of the (Education) Dispute Resolution Committee held on 17 September 1998 the Union demanded “tangible” proof that it had been invited to the selection process. According to the Union, no evidence was placed before them other than a copy of the letter referred to above. It was not suggested by the union (to their credit) that the letter had never been written. The issue is merely whether it was sent and was it received. On the evidence before me there are two conflicting versions. In determining this issue, I am guided by the presumption of regularity expressed in the maxim omnia praesumuntur rite esse acta. In regard to whether a public official has posted a particular letter, the Court in Cape Coast Exploration Ltd v Scholtz stated that:
“We must presume that an official will carry out the ordinary work of his office, for in our experience that is usually what occurs. Hence we must presume that if an official letter is written and a copy filed, the former is dispatched in the ordinary course of business to the person concerned and he has received it.”
See also Barclays National Bank Ltd v Wall 1983 (1) SA 149 (A) at 157 E.
3.4 Irrespective of whether the action of an individual or official are involved, the proof or assumption of a routine does not effect the burden of proving that the letter was sent. What is required is a consideration of all the facts and a determination, on the probabilities, as to whether the letter was sent. Clause 19.2 mentions that notice of the selection process must be “given” to Teacher Organizations. Section 7 of the Interpretation Act of 1957 provides that:
“Where any law authorises any document to be served by post, whether the expression ‘serve’ or ‘give’ or ‘send’ or any other expression is used, then unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting a registered letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
3.5 As stated before, the Union states that it never received the letter and hence did not send any observer to the meeting of 12 February 1998. In Dr R G Knight-Rayson v Chairman: Town Planning Appeals Board & 2 Others (unreported judgment dated 10-2-1998, case no 3286/96, NPD) Nicholson J considered the meaning of the word “notify” in the context of the giving of notice in section 67 ter of the Town Planning Ordinance No 27 of 1949. In Vengatsamy v Scheepers 1946 NPD 84 at 87, Broome J noted that the Oxford Dictionary defined “notice” as “formal intimation or warning of something”. He added “Section 20 requires that formal intimation of warning of one month to be in writing. The issue is whether the appellant gave this formal written intimation to the Respondent. It seems to me to be elementary that, where one person is required to give a written notice to another, the former is required to place the written notice in the possession of the latter.” Nicholson J in Knights-Rayson agreed with Broome J and stated that it seemed clear that the giving of notice implies more than the mere posting of a letter. In this sense, knowledge had to be imparted. This would have only been done on receipt of the letter by the other party.
3.6 In the matter before me, there was no evidence of when the letter was posted, by whom, where it was posted, whether it was sent by registered post or not or to whom it was addressed. I therefore find on the evidence before me that the union, SADTU was not “given notice” of their requested presence at the meeting of 12 February 1998.
3.7 The second issue for determination the union was prejudiced by its absence from the meeting of 12 February 1998. It is common cause that the meeting took place, in the presence of an observer from NATU. That observer, Mr. Shozi, in a letter dated 21 October 1998 placed before me, states that he observed, “everything went smoothly” . I am not sure of what “everything” entails. What is apparent from the facts placed before me by the parties is that in addition to the acting principal of Olwasini, and the NATU observer, the selection committee also included a departmental Nominee, Mrs. Ntuli. It was not disputed by the Department that Mrs. Ntuli was related to one of the candidates interviewed, namely Mr Z A Ngcobo. They were brother and sister. It was also not disputed that Ngcobo received the highest assessment at the process, but he was not the candidate nominated by the committee. During the course of the process, it transpired that Mrs Ntuli was replaced by shortly thereafter by a Mrs Zuma, as the departmental nominee. Zuma, as things turned out, was also related to one of the candidates being interviewed. She is the sister-in-law of Mrs Msomi. Msomi was the person whose name was submitted by the selection committee for appointment and was eventually appointed as principal of Olwasini.
3.8 The above facts were confirmed in evidence by an educator at the school, Ms Thembeka T. Khati, who was present at the interviewing session on 12 February 1998 as an educator representative. Ms Khati was called to testify by the union. The union (SADTU) contended that Msomi was a NATU member. The Department denied this. There is no evidence to determine the issue of membership, and in my view it is not relevant as to which union the educator belonged.
3.9 The union contended that in light of the relationship between members of the selection committee and candidates interviewed and appointed, the process is tainted because there exists a real apprehension of bias. It is common cause that Msomi was related to Msomi. The relationship was not distant. Despite the reminder in the Procedures Manual to members of the selection committee the recuse themselves if they have a ‘vested interest’ in any candidate, both Mrs Ntuli and Mrs Zuma participated in the process with the full knowledge that their relatives were being interviewed for the post of principal. Their participation in the process, given their relationship to the participants, is disturbing. Both Ntuli and Zuma should have immediately recused themselves from the process. They dit not. As Lord Denning MR in Metropolitan Properties (FCG) Ltd v Lannon  1 QB 577 stated, “Justice most be rooted in confidence”. South African courts have emphasized that it is the impression created in the minds of reasonable men that is important. See Baxter, Administrative Law, p559.
3.10 The members of the selection committee were entrusted in arriving at their decision in a fair and impartial manner. As the Manual sets out “The observer will not be directly involved in the process of short lifting and interviewing but will that approved procedures and practices are adhered to in a fair, consistent and uniform manner”. On the basis of their recommendation, a principal was to be appointed. As Baxter (supra) at p. 564 points out, decision makers sometimes find themselves placed in a situation of conflicting interest because of a personal relationship with one of the parties affected by their decision. The Department in this matter was at pains to point out that Mrs. Ntuli and Zuma were merely observers and did not actively participate in the process. It is clear from the Procedures and Practice manual issued by the Department, that Departmental representatives (SEM’s) have a role to play in determining the name of the candidate whose name is put forward for appointment. See Clause 16.2 (E), which requires that “each member of the staff selection committee must assess the applicant in respect of the 5 criteria by scoring on from EC 5 and providing the necessary motivation in the remarks column”. It is clear that they had a role to play in the selection.
3.11 In Liebenberg v Brakpan Liquor Licencing Board 1994 WLD 52, a mayor sat on the licensing board when it heard competing applications, including one from the mayor’s brother, for a liquor license. The license was granted to the mayor’s brother and although th other members stated on affidavit that the mayor’s presence had not influenced their decision Solomon J condemned his holding that the mayor’s blood relationship to one of the applicants was sufficient to give rise to the fear of the real likelihood of bias Baxter adds that bias also would arise from any form of personal relationship pr kinship, familial, social, business or otherwise.
3.12 For the above reasons the failure of Ntuli and Zuma to recuse themselves render the entire process and the subsequent appoint appointment of Msomi set aside. The reason for this conclusion is plain enough educators must have confidence in the selection process. It must be fair and impartial. The participants selecting appointees must also be independent.
4 . CONCLUSION
4.1 In the circumstances, I find that the union (SADTU) was not given notification of the selection process that took place on 12 February 1998. Moreover, I find that on the facts before me, the process was tainted by the participation of Mrs. Ntuli and Zuma, on the staff selection committee. I therefore determine that appointment of the principal at Olwasini, following the selection process of 12 February 1998, be set aside. I order that the process to appoint a principal be re-advertised and that the practice and procedures set out in the manual emanating from Chambers Resolution 12 of 1995 be strictly complied with.
Dated at Durban on the 13th day of April 2000
M R CHETTY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES KZN
APPLICANT SOUTH AFRICAN DEMOCRATIC TEACHERS UNION
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR M R CHETTY
DATE OF ARBITRATION 31 MARCH 2000
APPLICANT MR RAMCHARAN & MR SINGH
RESPONDENT MR MDLETSHE & MR VILJOEN
1 In the circumstances, I find that the union (SADTU) was not given notification of the selection process that took place on 12 February 1998. Moreover, I find that on the facts before me, the process was tainted by the participation of Mrs. Ntuli and Zuma, on the staff selection committee. I therefore determine that appointment of the principal at Olwasini, following the selection process of 12 February 1998, be set aside. I order that the process to appoint a principal be re-advertised and that the practice and procedures set out in the manual emanating from Chambers Resolution 12 of 1995 be strictly complied with.
DATE OF AWARD 13 APRIL 2000