Case Number: PSES EC
Province: Eastern Cape
Applicant: BRUCE DERRICK WINNAAR
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 16 May 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES EC
In the arbitration between:
BRUCE DERRICK WINNAAR APPLICANT
THE DEPARTMENT OF EDUCATION RESPONDENT
1 . HEARING AND PRESENTATION
This matter was heard on the 23 March and 16 May 2000 at the Regional offices of the Department of Education, Old Gardens Hostels, Robson & Shepstone Road Queenstown. The Department was represented by Ms Poswa, while Mr Dietrich represented Mr BD Winnaar.
2 . ISSUE AND POWERS
The issue concerned the non-appointment of Mr Bruce Derrick Winnaar as Principal of Burgersdorp Primary School. I must decide whether the appointment of the Principal in the said school was procedural in accordance with the existing legislation at the time.
At the time of the appointment of the Principal, the grievant was employed by the Department of Education as an Educator.
4. SURVEY OF EVIDENCE AND ARGUMENT
4.1 What follows is a summary of those aspects of evidence and argument which I consider to be relevant to the case:-
4.2 The grievant was the only witness in his complaint. At the time of the appointment, the grievant was working as an educator at the above mentioned school and was HOD. The grievant explained that he had a problem with the composition of the Interviewing Panel, as there was a co-opted person, also the representatives of CTPA and SADTU, who were not acting as observers, but active participants, and who also marked the interviewing sheets. The grievant explained that he felt prejudiced and disturbed by members of the Panel who were eating while he was interviewed. He was also asked irrelevant questions, for example, asked to translate the meaning of “ontwikkeling” into English, and the co-opted member asked questions with her part of the body back to the grievant, and felt that the question posed to him were unfair. Also the grievant explained that the chairperson remarked the “we will appoint our person”.
4.3 Under cross examination by Ms Poswa, the grievant conceded that though he felt intimidated he did not know that he could object. Under further cross examination, the grievant explained that he was not satisfied with the procedures, as the chairperson was not supposed to be a member of the Interviewing Panel in terms of sections 23(2)(a) and 3 of the South African Schools Act. The grievant explained further under cross examination that he was not aware of any circular regarding that South African Schools Act was not applicable at the time of the appointment.
4.4 It is on record that the Department was warned about keeping all the witnesses inside while arbitration was on, also that less weight will be attached to their evidence, Ms Poswa elected to keep all her witnesses to be inside the arbitration room.
4.5 The Department led four witnesses. The first witness was Ms Kanjana. Ms Kanjana, is a District Manager who is based at Aliwal North, the school in question falls under her jurisdiction. She testified that the Post of Principalship at Burgersdorp was advertised in May 1997, in accordance with resolution 6 of 1996 which was in place at the time. Everything went well during the interview according to the information supplied to her by the then Education Development Officer (Mr Ngesi, now deceased). She was indeed satisfied that the composition of the Interviewing Panel, the process itself was in accordance with Resolution 6 of 1996. Ms Kanjana conceded that she was aware that the South African Act 84 of 1996 was promulgated but had to wait for a circular from Bisho informing them as to when the new Act would be implemented. She confirmed that the circular did not arrive though she expected it. Under cross examination by Mr Dietrich Ms Kanjana conceded that she was not aware the Resolution 13 of 1995 was a National Resolution. Ms Kanjana was evasive when Mr Dietrich cross-examined her on the South African Schools Act and on Resolution 13 of 1995. She was at times arrogant towards Mr Dietrich when answering questions put to her.
4.6 The next witness was Mr May who is also an educator at Burgersdorp primary school. Mr May explained that he also applied for the post of Principalship but was unsuccessful. Under cross examination by Mr Dietrich, Mr May came out clearly that the Interviewing Panel, the School Governing Body were properly constituted in terms of Resolution 6 of 1996. Under cross examination by Mr Dietrich Mr May explained that he was never asked to translate any words or phrases from English to Afrikaans or vice versa. Mr May also explained that all members of the School Governing Body were elected at the parents, teachers union meeting. He (May) also explained that the caretaker had a child at the school and therefore could sit on the School Governing Body. Under cross-examination, he explained that he knew nothing about the Resolution 13 of 1995 and South African Schools Act of 1996.
4.7 The next witness was Ms Stager, a pensioner. She (Stager) confirmed that she was a member of the School Governing Body in 1997 at the time of the appointment of the Principal at Burgerdorp Primary School. Ms Stager explained that she was elected at that stage. Under cross examination by Mr Dietrich Ms Stager was not sure whether she was elected in terms of Resolution 6 of 1996 or South African Schools Act. She explained, however, that she was aware of the South African Schools Act of 1996. She also stated that all candidates were asked the same questions. Under cross examination she stated that the interviews were fairly conducted in terms of Resolution 6 of 1996. She stated that the Union Representative (CTPA) discriminated against Mr Badenhorst as he asked questions in English, and expected Mr Badenhorst to respond in English, though all candidates were allowed to express themselves in a language that they were more comfortable.
4.8 The next witness was Ms Bosser (nee Pitjoos). Ms Bosser represented SADTU at the time of the interview on the Interviewing Panel. Under cross examination by Mr Dietrich Ms Bosser explained that questions were asked in English, however, candidates were allowed to express themselves either in English or Afrikaans. She emphasised that she was aware that the whole process was conducted in accordance with Resolution 6 of 1996 though she did not know the sections relevant to the process. She stated under cross examination, that after all the candidates had been interviewed, the Interviewing Panel, added the scores, then discussion and then recommendations. She also stated that she did not know about Resolution 13 of 1995 nor South African Schools Act of 1996.
5. ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 Mr Dietrich indicated that the scores were incorrectly added which made the grievant to be at a disadvantaged. I am not persuaded by his argument as Mr Dietrich only had one score sheet instead of three, reflecting the scores to other two candidates as well. His explanation of failure to get other sheets is not satisfactory, and therefore rejected.
5.2 The explanation by Mr Dietrich that questions put to the grievant had no relevance to the advertised post, as he conceded that the post had also some administrative component, it not accepted by me. I am however, satisfied that th late Mr Ngesi (EDO) was a resourceful person and therefore played an important role in the interview.
5.3 I am also satisfied that the election of Mr Jooste as a representative to the governing body and as chairperson contravened sections 23(3) and 29(2) of the South African Schools Act. I am also acknowledged that she was co-opted on account of her experience and expertise. I further agree with Mr Dietrich that Ms Stager did not have voting rights in terms of section 23(8) of the South Africans Schools Act.
5.4 I agree with Mr Dietrich’s contentions that Departmental witnesses especially Mr May, Ms Stager and Ms Bosser seem to have been drilled as to what to say as they consistently during arbitration assisted one another. I agree with Mr Dietrich that all three above witnesses tend to contradict one another in that they were not sure whether there was Resolution 13 of 1995, or South African Schools Act of 1996 though they had some idea that the interview took place under Resolution 6 of 1996. I am of the view that Mr May, Ms Stager and Ms Bosser had little or no knowledge at all of the Resolutions 13 of 1995, Resolution 6 of 1996 and the South African Schools Act 84 of 1996.
5.5 I am satisfied that Mr Dietrich correctly pointed out that the Interviewing Panel was correctly constituted in terms of section 5.2 of Resolution 6 of 1996 and also agree that in terms of section 3.4 of the Resolution 13 of 1995, Union members were accorded only observer status, and also agree that Mr Karelse and Ms Bosser took part actively by scoring points contrary tot he above section.
5.6 Ms Poswa explained that the Interview took place under Resolution 6 of 1996, however conceded that at that time the South African Schools Act 84 of 1996 was already in place. She (Poswa) explained that though the South African Schools Act 84 of 1996 was gazetted on the 15 November 1996, it was not yet implemented by the Department of Education, in the Eastern Cape Province. Ms Poswa also acknowledged that the South African Schools Act is indeed a National Act unlike the resolution 6 of 1996 which is a Provincial Resolution. She firmly explained that a circular was sent to all Regional Offices in the province informing the said offices that the South African Schools Act had not be implemented until some guidelines from Bisho (Head Office) were in place regarding the said Act. Ms Kanjana also reiterated that a circular from Bisho was sent informing them that the South African Act was not to be used. Unfortunately both officials Ms Poswa and Ms Kanjana failed to produce any evidence to this effect. It was strange that Ms Kanjana admitted that she did receive the circular from the Department, because in her evidence in chief, she stated that she was waiting for a circular from Bisho regarding the implementation or the non-implementation of the Schools Act. I am of the view that Ms Kanjana knew or ought to have known that Resolution 13 of 1995, Resolution 6 of 1996 and South African Schools Act were in existence and applicable at the time of the appointment.
5.7 her denial that she was not aware that Resolution 13 of 1995 was a National one, clearly indicates that she knew that Resolution 13 of 1995 was in existence. I requested a copy of the circular on the 23 March 2000 and again on the 16 May 2000 from Ms Poswa but in vain. In the absence of the such circular I have no choice, but to agree with Mr Dietrich that the South African Schools Act is a National Act and as such carries more weight than the Provincial one. The failure on the part of the Department to inform various Regional Offices in the province regarding the existence of the South African Act is regrettable, but cannot be condoned. It is difficult for me to be persuaded by Ms Poswa that at the time of the appointment, the South African Act 84 of 1996 which was gazetted on the 15 November 1996 was not applicable, Ms Poswa’s argument is hereby rejected. Ms Poswa also agreed that Resolution 13 of 1995 was a National one, however, section 7.4 of Resolution 6 of 1996 allowed all members of the Interview Panel to make use of score sheets, directly contravene section 3.4 of Resolution 13 of 1995. In this case therefore, I believe the National Resolution carries more weight than the Provincial one, as Ms Poswa agreed that Resolution 6 of 1996 was based on Resolution 13 of 1995, and therefore Resolution 6 of 1996 was not nullifying Resolution 13 of 1995. Accepting Ms Poswa argument, I therefore agree with Mr Dietrich that both Mr Karelse and Ms Bosser should have been accorded observer status, instead of active participation in the interview. Ms Poswa has argued that the composition of the panel was constituted in terms of section 5.1.3 of the Resolution 6 of 1996, with respect I think the panel was constituted in terms of section 5.2.1 to 5.2.3 as correctly described by Mr Dietrich.
5.8 I agree with Ms Poswa that Mr Winnaar agreed that he was nervous on the day of the interview. However, his nervousness as he explained was due to his intimidation by some members in the panel including the chairperson who stated that “we will appoint our person” (see above) which was not challenged by Ms Poswa. I do not which to comment on Ms Poswa’s request that the arbitrator should accept the late Mr Ngesi’s documents or evidence in terms of section 3(1)(a) of the Rules of Evidence Act because Mr Dietrich did object to such evidence being led. I whish to state that this section referred to by Ms Poswa is irrelevant to the present case and as such will be ignored. Ms Poswa’s request that the dispute between the Department and Mr Winnaar was lodged late, was condoned by her own Department, which allowed the matter to proceed from conciliation to arbitration, and this request was only made in her closing statement and as such is rejected.
5.9 After careful consideration, and taking all the facts and issues into account, I came to the following conclusions:
Resolution 13 of 1995;
Resolution 6 of 1996; and
The South African Schools Act of 84 of 1996. All the above Resolutions and Act are relevant and applicable in this case
5.10 The Arbitration on the 23 March 2000 commenced more than two (2) hours late, namely at 12h45 on account of the non-availability of documents from the Department side. Ms Poswa also requested some time to see her witnesses, as she explained that she was seeing them for the first time. It is indeed not surprising that Departmental witnesses contradicted one another, as the Department had not properly prepared its case timeously and well. The denial of the knowledge of the Resolution 13 of 1995, and the South African Schools Act by a Departmental District Manager, after almost 6 months after the Act was gazetted is hard to believe and cannot be accepted. The allegation of the existence of a circular from the Head Office (Bisho) to all Regional Offices about non-implementation of the South African Schools Act and the failure to produce a copy of such a circular between 23 March and 16 May 2000, indicates the gross negligence on the part of the Department. The denial and subsequent acknowledgement that such said circular was sent to the Regional Offices, but again failure to produce such a copy despite assurance by the District Manager is again problematic. The refusal by Ms Poswa that her witnesses stay outside the arbitration room, while the main witness was testifying, led to the confusion and contradiction of other witnesses when giving evidence.
5.11 After further consideration, I came to the conclusion that the South African Act, was applicable at the time of the appointment. Had Ms Poswa provided me with a copy of a circular that informed all Regional Offices and Educators alike in the Province, that the South African Act was not be implemented, until the Department had published or provided them with guidelines, I would have come to a different conclusion in this matter. It is clear to me that, Ms Poswa refused to provide me with a copy of the said circular or the said circular never existed. Regrettably, to realise that the Department went ahead with the appointments of educators were to be in line with requirements laid down in the South African Schools Act 84 of 1996 which was gazetted on the 15 November 1996. I am at pains to discover that the matter came before arbitration only after more than two years the appointment having been made.
I accordingly determine that:
6.1 The appointment of Principal at Burgersdorp Primary School in July 1997 was both procedural irregular, and not in accordance with the existing legislation, and is hereby declared null and void and that the process will have to commence from scratch.
6.2 There were no cases referred to in this arbitration.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES EC
APPLICANT BRUCE DERRICK WINNAAR
RESPONDENT DEPARTMENT OF EDUCATION
DATE OF ARBITRATION 23 MARCH 2000 AND 16 MAY 2000
APPLICANT MR DIETRICH
RESPONDENT MS POSWA
The appointment of Principal at Burgersdorp Primary School in July 1997 was both procedural irregular, and not in accordance with the existing legislation, and is hereby declared null and void and that the process will have to commence from scratch.
DATE OF AWARD